Land Law Essay Help: Regulation of Leases and Tenancies
Land Law Cases referred to in this section:
Amrani v Oniah (1984) CLY 1974
Budd-Scott v Daniell (1902) 2 KB 351
Williams v Burrell (1845) 1 CB 402
Stannard v Forbes (1837) 6 Ad & El 572
Southwark LBC v Mills (2001) Ch 1
Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173
Yankwood Ltd v Havering LBC (1998) EGCS 75
Birmingham, Dudley and District Banking Co v Ross (1988) 38 Ch D 295
Smith v Marrable (1843) 11 M & W 5
Wilson v Finch Hatton (1877) 2 Ex D 336
Collins v Hopkins (1923) 2 KB 617
Maclean v Currie (1884) Cab & El 361
Hart v Windsor (1843) 12 M & W 68, 152 ER 1114
Pampris v Thanos (1968) 1 NSWR 56
Liverpool CC v Irwin (1977) AC 239
Leasehold transactions are not subject to challenge using the Unfair Contract Terms Act 1977 - they can however be subject to challenge using the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083, as amended by 2001/1186). Residential tenancy obligations that operate harshly or oppressively in favour of the landlord may be deemed unfair as, contrary to the requirement of good faith, they cause a significant imbalance in the parties' rights and obligations, to the detriment of the consumer (SI 1999/2083, reg 5). Other leasehold provisions such as covenants requiring a tenant to purchase beer supplies only from his landlord, may be invalid as anti competitive practice which is prohibited by Article 81 of the Treaty of Rome.
Although generally in contract law, breach of obligations by one party releases the other contracting party from their obligations, this is not the case with leasehold obligations. Failure by the landlord to perform his duties does not give the tenant a right to withhold rent or service charges (Amrani v Oniah (1984) CLY 1974). The tenant instead must seek damages or specific performance of the obligations of the landlord. On the other hand, failure by the tenant to perform his obligations will usually give the landlord a right (retained under the lease specifically) to forfeit the lease.
Landlord's obligations
The lease will normally set out exactly what the landlord (and tenant) have agreed to with regards to matters such as repair, insurance, maintenance of common areas, rights of access and renewal. However, certain covenants are implied into the lease by the law, because of the use of certain words which carry a particular meaning. A covenant, in English law, is an agreement which the law implies from the use of certain words having a known legal operation in the creation of an estate; so that, after they have had their primary operation in creating the estate, the law gives them a secondary force by implying an agreement on the part of the grantor to protect and preserve the estate which by those words has been already created (Williams v Burrell (1845) 1 CB 402 at 429).
Where a lease is created by deed and uses the word 'demise' there are implied covenants for title and for quiet enjoyment. The effect of these implied covenants is overruled by the existence of express covenants (Stannard v Forbes (1837) 6 Ad & El 572).
Quiet Enjoyment
All leases, legal or equitable, have an implied covenant that the landlord will allow the tenant quiet enjoyment of the premises, even if this is not specifically granted in the terms of the lease. Although "covenants" only exist in leases granted by deed, there is an implied contractual term for quiet enjoyment in tenancies that have not been granted by deed ( Budd-Scott v Daniell (1902)n 2 KB 351 at 355-356). Note that an implied contract for quiet enjoyment will arise also where an agreement to let premises is granted, merely because of the relationship of landlord and tenant that exists, even if the word 'demise' is not specifically used (Hart v Windsor (1844) 12 M & W 68 at 85). A breach of an implied covenant for quiet enjoyment takes place in the event of any harassment or unlawful eviction (Southwark LBC v Mills (2001) Ch 1 at 21G, per Schiemann LJ). The remedy for such a breach would usually be an injunction or damages, even though it does usually entitle the tenant to repudiate his lease (Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11173 at 11176).
No Derogation from Grant
There is an implied covenant that the landlord will not 'derogate from his grant'. In other words, he may not grant land to the tenant on terms which negative the utility of the grant - having given a thing with one hand, he may not take away the means of enjoying it with the other (Birmingham, Dudley and District Banking Co v Ross (1988) 38 Ch D 295 at 313 per Bowen LJ). An example of this is where the landlord grants a lease and subsequently engages in conduct which makes the land materially less fit for the purpose it was letted for (Yankwood Ltd v Havering LBC (1998) EGCS 75).
No implied quality as to fitness or suitability of premises
With regards to the quality of the premises, there is no implied warranty on the part of the landlord as to the condition of the premises demised, or their fitness for the purpose of the letting (Southwark LBC v Mills (2001) 1 AC 1 at 7H, 12C-D). If the premises are taken for residential purposes, for example, there is no implied covenant that they are fit for human habitation (Southwark LBC v Mills, supra). Such terms may be contained within the lease or tenancy specifically. There is a very narrow exception to this rule which can be found in Smith v Marrable (1843) 11 M & W 5. Where the premises are a furnished dwelling house, there is an implied condition in the letting of the premises that they are reasonably fit for habitation at the commencement of the term. Breach of this would entitle the tenant to quit the letting without notice. This has been confirmed in Wilson v Finch Hatton (1877) 2 Ex D 336 at 341-342, 344, which related to defective drains, and in Collins v Hopkins (1923) 2 KB 617 at 628, concerning a recent occupant who had a contagious disease. There is no obligation for the tenant to give the landlord the opportunity to remedy the problem (Wilson v Finch Hatton, supra).
The rule is very limited in scope - it does not apply to ordinary disrepair which would make habitation unpleasant or inconvenient, rather than impossible ( Maclean v Currie (1884) Cab & El 361, involving cracked plaster). Neither does it apply to unfurnished premises (Hart v Windsor (1843) 12 M & W 68 at 87, 152 ER 1114 at 1122), or to dangerous appliances/furnishings supplied in furnished premises by the landlord ( Pampris v Thanos (1968) 1 NSWR 56 at 58 - the case involved the tenant's wife being electrocuted by a faulty fridge). The landlord may be negligent in such instances but the implied condition of fitness for human habitation is not relevant to such a scenario. Note that there may be an implied contractual duty of care for the landlord to maintain certain things - for example, common parts and facilities like lifts. These are not merely 'conveniences provided at discretion: they are essentials of the tenancy without which life in the dwellings, as a tenant, is not possible' (Liverpool CC v Irwin (1977) AC 239 at 254F-G, in which Lord Salmon said "Can a pregnant woman accompanied by a young child be expected to walk up 15 storeys in the pitch dark to reach her home? Unless the law.. imposes an obligation on the Council at least to use reasonable care to keep the lifts working properly and the staircase lit, the whole transaction becomes ...futile and absurd - at 262A-B). Such a duty of care is again restricted and only extends to the tenant, not their family (Jones v Bartlett (2000) 205 CLR 166 at 38). Such an obligation may be excluded by express provision in the tenancy/lease (Liverpool CC v Irwin, supra.
We have covered the subject of Landlord and Tenant Law more fully in our Landlord and Tenant Study Area - please also refer to our Landlord and Tenant Law Caselist.
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