UNIT 2:

RIGHTS AND LIABILITIES OF LANDLORDS AND TENANTS

Upon completion of this unit, students should be able to: i) identify the usual covenants on the part of both the landlord and tenant which are contained in a lease; ii) explain the effect of all of the covenants referred to above in (i); iii) determine from instructions received whether there has been a breach of any covenant(s) contained in a lease and advise/explain the rights and/or liabilities accruing to the parties as a result of such breach(es); iv) state, explain and apply all relevant legislation in relation to all covenants referred to in (i) above. LANDLORDS COVENANTS 1. 2. ovenant for !uiet "n#oyment [EXAM NOTICE] $on derogation from %rant

&hese do not re'uire the landlord(s consent. &hey are imposed by the common law. &hey cannot be contracted out of regardless of whether this is stated in the lease. 1. Covenant for Quiet Enjoyment &his covenant contains the following terms: i) that the tenant shall be put into possession (only in territories where the doctrine of )interesse termini( (*$&"+",," &"+-*$*, estates. .n interest in the term. &he demise of a term in land does not vest any estate in the lessee, but gives him a mere right of entry on the land, which right is called his interest in the term, or interesse termini) still survives); ii) the tenant shall have 'uiet en#oyment of the premises. .t common law, there is implied in every lease a covenant on the part of the landlord that the tenant shall be put into possession and that he shall have 'uiet en#oyment of the premises during the continuance of the lease. &he tenant is entitled to recover damages from the landlord, if the landlord or any other person claiming through him substantially disturbs or physically interferes with the tenant(s en#oyment of the land. &he tenant may also apply for in#unctive relief. &his covenant may be express or implied. $ote however that an express covenant for 'uiet en#oyment excludes an implied covenant for same. Miller v Em er !r"#$ %& L%# ['()*] C+, -./ /andlords demised premises to a tenant together with the right to use two lavatories on upper floors which were occupied by a third party. &he grant contained a covenant for 'uiet en#oyment of the demised premises without interruption from the landlords 0or the superior landlords0 or any person rightfully claiming under or in trust for them. &he tenant was prevented by the third party from exercising his right to use one of the lavatories and he sued his landlords, alleging a breach of an implied covenant that they had a good title to convey to him the right to use the lavatories, and, alternatively, a breach of an implied covenant that they would put him into possession of the right demised to him. &he third party held under a title paramount to the landlords in 'uestion and to 0the superior landlords0 mentioned in the express covenant:1
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3eld: &he right which the landlords had purported to grant was a legal easement and was part of the demised premises to which the covenant for 'uiet en#oyment contained in the underlease related. &he court doubted that an obligation to put the tenant into possession, even if it was implied, could be applicable to the grant of an easement to use accommodation in common with others. *n the present case the tenant was put into possession of all that part of the sub#ect1matter of the grant of which he was entitled to exclusive possession. 3owever, even if such an obligation (to 4put the tenant into possession5 of the easement) could and should be implied in a formal demise, it would be in pari materia with the implied covenant that the tenant should remain in possession thereafter, and since implied covenants are displaced by express covenants where the former are covered by the latter, the implied covenant would have been displaced by the express covenant for 'uiet en#oyment in the underlease, under which the landlord was not liable for the acts of the third party, so that the landlords were not in breach of covenant. (2) that the right which the landlords had purported to grant was a legal easement and was part of the demised premises to which the covenant for 'uiet en#oyment contained in the under lease related. (6) &hat that 'ualified covenant displaced any covenant for title or 'uiet en#oyment implicit in the demise. (7) ,emble, that where there was a formal demise, it was unnecessary to imply an obligation to put the tenant into possession of the premises from the relationship of landlord and tenant, for there was implicit in a demise a covenant for title and 'uiet en#oyment which extended to putting the tenant into possession of the premises leased to him at the outset of his term as well as entitling him to remain in possession thereafter. (8) !uaere whether an obligation to put the tenant into possession, even if it was implied, could be applicable to the grant of an easement to use accommodation in common with others. *n the present case the tenant was put into possession of all that part of the sub#ect1matter of the grant of which he was entitled to exclusive possession. (9) &hat, even if such an obligation could and should be implied in a formal demise, it would be in pari materia with the implied covenant that the tenant should remain in possession thereafter, and it would, therefore, be displaced by an express covenant for 'uiet en#oyment, such as that in the underlease, which had displaced the covenant implied from the word 0demise.0 .ccordingly the landlords were not in breach of covenant. 0er R"me1 L,2, 3 0,-'4 e% &e5, 4*t has long been established that, if a lessor demises property to a tenant and enters into no express covenants for title or for 'uiet en#oyment, certain promises are implied by him by force of the word 0demise,0 namely, that he is entitled to grant some term in the demised premises, and that the lessee shall have 'uiet en#oyment of the premises; :urnett v /ynch; 3art v ;indsor. *t was pointed out in /ine v ,tephenson that these promises are more properly to be regarded as embodied in one single implied covenant, and that this covenant may be bro<en either by want of title or by the eviction of the tenant. *t was also, however, decided in /ine v ,tephenson that there is no room for the implication of the covenant in a demise if the lessor enters into an express covenant for 'uiet en#oyment. &he reason for this is that an express covenant as to one branch of the covenant implied by the word 0demise0 excludes the other on the principle expressio unius est exclusio alterius.5(&he expression of one thing is the exclusion of another.) &he e60re&& covenant may be: a. 'ualified/restricted
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b. .bsolute a) &he 'ualified/restricted covenant is the more usual of the two and by it the landlord underta<es that the tenant will peaceably hold and en#oy the demised premises without interruption by the landlord or persons claiming through or under him. *t protects only against the acts of the landlord, his successors in title and persons authorised by him to execute the acts complained of. .lthough this form is expressed, it can also be implied. b) &he absolute express covenant for 'uiet en#oyment includes the guarantee given by the 'ualified/restricted version. &he absolute covenant however, also includes an underta<ing against similar interruption by persons claiming title paramount to the landlord(s title, or in other words, those who have been landlords in the past. &he im0lie# covenant for 'uiet en#oyment is implied by common law from the use of the word )demise( and of any other e'uivalent words, of letting. &he covenant is similar in effect to the 'ualified/restricted express covenant. &he expressed 'ualified excludes the implied covenant. Under the covenant for 'uiet en#oyment, the tenant is entitled to be put into possession. C"e v Cl78 9'42(: ) Bi1; //. &he defendant had agreed to let to the plaintiff certain premises per verba de praesenti (&he maxim, marriage per verba de praesenti refers to marriage by means of words of present assent. -arriage per verba de praesenti is a common1law marriage entered into by the parties by their #oint consent, without the interposition of any person authori=ed to solemni=e the marriage and without formal solemni=ation), and the plaintiff, being unable to get possession because a preceding occupier wrongfully refused to 'uit, sued the defendant for damages. &he defendant>s case was that as the plaintiff had an interest upon which he might have brought an e#ectment, he had shown no breach by the defendant. . verdict was, however, found for the plaintiff, and the ourt of ommon ?leas refused a motion to set it aside. 0&he court,0 says the reporter, 0were all clearly of opinion, that he who lets, agrees to give possession, and not merely to give a chance of a law suit.0 2i1<& v E#=7r#& 9'4)*: '' E6, >>) :y an agreement in writing the defendants agreed to let to the plaintiff certain premises for one year from ,eptember 6@, 2A98, and so on from year to year. &he plaintiff sued the defendants, alleging a failure or refusal by them to give or let the plaintiff into possession on the agreed date or subse'uently. &he defendants demurred on the ground that the agreement did not contain any contract on the part of the defendants to give the plaintiff possession of the premises . &he authority of C"e v, Cl78 which gave the effect that every person who lets premises impliedly underta<es to give possession of them was challenged by ,er#eant 3ayes in supporting the demurrer. 0&hat doctrine,0 he argued, 0cannot be supported. *n Dr$r8 v, M7 17m7r7 /ord ampbell .B. points out that the foundation of the #udgment in C"e v, Cl78 was that the instrument operated as a lease,0 and :aron .lderson inter#ected: 0*t is the same here.0 &he court held that the case of C"e v, Cl78 was directly in point, and that there must be #udgment for the plaintiff. Miller v Em er ['()*] C+, -./ /andlords demised premises to a tenant together with the right to use two lavatories on upper floors which were occupied by a third party. &he grant contained a covenant for 'uiet en#oyment of the demised premises without interruption from the landlords 0or the superior landlords0 or any person rightfully claiming under or in trust for them. &he tenant was prevented by the third party
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from exercising his right to use one of the lavatories and he sued his landlords, alleging a breach of an implied covenant that they had a good title to convey to him the right to use the lavatories, and, alternatively, a breach of an implied covenant that they would put him into possession of the right demised to him. &he third party held under a title paramount to the landlords in 'uestion and to 0the superior landlords0 mentioned in the express covenant:1 Hel#: that where there was a formal demise, it was unnecessary to imply an obligation to put the tenant into possession of the premises from the relationship of landlord and tenant, as was done in C"e v Cl78 and 2i1<& v E#=7r#&, for there was implicit in a demise a covenant for title and 'uiet en#oyment which extended to putting the tenant into possession of the premises leased to him at the outset of his term as well as entitling him to remain in possession thereafter. ?M7r<+7m v !7;e% ['(.4] ' C+, *(> 0er S=i1;er E7#8 2 3 0,>'2@>'* *n this case, the landlord, having reserved the right to wor< minerals under the demised land conducted mining operations in such a way as to cause the land to subside. &he court found that a contract for 'uiet en#oyment without interruption by the defendant, or any one claiming through her, was implied by the word 0let0. A7lli& v H71#& ['4(-] 2 C+, >) 3 0,4/@4) . person having only an interesse termini cannot maintain an action on a covenant for 'uiet en#oyment; neither can he maintain an action for trespass, or for damages. 4&here has been no disturbance of possession in this case. &he ?laintiff has merely an interesse termini under the lease of 2AAC; he has not only never been in possession of the property comprised in that lease; but there is no evidence of his ever having even attempted to ta<e possession, or having re'uired Newman to put him in possession. Dn the contrary, shortly after the delivery to him of the lease of 2AAC he began to complain that the lease was wrongly drawn, and insisted that it should be rectified, and that the 'uestion of rectification should be referred to arbitration. 3e did not abandon this position until the commencement of the present action. &he law provides a person having an interesse termini with an ade'uate remedy against the granter of the term, without there being any necessity to have recourse to an action on the covenant for 'uiet en#oyment; he can bring an action against the granter of the term for not putting him in possession. &his right of action is also founded on implied covenant. &he present action is not to enforce any such right; nor are there any facts proved which would give rise to it. .lthough the authorities have been searched through by counsel, none can be produced to show that a person having a mere interesse termini can maintain an action on a covenant for 'uiet en#oyment.5 *nteresse termini: &he demise of a term in land does not vest any estate in the lessee, but gives him a mere right of entry on the land, which right is called his interest in the term &his decision is relevant only in the territories where the doctrine of )interesse termini( still survives. .s such, in these territories where the lessee has not been put into/entered into possession, no successful suit on the covenant for 'uiet en#oyment can be maintained. &he covenant for 'uiet en#oyment implied from the use of the word )demise( or other e'uivalent words of letting, also entitles the tenant to be put into possession i.e. gives him the )interesse termini(. &his right can therefore support an action against the landlord in the absence of the tenant being in possession. ????????Be118 v !ree1 ['(*-] ' CB /(( EXAM NOTICED????????????? &he landlord of premises let as a separate dwelling on a tenancy which would be protected by the +ent .ct, 2@6E to 2@9C, only if (which was in dispute) the tenancy were an unfurnished one, gave the tenant a notice to 'uit, the validity of which was disputed. &hereafter he threatened, both by
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letters to the tenant and by shouting at her and banging on her door, to ta<e physical action to evict the tenant and remove her belongings from the demised premises. &he landlord persisted in these direct threats to the tenant herself despite letters from her solicitor asserting that the notice to 'uit was invalid and that the tenancy was unfurnished, and therefore protected. &he tenant brought an action in the county court against the landlord for damages for breach of his covenant for 'uiet en#oyment, for an in#unction to restrain the landlord from further interference with her 'uiet en#oyment of the premises, and for a declaration that her tenancy was protected by the +ent .cts. .t the hearing the landlord did not dispute the tenant(s right to possession and the tenant gave no evidence of special damage, the county court #udge granted the in#unction sought, awarded the tenant F2EE damages, and refused the declaration. Dn appeal by both parties, Hel# G (i) the landlord was in breach of his covenant for 'uiet en#oyment and an in#unction had rightly been granted because (a) on the facts there had been a course of conduct on the landlords part amounting to direct physical interference with the tenants enjoyment of the premises demised even if there had been no direct physical interference with the tenants possession (b) and en#oyment of the demised premises, the landlord(s conduct had seriously interfered with the tenant(s proper freedom of action in exercising her right of possession, had tended to deprive her of the full benefit of this right, (c) and was an invasion of her right to remain in possession undisturbed, and so in itself constituted a breach of the covenant. 4&he implied covenant for 'uiet en#oyment is not an absolute covenant protecting a tenant against eviction or interference by anybody, but is a 'ualified covenant protecting the tenant against interference with the tenant(s 'uiet and peaceful possession and en#oyment of the premises by the landlord or persons claiming through or under the landlord. &he basis of it is that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly premises not to interfere with the tenant(s exercise and use of the right of possession during the term. * thin< the word Ee1F"8G used in this connexion is a translation of the /atin word 4fruor5 and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it. * would decide on two grounds in favour of the tenant(s contention that there was, in this case, a breach of the covenant for 'uiet en#oyment. Fir&%, there was a deliberate and persistent attempt by the landlord to drive the tenant out of her possession of the premises by persecution and intimidation, and intimidation included threats of physical eviction of the tenant and removal of her belongings. *n my view that course of conduct by the landlord seriously interfered with the tenant(s proper freedom of action in exercising her right of possession, tended to deprive her of the full benefit of it, 71# was an invasion of her rights as tenant to remain in possession undisturbed, and so would in itself constitute a breach of covenant, even if there were no direct physical interference with the tenant(s possession and en#oyment. $o case of this <ind has ever been considered by the courts before, and * do not thin< that the dicta in the previous cases should be read as excluding a case of this <ind where a landlord see<s, by a course of intimidation, to 4annul his own deed5, to contradict his own demise, by ousting the tenant from the possession which the landlord has conferred on her. Se "1#l8, if direct physical interference is a necessary element in the breach of covenant that element can be found in this case to a substantial extent, as * have already stated.5
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R7m v R7m<i&&""1 9'(*4: '- AIR --2 &he appellant was the statutory tenant of two rooms in a central portion of a building where he carried on the business of a #eweller. &he building was old and in bad state of repair and its two end potions had been unoccupied for many years. &he respondent landlord, who owned the whole building wished to obtain vacant possession of the central portion also. ;hile e#ectment proceedings were pending, the respondent remover the galvanised iron sheets from the roof of both end portions of the building. &he appellant complained that, as a direct conse'uence of the removal of the roof, rainwater seeped through the rooms he occupied, causing annoyance, discomfort and physical damage to his property. 3e claimed damages for, inter alia, breach of the landlord(s implied covenant for 'uiet en#oyment. &he trial #udge did not want to determine that the fre'uency was not sufficient to give damages. *t was only at the D. that this was allowed, the fre'uency of the damages was enough to ma<e the appellant. &he . (&H&) held that the damage suffered by the appellant was sufficiently substantial to constitute a breach of the covenant for 'uiet en#oyment. 2"1e& v L7vi1;%"1 ['(.-] ' BB 2)2e1<i1& v 27 <&"1 9'444: . C+, D >' ourt confided the meaning of 4peaceably and 'uietly5 &he / let 6 rooms to a & and subse'uently let the top room for a dance, so the & bought an action against the /. The courts said that quietly does not mean undisturbed by noise, in fact it has nothing to do with noise, instead it means without interruption of possession. ,o the & would not necessary have an action against the / for breach of 'uiet en#oyment, but he may have bought an action for nuisance. reach of the Covenant for Quiet Enjoyment &his covenant is bro<en where the ordinary and lawful en#oyment of the demised premises is substantially interfered with by the acts or omissions of the landlord or persons lawfully claiming under him or persons with title paramount where the covenant is absolute. ;hether the covenant has been bro<en is, in each case a 'uestion of fact. N"%e: U0&e% %+e 700le 7r% H8 &78i1; %+7% Iefinition of the term )en#oy( in relation to the covenant in Be118 v !ree1I S$0r7 . young male landlord and the tenant was an old feeble woman, and the landlord serves what he considers to be a notice to 'uit. &he old woman was advised that the notice to 'uit was not valid and therefore the legal right to possession remains with the tenant. &he landlord ignored the legal advisers of the tenant; he repeatedly threatens to put the lady out. Jnoc<ing on the door repeatedly is not the same is doing 2 time. 3e also physically intimidates her, and then the tenant brings an action for breach of covenant to 'uiet en#oyment. &he landlord(s attorneys relied on Br"=1e v Fl"=er that he didn(t do anything direct and physical. ?ursing a prolonged and consistent, even in the absent of any direct physical interference this constituted a breach of the covenant for 'uiet en#oyment as long as it could be sufficiently substantial to disturb the tenant. I% i& 7l=78& 7 5$e&%i"1 "J J7 % %" He 7& er%7i1e# Jr"m %+e &i%$7%i"1 7% +71#, 0er !e7r&"1 L,2 3 0;, )'' 4&he implied covenant for 'uiet en#oyment is not an absolute covenant protecting a tenant against eviction or interference by anybody, but is a 'ualified covenant protecting the tenant against interference with the tenant(s 'uiet and peaceful possession and en#oyment of the premises by the landlord or persons claiming through or under the landlord. &he basis of it is that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly
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premises not to interfere with the tenant(s exercise and use of the right of possession during the term. * thin< the word Ee1F"8G used in this connexion is a translation of the /atin word 4fruor5 and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it.5 E!"#$ %eeing only & fact in the e'am question, that does not mean that the court would find the same in the e'am fact pattern. S71#er&"1 v M78"r "J Ber=i < U0"1 T=ee# 9'44/: '- CBD )/> 0er Fr8 L,2 3 0,))' 4Lit appears to us to be in every case a 'uestion of fact whether the 'uiet en#oyment of the land has or has not been interrupted; and where the ordinary and lawful en#oyment of the demised land is substantially interfered with by the acts of the lessor, or those lawfully claiming under him, the covenant appears to us to be bro<en, although neither the title to the land nor the possession of the land may be otherwise affected.5 M71 +e&%er Rl8 C", v A1#er&"1 ['4(4] 2 C+, -(/ 0er Li1#l8 M,R, 0,/.' 4* will only add a few words about the covenant for 'uiet en#oyment because counsel for the defendant urged us to go to an extent rather alarming to real property lawyers. * ta<e it that a mere temporary inconvenience caused by a lessor, not in depriving his tenant of a right of way, but in rendering his access less convenient than it was, is not a breach of covenant for 'uiet en#oyment. " temporary inconvenience which does not interfere with the estate or title or possession is not, to my mind, a breach of covenant, nor is there any case that goes anything li<e the length re'uired to show that it is.5 Br"=1e v Fl"=er ['(''] ' C+, 2'( 0er !7r<er 2, 3 0,224 &he case involved the plaintiff bringing a claim against the construction of a staircase outside of her apartment. &he ourt held that it was an interruption of her en#oyment but it was not sufficient enough to allow this claim to succeed. (equired direct physical interference was necessary. 4*t appears to me that to constitute a breach of such a covenant there must be some physical interference with the en#oyment of the demised premises, and that a mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy, or otherwise is not enough.5 O=e1 v G7## ['()*] 2 CB (( :y a lease of Dctober 27, 2@99, landlords demised to the plaintiff a loc<1up ground floor shop, reserving to themselves the floor above the shop. &he tenant covenanted to use the demised premises for certain specified retail trades and the lease contained a common form covenant by the landlords for 'uiet en#oyment. &hree days after the grant of the lease, contractors, instructed by the landlords, erected on the pavement in front of the shop scaffolding for the purpose of carrying out repairs to the landlords> upper premises. *t was not disputed that the access to the tenant>s shop and the shop window was to some extent obstructed by the scaffolding. &he landlords did what they could to minimi=e the damage and the repairs were completed and the scaffolding removed in under a fortnight. &he tenant claimed damages for breach of the landlords> covenant for 'uiet en#oyment. &he county court #udge held that the erection of the scaffold poles in close proximity to the shop window constituted a breach of the covenant for 'uiet en#oyment, but he held that no special damage had been proved and awarded to the plaintiff 8Es. damages. &he landlords appealed:1 )eld, (2) that although, to constitute a breach of such a covenant there must be some physical interference with the en#oyment of the demised premises, and the interference must be substantial, there could be a breach of such covenant without an actual physical irruption into or
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upon the demised premises on the part of the landlord or some person authori=ed by him. (6) &hat the 'uestion whether the 'uiet en#oyment of the demised premises had been so interrupted was one of fact and the #udge in the present case was entitled to find, as a fact, that the scaffold poles constituted a substantial interference with the demised premises. B""%+ v T+"m7& ['(2*] ' C+ -(> *n 2AC@ the owner of land, which was covered with slag and through which ran a natural stream, enclosed the stream in a culvert. *n 2AAK he granted to certain persons a lease for ninety1nine years of part of the land with the building on it, retaining the ad#oining part through which the culvert ran. &he foundations of the south wall of the building did not reach the soil, but rested on the slag. &he lease contained an express covenant by the lessor for 'uiet en#oyment. *n 2@68 the culvert was in a bad state of repair, with the result that the stream bro<e through the culvert and scoured away the foundations of the south wall, so that it collapsed. .t that time the lease was vested in the plaintiff, while the land under which the culvert ran and the reversion to the leased land, expectant on the determination of the lease, were vested in the defendant:1 )eld, that confining the stream in an artificial structure incapable of retaining it was an act of the defendant, which had interrupted or disturbed the lessee>s 'uiet en#oyment of the land, and that therefore the plaintiff was entitled to succeed on the ground of breach of covenant for 'uiet en#oyment. )eld, also, that the covenant was not confined to active disturbance of en#oyment, and that the omission to <eep the culvert in repair was an omission of a duty by the owner to the ad#oining landowner, which if neglected might cause damage to the ad#oining property, and that the owner was therefore bound to prevent such damage by ta<ing reasonable precautions. T700er v M8rie Ele %ri i%8 =7& %7<e1 "JJ %+e %e171% H8 %+e l71#l"r#, D7vi# A7l "%% v R7m&i1;+ !""l&i1;+ HCA '.- "J '(4. &he / attempted to argue that the & created a fire ha=ard. :ut the courts held that this did not entitled the / to breach the covenant. & in arrears for over 62 days. M Be1&ie v A7r# HCA '2>2 "J '((* NOTE: since there must be some physical interference with the en#oyment of the premises let, mere noise or disorderly conduct emanating from the landlord(s ad#oining premises may not amount to breach of the covenant for 'uiet en#oyment, though it may be actionable as a nuisance or constitute a derogation from the lessor(s grant, if the latter has participated in it. ;here no participation by the lessor is proved, he will not be liable merely for having failed to ta<e steps to prevent it. Murthermore a disturbance of en#oyment, even where caused by the lessor, which is merely temporary and which does not interfere with the lessee(s possession, is not a breach of the covenant. (emedies for reach of the Covenant (i) Iamages (ii) *n#unctive relief (iii) an action of a nuisance and trespass *. +on ,erogation from -rant

