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Lease Covenants Notes

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A more recent version of these Lease Covenants notes – written by Cambridge/Bpp/College Of Law students – is available here.

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Revision: Land

[LEASES: COVENANTS]
A valid lease must: 1) Comply with the necessary formalities; and 2) Be certain as to the identity of the landlord, tenant, the property to be demised, the term, the commencement expiration dates and any consideration Express Covenants Landlord:
? Quiet Enjoyment: Covenant not to interfere with the tenant's possession or enjoyment of the property o

E.g. erection of scaffolding was a breach in Owen v Gadd; intimidating the tenant in Kenny v Preen was also a breach - but failing to adequately soundproof a flat (Southwark LBC v Mills) was not

o

Protection from Eviction Act 1977 -harassment and unlawful eviction of residential tenants are criminal offences

? To Insure: If a landlord is able to recover insurance premiums or a proportionate part, there is usually a reciprocal landlord's covenant to insure
? To Repair: Often where the tenant has covenanted to pay its proportion of the costs of repairing the whole building (service charge)
? To Enforce Covenants in Other Leases in the Same Building Tenant:
? To Pay Rent o

Usual to treat other monetary payments (e.g. insurance premiums) as rent so that the landlord can use the particular remedies for rent recovery

o

Unless there is an agreement to the contrary, a written covenant to pay rent is construed as requiring payment in arrears

o

Usually payable quarterly in advance on the "usual quarter days"

o

Frustration:

1 Revision: Land

[LEASES: COVENANTS]Rent continues to be payable even though the premises cannot be used (e.g. if destroyed in fire)o

In exceptional cases doctrine of frustration could in principle apply

Rent review: must be express as there is no implied right to call for a review

? Repair: there will usually be express provisions stipulating who has the obligation to repair o

But: statutory provisions relating to repair - e.g. s11 Landlord and Tenant Act 1985 imposes repairing obligations on a landlord

o

Ambit of repairing covenant: usually tenant must keep premises in the condition in which they would be kept by a reasonably minded owner - but a covenant to repair DOES NOT require renewal of the whole or substantially the whole property

*

Distinction between repair and renewal is a question of degree o

Lurcott v Wakely: Front external wall of a house had to be rebuiltbut this was classed as repair as it was the result of old age - tenant was liable

o

Lister v Lane: rotting timber resulted in house being condemned - CA held that tenant was not liable - 'a covenant to repair ... is not a covenant to give back a different thing from that which the tenant took when he entered into the covenant'

*

Consider the cost of the works in relation to the value of the property o

Ravenseft v Davstone: Necessary work only affected a trivial part of the building - thus falling within the ambit of the covenant

o

Contrast: Brew Brothers Ltd v Snax: Necessary underpinning works cost PS8,000 - and the whole building was valued at between PS7.500PS9,500 - here the work did NOT fall within the scope of the covenant

*

Restrictive interpretation of 'repair' in Quick v Taff - no disrepair where there was condensation but no actual damage to the fabric of the building

2 Revision: Land

[LEASES: COVENANTS]
o

There may be a clause exempting tenant from liability for 'fair wear and tear' : but the tenant must nevertheless do repairs to prevent further consequential damage: Regis Property v Dudley

? Alienation: assignment (parting with the whole - assignee drops out of the picture) and sub-letting (creation of a sub-lease of all or part of the demised property - original tenant retains a reversion) o

No implied restriction on alienation - thus it must be expressly imposed

o

Construction: will be construed in favour of the tenant - so that:A covenant vs. sub-letting the whole does not prohibit sub-letting of part (Wilson v Rosenthal)A covenant vs. assignment doesn't prohibit sub-letting (Church v Brown)But if the aggregate of individual sub-lettings amounts to disposal of the whole, there will be a breach

o

Qualified covenant: Covenant may be qualified by a requirement for the landlord's consentS19(1) Landlord and Tenant Act 1927: consent shall not be unreasonably withheldS144 LPA 1925: landlord has no right to demand payment of a 'fine' for his consentIf the landlord refuses unreasonable - the tenant may:*

Assign regardless (risky in case landlord is found to be reasonable)

*

Apply to the court for a declaration that the landlord is being unreasonable

*

Sue under the LTA 1988 (statutory duty not to refuse consent unreasonably)

Midland Bank v Chart Enterprises: if there were suspicious circumstances then the landlord would be entitled to take time to investigate - but here there were no reasonable grounds for delayEastern Telegraph v Dent: if the tenant assigns without seeking consent then he is in breach even if the landlord could not reasonably have withheld consent

o

It is for the court to decide whether refusal is unreasonable (s19(1) LTA 1927) 3

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