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Land | Ownership

Leasehold Covenant: Overview

Revision Note | Degree

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  • covenants entered into by tenant & landlord cover most obligations in residential & commercial leases
  • rules governing enforcement of covenants in leases completely different to freehold covenants
  • covenants in leases may be expressly created or implied

Quiet enjoyment

  • when landlord grants lease to tenant in absence of express provision, implied covenant by landlord for quiet enjoyment
  • threats may breach right to quiet & peaceable enjoyment of premises

    Kenny v Preen [1963] 1 QB 499

    • landlord's threats to evict tenant (shouting & knocking on door) breached his covenant for quiet enjoyment
    • enjoy is translation of Latin word fruor & refers to exercise & use of the full benefit of the right not just enjoyment
    • s.6: criminal offence to use or threaten violence to secure entry to premises when known someone who is opposed to entry is on premises
    • s.1(1): applies to residential occupiers
    • s.1(2): offence if landlord unlawfully deprives tenant of occupation & cannot prove that he believed, or had reasonable cause to believe, tenant ceased to reside in the premises
    • s.1(3): acts likely to interfere with tenant's peace or comfort done with intent to cause him to give up occupation an offence
  • action available if tenant unlawfully evicted
    • s.27: tenant may claim damages from landlord if unlawfully evicted
    • s.28 : measure of damages: difference in value between valuation of landlord's interest if tenant retains right to occupy premises & no longer has right to occupy

    Tagro v Cafane [1991] 2 All ER 235

    • tenant awarded £31 000 damages
  • day to day noise may breach peaceful enjoyment

    Southwark LBC v Mills [2001] 1 AC 1


    • Ts were council tenants
    • Ts complained that lack of soundproofing meant they could hear daily activities of neighbours


    • was council in breach of right to peaceful enjoyment of property?


    • Lord Hoffmann: did not see why, in principle, regular excessive noise cannot constitute a substantial interference with the ordinary enjoyment of the premises
    • covenant not apply to things done before grant of tenancy: inadequate soundproofing existed at date of lease, so no cause of action


  • common law: landlord does not give any implied warranty as to condition or fitness of property
  • limited obligation

    Smith v Marrable (1843) 11 M & W 5

    • implied term: furnished tenancy that premises are fit for human habitation

    Sarson v Roberts [1895] 2 QB 395

    • only implied respect of state of property at date of the letting (afterwards landlord does not know or control state of property)

    Hart v Windsor (1843) 12 M & W 68

    • not implied if lease for unfurnished property
  • generally courts unwilling to imply terms especially due to the costs of remedying older properties

    Southwark LBC v Mills [2001] 1 AC 1

    • the judges are not equipped to resolve them
  • occasionally courts will imply terms

    Liverpool CC v Irwin [1976] 2 All ER 39


    • Ts complained landlord did not maintain common areas of block of flats & particularly there was inadequate lighting in stairwells


    • could terms be implied?


    • Court of Appeal (Lord Denning): judges should imply terms if reasonable
    • House of Lords: criticised Lord Denning as way beyond sound authority
    • correct approach: what must be implied - test of necessity rather than reasonableness
    • in instant case, tenancy of flat useless unless tenant can access so easement implied to use stairs
      usually no obligation on servient owner to maintain subject matter of easement
      landlord obligation : reasonable care to maintain adequate lighting where natural light was either non-existent or insufficient
  • obligation to maintain easement in Liverpool CC V Irwin seems to be narrowly applied to facts

    Duke of Westminster v Guild [1985] QB 688

    • no general obligation to maintain easement: landlord not obliged to maintain drain under his land
  • landlord's obligation to repair may be imposed in certain situations

    Barrett v Lounova (1982) Ltd [1990] 1 QB 348

    • landlord under implied obligation: if tenant under obligation to carry out internal repairs & can demonstrate such repairs could not be done unless landlord undertook some responsibility for repair

    Adami v Lincoln Grange Management Ltd (1997) 30 HLR 982

    • Barrett v Lounova decision not a general principle
  • some statutory provisions regarding state of property
    • s.8(1): implies a term that dwelling house should be fit for human habitation at the commencement of the tenancy & maintained throughout
    • s.8(2): landlord has right to inspect state of property with 24 hours notice
    • s.8: only applies to leases not exceeding £52 (so rarely applicable)
    • s.10: factors affecting whether house fit for human habitation:
      repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water
    • s.11(1): implied covenant by lessor: to keep in repair the structure & exterior of dwelling-house
      to keep in repair & proper working order installations for supply of water, gas, electricity & sanitation
      to keep in repair & proper working order installations for space heating & heating water
    • s.11(3): standard of repair required depends on location, age & character of dwelling
    • 11(4): covenant by lessee for repair has no effect if relates to categories in s.11(1)
    • s.11(6): lessor or agent has implied covenant to enter premises for viewing state of premises (with 24 hrs written notice)
    • s.12: clauses in leases purporting to exclude liability under s.11 void unless authorised by court
    • s.13(1): s.11 applies to lease of dwelling house, made after 24 October 1961 & for term less than 7 years
  • waste is a tort
    voluntary waste: arises where tenant causes damage to property ( tenant may be liable)
    permissive waste: allowing property to fall into disrepair by tenant's neglect (tenant not liable)
  • if no express or implied obligations on tenant

    Warren v Keen [1954] 1 QB 15

    • tenant expected to use property in a tenant-like manner: carry out little jobs about the place that a reasonable tenant would do
    • tenant not liable: repairs needed due to fair wear & tear or lapse of time

    Ravenseft Properties v Davstone [1980] QB 12

    • landlord may be obliged to remedy inherent defect in construction if necessary in order to carry repair under s.11 TA 1985

    Quick v Taff Ely BC [1986] QB 809


    • Ts council tenants complained of condensation which damaged decorations


    • did landlord have duty to repair?


    • implied duty to repair structure & exterior: insufficient evidence damage to structure itself (such as walls)

    O'Brien v Robinson [1973] AC 912

    • landlord not liable to carry out repair until he has been notified of need for repair
  • landlord's liability for personal injury

    McNerny v Lambeth LBC (1988) 21 HLR 188

    • followed decision in Cavalier v Pope [1906] AC 428: fraud apart the is no law against letting a tumble down house and the tenant's remedy is upon contract
    • bare landlord: landlord who lets unfurnished property & not negligent builder
    • bare landlord not liable in negligence
    • s.4(1): where tenancy puts on landlord an to tenant for maintenance or repair of premises
      landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises
      duty to take reasonable care in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect
    • s.4(2): duty applies if landlord knew or ought to have known of relevant defect
    • s.4(3): relevant defect: defect in state of premises existing arising from, or continuing because of, an act or omission by landlord which constitutes (or would if he had had notice of the defect) failure by him to carry out his obligation to tenant maintenance or repair of premises
    • s.4(4): if landlord has express or implied permission to enter premises to carry out any maintenance or repairs then s.4(1) - (3) apply
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