;here a lease is made for a particular purpose, the landlord is under an obligation not to use
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adjoining land retained by him in such a way as to render the demised premises unfit or materially less fit for that purpose. T+e "ve171% "1%7i1& 7 0r"mi&e %+7% %+e l71#l"r# =ill 1"% %7<e 7=78 %+e me71& "J %+e %e171%& e1F"8me1% "J %+e 0r"0er%8 H8 %+e 7 %& "r "mi&&i"1& "J +im&elJ "r &$ e&&"r& i1 %i%le, T+e 7 % "r "mi&&i"1 m$&% He &$H&%71%i7l 71# He 707Hle "J re1#eri1; %+e 0remi&e& le&& Ji% J"r %+e 0$r0"&e J"r =+i + %+e8 =ere le%, T+e "ve171% i& not e6 l$#e# H8 71 e60re&& "ve171% J"r e1F"8me1%, I1 "r#er %" "1&%i%$%e 7 Hre7 + "J %+e "ve171%I %+e l71#l"r# m$&% #" &"me 7 % =+i + re1#er& %+e #emi&e# 0remi&e& K&$H&%71%i7ll8 le&& Ji% J"r %+e 0$r0"&e& J"r =+i + %+e8 =ere le%, &he landlord must have <nown the purpose of the lease, at the time of granting the lease and also, where relevant, <new that any particular user was special or sensitive. 3e must have retained an interest in the ad#oining land. *nterferes with the purpose for which the premises were let. 4,ubstantially5 is a very high threshold. &he court must loo< at all the circumstances, including the relative times on the lease and the activity on the landlord(s land. Gr"&ve1"r H"%el v H7mil%"1 ['4(/] 2 CB 4-* 0er Li1#le8 M,R 30,4/. *n an action by lessor against lessee for rent, the lessee counter1claimed for damages from a nuisance caused by the lessor. *t appeared that the lessor during the lease had pumped water from land ad#acent to the demised premises by means of powerful engines, and that the lessee>s house was damaged by the vibration caused by the wor<ing of such engines, to such an extent that the premises became useless to him, and that he was obliged to remove his business to another house, and in conse'uence incurred expense. &here was evidence that the house at the commencement of the term was old and unstable, and that a house of ordinary stability would not have been in#ured by the vibration: 1 Held, that the plaintiff was liable for damages under the counter1claim, for there was an implied obligation on his part not to derogate from his grant by using his adjoining property so as to interfere with the stability of the premises which he had let, and that he could not, therefore, rely upon any defence founded upon the state of such premises at the commencement of the term: Held, also, that the damages recoverable by the defendant were not confined to the value of the term which he had lost, but included all loss which had happened to him as a natural conse'uence of the wrongful acts of the plaintiff, such as the expense of removing his business to other premises. If the case were not between lessor and lessee that might be so; but we are dealing with landlord and tenant, a fact which gives the case a different aspect. The house was an old one, built on piles, and not originally strong. At the time it was let one of the walls was twelve inches out of the perpendicular. The plaintiffs let the house at a rac !rent, they have damaged it by the wor ing of their engines, and now it is contended on their behalf that there is no cause of action against them. I however am of opinion that there is ! the cause of action being the vibration which has brought the house down. If we were to decide according to the plaintiffs" contention, we should be allowing the landlord to derogate from his own grant. The house was demised by the person who caused the vibration, and he cannot defeat the grant contained in the lease. This consideration
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gets rid of the difficulty that a covenant for #uiet en$oyment applicable to this case cannot be implied. %here there is an e&press covenant for #uiet en$oyment in a lease it e&cludes any implied one' (ine v )tephenson. An action therefore will not lie on the ground of implied covenant, but it will lie on the ground I have stated. "ldin v Clar. ['4(/] 2 C+, /-> 0er S%irli1; 2 3 0,///I //> &he grantor of land to be used for a particular purpose is under an obligation to abstain from doing anything on ad#oining property belonging to him which would prevent the land granted from being used for the purpose for which the grant was made. ;here, therefore, a lease was granted in order that the land demised might be used by the lessee for the purpose of carrying on the business of a timber merchant, and the lessee covenanted to carry on such business:1 Held, that the assigns of the less or were not entitled to build upon ad#oining property ac'uired by them from him, so as to interrupt the access of air to sheds upon the demised property used for drying timber, so as to interfere with the carrying on of the business in ordinary course. The result of these $udgments appears to me to be that where a landlord demises part of his property for carrying on a particular business, he is bound to abstain from doing anything on the remaining portion which would render the demised premises unfit for carrying on such business in the way in which it is ordinarily carried on, but that this obligation does not e&tend to special branches of the business which call for e&traordinary protection. *the grantor of land to be used for a particular purpose is under an obligation to abstain from doing anything on the ad$oining property belonging to him which would prevent the land granted from being used for the purpose for which the grant was made. This seems to accord with the general rule that a grantor may not derogate from his own grant, and to be far more consonant with $ustice than that contended for by the +efendants, vi,., that the grantee has no right of action unless the grantor can be proved to be acting maliciously. !"r% v GriJJi%+ ['(-4] ' All ER 2() 0er L$6m""re 2 3 2(( &he defendants let a shop for a term of 62 years to the plaintiff, the latter covenanting to use and occupy the premises and to permit the same to be used and occupied as a shop for the retail business for the sale of wool and general trimmings, and for no other purpose without the consent in writing of the defendants. ,ome K years later, the defendants let the ad#oining shop sub#ect to a similar covenant, the business stated being for the sale of tailor and dressma<ing trimmings and cloths. &he plaintiff contended that this was a derogation from the grant of the lessor, as frustrating the purpose for which, in the contemplation of both parties, the premises were let to the plaintiff:N Hel# G it was not within the reasonable contemplation of the parties that the defendants were putting themselves under an obligation not to let their ad#oining property to a trade rival of the plaintiff(s. The presence of a trade rival in premises ne&t door to those occupied by the trader may, or may not, be a detriment to any particular business. I do not thin that I should be $ustified in saying that the presence of a trade rival ne&t door must of necessity be a detriment, but, whatever the view may be, the presence of a trade rival ne&t door does not render the premises on which the trader is carrying on his business unfit for that purpose, although it may incidentally reduce the profit ratio to be earned in that business. It would be unreasonable to assume that, because the defendants let )hop No - for the particular business described in the lease, the defendants were underta ing restrictive obligations which would prevent them from using or letting any of their other properties for any lawful purpose, which would include the carrying on of a rival business,
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and would compel them to insert a covenant restraining the carrying on of any business similar to the plaintiff.s business in any subse#uent lease of any of the property retained by them, for it would seem to me to be difficult to confine the case to those shops which are actually ad$oining, or to draw a line defining which of the premises were to be sub$ected to such a restriction. Be118 v !ree1I S$0r7 Br"=1e v Fl"=erI S$0r7 *n ,eptember, 2@E9, a flat consisting of twelve rooms on the ground, first, and second floors of M. mansions was let to -rs. /. *n $ovember, 2@EC, a flat on the ground floor of the mansions was let to the plaintiffs. :oth flats had windows overloo<ing a garden belonging to the lessors. -rs. /.>s agreement contained a clause prohibiting the use of her flat otherwise than as a dwelling1house, and the plaintiffs> agreement comprised a covenant for 'uiet en#oyment and a stipulation that they should not use their flat otherwise than as a private residence. "ach agreement contained a stipulation that the tenants would not do anything on the demised premises which might be a nuisance to the lessors or to the occupiers of ad#oining premises or which might tend to lessen the value thereof. *n 2@E@ -rs. /. subdivided her flat and, with the consent of the lessors, erected an open1wor< iron staircase from the garden to an entrance to her fiat on the first floor; and in 2@2E let it and the part of her flat to which it gave access to J. &he staircase was situated between the windows of two of the bedrooms in the plaintiffs> flat, and the fact that it was used as the only access to J.>s flat seriously affected the plaintiffs> privacy, for persons using the staircase could see directly into the rooms. If the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made. /nder these circumstances the #uestion is whether the e&istence of this staircase renders the plaintiffs" premises unfit or materially less fit to be used for the purposes for which they were demised, that is, for the purposes of a residential flat. In my opinion it does not. The two rooms in #uestion can be and are still in fact used for the same purpose for which they were used prior to the erection of the staircase. It is only the comfort of the persons so using the rooms that is interfered with by what has been done. 0ither they have less privacy, or if they secure their privacy by curtains they have less light. 1uch as I sympathi,e with the plaintiffs, it would, in my opinion, be e&tending the implications based on the ma&im that no one can derogate from his own grant to an unreasonable e&tent if it were held that what has been done in this case was a breach of an implied obligation. M7r<+7m v !7;e%I S$0r7 ?????Ri;H8 v Be11e%% 9'442: 2' C+, D ))(????? &he corporation of (. put up a piece of land for sale in lots, the interest ac'uired by each purchaser being a right to a lease of the lot purchased by him, and he being bound to build upon the lot according to plans to be approved by the corporation. $one of the lots were sold, and in Buly, 2AKA, the ?laintiff agreed for the purchase of one of the lots by private contract, sub#ect to the original conditions. 3e furnished plans showing a foundation 2E feet @ inches deep; but finding the subsoil unsafe he laid his foundation at a depth of A feet 7 inches to the <nowledge of the corporation, whose officer inspected the operations and made no ob#ections. *n Bune, 2AK@, the ?laintiff>s house was carried to the #oists of the ground floor. *n .ugust, 2AK@, the Iefendant purchased from the corporation the ad#oining lot. *n Dctober, 2AK@, when the ?laintiff>s house was nearly finished the corporation granted him his lease. .fter this the Iefendant got his lease, and in 2AA2, wishing to carry his foundations lower than those of the ?laintiff, excavated to a considerably greater depth and endangered the foundations of the ?laintiff>s house:1
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Held (affirming the decision of the Oice1 hancellor of (ancaster), that the ?laintiff was entitled to restrain the Iefendant from excavating so as to let down the ?laintiff>s house, for that there was not enough in the special circumstances of the case to ta<e away the right of support from the ad#oining lands of the grantor which is implied in a grant of land for the purpose of building. IT IS THE LANDLORD AGAINST AHOM ANL ACTION CAN BE BROUGHT 71# NOT 7;7i1&% %+e Te171%, A% %+e %ime "J %+e 7 %ivi%8 %+7% "1&%i%$%e& 7 #er";7%i"1 "J %+e "ve171%I %+e L71#l"r# m78 1"% eve1 He i1 0"&&e&&i"1, R"Hi1&"1 v Bilver% 9'44(: /' C+, D 44 2$#;me1% "J Li1#l8 L,2, . landlord let a floor to a tenant for a paper warehouse, retaining the cellar immediately below. 3e afterwards commenced in the cellar a manufacture which re'uired the air to be hot and dry, and employed a heating apparatus. &his raised the temperature on the floor of the tenant>s room to about AE, but the general air of the room was never nearly so high, and it did not appear that the wor<people were inconvenienced. &he tenant sued to restrain the landlord from heating the cellar, on the ground that the heat dried his brown paper and made it less valuable, though it was not such a heat as would in#ure paper generally. &he landlord did not <now at the time of the letting that the tenant was going to store any particular <ind of paper which was liable to be deteriorated by a heat which would not hurt paper generally:1 Held, that the landlord was not liable either on the ground of nuisance or of implied agreement for 'uiet en#oyment. . landlord who lets part of his property for the purpose of a particular trade, is not to be ta<en as having entered into an implied contract precluding him from a reasonable and ordinary use of the remainder, on the ground that such use in#ures a particular class of his tenant>s goods, it not having been <nown to him at the letting and not being a matter of common <nowledge that that particular class of goods was liable to be so in#ured, nor is such user by the landlord a breach of his covenant for 'uiet en#oyment. NOTE: the distinction between non1derogation from grant and 'uiet en#oyment is that the former is concerned with the user of the landlord(s ad#acent land which is of such a nature that it ma<es the demised part less fit or materially less fit for the purpose for which it was let. &he latter is concerned with interference of the demised premises. *t should be noted that the line of demarcation is blurred and one particular act may actually be a breach of both covenants. &he test for determining the existence of a breach is whether the premises are rendered less fit or materially less fit for the particular purpose of the lease. &he buyer must be aware meaning the vendor is under no duty to disclose the conditions of the premises. &here is no implied guarantee for any particular purpose at ommon /aw. Dutside of the circumstances for the covenant for the derogation of grant, where it is a furnished premise, it must be fit for human habitation, this is a warranty as oppose to a covenant. &hat implied warranty is protected under statute. (emedies for reach of Covenant (i) (ii) 3. Iamages *n#unctive relief (where appropriate) /ther 0andlords /bligations

