Private Law Leasehold Covenants Notes

PRIVATE LAW: LEASEHOLD COVENANTS * NATURE OF COVENANTS * NATURE OF COVENANTS IN LEASES * KEY POINTS IN L&T * REMEDIES (BRIEF) * THE NATURE OF COVENANTS • Covenants are promises in a deed. Such a promise is enforceable, according to the ordinary law of contract, between the persons who are parties to it or their personal representatives. But - they are not actually contracts, so do not need to be signed by both parties unless they contain obligations meant to be enforceable by either party. • So, they are binding promises made by the landlord and tenant to each other concerning their precise obligations under the lease. • They may cover a whole range of activities from repairing obligations, use to which the premises may be put, ability to sub-let, and even matters purely personal to the parties (though rarely in commercial leases). As covenants are part of the lease, they are enforceable between original landlord and original tenant while they are in possession of the land/reversion as a matter of contract. … Conditions • These are juridically distinct from a covenant and place a limit or "condition" on the estate granted to the tenant. • They are not obligations in the lease but obligations that define the very parameters of the lease. Violation of a condition means that the lease cannot exist, or must terminate, as a pre-condition for its existence does not exist. • Doe. d. Henniker v Watt (1828) … Collateral Contracts • Agreements made between landlord and tenant outside the lease and therefore not forming part of it. Usually, such contracts occur prior to a lease and result from one party's promise to the other to do something prior to the lease being granted: • e.g. to repair drains if the tenant agrees to a lease De Lasalle v Guildford (1901) • • L had agreed the terms of a lease with G. However L refused to complete the transaction unless and until he had been given an assurance by G that the drains of the property were in good order. G gave an appropriate verbal assurance and L completed the lease document. After going into possession of the property, L found that the drains were defective. He was not able to bring an action under the terms of the lease however he claimed damages against G on the basis of a collateral warranty created by G's verbal assurances. L's action succeeded.) These are not contracts concerning a disposition of an interest in land and so are not proprietary interests - Lotteryking v. Amec Properties [1995].

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