Leasehold Convenants

Leasehold Covenants regulate behaviour of the Landlord and Tenant.  Express Implied Imposed by Statute Landlord Covenants:1. Duty to provide quiet enjoyment of the land. McCall v Abelesz: This is the duty of the landlord to provide the tenant with what he has contracted for i.e. not interfering with the possession of legitimate enjoyment of the landLavender v Betts: Landlord removed all of the doors and windows. This breached the covenant of quiet enjoyment. Kenny v Preen: Elderly widow granted tenancy of 2 rooms of a house. Landlord provided notice and proceeded to threaten her. This was an invasion of her right to remain in possession undisturbed. Sanderson: If a tenant disturbs the enjoyment of another tenant, the landlord can be liable for this breach of covenant. A covenant can be breached by an agent or his other tenants.Lylleton Tymes: A covenant only operates prospectively. A tenant cannot allege a breach of covenant where the circumstances causing the breach already existed before the lease was created. The tenant must take the premises as he finds them. Southwark v Mills (and co): Mills was a tenant in council properties owned by the defendants. There was a lack of sound-proofing and they could hear all the activities of their neighbours. Mills and co alleged a breach of covenant for quiet enjoyment. Held, because the neighbours were using the premises in an ordinary and reasonable way, there could be no nuisance. The covenant of quiet enjoyment did not impose an obligation on the landlord to rectify acts and omissions pre-dating the tenancy. The tenant took premises in the condition the found them, therefore the covenant was not breached. A inherent structural defect cannot be liable upon the landlord. Non-physical means could result in a breach of covenant i.e. noise. Protection from Eviction Act- Harassment can amount to a breach2. Non-derrogation from Grant:Having granted the tenancy, the landlord cannot undermine it as to reduce the useablity of the land. Browne v Flower: an iron staircase erected did not interfere with the useability of the flats. Harmer v Jumbill: Landlord must be aware of the Purpose of the Tenancy. Landlord granted a lease over a mine for storing bombs and a separate lease for the purpose of mining. This invalidated the licence for bomb explosives. He was in breach of the covenant to allow the tenant to use the mine for bomb storage. 3. Covenant to RepairIf furnished it must be fit for Human Habitation. Collins v Hopkins: the phrase "fit for Human Habitation" depends upon the facts of the case and is straight-forwards.Irwin: Common rooms must be kept in repairLandlord and Tenant Act s11: If lease is less than seven years, Landlord must keep house in repair. Re Irwin's Estate: this included window frames but not garage. Remedies: Injunction Damages Specific Performance (to repair)  Set-off claim for stopping rent due to landlord's failure to repair.   Administrator will act in the landlord's stead and use rent to make repairs. Branchett v Beaney: Damages are not available for mental distress. Tenant Covenants:1. Not to Disclaim the Landlord's TitleActing as if the place is your own.2. Not to commit wasteAny permanent alteration of the property by act (voluntary) or neglect (permissive) All tenants are liable for voluntary waste, liability for permissive waste depends upon the issue. Periodic tenancies are not liable for permissive wasteMancetter: removing a fan left damage to wall. 3. Covenant to repairThis only takes effect if there is an express covenant. 4. Must pay rentRent (although is good evidence of a lease) is not necessary to a leaseRemediesForfeiture- tenant disclaims the landlord's title; contractual obligations; and express forfeiture clauses This is done through The Protection from Eviction Act s2 through court proceedings. LPA s146Matthews v Smallwoods: Waiver of a right of forfeiture will not allow it to be bought as a remedy, particularly where the landlord continues to accept rentCornellie v Saha: the landlord will only have waived the right of forfeiture if they had actual knowledge of the breach Expert Clothing Service: Covenants are positive or negative. A breach may either be stopped and be "undone" or stopped and leave irrevocable damage which cannot be undone. Common Law Procedure Act s210- Must formally demand arrears for failure to pay rent unless over 6 months behindDistress, Limitation Act s9- ONLY AVAILABLE FOR BREACH OF COVENANT TO PAY RENT FOR UNDER 6 MONTHS. Landlord can seize goods found on the leased land and sell them to recover owed rentDamagesSpecific PerformancePrivity of Estate pre 1996:There is no means to which a contract can be enforced against anyone but the original contracting party (leases are both proprietary and contractual)Mechanisms to make covenants binding upon the original landlord and tenant. Fell: the contractual obligations which touch and concern the land become attached to the lease itself. This therefore means that the lease takes on the proprietary character of the lease and landlord/tenant obligations become proprietary as opposed to merely personal. The  obligations in the lease therefore run with the estate- they are annexed to the estate- as long as they touch and concern the land itself. Swift Investments: Covenants which touch and concern the land (and so are annexed to the estate) are benefits which benefit the covenanted only when attached to the land, are non-personal, affects the nature of the land and may be to pay a sum of money.  Covenant to pay rent, covenant to not use house other than a residence, covenant not to sublet without landlord's consent, covenant to provide quiet enjoyment, covenant to repair.Hau Chiao: Personal covenants (eg. to keep a pet out of the house) do not run with the land. Landlord's Successor in Title:LPA 1925 s142: Landlord covenants are enforceable against the new landlordTenant's Sucessor in Title:LPA 1925 s141: Tenant covenants are enforceable against a new tenant All covenants between the original tenant and landlord and enforceable under the privity of contract- there is continuing contractual liability. A landlord may assign reversion (transfer the property) over to a new landlord.  This means a tenant can hold and old landlord liable for a new landlord's breach. An indemnity clause is usually inserted when a new landlord successes meaning they are wholly liable for any breach caused. The Tenant is only ever liable to the most current landlord, but the old tenant may be liable for a new tenant's breach.Bulk Storage: original tenant was granted a 21 year lease. This contained a term that they would review the rent after 14 years had passed. The tenant assigned the lease after 13 years. The new tenant and landlord later agreed to increase the rent. The new tenant defaulted on the rent. Held, the original tenant was liable for the arrears under continuing contractual liability. All an original tenant can do is attempt to secure an indemnity against the new tenant.Mirror Group Newspapers: The original tenants had been granted a lease which had been assigned three times to a new tenant. The original tenant was held liable to pay the arrears of rent even though they had not been tenants for more than 20 years. The indemnity they had against their successor was useless and the company had become insolvent and the subsequent tenant had no relationship with them under contract.  Even if a new landlord is assigned, the original tenant may still be liable. There is no privity of contract or estate between a landlord and sub-tenantPrivity of Estate After 1996Landlord and Tenant Covenants Act 1996 ends the contractual liability between landlord and tenant and drops the enforceability of a covenant which "touches and concerns" the land. This DOES NOT APPLY TO PRE- 1996 LEASES. s3 provides a framework for the enforceability of covenants between all successors- all covenants run with the landAvonridge: one cannot contract out of s5 (which removes original tenant liability). s8 states that a landlord can only be released from the landlord covenants of an assignee if the tenant gives him express release. The procedure of this includes an application during the date of assignment and a request for the release. This is granted through a counter-notice. Authorised Guarantee Agreement Act 1995: Where a tenant assigns his lease, the Landlord can enforce a guarantee that the assignee will perform the obligations in the lease. The landlord can therefore sue the original tenant on the basis of the guarantee.This is only enforceable against the direct and immediate assignee.

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