*n addition to covenants into which a landlord may enter or the obligations of which may be
3A Page 26

applied to him, there are as well, warranties which may be given or implied with respect to the condition of demised premises. .t common law, in the absence of an express covenant, there is no implied warranty that the demised premises are suitable or available for any particular purpose. &his is so even where the landlord <nows the particular purpose for which the premises are being leased. E'ceptions$ (i) F$r1i&+e# +"$&e&. &here is an implied term in leases for furnished premises that they shall be fit for human habitation at the start of the tenancy.

T+i& e6 e0%i"1 i& J7irl8 limi%e# He 7$&e: *t applies only to furnished dwellings; if the dwelling becomes unfit after habitation then he is not liable with regard to furnishinghs. &he landlord would not be in breach *t applies only to fitness for habitation and does not ma<e the landlord liable for structural defects; &he liability arises in contract, so that only the landlord can sue for in#ury; &his condition may be excluded by an express term. Smi%+ v M7rr7Hle 9'4/-: '' M M A ) *t is said that premises were unfit for human habitation if the demised premises are encumbered with a nuisance of so serious a nature that no reasonable person can be expected to live in them. *n this case, the premises were infected with bugs. C"lli1& v H"0<i1& ['(2-] 2 BB *'> ;here the house has been recently occupied by a person with tuberculosis and was not disinfected prior to letting. Upon letting of a furnished house, there is an implied warranty in the nature of a condition that the demised premises shall be reasonably fit for habitation at the date of the commencement of the tenancy. &he warranty amount to a condition and if bro<en, the tenant may: +epudiate (disclaim) the tenancy %ive up possession of the house ,ue for damages. S7r&"1 v R"Her%& ['4()] 2 CB -() &here is no covenant by the landlord that the premises will continue to be fit for human habitation during the term of the tenancy. *n other words, the landlord has no obligation to <eep the premises fit for habitation, so if they subse'uently become unfit, the landlord is not liable. Cr$&e v M"$1% ['(--] ' C+ 2>4 *n a lease of an unfurnished flat there is not to be implied a condition or a warranty that the flat is reasonably fit for occupation. 2ii3 %tatutory provisions. $ote the territories where these exist: Tri1i#7# M T"H7;" @ Le%%i1; "J H"$&e& 9Im0lie# Term&: Or#, C70, 2> N", 4 &,4*n any contract for letting any house for human habitation, there shall, notwithstanding any
3A Page 27

stipulation to the contrary, be implied a condition that the house is, at the commencement of the tenancy, and an underta<ing that the house will be <ept by the landlord during the tenancy, in repair and in all respects, reasonably fit for human habitation.5 43ouse5 means a house furnished or unfurnished and includes part of a house. ?rovided that the house is let for a term of three years or more and is not determinable at the option of either party before the expiration of three years. H7mHli1 v S7m$el M Br"=1e 9'(**: '' AIR /4 *n this case, the owner of the house decided to convert the basement into two self1contained apartments. Dfficials of the rent assessment board visited the premises and found that the ventilation of the apartments was inade'uate, that the one bedroom window in each apartment could not be opened at all, and that the one sitting room window in each had generally to be <ept closed because of the prevailing dust. ;ooding B said that the :oard would appear to have regarded the conditions to which the apartments were sub#ect as almost, if not wholly, subhuman. *n ascertaining the meaning of 4fit for human habitation5 the B gave it its natural meaning which may tersely be said to be fit for human beings to live in. &he following aspects should be regarded in this determination: +epair ,tability Mreedom from damp $atural lighting Oentilation ;ater supply Irainage and sanitary conveniences Macilities for storage, preparation and coo<ing of food and for the disposal of waste water. &he house shall be deemed and unfit for human habitation if it is defective in one or more of the above areas then it is not reasonable for the suitable occupation of the premises. (emedies for reach of the Covenant ;here there is a breach of this covenant, the tenant is entitled immediately to repudiate the contract. *t is a condition precedent to the liability of the landlord as far as the underta<ing is concerned that notice of the defect be given to him and this is so even though the lease has reserved to the landlord the right to enter the premises and view: M"r;71 v Liver0""l C"r0"r7%i"1, (i) (ii) 4. +epudiation Iamages

Covenant to renew the 0ease 1/ptional2

&he effect of a covenant to renew the lease by the landlord in certain prescribed circumstances amounts to the grant of an option to the tenant. &he grant of such an option constitutes an irrevocable (binding) offer by the landlord which he cannot unilaterally withdraw. .n option to renew a lease touches and concerns the land is therefore: i) binding on the lessor(s personal representatives 1 A""#J7ll; ii) runs with both the lease and the reversion 1 Ae; M"%"r&N iii) capable of being assigned;
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iv)

binding on successors in title of the original landlord.

N,B, ;here title is registered such options are only binding on purchasers of the reversion if entered on the register or certificate of title. A""#7ll v CliJ%"1 ['(.)] 2 C+, 2)> . lease of land for ninety1nine years granted in 2AKC contained a proviso that in case the lessee, his heirs or assigns, should at any time during the term be desirous of purchasing the fee simple of the land at the rate of 9EEl. per acre, the lessor, his heirs or assigns, on receipt of the purchase1 money, would execute a conveyance of the land in favour of the lessee, his heirs and assigns. *n 2@E8 an action was brought by an assignee of the lease, who had given notice of his desire to exercise the option, against assigns of the lessor to compel a conveyance of the land accordingly:1 Held, by the ourt of .ppeal, that the proviso or covenant did not come within the statute 76 3en. A, c. 78, so as to ma<e the liability to perform it run with the reversion, and that conse'uently the action could not be maintained against the defendants. The #uestion in the present case is whether the statute was intended to cover, or can be construed as covering, such a covenant or proviso as we have now to consider, so as to ma e the liability to perform it run with the reversion. %e have come to the conclusion that that #uestion must be answered in the negative. The covenant is aimed at creating, at a future time, the position of vendor and purchaser of the reversion between the owner and the tenant for the time being. It is in reality not a covenant concerning the tenancy or its terms. 5roperly regarded, it cannot, in our opinion, be said to directly affect or concern the land, regarded as the sub$ect!matter of the lease, any more than a covenant with the tenant for the sale of the reversion to a stranger to the lease could be said to do so. It is not a provision for the continuance of the term, li e a covenant to renew, which has been held to run with the reversion, though the fact that a covenant to renew should be held to run with the land has by many been considered as an anomaly, which it is too late now to #uestion, though it is difficult to $ustify. An option to purchase is not a provision for the shortening of the term of the lease, li e a notice to determine or a power of re!entry, though the result of the option, if e&ercised, would or might be to destroy the tenancy. It is, to our minds, concerned with something wholly outside the relation of landlord and tenant with which the statute of Henry 6III. was dealing. T 2"l+$r&% v A&&" , !"r%l71# Ceme1% ['(.-] AC /'/ 3 /2&he nature of the agreement and the time it was to last negative the idea that it was confined to the parties to it. &he word 0assigns0 does not occur in the agreement. :ut this does not show that the benefit of the contract is not assignable. .n agreement for a lease, and even an option to re'uire a lease or a renewal of a lease, is assignable in e'uity even although there is no mention of executors, administrators, or assigns. Ae; M"%"r& L%# v H7le& ['(*'] - All ER '4' :y a mortgage, dated A Buly 2@7C, %+* /td as the registered proprietors with an absolute title under the /and +egistration .ct, 2@69, of property a in /ondon, including certain land with the garages erected thereon, charged the property by way of legal mortgage to an insurance company. lause 29 of the mortgage provided that the statutory powers of leasing should not be exercisable by the borrowers without the written consent of the lenders except in the case of lettings for any period up to twenty1one years. &he charge was registered. :y a lease, dated 6K Buly 2@7A, %+* /td demised the land with the garages thereon to the plaintiff company for a term of twenty1one
3A Page 29

years from 69 Iecember 2@7A, determinable by the lessee at the end of seven or fourteen years, at a rent of F2,9EE a year. . clause in the lease referred to 4ma<ing good Pcertain mattersQ at the expiration of the term or any renewal thereof5. :y an agreement (not under seal) made on the same date and between the same parties (referred to therein as 4the lessors5 and 4the lessees5), but signed before the execution of the lease, it was stated that the expressions 4lessors5 and 4lessees5 included, wherever appropriate, their respective successors in title, and it was agreed that 4*n consideration of the lessees ta<ing a lease of even date with but executed after these presents from the lessors the lessees shall have the option of ta<ing a further lease of the premises demised by the L lease for a term of twenty1one years at the yearly rental of F2,9EE5. :y cl 6 it was agreed that the option should be exercisable by notice in writing given by the lessees to the lessors at any time before 69 Iecember 2@9@, and that, if and when it should be exercised, the lessors should grant 4a further lease5 of the premises 4for the said term (such term to commence from the date of the exercise of the option) at the said rent5, and the lessees should thereupon surrender the unexpired residue, if any, of the lease of 6K Buly 2@7A. Hel#: the execution of the option agreement and of the lease formed a single transaction, since in view of the fact that the 4ta<ing of PtheQ lease of even date5 was the expressed consideration for the grant of the option, the option agreement was in truth no more than an offer having no binding effect until the lease was executed, and since the documents were contemporaneous and intimately related; accordingly the right and obligation of the option agreement were properly incidents of the demise, were for the renewal of the lease and, as such, were excepted by long established authority from the scope of the rule against perpetuities. Ae&% C"$1%r8 Cle71er& v S7l8 ['(**] - All ER 2'. :y a fourteen year lease expiring on 6C Banuary 2@K9, the tenant covenanted to <eep and deliver up the inside of the demised premises in repair and 4at least once in each three years of the L term and L in the last year of the L term to paint with at least two coats of good oil colour and paper and whitewash all such parts of the inside of the premises as have usually been painted papered and whitewashed5. lause 8(7) gave the tenant an option to renew the lease for a further seven years by giving twelve months( notice in writing before the expiry of the term 4providing all covenants herein contained have been duly observed and performed5. &he tenant <ept the interior of the premises in fair decorative repair, but did not paint the ceiling and did no painting in the last year of the term. &he landlord, who lived next door to the premises, fre'uently visited the premises and saw what decoration was done; she once commented unfavourably on the style of decoration, but never complained of failure by the tenant to paint in accordance with covenants. Dn 2A ,eptember 2@K7, the tenant gave notice to exercise the option. Hel# O (i) the tenant was not entitled to a renewal of the lease under the option because at the termination of the term, which on the true construction of this option was the relevant date, the tenant was in breach of covenant in that the ceiling had not been painted every three years and no painting had been done in the last year of the term; and the triviality of the breaches did not prevent them from rendering the option unenforceable. (ii) the landlord(s silence about these breaches could not constitute a waiver or estoppel. Fi1 + v U1#er=""# 9'4>*: 2 C+,D, -'. . lease was granted to two, with a proviso for re1entry in case the rent should be in arrear for thirty days, or the tenants or either of them should become ban<rupt, or let, assign, or part with the premises, or any part thereof, without license; or if the tenants should not <eep the covenants (which were #oint and several covenants), one of which was to <eep the interior of the property in repair. &he landlord covenanted that he would, at the expiration of the term (in case the covenants on the tenants> part should have been duly performed), grant to 0the tenants, their executors and
3A Page 2K

administrators,0 a fresh lease, sub#ect to the same covenants, provided the tenants or either of them, their or either of their executors or administrators, should, twenty days before the end of the term, give the landlord notice of the desire to ta<e such lease. Dne of the tenants became ban<rupt, shortly before which he assigned his interest in the lease to the other tenant. &he landlord, with <nowledge of this, received rent to the end of the term. &he continuing tenant, twenty1one days before the end of the term, gave the landlord notice to grant the renewed lease to him. .t this time the interior of the property re'uired repairs to the amount of at least R27. 1alins, O. ., decided that the lease must be granted, the repairs re'uired being only trifling:1 Held, on appeal, that the tenant was not entitled to a renewed lease, for that, 2, the granting it was sub#ect to a condition precedent that the covenant of the lease should have been <ept, which condition had not been performed, as there was a want of repair which, though not serious, constituted an existing breach of covenant when the new lease was applied for. 3. Covenant to grant an option to purchase the reversion 1/ptional2

