Land Seminar 4 – Leasehold Covenants PDF

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Land Seminar 4 – Leasehold Covenants 1. Larry grants Tina a tenancy of a flat on the top floor of his house, which has been converted into four flats. The other three flats are leased by Larry to Ursula, Violet and William. Tina is disturbed by noise from the flat beneath her. Ursula regularly holds late night parties where the music is turned up very loud. Tina is also disturbed by the smells of cooking from the flat leased to Violet. Violet is currently abroad for six months and has allowed her friend Xerxes to live in the flat. Xerxes is using the flat as the base for a pizza delivery service. Tina is also disturbed by noise from William’s flat on the same floor. She can hear the television and radio through the wall when they are in ordinary use. The noise is able to penetrate because the wall is thin and inadequately sound proofed. In recent weeks Larry has started to pester Tina because he wants her to leave the flat so that he can let it to Zoë. She has found that on some mornings the water has been turned off so that she cannot have a shower. Advise Tina as to her remedies in these circumstances. General points Covenant to quiet enjoyment (Cases : Scott v Dunhill, Southwark v Mills……) Kenny v Preen – tenant will derive some pleasure from the land, not a perfect environment Discuss remedies at the end of each sub-section rather than at the end Tina v Larry (Ursula) Noise from Ursula’s flat – Larry is liable for his tenant’s noise (Sanderson v Berwick-uponTweed Corp) Southwark v Mills – interference has to be substantial, and noise must be regular and excessive. This case also said that non-physical interference could constitute a breach of this covenant. Remedies – Senior Courts Act 1980 – Injunction and Damages can be granted. Branchett v Beaney – Covenant to quiet enjoyment is not designed to provide pleasure, relaxation, peace of mind or freedom from molestation and so it is likely only nominal damages will be awarded. Malzy v Eichholz (1916) – A landlord is not liable in damages to his lessee under a covenant for quiet enjoyment in respect of a nuisance caused by another of his lessees, even if he knows the lessee is causing the nuisance and takes no steps to prevent it. To be liable for nuisances committed by his tenant, he must either participate directly in the nuisance, or must have authorised it by letting the property. Only mention briefly – but Tina may have more luck in pursuing a tort claim for nuisance Tina v Larry (Violet) Cooking smells –> covenant to quiet enjoyment Southwark v Mills – interference has to be substantial, so smell must be regular and excessive. This case also said that non-physical interference could constitute a breach of this

covenant, which the smells constitute. Highly likely that a pizza delivery service will be excessive and regular, and beyond the standards of a residential flat. Xerxes – we don’t know from the question whether he is lessee or license. If the lease had been assigned to X, then there is privity of estate between L and X and the landlord is liable for X’s breach. Violet using the flat for pizza service -> non-derogation of grant Harmer v Jumbil Tin Areas, Browne v Flower – in granting lease to Violet, landlord has derogated from grant for residential purposes, IF he was aware of Xerxes actions. If the act was lawful, then the landlord can be sued for either nuisance (tort) or breach of covenant Tina v Larry (William) Similar to Ursula – Southwark v Mills – substantial, regular and excessive. Noise in this case was ordinary Depends on who moved in first– if she knew William was there and that noise was able to come through walls, as in Southwark, she wouldn’t be able to claim for breach of covenant. There is no breach if the noise is everyday noise and the poor soundproofing existed beforehand Duke of Westminster v Guild – Larry can’t be forced to redo the whole house on basis of soundproofing. The covenants for quiet enjoyment (and non-derogation from grant) cannot impose positive obligations to perform acts of repair which the landlord would not otherwise be under any obligation to perform. Remedies – Injunction for William’s noise, and most likely nominal damages or none at all in this case given that this noise is ordinary.

Tina v Larry (water/pestering) Kenny v Preen – deliberate and consistent Mallay – landlord removed central heating

Remedies – only and injunction is available, because there is no specific damage as a result of the breach – not being able to have a shower is not enough for damages. She could also seek a tort remedy for trespass, and a criminal claim for harassment. 2. A Ltd owns a warehouse. In January 1997, A Ltd leased the warehouse to B Ltd for five years at a rent of £1,000 per annum (month?). B Ltd paid the rent due until it assigned the tenancy to C Ltd in January 1999. C Ltd initially continued to pay the rent to A Ltd, but after four months refused to continue paying. After a further six months, during which time no rent was paid, C Ltd transferred the tenancy to D Ltd, which did pay the rent. Last month A Ltd assigned the freehold reversion of the warehouse to E Ltd.

In these circumstances, who is liable to whom for the payment of the £6,000 rent arrears? How would your advice differ if the tenancy had been granted in January 1995? *Remember to underline and take notice of the dates as these will have legal significance Landlord and Tenant (Covenants) Act 1995 – applies to leases after 1st January 1996 –in this case we would apply the statute since the lease was granted in 1997. NB: the statute applies for both legal and equitable leases.

Conclusion – C is liable for the £6000 of rent arrears to A, because the covenant was breached whilst there was privity of estate between them. However due to s19 of the Limitations Act 1980, A could only claim rent arrears during the 6 years that followed from the date they were due. Since more than 6 years have passed to today’s date C would not have to pay the arrears unless a claim had been brought earlier (within the 6-year time limit). Under the old law, B would be liable for subsequent tenants and therefore A would sue B for C’s rent arrears. The most B could do would be to attempt to claim an indemnity from C...