&his is a landlord(s covenant where the landlord agrees that, upon the lessee giving to him notice of his intention to purchase of the reversion the landlord will convey the reversion to him. &he covenant specifies the period and form of the notice. *t usually, but not always, contains an agreed purchase price. ,ome options to purchase the reversion may contain a formula by which the purchase price may be calculated. &he covenant usually stipulates as well that no rent must be in arrear. &he existence of such an option is collateral to the relationship of landlord and tenant. A""#7ll v CliJ%"1I S$0r7 3 2>( 0er R"mer L,2, 97H"ve: &he option does not constitute a contract, but still however creates a property right. Re B$%%"1& Le7&e ['(*-] - All ER >.4 . lease dated 2E .ugust 2@99, in which the lessee, a company, was described as the tenant but there was no express definition of the term tenant extending that description to include assigns, contained a clause conferring on the tenant an option to purchase the freehold reversion. Dn 6A Mebruary 2@9C, the company assigned the lease to the plaintiff; this did not contain any specific assignment of the benefit of the option. Dn 2C -arch 2@KE, the company specifically assigned the benefit of the option to the plaintiff. Dn the 'uestion whether the benefit of the option was now vested in and exercisable by the plaintiff, Hel# O &here was nothing in the context to negative the prima facie rule that the option was assignable, and accordingly the benefit of the option was vested in the plaintiff and exercisable by him. ?er uriam: where in a lease conferring an option to purchase on the tenant there is an express description of the tenant, as including his executors, administrators and assigns, the description may limit the possible assignees of the option to persons who are assignees of the term, but in the absence of that description the option is assignable to anyone. .n option in a lease for the lessee to purchase the reversion creates in favour of the grantee a chose in action or e'uitable interest in the land which is assignable, except in a case where assignability is prohibited by some rule of law, such as the rule against perpetuities, or the option is personal to the grantee; but the option does not of itself constitute a contract. *f not exercised however, it does not remain a term in a yearly tenancy where the tenant holds
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over after the expiration of the original lease. Re Lee0& 71# B7%el8 Bre=erie& 71# Br7#H$r8& Le7&e &he option attaches to and forms part of the lease so that its benefit passes on to an assignee of the tenant(s interest. GriJJi%+ v !el%"1 ['()4] ' C+, 2.) :y a lease dated -ay 2C, 2@79, ?. demised certain freehold property to :. for a term of 62 years from -arch 69, 2@79. &he parties to the lease were thereinafter respectively described as 0>the lessor,> which expression shall include the estate owner or estate owners of the reversion of the premises hereby demised expectant on the term hereby granted, where the context so admits, and >the lessee,> which expression shall include her executors, administrators and assigns where the context so admits.0 &he lease contained a proviso that 0if the lessee shall within the period hereinafter prescribed give to the lessor six monthsH notice in writing of the desire of the lessee to purchase the fee simple of the demised premises ... then the lessor shall on the expiration of such notice and upon payment of Pa named sumQ ... assure the said premises unto the lessee for an estate in fee simple in possession ... ?rovided nevertheless that this option ... shall not be exercised during the lifetime of the present lessor the said P?.Q but shall be exercised within one year next after his death if he shall die during the term hereby granted and nothing herein contained shall be construed as giving to the lessee any option to purchase the fee simple of the demised premises at any time after the expiration or sooner determination of the term hereby granted unless the aforesaid notice shall have been given by her before such expiration or determination.0 :y an assignment dated .ugust 7, 2@8A, :. assigned to the plaintiff for a named sum the property comprised in and demised by the lease for the residue of the term thereby granted. &his document contained no reference to the option. ?. died on -arch 6, 2@9K, and probate of his will was granted to the defendant on .pril 27, 2@9K. :y a deed dated -arch 66, 2@9K, :. gratuitously assigned (or purported to assign) the benefit of the option to the plaintiff if and so far as not already vested in him. Dn the same day the plaintiff gave notice in writing of the assignment 0to the personal representative or personal representatives0 of ?. .lso on the same day the plaintiff gave to 0the personal representative or personal representatives0 of ?. notice in writing exercising the option. &he term granted by the lease expired on -arch 69, 2@9K. Dn the 'uestion whether the benefit of the option was effectually vested in the plaintiff, either (a) by the assignment of the lease dated .ugust 7, 2@8A, or alternatively (b) by the deed of -arch 66, 2@9K:1 Held, (2) that on the true construction of the proviso contained in the lease, including the definition to be read into it of the expression 0lessee0 as including the lessee>s assigns, the original parties to the lease must be ta<en to have agreed that the option should be exercisable by :. herself or by any assignee of the term to whom she might assign the benefit of the option, and that a mere assignment of the term should operate as an assignment of the benefit of the option to the assignee of the term; and that, accordingly, the assignment of .ugust 7, 2@8A, effectually vested the benefit of the option in the plaintiff. (6) &hat in any event, if the assignment of .ugust 7, 2@8A, did not pass the benefit of the option to the plaintiff, then it remained vested in :. and the deed of -arch 66, 2@9K, constituted an effective assignment of it to the plaintiff. 5er curiam. .n option contained in a lease for the lessee to purchase the freehold differs from an option in gross only in the respects that the grantor and grantee stand in the relationship of landlord and tenant, and that the contract creating it is made part of the terms on which the lease is granted. :ut, albeit collateral to the lease, it is in itself a distinct contract possessing, all the
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essential characteristics of an option in gross. .ccordingly, under the option provisions in the present case :. was entitled as a matter of contract to assign the benefit of the option contained in the lease to the plaintiff as her assignee of the term, so as to entitle the plaintiff to enforce it against the defendant, who, as the executrix of the original lessor, was bound by her testator>s contract. TE+"+T% C/4E+"+T% ', a2 T" 078 re1% +ature

+ent is the 'uantum of money or money(s worth which is payable to the landlord by the tenant as compensation for the tenant(s use and occupation and exclusive possession of the demised premises. *t forms part of the contract. &he .ddendum operates to reserve the rent: amount, date of commencement and when payable. &he .ddendum where the rent is received and the 'uantum and the manner of payment of the rent is specified, it is here where the periodic lease, guidance is necessary from here where the rent should be paid and at what time. *t does not matter whether the parties tend to shift away. 3e is bound by his covenants to pay the rent, where however there is failure to pay, or actions accrued against the landlord, it is there in the .ddendum. .t common law rent which is not expressed within the body of the lease, all you do is agree how much the rent is, and times to be paid. *f you omit rent is payable in advance, it is available by way of arrears. M"1%7;$e v Br"=1i1; 0er De11i1; L,2, 3 0,*./ ['()/] 2 All ER *.' &he rent must be fixed, certain or ascertainable. 78ent is usually #uantified in money and paid in money, but it is not necessary in law that it always should be so*. It seems to me that, even under the 8ent 8estrictions Acts, in cases when rent is payable, not in money, but in ind, as in goods or services, then, if the parties have by agreement #uantified the value in terms of money, the sum so #uantified is the rent of the house within the meaning of the 8ent 8estrictions Acts, and, if it e&ceeds two!thirds of the rateable value, the house is within the Acts.9 "xamples of payment which are not rent are: (i) premiums payable in consideration of the grant of a licence where there is no right of exclusive possession. (ii) payment for grant of an easement or other incorporeal hereditament. (iii) other payments reserved by the lease in ADDITION to the rent. b2 (eservation -ay be express or implied from a covenant by the tenant to pay rent. &he covenant to pay rent is usually introduced by the words 4yielding and paying5. HOAEVER, no particular form of words is re'uired so long as the intention of the parties to reserve a specified rent is clear. Dnce this intention is evinced it will amount to an implied agreement on the part of the tenant to pay rent.
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c2

Time and mode of payment of rent

*n the absence of an express term to the contrary, rent is payable in arrears at the end of a period in a periodic tenancy. C"lle%% v C$rli1; 9'4/>: '. CB >4) ,pecific terms relating to the time for the payment of rent are to be found in the reddendum. &hus a yearly rent may be payable monthly or 'uarterly and may also be made payable in advance. d2 To whom rent is payable

+ent must be paid to the lessor or to someone who is expressly or impliedly authorised by the lessor to receive it. e2 Estoppel

?ayment of rent is a recognition of the title of the person to whom it is paid and operates as an estoppel against the tenant if he disputes the title. C""<e v, Ri <m71 ['(''] 2 BB ''2) &he plaintiff sued the defendant in the Jing>s :ench Iivision for rent alleged to be due under an agreement, and #udgment was signed under Drder S*O. for a part of the sum claimed which the defendant admitted that she owed. *n a subse'uent action in the county court between the same parties for further rent under the same agreement, the defendant raised the defence that there was no consideration for the agreement:1 Held, on the authority of 3umpfries v 3umpfries, that the defendant having admitted in the first action that rent was due from her under the agreement was estopped from raising in the second action the defence of no consideration for the agreement. ;here a tenant has paid rent to a person not entitled to receive it, he is still liable to the actual landlord for the rent. &he covenant to pay rent runs with the land whether the covenant is express or implied. &he liability arising from the covenant continues until determination of the tenancy. &he rent reserved by the covenant must be certain or ascertainable by calculation or reference to specific and certain events. Tre&e#e1@GriJJi%+ C"@"0er7%ive I1&, S" , L%# ['()*] 2 All ER --, /essors demised two shops to tenants on a lease for thirty1four years from 68 Bune 2@7E, at a rent rising from F2,KEE to F2,@EE per annum. 3aving subse'uently bought the freehold, on 7E Iecember 2@7A, they demised the shops to the same tenants from 68 Bune 2@7E, for ninety1nine years 4paying therefor yearly during the said term either in gold sterling or :an< of "ngland notes to the e'uivalent value in gold sterling the rent of F2,@EE to be paid without any deduction except for landlord(s property tax land tax and tithe redemption annuity by e'ual 'uarterly payments L 5 repeating a similar clause in the earlier lease apart from the figure of rent. &here was a covenant 4to pay the reserved rent at the time and in manner aforesaid5. &he lease having been assigned, the lessors claimed from the lessees (ie, the assignees) payment of rent on the basis of the value of 8C9 gold sovereigns a 'uarter at the date when the payment became due,
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either the value of their gold content as bullion (eg, F9,K2E Ks 2d, on 6@ ,eptember 2@99) or the value of the sovereigns as vendible coins (eg, FK,826 2Es at that date) the value in either case fluctuating with the mar<et. Hel# O (3arman B dissenting): Dn a true construction of the lease the yearly rent payable was a fixed rent of F2,@EE and the reddendum was intended to determine the manner in which the rent was paid but not to fix its amount, because (i)(per Ienning /B) the phrase 4gold sterling5 in the reddendum denoted gold coins regarded as currency, worth as such their nominal value, and did not refer to gold coins regarded as a commodity or as bullion (see p 7A, letters b and i, post), and (ii)(per -orris /B) the word 4value5 in the reddendum denoted nominal value, with the conse'uence that for the purpose of the reddendum gold sterling might be satisfied at 6Es or a F2 ban< note for the gold pound *. 5ser &his covenant is designed to preserve the character of the demised premises, and is usually prevalent in long leases. :eing consistent with the nature of the premises, so that the premises when the current user 'uits, ensures that the premises are not compromised. ?ositive and negative, you have to loo< at the substance, to refrain from actions or ta<e a positive step. &hese are restricting covenants, what they are supposed to do, so that they don(t change the current particulars of the premises to change the place. a) &he tenant covenants to use the demised premises in a tenant li<e manner. &his covenant exists at common law and may be express or implied. To use premises in a tenant li e manner means at any rate that a tenant will not ma e such structural alterations in the premises as will change their character. If a dwelling house is let and something which is not a dwelling house is delivered up, the contract to deliver up in a tenant li e condition is bro en. ?er )crutton (.: in 1arsden v 0dward Heyes (td P2@6CQ 6 J: 2 T p.C ???????????????????A7rre1 v Bee1 ['()/] ' CB ') 07r%i $l7rl8 %+e F$#;eme1% "J De11i1; L,2, 7% 0;, 2.,????????????????????????? " wee.ly tenant is not under a general covenant to put and .eep the premises in repair. )is only duty is to use the premises in a husbandli.e or tenantli.e manner. 6f the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, he is not liable to repair it. /D+I I"$$*$%: 4Apart from e&press contract, a tenant owes no duty to the landlord to eep the premises in repair. The only duty of the tenant is to use the premises in a husbandli e, or what is the same thing, a tenantli e manner. ;ut what does <to use the premises in a tenantli e manner< mean= It can, I thin , best be shown by some illustrations. The tenant must ta e proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sin when it is bloc ed by his waste. In short, he must do the little $obs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see that his family and guests do not damage it' and if they do, he must repair it. ;ut apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the tenant is not liable to repair it.9 . tenant has the right to use the demised premises for any purpose unless restrained by a) statute G e.g. &own and ountry ?lanning restrictions; or
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b) a restrictive covenant provided the purpose for which the premises are used is not unlawful, does not create a nuisance and does not amount to waste. Re&%ri %ive "ve171%& m78 He: i) $egative in form and substance, e.g. not to carry on trade. ii) ?ositive in form but negative in substance, e.g. to use the premises as a private dwelling house only. !7r<er v A+8%e 9'4*-: ' H M M '*> .n underlease of a shop contained express permission for the under lessee to carry on sales by auction there, but in the original lease there was a covenant of which the under lessee had no actual notice which did not permit such sales to be carried out there without licence from the landlord. .n in#unction was granted at the instance of the landlord, to prevent such sales from being carried on. .n under lessee cannot plead no notice if he abstains from calling for information to which he is entitled. M71#er v F7l <e ['4('] 2 C+, ))/ &he lessee had covenanted not to use the demised premises for any purpose which would cause annoyance or inconvenience to ad#oining property owned by the lessor. &he lessee sublet the premises and the sublease eventually became vested in S who did not occupy the premises himself, but gave an occupational licence to his father. ;hile in occupation, S(s father used the premises ostensibly as an oyster bar and refreshment room, but in reality as a notorious brothel Uto the great annoyance of the neighbourhood(. &he plaintiff, who had ac'uired the reversion, sought an in#unction to restrain the breach of the covenant and the in#unction was granted. Leverm"re v 2"He8 ['()*] 2 All ER -*2 :y a lease there was demised to a tenant property described as 4all that building or tenement shop and premises5 and the tenant covenanted that he would 4not use or permit to be used the demised premises or any part thereof for any illegal or immoral purpose but will use and occupy the demised premises and permit them to be used and occupied as and for the trades or business of a newsvendor stationer boo<seller toy merchant and tobacconist only5. &he premises comprised a building on three floors. Dn the ground floor was a shop, with a living room, dining room and a <itchen behind. Dn the first floor was a sitting room and a bedroom, and between the ground and first floors, off a half1landing, there were a bedroom, bathroom and a water closet. Dn the second floor there were two bedrooms. &here was a separate door from the street to the upper floors. Hel# O 4It is un!grammatically e&pressed, since the words 7occupied9 and 7for the trades or business9 are separated by the words 7as and9 which have no grammatical connection with what follows, but it does purport to impose an obligation on the tenant to use and occupy the demised premises and permit them to be used and occupied for the specified trades or business only. >or the landlord it is urged that the effect of it is to impose on the tenant a positive obligation to use and occupy every part of the demised premises and permit every part of the demised premises to be used and occupied for the trade or business specified and for no other purpose. )o that the lease on its true construction is a lease of the premises under which the tenant is under an obligation to carry on the trade or business of a newsvendor, stationer and boo seller, toy merchant and tobacconist on the premises, and further, is under an obligation not to carry on any other trade or business on the premises, but the tenant is under no prohibition against living on the premises. If that construction is right, then one has the position that premises adapted for use as a shop with living accommodation over are let to a tenant with a
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provision to the effect that he is to carry on a specified trade or business on the premises but no other trade or business. That means, in my view, that so far as the terms of the lease are concerned the tenant is allowed without breach of covenant to live on the premises, and it would seem to me that the effect of that is that the premises were let as a dwelling!house notwithstanding that they were to be used in part for business purposes.9 b2 reach of the Covenant ;hether or not there is a breach of the covenant depends upon proper construction of the covenant in light of the relevant cases, but note the following: Germ71 v C+70m71 9'4>>: > C+, D, 2>' &he user of the premises for trade or business (school) was a breach of the covenant to use as a private dwelling house only. &his case shows that even a partial or minor use as a business will amount to a breach. 0ord 7ustice 7ames *89, ..... :6;f there is a general scheme for the benefit of a great number of persons, and then, either by permission or acquiescence, or by a long chain of things, the property has been either entirely or so substantially changed as that the whole character of the place or neighbourhood has been altered so that the whole object for which the covenant was originally entered into must be considered to be at an end, then the covenantee is not allowed to come into the Court for the purpose merely of harassing and annoying some particular man where the Court could see he was not doing it bona fide for the purpose of effecting the object for which the covenant was originally entered into. That is very different from the case we have before us, where the <laintiff says that in one particular spot far away from this place, and not interfering at all with the general scheme, he has, under particular circumstances, allowed a waiver of the covenant. 6 thin. it would be a monstrous thing to say that nobody could do an act of .indness, or that any vendor of an estate who had ta.en covenants of this .ind from several persons could not do an act of .indness, or from any motive whatever rela' in any single instance any of these covenants without destroying the whole effect of the stipulations which other people had entered into with him=>..... !7%m71 v H7rl71# 9'44': '> C+ D -)&he erection of a stadium was held to be a breach against use for business and as a private dwelling house only. T+"r1 v M7##e1 ['(2)] C+, 4/> +eceiving lodgers and paying guests, as a regular practice, was held to be a breach of the covenant for use as a private dwelling house only and also to be a breach against use for the purpose for trade and business. Se;7l Se $ri%ie& v T+"&eH8 ['(*-] ' All ER ).. *n 2@92 the defendant ac'uired the sub1lease of a maisonette at "aton ?lace, /ondon, for the residue of a term of twenty1one years expiring on 72 Banuary 2@K@. &he sub1lease contained a tenant(s covenant 4to use the demised premises for the purpose of a private residence in the occupation of one household only5. &he maisonette was bigger than the defendant re'uired for herself alone, and she found ladies as paying guests to live in the maisonette or share the accommodation with her, some were friends of hers and some were friends of friends. *n Buly, 2@KE, the plaintiffs ac'uired the leasehold reversion of the sub1lease. *n the summer or autumn of 2@KE a -iss ;hitehouse, who was a friend of a friend of the defendant, was ta<en into the maisonette on a sharing basis. Mor some months prior to Bune, 2@K6, and until after C .ugust 2@K6, a -iss ;al<er also was living in the maisonette. ,he came in answer to an advertisement, was a paying guest and lived in an independent way rather than as sharing accommodation; the
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defendant regarded the transaction with her as a letting. Hel# O the defendant was in breach of the covenant to use the demised premises only as a private residence during the period while -iss ;al<er was in residence there, for she was a paying guest and there was the basis of a letting to her, though the defendant would not have been in breach, in the circumstances, by reason only of -iss ;hitehouse(s residence, as she was there (in Bune, 2@K6) on a basis of a sharing arrangement as a friend; and the defendant(s breach was a continuing breach subsisting for many months immediately preceding the commencement of the action. D"HH& v Li1J"r# ['()-] ' CB /4 . tenancy agreement made in 2@7K of a dwelling1house within the +ent +estriction .cts contained a covenant by the tenant 0not to use the said premises for any purpose other than as a private dwelling1house .nd not to sublet or part with the possession of the premises (except as a furnished house) without the consent in writing of the landlord such consent not to be unreasonably withheld in the case of a respectable and responsible person.0 Un<nown to the landlord the tenant had in 2@87 sublet the top floor to the defendant as a self1contained flat. &he tenant having died, in these proceedings the landlord sought to recover possession against the sub1tenant. &he sub1tenant claimed that the premises had been lawfully sublet to her and that she had become the tenant of the landlord by virtue of section 29 (7) of the +ent and -ortgage *nterest (+estrictions) .ct, 2@6E. &he county court #udge made an order for possession:1 Held, that the subletting of part of the demised premises was a breach of the covenant not to use the premises for any purpose other than 0as a private dwelling1house.0 *f that covenant had been followed by a covenant not to sublet or part with possession of the premises or 0any part thereof0 that would have been relevant in construing the covenant as to user as 0a private dwelling1house.0 &he covenant as to user was inconsistent with the reservation of any right to the tenant to sublet part of the premises. &he subletting was in breach of covenant and the landlord was entitled to possession. D"=1ie v T$r1er ['()'] ' All ER /'*??????? :y an agreement in writing, dated @ $ovember 2@8E, the landlord agreed to let a dwelling1house to the tenant for one year and thereafter, sub#ect to notice as therein provided, at a wee<ly rent of 79s. &he agreement provided inter alia that the tenant 4will not during such tenancy underlet the said premises or any part thereof without the previous consent in writing of the landlord: such consent shall not be unreasonably withheld to a good tenant L and the tenant agrees that he will not use the said premises for any other purpose than as a private dwelling1house L 5 *n Mebruary, 2@8K, without obtaining the landlord(s consent, the tenant sub1let part of the premises as living accommodation to the sub1tenant and his wife. Dn 62 Dctober 2@8@, the landlord served a notice to 'uit on the tenant, and on 66 $ovember 2@8@, the tenant served a notice to 'uit on the sub1 tenant. Dn 8 .pril 2@9E, the landlord served on the tenant a forfeiture notice under the /aw of ?roperty .ct, 2@69, s 28K(2). .fter ,eptember, 2@8@, the landlord continued accepting rent from the tenant until 27 Mebruary 2@9E, with <nowledge of the sub1letting. *t was conceded that the landlord(s acceptance of rent after ,eptember, 2@8@, operated as a waiver in respect of the breach of the covenant against underletting, but it was argued that the tenant was in breach of his covenant to use the premises only as a private dwelling1house, and that that breach was continuous and had not, therefore, been waived. Hel# O .ssuming that the unlawful sub1letting was a breach of the covenant as to user, the acceptance by the landlord of the rent after he had <nowledge of the sub1letting constituted a waiver not only of the breach of the covenant against underletting, but also of the breach of the covenant with regard to user. The case now before us proceeded in the county court on the basis that the sub!letting and the
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occupation by the sub!tenant was a breach of the covenant not to use the premises for a purpose other than that of a private dwelling!house, and that was the basis on which the learned $udge proceeded. It is plain that, if what happened amounted to a breach of the covenant not to use the premises for a purpose other than that of a private dwelling!house, that breach arose from the sub!tenancy to the sub!tenant and his occupation under the sub!tenancy. If a breach of that covenant was to be relied on, it would not be enough simply to allege that the sub!tenant and his wife were in the house. ?ne does not cease to use one.s house as a private dwelling!house because one has a married couple in it. If there was a breach, it must be because the sub!tenant under his sublease was given e&clusive possession of a part of the house. If, as is conceded, the sub!letting was done once for all, prima facie the breach of the covenant in regard to user is also something which happened once and for all. In answer to that, counsel for the landlord submits that the continued occupation by the sub!tenant is an essential ingredient in the breach of the covenant in regard to user, whereas there would be a breach of the sub!letting covenant even if he did not occupy. I thin that that is too fine a distinction on which to base a decision that the breach, if any, of the second covenant, is continuous rather than something done once and for all. ;oth the sub!letting and the alleged user of the house otherwise than as a private dwelling!house arose, in my opinion, from the sub!tenancy, and it is impossible, I thin , in law to distinguish for this purpose and say that the one was done once for all and the other was a continuing breach. c2 (emedies for reach

i) Iamages: normally this will be the only remedy unless there is a proviso for re1entry and forfeiture in the lease. ii) *n#unctive +elief iii) Morfeiture, where provided for by the lease. d2 ,ischarge and #odification of (estrictive Covenants *n &rinidad, there are no statutory provisions in respect of the discharge and modification of restrictive covenants. *n its absence, therefore, the common law will apply. C"mm"1 L7= (a) A+ere %+e l71#l"r#P7&&i;1ee rem7i1& i17 %ive J"r 7 "1&i#er7Hle 0eri"# "J %ime =+ile "0e1 Hre7 + i& " $rri1;, He0="r%+ v, !i <le& ['(.*] ' C+, '.4 +elease of a covenant need not be express. *f the lessor is aware of a continuing breach and ac'uiesces in it for a long time, where, for example, with full <nowledge, he receives rent, it will be presumed that he has either released the covenant or granted a licence for the user. (b)A+ere %+e +7r7 %er "J %+e 1ei;+H"$r+""# i1 =+i + %+e 0remi&e& 7re l" 7%e# 7re &" e1%irel8 7l%ere# %+7% i% ="$l# He i1e5$i%7Hle %" i1&i&% $0"1 ri;"r"$& "H&erv71 e "J 7 re&%ri %ive "ve171% %+7% i& 1" l"1;er "J v7l$e, C+7%&="r%+ E&%7%e& v Fe=ell ['(-'] ' C+, 22/ *n an action to enforce restrictive covenants against a purchaser with notice, bound only in e'uity, the defendant relied on two e'uitable defences 1 namely:1 (a) . general change in the character of the neighbourhood; (b) .n allegation that this change was brought about by the acts or omissions of the plaintiffs or
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their predecessors:1 Held' (a) *n order to succeed on the first ground the defendant must show so complete a change in the character of the neighbourhood as to render the covenants valueless to the plaintiffs, so that an action to enforce them would be unmeritorious, not bona fide, and merely brought for some ulterior purpose. (b) *n order to succeed on the second ground the defendant must ma<e out a sort of estoppel by showing that the plaintiffs> acts and omissions were such as to #ustify a reasonable person in believing that the covenants were no longer enforceable. *n order to <eep their estates purely residential the plaintiffs> predecessors had imposed covenants preventing any house being used 0otherwise than as a private dwelling1house.0 &hey or the plaintiffs had however licensed a number of schools, some bloc<s of flats, a hotel, and, in certain exceptional circumstances, three boarding houses, and without the plaintiffs> <nowledge about half a do=en other boarding houses were being carried on in the area, which however still remained mainly residential. Held, that these acts and omissions did not prevent the plaintiffs from restraining the defendant from using his house as a guest house. Re L71#J7ll 9'(>.: '> AIR '>4 &he applicants proposed to purchase 0/andfall0, a property situate at ,andy /ane, ,t Bames. &his property was sub#ect to various covenants by virtue of which its use was restricted, in substance, to purposes connected with a dwelling1house. &he applicants sought the discharge or modification of the covenants so as to permit use of the property for 0hotel, motel, lodging house and apartments with allied facilities0. &he application was made on the following grounds: (a) that because of changes in the character of the neighbourhood the restriction ought to be deemed obsolete; (b) that the continued existence of the restriction would impede the reasonable user of the land without securing to any person practical benefits sufficient to justify the continued e'istence of the restriction; and (c) that the proposed discharge or modification would not injure the persons entitled to the benefit of the restriction. Hel#: (i) that the property was in a clearly defined neighbourhood, 'uite distinct from the surrounding areas and there had been 1" +71;e i1 %+e +7r7 %er %+ere"J; (ii) that the development of 0/andfall0 for hotel, motel, lodging house or apartment use would &0"il %+e 0riv7 8 71# 5$ie% "J %+e 1ei;+H"$r+""#. *ncreased traffic and domestic staff with the concomitant increase in noise would detract from the character of the enclave as a high1class residential area and the court was not satisfied that this present use was unreasonable nor that practical benefits did not ensure to other persons by the continuation of the covenants; and (iii) the proposed discharge or modification ="$l# i1F$re %+e 0er&"1& e1%i%le# %" %+e He1eJi% "J %+e re&%ri %i"1, (c) A+ere 7 &i1;le "=1er He "me& e1%i%le# %" H"%+ #"mi171% 71# &ervie1% %e1eme1%&,
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Re Til%=""# ['(>4] C+, 2*( *n Bune 2@92, LI %+e 0$r +7&er of the agricultural land forming part of an estate surrounding a mansion house and grounds, covenanted with the vendor to use the four parcels thereof for agricultural purposes only and not permit the erection of any building thereon. &he vendor too< the covenant to protect the view to the south of the mansion house. *n Mebruary 2@96 the vendor conveyed to , the mansion house and grounds with the benefit of the covenants as to the four parcels of land which were contained in the 2@92 conveyance. &he vendor also conveyed to , a strip of land to the south of the parcels, with the grant of a right of way to the strip from the mansion house. *n .ugust 2@96, , purchased from / three of his four parcels (in area about half the burdened land). 3aving sold off the western part of the mansion house and some ground without any express assignment of the benefit of the covenant , divided up the rest of the benefited and burdened land into six lots. &he first four lots, each with an express assignment of the benefit of the covenants, were sold to the defendants (part of lot 7 going to the plaintiff). &he remaining two lots each consisting of burdened land, were sold to the plaintiff, and were conveyed to her sub#ect to the covenants in the 2@92 conveyance. Dn the plaintiff>s summons for a declaration that the two lots of burdened land were no longer sub#ect to the covenants in the 2@92 conveyance on the ground that the purchase by , of part of the burdened land had created unity of seisin of the benefited and that part of the burdened land: 1 )eld, that, where the fee simple of land benefited and land burdened by restrictive covenants became vested in the same person, the restrictive covenants were e'tinguished unless the common owner recreated them? that, accordingly, since ,, the common owner, had not re1created the covenants when dividing up and selling the land, the plaintiff, as purchaser of the burdened land, was entitled to a declaration that she was no longer bound by the covenants which were extinguished. Te67 " A1%ille& L%# v Ber1" +71 ['(>-] AC *./ *n 2@69 :/ /td which owned a tract of land in the :ahama *slands prepared a building scheme for part of the land. &he land allotted to the scheme was divided into 2A bloc<s sub1divided into lots. &he lots were sold on the basis of a printed form of conveyance containing appropriate restrictive covenants binding on the company, the purchasers and their successors inter se. ondition 8 of the restrictions, set out in a schedule to the respective conveyances, provided inter alia: U$o machine shop, public garage or manufacturing establishment will be permitted on any of the lots L ( :etween 2@7@ and 2@86 /td ac'uired from different vendors lots 27 to 2A and 7@ and 8E of bloc< 7. .ll the conveyances were expressed to be sub#ect to the restrictions imposed by :/ /td. *n 2@92 /td conveyed lots 27 to 2A to predecessors of the defendants, and in 2@98 /td conveyed lots 7@ and 8E to predecessors of the plaintiffs. :oth conveyances were expressed to be sub#ect to the restrictions imposed by :/ /td. &he defendants ac'uired lots 27 to 2A in 2@KA with the intention of erecting a petrol station thereon. *n an action by the plaintiffs for an in#unction restraining the defendants from building a public garage on lots 27 to 2A in breach of condition 8 of the restrictions, the defendants contended, inter alia, that the restrictions were unenforceable between the plaintiffs and themselves as successors in title to lots which had previously been in the common ownership of /td. Hel# O ,ince lots 27 to 2A and lots 7@ and 8E were part of a larger estate which had been made sub#ect to a building scheme, the fact that those lots had subse'uently come into common ownership did not put an end to the restrictions so far as they affected the relations inter se of subse'uent owners of the lots since there was nothing in the conveyances putting an end to the unity of seisin, or in the surrounding circumstances, to indicate that the restrictions of the scheme were no longer to apply. "ccordingly the plaintiffs were entitled to claim an injunction N,B,
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;here the demised premises consist of agricultural holdings, the covenant is one to use
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and cultivate the land in a husbandli<e manner according to the custom of the country. Ae## v !"r%er ['('/] 2 B,B '(' . tenant from year to year of a farm and buildings at a rent, who has not entered into any other express agreement with his landlord than as to the amount of the rent, is under an obligation implied by law to use and cultivate the land in a husbandli<e manner, according to the custom of the country (sub#ect to the provisions of the .gricultural 3oldings .ct, 2@EA), and to <eep the buildings wind and water tight; and the assignee of the reversion can at common law enforce this implied obligation against the tenant. ;here, therefore, a tenant of a farm and buildings under a lease containing express covenants by him continued in occupation after the expiration of the term, the landlord and tenant agreeing that the terms of the old lease should not apply, but not agreeing upon the terms of the new tenancy except that there should be a yearly tenancy at a fixed rent, and the landlord assigned the reversion during the continuance of the tenancy, the assignee of the reversion was held entitled to sue the tenant for breaches of the above1mentioned implied obligations which occurred after the assignment of the reversion. -, N"% %" "1%e&% %+e L71#l"r#& %i%le *t is one imposed by the operation of the law. &he statute prohibits the entitled to hold a title. *t is not a covenant that the tenant is entitled to be release and can contest. *t is included in the lease for a tenant not to contest the landlord(s titled. /, N"% %" "mmi% =7&%e

;aste may be of the following types: i) ii) iii) iv) .meliorating: relates to improving the property. Ooluntary: deliberate damage, especially of a permanent nature. ?ermissive: allowing the damage generally by omission. "'uitable: aggravated case of voluntary waste.

Me$6 v, C"Hle8 ['4(2] 2 C+, 2)Under an agricultural lease, in 2AA@, of a farm near (ondon, consisting of arable and pasture land, the lessee covenanted to yield up the premises at the end of the term, together with all fixtures and 0improvements0 which might during the term be fixed to or erected on the demised premises, except such fixtures as should be erected by the lessee, and which he should be at liberty to remove in case the lessor should ob#ect to purchase the same by valuation; and also that he would 0in all respects cultivate and manage the farm, and every part thereof, in a good, proper, and husbandli<e manner, according to the best rules of husbandry practised in the neighbourhood.0 &he lessee converted part of the demised premises into a mar<et garden, erecting glass1houses thereon for the cultivation of hot1house produce for the (ondon mar<et. &he lessor brought an action for an in#unction to restrain the lessee from converting the farm into a mar<et garden, alleging that his doing so was a breach of covenant and was waste, causing in#ury to the inheritance. .t the trial it was proved that other farms in the neighbourhood had been converted into mar<et gardens, that being found to be the most profitable mode of cultivation:1 Held, that the conversion into a mar<et garden did not constitute a breach of the covenant, and, inasmuch as in#ury had not been thereby caused to the inheritance, was not actionable 0waste.0 &o obtain an in#unction against a defendant on the ground of 0waste,0 the plaintiff must prove that what the defendant is doing is pre#udicial to the inheritance; if it improves the value of the land it is not 0waste.0
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A7rre1 v Bee1 ['()/] ' CB ') 9S$0r7: . wee<ly tenant is only liable for voluntary waste. M71 e%%er Dev, v G7rm71&"1 ['(4*] ' All ER //( *n 2@C7 the plaintiffs granted a lease of industrial premises to a tenant for a term of 86 years. &he tenant installed extractor fans and pipes as trade fixtures for use in its chemical business and in the course of installing the fans and pipes cut holes in the outside walls of the premises. *n 2@CA the first defendant, a company controlled by the second defendant, purchased the tenant(s trade fixtures and went into occupation of the premises either as tenant or licencee, its exact status at the material time being uncertain. .fter nine months the first defendant decided not to continue occupying the premises and gave up possession to the plaintiffs. 3owever, before doing so the first defendant, at the instance of the second defendant, removed the trade fixtures without ma<ing good the holes made in the walls for the installation of the fans and pipes. &he first defendant later went into li'uidation. &he plaintiffs brought an action against the defendants claiming damages for waste. &he #udge held that in removing the fixtures without ma<ing good the holes the first defendant had committed tortious acts of waste for which the second defendant was personally liable because he had directed and procured the tortious acts. &he second defendant appealed, contending that the defendants were not liable for damage lawfully caused when the fixtures were installed, but only for any added damage which occurred when the fixtures were removed. 3eld (,ir %eorge ;aller dissenting)N&he common law duty to ma<e good or repair damage to premises caused by the removal of tenant(s or trade fixtures included an obligation to fill in holes left in the walls of a building when the fixtures were removed if the holes affected the structure rather than #ust the decoration of the building, because while the fixtures remained installed the building remained weather proof but without the fixtures the premises were no longer weather proof and the reversion was adversely affected. Mor that reason also, the burden of filling in the holes lay on the person who removed the fixtures, because that was when the waste occurred, and not on the person who made the holes. Dn the basis that the first defendant had the same right as a tenant to remove the fans and pipes, the first defendant nevertheless committed waste when it failed to fill up the holes left after removing the fans and pipes, because the building then ceased to be weather proof and was damaged as a result. .s the person who directed and procured the first defendant to commit the waste the second defendant was personally liable for the first defendant(s tort. 3is appeal would therefore be dismissed Lell"=l8 v G"=er 9'4)): '' E6 C+, 2>/ Mixed term tenants and tenants for life are liable for both voluntary and permissive waste. ), T" <ee0 0remi&e& i1&$re#

&his is a voluntary covenant; the parties may or may not agree. "ven where they do there is no rule, practice or legislation that commits 2 party to ensure. &hey may assume #oint responsibility, where the landlord ensures the premises nad the tenant the contents. Iepending on the length of the lease and the purpose, because there is an interest in preserving a reversionary interest, the landlord may ta<e a covenant to insure, loss arising the landlord is the one to ma<e the claim. &his is where you may have the total sum paid to the landlord for a particular time. .ll of these are agreements that the parties can negotiate however once they are agreed they are strictly construed against the parties, where losses arise there can be suit to breach of covenant to insure. &he covenant to insure the demised premises is usually not found in leases subsisting for less than seven years. *n leases exceeding this period, the covenant may be on the part of either the landlord or the tenant. &he usual practice is for the landlord to effect the coverage and recover the cost by way of an additional reservation of rent.
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$ote the following: i) &he covenant to insure may be express or implied. ii) . tenant(s covenant to insure may re'uire that it be effected with insurers of whom the landlord approves and in specified names. :reach of the ovenant to *nsure Iemised ?remises i) ;here any part of the demised premises remains uninsured during the term of the tenancy. ii) ;here the insurance is not subsisting at anytime during the term. (emedies for breach$ i) Morfeiture where expressly provided for in the lease. ii) Iamages. *, T" 078 R7%e& 71# T76e&

&he obligations of the parties depend upon the provisions of the lease and the applicability of statute (no statutory provisions exist in &rinidad and &obago). *f the tenancy expires and the reversionary interest goes bac< to the landlord, the covenant applies. >, C"ve171% =i%+ re&0e % %" Al%er7%i"1& 71# Im0r"veme1%&

&here is usually contained within a lease a covenant on the part of the tenant not to ma<e any alterations to the demised premises. .n alteration is effected where the construction or fabric of the building is altered. Bi <m"re v Dimmer ['(.-] ' C+, ')4 &he lease of a shop occupied by a #eweller and watchma<er contained a covenant by the lessee that he would not ma<e or cuffer to be made any alteration to the demised premises without the previous written consent of the lessor:1 Held, that some limitation must be placed on the words of the covenant, and that the erection of a large cloc<, affixed without the consent of the lessor to the exterior of the wall of the house by means of bolts driven into it, was not a breach of the covenant, and conse'uently that a mandatory in#unction to compel the removal of the cloc< ought not to be granted. In my opinion, the words <alteration to the said premises< apply only to alterations which would affect the form or structure of the premises. ;ut, whether I am right or wrong in so drawing the line, I desire to add that, in my opinion, we ought so to draw the line as that the covenant will not operate to prevent a tenant who was entitled to carry on his business from doing those acts which are convenient and usual for a tradesman to do in the ordinary conduct of his business. )o to construe the covenant that the tradesman could not affi& a lamp or, as here, a cloc to the front of his shop if he thought it convenient to do so for the purposes of his business is, as it seems to me, a construction which could not have been in the contemplation of the parties. &he term improvement is not fre'uently found in leases. .n improvement is usually subsumed however under the term )alterations(. &hus improvements can usually be effected pursuant to the consent clause contained in the covenant against alterations. 4,
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???????????????????Re07ir&?????????????????????????
Page 7E

Ooluntary covenant, so the burden falls where so ever the parties desire. &he standard is the same however. &he tenant having exclusive possession, so the ability of the / to go in ma<es repairs determines who bears responsibility. *t imposes re'uirement on the tenant at separate times, (6A above) ;hether it is 'ualified or absolute. &he first tells you what either party is responsible for without words of expectation 1fair wear and tear2. &he item has been damaged it is not accepted under 'ualified. *f disrepair through normal everyday use, would not become the liability of the tenant that is covenanted to repair. A% "mm"1 l7= %+ere i& 1" "Hli;7%i"1 "1 %+e 07r% "J 7 l71#l"r# %" 0$% "r <ee0 %+e 0remi&e& i1 re07ir, 9N,B, E6 e0%i"1 i1 7&e "J J$r1i&+e# 0remi&e&:, ;hile there may also be express stipulations in the lease, at common law a tenant has an implied obligation to use the demised premises in a tenant li<e manner i.e. he must ta<e proper care of the premises. (,ee the covenant as to user). .n express covenant to repair excludes an implied covenant to that effect. T+e "Hli;7%i"1 %" re07ir %+e #emi&e# 0remi&e& m78 re&% "1 ei%+er %+e l71#l"r# "r %+e %e171% "r 07r%l8 "1 e7 +, &he matter is one entirely for negotiation. *f there is no express provision in the lease for repairs, the tenant may be held liable for them under the doctrine of waste. C"1&%r$ %i"1 "J %+e E60re&& C"ve171% %" Re07ir ;here there is an express covenant to repair whether by the tenant or landlord, the rights and liabilities of the parties will depend on a proper construction of the covenant, and the covenant must be construed in light of its wording and in the context in which it is used. /iability under a covenant to repair runs from the date of the lease. +epair runs from the date of the lease. ;here a tenant covenants to <eep premises in repair if at the date of the commencement of the lease, the place is in disrepair the responsibility is yours (tenant) to repair such. &he only way to escape that is the proper buyers( inspections. aveat enter1 buyer beware. &hat <eep has been interpreted to mean 4put and <eep5. EHHe%%& v C"15$e&% ['4()] 2 C+, ->> *n 2A8E, . was granted a lease to run for K2 years, containing a covenant to <eep the property in repair and to yield them up at the end of the term in good repair. *n 2A92, . sublet part of the property to : for 8CV years less 2E days. &he underlease contained covenants substantially identical with the covenant in the head lease. &he underlease showed plainly that there was a title superior to the immediate lessor. &he premises fell into disrepair and the plaintiffs sued for damages under the covenant in the underlease to <eep the premises in repair. Hel#: &he measure of damages for breach of a covenant to <eep demised property in repair is not the same in the case of an underlease as in that of a direct lease with a freehold reversion. ;here the underlessee has notice that there is a superior landlord, the immediate lessor>s liability over to that landlord must be ta<en into account; and the cost of putting the property into repair at the end of the term may properly be considered for that purpose. ;here at the commencement of the lease the demised premises are in a state of disrepair, a covenant by a tenant to 4<eep5 the premises in repair obliges him to put them into the re'uired state at his expense. ????????????!r"$#J""# v H7r% 9'4(.: 2) CBD /2????????????????,
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&he house and premises in 'uestion were let by the plaintiff to the defendant under an agreement in writing for a term of three years, and the tenant thereby agreed that he would during the said term, .eep the premises in good tenantable repair and so leave the same at the e'piration thereof. Hel#: Under an agreement to <eep a house in 0good tenantable repair,0 and so leave the same at the expiration of the term, the tenant>s obligation is to put and <eep the premises in such repair as, having regard to the age, character, and locality of the house, would ma.e it reasonably fit for the occupation of a tenant of the class who would be li.ely to ta.e it. Iamages were awarded to the plaintiff in respect of the cost incurred by the plaintiff after the termination of the tenancy in re1papering the walls of the room where the paper had worn out over the course of the tenancy, repainting the internal woodwor<, whitewashing and cleaning the staircases and ceiling and replacing the <itchen floor with a new floor. 4%here the premises are not in repair when the tenant ta es them, he must put them into repair in order to discharge his obligation under a contract to eep and deliver them up in repair . If the premises are out of repair at any time during the tenancy the landlord is entitled to say to the tenant, <you have now bro en your contract to eep them in repair;< and if they were out of repair at the end of the tenancy he is entitled to say, <you have bro en your contract to deliver them up in repair.< %hat is tenantable repair= It is difficult to suggest any material difference between the term "habitable repair" used in this agreement, and the more common e&pression "tenantable repair"; they must both import such a state as to repair that the premises might be used and dwelt in not only with safety, but with reasonable comfort, by the class of persons by whom, and for the sort of purposes for which, they were to be occupied. @ood repair is tenantable repair. In order to satisfy the tenant"s obligation under his contract it was not sufficient for him to deliver up the premises in the same condition of repair as when he too them; he must deliver them up in good repair, even if they were not in good repair when the tenancy began. The result of the cases seems to be this' the #uestion whether the house was, or was not, in tenantable repair when the tenancy began is immaterial; but the age of the house is very material with respect to the obligation both to eep and to leave it in tenantable repair. The age of the house must be ta en into account, because nobody could reasonably e&pect that a house ABB years old should be in the same condition of repair as a house lately built; the character of the house must be ta en into account, because the same class of repairs as would be necessary to a palace would be wholly unnecessary to a cottage; and the locality of the house must be ta en into account, because the state of repair necessary for a house in @rosvenor )#uare would be wholly different from the state of repair necessary for a house in )pitalfields. The house need not be put into the same condition as when the tenant too it; it need not be put into perfect repair; it need only be put into such a state of repair as renders it reasonably fit for the occupation of a reasonably!minded tenant of the class who would be li ely to ta e it .5 &he standard to which you are held is the standard at the time of the lease. ,ee also ,achs, /.B. in Bre= Br"&, L%# v S176 9R"&&: L%# ['(>.] ' All ER )4> at pg. KE6. *ssue of replacement versus repair; there are many grey areas present though where it can be argued strongly on the both sides. .ttempts to give you guidelines to ascertain what and where the border should be drawn. Dn 7E Bune 2@K9, landlords let to tenants for a 28 year term premises of which the landlords owned the freehold and of which they had been in effective control for over a month at the time
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of the letting. &he lease contained covenants by the tenants U6(e) L to repair uphold support maintain L and <eep in repair the demised premises L (f) &o pay on demand a reasonable share L of the expense incurred in maintaining repairing and cleansing all party walls L drains ways and other easements used or en#oyed L in common with the owners or occupiers of any ad#oining premises L (i) &o permit the /andlords L twice in every year L to enter upon and view the condition of the demised premises and to repair and ma<e good all decays defects and want of repair due to the breach by the &enant of any covenant L ( *n $ovember 2@KK, the flan< wall of the demised premises tilted towards the neighbouring commercial garage of which the plaintiffs were lessees and occupiers. :y an arrangement made between the landlords and the tenants with the concurrence of the plaintiffs without pre#udice as to liability the wall was shored up temporarily, an obstruction being thus caused to the plaintiff(s garage forecourt. &he foundations of the wall were found to have shifted because of seepage from drains below the demised premises which had crac<ed, probably because of wartime bomb damage. &he trial #udge found that the landlords ought to have <nown at the date of the demise that the foundations of the wall were so defective that unless they were remedied the whole building was doomed and was liable to collapse into the neighbouring property. &he trial #udge also found that, in order to render the premises safe, the drains needed replacing, the foundations needed underpinning and the flan< wall and part of the ad#acent front and rear walls needed to be ta<en down and rebuilt, that this wor< would cost about FA,EEE, after which the value of the repaired building would be about FC,9EE1F@,9EE, and that the cost of a new building would be about F@,EEE1F2E,EEE. Iuring the hearing at first instance the landlords agreed to abate the nuisance without pre#udice to their rights against the tenants, and between the hearing and the appeal they carried out wor< costing about F9,EEE. Hel#: lause 6(i) of the lease imposed an obligation to repair on tenants and not on the landlords. (vi) (3arman /B dissenting except as to the wor< on the foundations) the landlords could nevertheless not recover under the repairing covenants in the lease any part of the cost of the wor< which was re'uired for the purpose of rendering the demised premises safe (and not specifically re'uired for abating the nuisance), becauseN (a) whether wor< was Urepair( within the meaning of a repairing covenant was in every instance a 'uestion of degree to be approached by loo<ing at the particular building, the state in which it was at the date of the lease and the precise terms of the lease; (b) the 'uestion whether the wor< was Urepair( was to be determined not by loo<ing at component parts of the wor< but by as<ing whether the total wor< to be done could properly be described as Urepair( because it involved no more than renewal or replacement of defective parts, or whether it was in effect renewal or replacement of substantially the whole; and (c) it was the wor< which the trial #udge decided was necessary to render the premises safe, and not the wor< actually done by the landlords, which had to be considered by the court, and, applying the foregoing test the wor< re'uired to render the premises safe was more than Urepair(, and so was not within the repairing covenant. 7It seems to me that the correct approach is to loo at the particular building, loo at the state which it is in at the date of the lease, loo at the precise terms of the lease, and then come to a conclusion whether, on a fair interpretation of those terms in relation to that state, the re#uisite wor can fairly be termed repair. However large the covenant it must not be loo ed at in vacuo. Cuite clearly this approach involves in every instance a #uestion of degree*9 )ADH) (:. %tandard of (epair The condition in which the premises would be maintained by a reasonably minded owner. (<roudfoot v )art, ,upra) .&he locality, character and age of the premises at the time of the lease must be borne in mind in ascertaining a reasonable standard of repair.
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A1&%r$%+er@G"$;+@C7l%+"r0e v M O& 7r ['(2/] ' BB >'* . lease of three newly erected houses made in 2A69 for a term of ninety1five years contained a covenant by the lessee in very wide terms, the effect of which was, put shortly, that he would during the term well and sufficiently repair the premises with all manner of necessary reparations and would yield up at the end of the term the said premises so being in all things well and sufficiently repaired. .t the end of the term the assignee of the reversion brought an action against the assignees of the lease for breach of the above covenant. :y an order of the ourt the assessment of the damages was referred to an arbitrator. .t the beginning of the term the houses were country houses; at the end of the term the only tenants li<ely to occupy the houses or parts of them would be tenants on short terms. &he arbitrator assessed the damages at two alternative sums. 3e computed the smaller sum on the basis that the defendants were liable to execute such repairs only as in view of the age, character, and locality of the premises would ma<e them reasonably fit to satisfy the re'uirements of reasonably minded tenants of the class that would then be li<ely to occupy them. 3e found that tenants of this class would re'uire only such repairs as would <eep out wind and water:1 Hel#I that this was not the proper measure of liability; but that the defendants were liable for the cost of doing all necessary acts well and sufficiently to repair the premises in the words of the covenant, that is to say, for the cost of putting them into that state of repair in which they would be found if they had been managed by a reasonably minded owner, having regard 1 to their age; to their character and ordinary uses, or the re'uirements of tenants of the class li<ely to ta<e them, at the time of the demise or at the commencement of the term. *n other words, if, at the commencement of a long lease, the house is a desired one situated in an expensive and fashionable locality, the covenantor must put the property bac< into its original state: he cannot argue that his obligation is to be measured by the current low standards of the locality. ??????????L$r "%% v A7<el8 ['(''] ' BB (.)?????????????? . lease of a house in /ondon contained a covenant by the lessee to substantially repair and <eep in thorough repair and good condition the demised premises and at the end or sooner determination of the term to deliver up the same to the lessors so repaired and <ept. ,ubse'uently the reversion expectant on the lease was assigned to the plaintiff and the lease to the defendants. ,hortly before the expiration of the term the /ondon ounty ouncil served a notice on the owner and occupiers re'uiring them to ta<e down the front external wall of the house to the level of the ground floor as being a dangerous structure, and the plaintiff called upon the defendants to comply with this notice, which they failed to do. .fter the expiration of the term, the plaintiff, in compliance with a demolition order of a police magistrate, too< down the wall to the level of the ground floor, and then, in compliance with a further notice of the /ondon ounty ouncil, too< down, the remainder of the wall and rebuilt it in accordance with modern re'uirements. &he house was very old and the condition of the wall was caused by old age, and the wall could not have been repaired without rebuilding it:1 3eld, that the defendants were liable under the covenant to recoup the plaintiff the cost of ta<ing down and rebuilding the wall. >or my own part, when the word <repair< is applied to a comple& matter li e a house, I have no doubt that the repair includes the replacement of parts. ?f course, if a house had tumbled down,
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or was down, the word <repair< could not be used to cover rebuilding. It would not be apt to describe such an operation. ;ut, so long as the house e&ists as a structure, the #uestion whether repair means replacement, or, to use the phrase so common in marine cases, substituting new for old, does not seem to me to be at all material. 1any, and in fact most, repairs imply that some portion of the total fabric is renewed, that new is put in place of old. Therefore you have from time to time as things need repair to put new for old. If you properly repair as you go along the conse#uence will be that you will always get a house which will be in repair and usable as a house, but you will not get a house that does not suffer from age, nor a house which when old is the same as when it was new. .t common law the standard of repair re'uired is that in which a reasonably minded owner would <eep them, after ma<ing due allowance for the locality, character and age of the premises at the date of the lease. Bre= Br"&, L%# v, S176 9R"&&: L%#I S$0r7 &he express covenant to repair may be un'ualified but it is more common to 'ualify it by a clause to the effect that the covenantor shall not be liable for 4fair wear and tear5 or for 4reasonable wear and tear5. T+e eJJe % "J %+i& 0+r7&e i& %" 7H&"lve %+e %e171% Jr"m li7Hili%8 J"r: Iamage due to the ordinary operation of natural causes, such as wind and rain; and Iisrepair resulting from reasonable use of the premises. NOTE: .lthough the tenant is not liable for the original damage or deterioration constituting wear and tear, he is liable for any conse'uential damage resulting from his failure to rectify the original damage, where it should be obvious to the reasonable person that, if not rectified, further and lasting damage would ensue. WWWWWH7&<ell v M7rl"= ['(24] 2 BB /)??????????????? *f as a result of fair wear and tear, other damages ta<e place, there is an exception to the exception. &he tenant is obliged to repair the damage to the roof where the other damage to ta<e place is the ceiling and carpet. Xou are examining the liability even where the covenant to repair is a 'ualified one. &he same standards apply, where the shoe is on the other foot, the /andlord would be the same. . testator devised a dwelling1house to his wife for her life, she insuring the same against loss by fire, 0and also <eeping the same in good repair and condition (reasonable wear and tear excepted),0 and after her death he directed that the same should fall into his residuary estate, which was to be divided among his children in e'ual shares. &he testator>s widow occupied the devised premises until her death, a period of forty1two years. ,he did nothing actively to in#ure the premises, but did nothing substantially to counteract the natural process of decay. &he plaintiffs, the trustees of the will, alleged that she had neglected to <eep the premises in good repair and condition in conformity with the terms of the will, and claimed from the defendants, her executors, the cost of the necessary repairs:1 Hel#, that the testator>s widow, having accepted and occupied the premises, was bound by the terms of the devise, that the words of the exception were not to be treated as mere surplusage, and that a reasonable meaning must be given to them, but that having regard to the length of time during which no substantial repairs had been done to the premises, and to the extent of the damage thereby caused, the widow, as tenant for life, was not protected by the words of the
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exception, and that her executors were liable for the damage arising from the natural process of decay. The tenant 2for life or years3 is bound to eep the house in good repair and condition, but is not liable for what is due to reasonable wear and tear. That is to say, his obligation to eep in good repair is sub$ect to that e&ception. If any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the e&ception. 8easonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces. The e&ception of want of repair due to wear and tear must be construed as limited to what is directly due to wear and tear, reasonable conduct on the part of the tenant being assumed. It does not mean that if there is a defect originally proceeding from reasonable wear and tear the tenant is released from his obligation to eep in good repair and condition as to everything which it may be possible to trace ultimately to that defect. He is bound to do such repairs as may be re#uired to prevent the conse#uences flowing originally from wear and tear from producing others which wear and tear would not directly produce. G$%%eri#;e v M"187r# 9'4-/: ' M""# M R --/ 0er Ti1#7l C2 3 0;, --* Re;i& !r"0er%8 C", v D$#le8 ['()4] - All ER /(' . rent controlled flat was let to a tenant on a monthly tenancy under an agreement by which the tenant undertoo< internal repairs, fair wear and tear excepted. &he landlord undertoo< all exterior repairs and the internal repairs caused by fair wear and tear. *t was held that the exception for fair wear and tear in the tenant(s repairing covenant did not except the tenant from responsibility for ta<ing steps to avoid further damage deriving from a defect of repair which itself was originally due to fair wear and tear. (?8+ +0NNIN@' I have never understood that, in an ordinary house, a 7fair wear and tear9 e&ception reduced the burden of repairs to practically nothing at all. It e&empts a tenant from liability for repairs that are decorative and for remedying parts that wear out or come adrift in the course of reasonable use, but it does not e&empt him from anything else. If further damage is li ely to flow from the wear and tear, he must do such repairs as are necessary to stop that further damage. If a slate falls off through wear and tear and in conse#uence the roof is li ely to let through the water, the tenant is not responsible for the slate coming off but he ought to put in another one to prevent further damage. reach of the Covenant &he covenant to repair is breached wherever there is want of repair ( ;aylis v (e @ros (2A9A) 8 :$, 97C). ,uch breach is actionable immediately if there is no provision in the lease for the services of a notice to repair. ;here the lease provides for the service of a notice to repair, the notice must prescribe the repairs to be effected and the period of time in which they should be effected. (emedies for reach of the Covenant a3 (andlord.s 8emedies

i) D7m7;e&: if the lease is still subsisting, the measure of damages is the diminution (decrease) in value of the reversion. *f the action is brought at the end of the term, then the action would be based on the tenant(s covenant to deliver up the premises in good repair, and here the measure of
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damages will be the cost of repair. He1#er&"1 v T+"r1 9'4(-: 2 CB '*/ . lessor brought an action against the lessee during the currency of the lease to recover damages for breaches of covenant to <eep the premises in repair; the lessee paid a sum into ourt, which was accepted by the lessor in satisfaction, and the action was discontinued. $o repairs were done to the premises before the determination of the lease, after which date the lessor brought a fresh action against the lessee to recover damages for breaches of the covenants to <eep in repair and deliver up in repair; the particulars in the action included the items of non1repair in respect of which the claim had been made in the first action, and also additional items arising since the date of that action. &he official referee assessed the damages by determining the sum re'uired at the end of the lease to put the premises into repair, and deducting therefrom the amount paid into ourt and accepted by the plaintiff in the first action, together with a sum for depreciation:1 Hel#, that the money paid into ourt in the first action must be ta<en to have been paid in and accepted as damages for the in#ury to the reversion, and not as being the sum then re'uired to put the premises into repair, and that the damages in the second action had therefore been assessed upon the right principle. 2"81er v Aee<e& 9'4(': 2 CB -' &he general rule with regard to %+e me7&$re "J #7m7;e& in an action for breach of a covenant by a lessee to deliver up the demised premises in repair is that such damages are the cost of putting the premises into the state of repair re'uired by the covenant. ,uch measure of damages is not affected by the fact that, by reason of the terms of a lease granted by the lessor to another lessee from the expiration of the defendant>s term, the lessor is at the time of action brought no worse off than he would have been if the defendant>s covenant had been performed. ii) ,pecific ?erformance: this will 1"% "r#i17ril8 He 7v7il7Hle because of the difficulty of supervision. Until recently, the court did not grant such an order against a tenant. &here are very limited circumstances where the courts would act. Hill v B7r l78 9'4.-@'-: All ER Re0, ->( .n order for specific performance will not be granted for the failure to comply with a covenant to repair contained in a lease, the remedy for which lies in damages. &he position with regard to non1payment of rent is different and the tenant will be forced to comply with that covenant. &he landlord cannot have specific relief with regard to repairs. 3e may bring an action for damages. "ven after damages are recovered, the landlord cannot compel the tenant to repair, but he may bring another action. &here is no mutuality in it, with regard to this doctrine. &he tenant cannot be compelled to repair. ?????????????R7i1H"= E&%7%e& v T"<e1+"l# L%# ['((4] 2 All ER 4*. &he doctrine for exclusive possession allows the tenant to exclude all parties including the landlord. &he court of e'uity would not act in vain. &here are conditions which he must satisfy if not, the landlord would not get ,? to be available to him. Iamages in the circumstances, must be insufficient to address the loss to which the / is alleging. &he / must show that he is physically unable to go on the premises, so he has no order choice but to go to the court to effect the repairs.
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&he plaintiff was the freeholder of a listed building, which was occupied by the two defendants under leases expiring in 6EE8 granted by the former freeholder of the property. &he defendants covenanted in the leases to <eep and maintain the property in good and tenant1li<e repair throughout the term and to permit the landlord and its agents reasonable access to examine the condition of the premises. &he defendants maintained, however, when the premises subse'uently fell into disrepair, that the leases were sub#ect to two agreements which had been entered into prior to the signing of the leases, under which repairs were to be the responsibility of the landlord and the cost of wor< underta<en by the tenants could be deducted from the rent, and, therefore, that no rent was due under the leases and that they had no repairing obligations. &he plaintiff thereupon brought proceedings to recover arrears of rent and determine who was responsible for the repairs. &he #udge held that, on the assumption that the agreements and the leases were genuine documents, where there was a conflict between a lease and a prior agreement, the rights of the parties were governed by the lease and that in any event there was no credible evidence that the agreements and the leases were part of one transaction. 3e accordingly found that the tenants were responsible for repairs and were in arrears with their rents, and stood the matter over for further argument on the form of relief. .t the resumed hearing the 'uestion arose whether the court had power to grant an order for specific performance of a tenant(s repairing covenant. Hel# O &he court had power, i1 700r"0ri7%e ir $m&%71 e&, to order specific performance of a tenant(s repairing covenant, and there were no constraints of principle or binding authority against the availability of the remedy; and even if want of mutuality were a decisive factor, the availability of the remedy against the tenant would restore mutuality as against the landlord, and %+e 0r"Hlem& "J #eJi1i1; %+e ="r< 71# %+e 1ee# J"r &$0ervi&i"1 could be overcome by ensuring that there was sufficient definition of what had to be done in order to comply with the order of the court. ,ub#ect to the overriding need to avoid in#ustice or oppression, specific performance would be granted where it was the appropriate remedy, and that would be particularly so in cases where there was substantial difficulty in the way of the landlord effecting repairs (eg he had no right of access to do so) and the condition of the premises was deteriorating. 3owever, the court should exercise ;re7% 7$%i"1 in granting the remedy and should, in particular, ensure that it was not used to effectuate or encourage the mischief which the /easehold ?roperty (+epairs) .ct 2@7A was intended to remedy, namely that of speculators or unscrupulous landlords buying the reversion of a lease which had little value, and then harassing the tenant with schedules of dilapidations in order to put pressure on him. *n the instant case, there was no ade'uate alternative remedy, since the leases contained no forfeiture clause or proviso for re1entry, or a term allowing the landlord to enter the premises to carry out the wor<s himself and there was evidence of serious disrepair and deterioration of the property. -oreover, the schedule of wor<s to be carried out was sufficiently certain to be capable of enforcement. .ccordingly, in those unusual circumstances, an order for specific performance was appropriate b2 Tenants (emedies

i) Iamages: here the measure of damages will be the difference between the values of the premises as they are and as they would be if repaired, plus any damages for inconvenience or ill health suffered and any damages to chattels as a result of the landlord(s breach. He=i%% v R"=l71# ['(2/]All ER Re0, -//
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&here was a covenant by the landlord that he should <eep the cottage dry and the outside in repair. Dn the termination of a 9 year tenancy, the tenant remained in occupation as a yearly tenant. &he tenant later complained to the successor landlord that the house was damp and a written notice was given to the landlord(s solicitors. &he landlord, having failed to execute the repairs, the tenant commenced an action to recover damages for breach of the agreement. *t was +el#: *n assessing the damages the tenant was not entitled to complain of any damage suffered before the notice was given, but the breach being a continuing one, the damages should be assessed to the date of assessment; &he measure of damages was the difference between the value to the tenant of the premises from the date of notice down to the date of assessment of damages in their present condition and their value if the landlord on receipt of the notice to repair had fulfilled the obligations of the covenant to repair; .ny damage to chattels may also be pleaded.

ii) ,pecific ?erformance: not generally granted but the court is prepared to ma<e an order in appropriate cases. -ay have accrued over a period of time and you can ta<e the / to court and pay, but what happens when he #ust continues to renege on performance. ompel him now to effect the repairs. &he circumstances are not as difficult when the converse is true. .ccompanying such an order would be an underta<ing by the & that he would allow the / to repair. Hill v B7r l78I S$0r7 2e$1e v C$ee1& Cr"&& !r"0, ['(>-] - All ER (>??????????????? ;here a landlord is in breach of a covenant to repair, the court has #urisdiction to ma<e an order re'uiring him to do specific wor< pursuant to the covenant. .lthough it is a #urisdiction which should be carefully exercised, there is no reason for refusing to ma<e an order for specific performance where the landlord is plainly in breach of the covenant to repair and there is no doubt as to what is re'uired to be done to remedy the breach. iii) "'uitable ,et Dff .gainst +ent: if the landlord sues and the tenant counterclaims for damages for breach of the landlord(s repairing covenant, the tenant may use this counterclaim as a defence, by way of e'uitable set1off for arrears of rent. Murther, if the tenant effected the repairs, he may also set off the cost of the repairs against the rent due. Bri%i&+ A1Q71i v I1%er M7ri1e L%# ['(4.] CB '-> &he plaintiffs, lessees of a plot of land under a building lease, entered into an agreement in writing with the defendants, whereby the plaintiffs agreed to construct a warehouse (warehouse: no. 2) on part of the land and then grant an underlease to the defendants. &he agreement provided that the plaintiffs would ma<e good at their own expense any defects which occurred in the floor of the building within two years of its completion and that the agreement should remain in force after the grant to the defendants of the underlease in respect of any act or matter remaining to be performed or effected under the agreement. &he underlease made no provision for the plaintiffs to ma<e good any defect in the floor appearing within two years of completion of the building but did ma<e provision for the plaintiffs to be liable in certain circumstances for damage to the floor.
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. second warehouse (warehouse no. 6) was constructed ad#acent to the first. ?ractical completion too< place in Iecember 2@C7, and in -arch 2@C8 the defendants went into occupation. . supplemental underlease was granted on -ay 66, 2@C9, at an annual rent of F@6,9EE payable in arrears. &he term granted was the same as that in respect of warehouse no. 2. &he plaintiffs brought an action against the defendants for possession, unpaid rents, mesne profits and interest. &he defendants counterclaimed for damages for alleged breaches of express or implied obligations in the two agreements and underleases concerning the condition of the floor of both warehouses. &he defendants claimed that in .pril 2@C7 serious defects appeared in the concrete floor of warehouse no. 2 due to inade'uate floor design, which caused them to evacuate the building from Bune 2@C9 to Iecember 2@CK, and thereafter only part of the floor of warehouse no. 2 could be used. ,imilar defects were alleged to have appeared in warehouse no. 6 in .ugust 2@C8. Dn the 'uestion whether the defendants were entitled in law or in e'uity to set off against the admitted liability for rent the sums claimed against the plaintiffs for breaches of obligations to repair: 1 3eld, that the defendants could set off their claim for unli'uidated damages against the plaintiffs> claim for rent provided that the defendants> e'uity impeached the title to the plaintiffs> legal demand for rent; that, although the defendants> claims for damages arose under the terms of the agreements and not the leases, there was such a close connection between them that it was only fair and #ust that the defendants> e'uity should be treated as going to the very foundation of the plaintiffs> claim for rent and, therefore, the defendants were entitled to set off their claim under the agreements against their liability for rent under the leases Eller v Gr"veCre&% I1ve&%me1%& L%# ['((/] / All ER 4/) &he plaintiff was the tenant of premises on an industrial estate. Mor some time he had complained, to no effect, of alleged acts of nuisance and breach of covenant by the landlord and in Buly 2@@6 he decided to put pressure on the landlord by withholding his rent. &he landlord sent in bailiffs to distrain on his goods and chattels and the plaintiff was obliged to sign a wal<ing possession agreement to prevent their physical removal. 3e then applied ex parte for an in#unction to restrain the landlord from proceeding with the distraint, contending that in e'uity he owed no rent because he was entitled to set off his claims for damages for nuisance and breach of covenant . &he in#unction was granted ex parte, but on the landlord(s application it was discharged on the grounds that although the tenant had an arguable cross1claim and, since it arose out of the same lease as the claim for rent, they were sufficiently closely connected to give rise to an e'uitable set1off, he was bound by authority to hold that set1off did not affect a landlord(s right to distrain. &he plaintiff appealed. Hel# G .s a matter of fair dealing between the parties a tenant was entitled to invo<e a right of set1off, for example by way of an arguable claim for damages for breach of covenant, against a claim by the landlord to levy distress. *t followed that the appeal would be allowed and that the plaintiff was entitled to an in#unction to restrain the landlord from proceeding with the distraint. %hat is fair dealing seems clear enough= It is contrary to the principle that a landlord should be able to recover more by distress than he can by action* it would mean that a landlord whose application for $udgment in a claim for rent was defeated in an arguable cross claim could leave the court and immediately enforce his claim by levying distress. iv) ,elf 3elp: where the landlord is in breach, the tenant can effect the repairs. &he tenant then regards the cost of repairs as a direct payment of rent. 3e may therefore claim credit for this expenditure in assessing his liability for future rent.
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??????????????Lee@!7r<er v IQQe% ['(>'] - All ER '.((????????????????? &he first defendant mortgaged certain properties (all registered land) to the plaintiffs by way of legal charge dated 27 ,eptember 2@K@ which was duly registered and under which the plaintiffs( power of sale arose immediately. &he second defendant was the occupier of one of the properties and the third and fourth defendants were the occupiers of another. "ach of them claimed to be entitled to be in possession by virtue of a contract to purchase the same between him and the mortgagor. :y notices dated 68 ,eptember and addressed to the second defendant and to the third and fourth defendants respectively, the plaintiffs gave notice of their charge and stated that they were willing to complete the purchase on payment of the balance due after deducting the amount of the deposit and after crediting the monthly sums paid pursuant to cl @ and that the purchaser should complete within 6A days of the notice or failure to do so would be treated by the plaintiffs as a repudiation of the contract. .t the time the notices were given no satisfactory mortgage arrangements had been made for the defendants nor had abstracts of title been delivered. &he plaintiffs subse'uently issued a summons claiming against the first defendant, who had been ad#udicated ban<rupt, an order for payment and possession. .n order for payment was obtained but produced nothing. &he summons claimed against each of the second, third and fourth defendants a declaration that the relevant contract was not binding or would cease to be so on failure to comply with the notice of 68 ,eptember, and possession. .t the hearing the second defendant did not admit the contract of 2 .pril 2@K@ but sought to establish a different oral contract; the third and fourth defendants claimed inter alia that the plaintiffs had repudiated the contract and that they had accepted that repudiation at the hearing; they further claimed that the mortgagor had promised to effect certain repairs and that they had agreed to purchase the property (of which they were tenants) relying on that promise; that the mortgagor had failed to implement his promise and they had carried the repairs out themselves at a cost of FK7E. Hel#: &he third and fourth defendants were entitled to recoup themselves out of future rents for the cost of repairs carried out by them but only insofar as those repairs came within the express or implied covenants of the lessor; it was a 'uestion of fact whether and to what extent their expenditure was proper. (, C"ve171% 7;7i1&% A&&i;1me1% "r &$H@le%%i1;

;here no such covenant exists in a lease, a tenant is free to assign, sublet or otherwise part with possession of the demised premises. IM!ORTANT to distinguish between an .ssignment; means that he disposes of all of possession and steps out, ,ub lease is where the & also grants a lease to someone, sub lessee, either by granting to this ,1& an interest for a lesser period of time or by granting to the , & a smaller area of the demised premises. &he importance of the <nowing the distinction is that a covenant against .ssignments is not breached by the granting of lease and a covenant against ,ub /et is not breached by granting of an assignment. EXAM N"%i e O T+ere ="$l# He 7 le7&e 71# %+e 5$e&%i"1 =+e%+er %+e T i& i1 Hre7 +I 8"$ +7ve %" l""< 7reJ$ll8 7% %+e le7&eI %" &ee =+e%+er %+e ="r#& %+ere 7ll"=e# +im %" #" &"I "r iJ 7 Hre7 + i1 J7 % %""< 0l7 e, A "ve171% i1 %+i& re;7r# m78 He: i) absolute; or ii) 'ualified
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&he absolute covenant prohibits any parting with possession of the demised premises in any circumstances. &he 'ualified covenant prohibits the tenant(s parting with possession of the demised premises without the consent of the landlord. ,uch a covenant may also be sub#ect to an express proviso that the landlord will not unreasonably withhold his consent to an assignment or sub1letting. &his <ind of covenant is construed strictly against the landlord. . covenant against assigning is not bro<en by a sub1letting or vice versa. . covenant not to sub1let premises is not breached by a sub1letting of the part of the premises. L71#l"r#& Reme#ie& i) +ight of forfeiture (where reserved by the lease) ii) Iamages arrow v 6saacs :&@A&; & Q B&8 *n a lease for years the lessees covenanted not to underlet the premises, or any part thereof, without the consent in writing of the lessor, which consent the lessor agreed should not be arbitrarily withheld in the case of a respectable or responsible person, and power to re1enter was given to the lessor in case the lessees did not well and truly observe and perform their covenants. &he lessees underlet part of the premises without obtaining or as<ing for the lessor>s consent. &he underlease was prepared by their solicitor, who omitted to loo< at the head lease, and forgot that it contained the covenant not to underlet without consent. :oth the lessees and their under1lessees were respectable and responsible persons, and no in#ury was done, or li<ely to be done, to the lessor by reason of the underlease, nor could he have had any valid ob#ection to it if his consent had been as<ed. *n an action by the lessor to recover possession of the premises for breach of the covenant:1 Hel#, that the omission to as< the lessor>s consent was not a mista<e in respect of which the ourt would grant the lessees e'uitable relief against forfeiture for breach of the covenant, and therefore that the plaintiff was entitled to succeed in the action. )ome <roperty v Cal.er :&AB8; * "ll E( 8@A .n action for possession of a shop on the ground; that the lease had been forfeited for breach of covenant in underletting without the landlords( consent. &he tenants admitted the breach of covenant, but counterclaimed for relief under the /aw of ?roperty .ct, 2@69, s 28K(6), on the ground that they had been obliged to grant a short underlease of the premises to a government department to avert the threat of re'uisitioning. /ord %oddard B, held that s 28K(6), which gives the court a discretionary power to grant relief from forfeiture for breach of covenant, applied to a breach of a covenant against underletting without consent and that this was an appropriate case in which to grant relief. &he /aw of ?roperty .ct, 2@69, s 28K (6), which gives the court power to grant relief from forfeiture for breach of covenant, applies to a breach of covenant against assigning or underletting without consent. 0ewis v <egge :&A&B; & Ch. 8@* . limited company demised a residential flat for a term of years, and the lessee covenanted not to assign or underlet the premises without the consent of the company, such consent not to be
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withheld in the case of a respectable and responsible person. Dn .pril 7, 2@27, the lessee applied to the secretary of the company for leave to sub1let to 3., a respectable and responsible person, and as<ed to <now by .pril 28, as 3. wanted possession on that day. &he secretary forgot to communicate with his directors. Dn .pril 28 the lessee, not having received a reply, sub1let to 3. and gave him possession. *n an action by the company to recover possession for breach of the covenant:1 Held, that there had been no breach of the covenant, for that the consent of the company was a pure formality and had been withheld. Held, also, that the period from .pril 7 to 28 was under the circumstances a reasonable time to wait for a reply. N,B, +easonableness of refusal of consent

)oulder ros. D Co. 0td v -ibbs :&A*3; & Ch. 383 E p.3@3 Carrington 0.7. *n a lease for years the lessees covenanted not to assign the premises, or any part thereof, without the consent in writing of the lessor, such consent not to be withheld unreasonably in the case of a respectable and responsible person or corporation. &he lessees agreed to assign, sub#ect to the consent of the lessor, to +., /d., who was in possession of ad#oining premises on a yearly tenancy from the same lessor. &he lessor refused to give his consent to the assignment on the ground that he would lose good tenants of the ad#oining premises, and would have great difficulty in re1letting them. &omlin B. held that the licence had been unreasonably withheld, and that the lessees were free to assign. Dn appeal:1 Hel#, that the refusal of the licence was unreasonable, as the reason given for it was one which had no reference either to the personality of the proposed assignee or to the sub#ect matter of the lease. The first #uestion that arises is' %hat is the inference to be drawn as to the intention of the parties in inserting in the lease a provision of this ind= %hat was the danger which the lessor contemplated, and against which the lessee was content to allow the lessor to protect himself= It must, of course, be borne in mind that without this covenant the lessee would have had a free right to assign to whom he pleased the premises comprised in the lease, and the covenant, therefore, was inserted first as a protection of the lessor, and, secondly, the proviso was attached to it in order to prevent the lessor ma ing an unreasonable use of that protection. Now, what is to be inferred from what may be treated as having been in the contemplation of the parties when the contract was made= I thin it must be, as I have said, that it was intended to protect the lessor as against a lessee, who, although respectable and responsible, might well be reasonably ob$ectionable in other ways, and, secondly, from the point of view of the property, to prevent the lessor from having to accept a lessee whose user of the property might again be reasonably ob$ectionable. The user of the property to be reasonably ob$ectionable need not necessarily be ob$ectionable to the lessor as lessor of that particular property. The user of the property might damage the lessor in other ways, and if it did, then an ob$ection to that user would be reasonable; but whichever way it is loo ed at, I thin you must find in the ob$ection something which connects it either with the personality of the intended assignee suggested as the new tenant of the property, or with the user which he is li ely to ma e of the property to be assigned to him. ic.el v ,u.e of Cestminster :&A89; F "ll E( @G E p.@GBH@G3 0ord ,enning #(.
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. body of trustees were the lessees of several houses on a large estate. &he leases, which had been granted in 2@8C, were long leases at low rents within the /easehold +eform .ct 2@KC, but the lessees held them only as investments and did not occupy any of the houses. .ccordingly they were not entitled to ac'uire the freeholds under the provisions of the 2@KC .ct. &he lessees had sublet the houses to sublessees who occupied them, but the rents under the sub1tenancies were not low rents within the 2@KC .ct. "ach lease contained a covenant that the lessees would not assign the premises Uwithout the previous written licence of the PlessorsQ provided that such licence shall not be unreasonably withheld(. &he lessees applied to the lessors for permission to assign one of the leases to the sublessee for the seven years( unexpired term of the lease. *f the lease were assigned, the sublessee would be entitled, after the lapse of five years, to ac'uire the freehold under the 2@KC .ct. &he lessors refused to give their consent to the assignment because they wanted to <eep the estate in their hands in order to manage and develop it in the best possible way; if they were compelled to sell the freeholds under the 2@KC .ct they would suffer financial loss. &he lessors were willing to pay to the lessees for the surrender of the lease a sum e'uivalent to that offered by the sublessee to the lessees for the assignment. &he lessees applied for a declaration that the lessors had unreasonably withheld their consent to the proposed assignment. Hel# O &he declaration would be refused for the following reasonsN (i) (per /ord Ienning -+) *n determining whether a refusal of consent was unreasonable the court had to consider all the circumstances of the particular case; since such circumstances were infinitely various it was impossible to formulate strict rules as to how a landlord should exercise his power of withholding consent. *n the circumstances the lessors were not acting unreasonably since (a) their plans to develop the estate in the best possible way would be impeded if one house after another were bought by sitting tenants and they would suffer financial loss if compelled to sell the freehold under the 2@KC .ct;(b) it was a matter of indifference to the lessees whether they surrendered the lease to the lessors or assigned it to the sublessee; and (c) the sublessee would be in no worse position in conse'uence of the lessors( refusal of consent than she had been when she too< the sublease. The words of the contract are perfectly clear 0nglish words' Esuch licence shall not be unreasonably withheld.. %hen those words come to be applied in any particular case, I do not thin the court can, or should, determine by strict rules the grounds on which a landlord may, or may not, reasonably refuse his consent. He is not limited by the contract to any particular grounds. Nor should the courts limit him. Not even under the guise of construing the words. The landlord has to e&ercise his $udgment in all sorts of circumstances. It is impossible for him, or for the courts, to envisage them all. %hen this lease was granted in 1F4G no one could have foreseen that AB years later 5arliament would give a tenant a right to buy up the freehold. )eeing that the circumstances are infinitely various, it is impossible to formulate strict rules as to how a landlord should e&ercise his power of refusal. The utmost that the courts can do is to give guidance to those who have to consider the problem. As one decision follows another, people will get to now the li ely result in any given set of circumstances. ;ut no one decision will be a binding precedent as a strict rule of law. The reasons given by the $udges are to be treated as propositions of good senseHin relation to the particular caseHrather than propositions of law applicable to all cases. It is rather li e the cases where a statute gives the court a discretion. THE TEST THAT THE LAA LALS DOAN AHAT CONSTITUTES RE!AIR AND RENEAALI BNOA THIS FOR EXAMS, C"1 e0% "J %+e U&er C"ve171% ver&$& %+e Re07ir C"ve171%, T+e $&er "ve171% i& "1e "J %+"&e %+7% iJ i% i& 1"% e60re&&e# i% ="$l# He im0lie#,
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Fi%1e&& J"r 7 07r%i $l7r 0$r0"&e %+7% %+e 0remi&e& +7ve Hee1 le7&e# J"r ver&$& %+e &%71#7r# J"r re07irI %+e #i&%i1 %i"1 %" He m7#e i& %+7% #i&re07ir #"e& 1"% re1#er 0remi&e& $1Ji% J"r +$m71 +7Hi%7%i"1I )amblett v rowneI i& 1"%I A""#i1;, C"ve171% %" re07ir =+ere i% i& e1%ere# i1%" H8 %+e T ="$l# $&$7ll8 700e7r i1 7 l"1; %erm Ji6e# %erm le7&e, L"$ ="$l# m"re "mm"1l8 Ji1# %+i& i1 7 l"1;I Ji6e# %erm, T+e =7rr71%8 =+ere %+e L i1 re&0e % "J "1l8 7 J$r1i&+e# 0remi&e&I ="$l# rel7%e %" ir $m&%71 e& =+ere %+ere 7re &+"r% le7&eI i1 %+7% 7&e $1Ji%1e&& %" +$m71 +7Hi%7%i"1 ="$l# He $&e#I J"ll"=i1; %+e ;$i#eli1e& l7i# #"=1 H8 C2 A""#i1;, T+7% l7 < "J re07ir& reJer& %" %+e ;e1er7li%8 "J %+e #emi&e# 0remi&e&I 1"% "1l8 "1e 0l7 e, M$&% rel7%e %" %+e "ver7ll "1#i%i"1 "J %+e H$il#i1;I %+e &"$1#1e&& 71# &%r$ %$re "J %+e H$il#i1;, !78 7%%e1%i"1 %" %+e #$r7%i"1 "J %+e le7&e 71# %"%7l #$r7%i"1I i1 #e i#i1; =+e%+er 8"$ 7re ;"i1; %" #i& $&& %+e "ve171% %" re07ir H8 %+e T "r %+e L "ve171% $0<ee0i1; %+e $1Ji%1e&& "J %+e H$il#i1;,

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