Land Tutorial 5 PDF

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LAND LAW II SECOND SEMESTER, 2017-2018 TUTORIAL 5 Andrew owns two adjoining garden houses in an estate near Yuen Long. He occupies House 6 and its garden. He leased out the other house, House 7, which is next to House 6, furnished and with garden to a businessman Brian for two years. Brian at once assigned the building of House 7 to Charlie (who hates gardening) and the garden to David who lives at House 8 and is a keen gardener. Charlie refuses to occupy House 7 because of noisome smells which are found to be due to defective drains in the house. David plants vegetables in the garden of House 7, but they are ruined by flood water that swamps the plot. The water emanated from the overflow of a channel within the adjoining garden of Andrew's House 6. The channel had not been kept in repair by Andrew and was cracked and blocked. Advise the parties as to their respective rights and liabilities in land law. Would your answer be different if the House 7 were unfurnished? Covenants: ● Agreements made in the deed ● There are covenants involved because there are deeds. ● There is a lease and assignment of lease, so if there is assignment, there is automatically a deed. Questions 1. Is this a legal or an equitable lease? Were the assignments by deed?

Andrew and Charlie Problem: noisome smells due to defective drains in the house No privity of contract but privity of estate as current landlord and tenant First look at whether there is a passing of benefit to tenant’s assignees T2 (assignment of lease) Rule: T2 can sue L1 if the covenant has reference to the subject matter of lease or touches or concerns the land, ie. Affects the mode of user and not personal (s.41(3), subject to s.41(2) and s.41(5)). If s.41(3) fails, rely on Spencer’s case. What covenants are breached? ● Covenant for fitness for habitation: ○ If the premise is let furnished for residential letting (Smith v Marrable), then it must be fit for habitation: ○ A has given B the covenant that the premises would be fit for habitation ○ Does mere smell render the whole house unfit throughout the entire term? ■ Insufficient facts to give a black and white answer ■ Consider: Is there any extreme/”substantial” level of nuisance? ■ Consider: Is there a risk of infection? Is he allergic? ● Covenant for quiet enjoyment ○ Does C’s refusal of occupation affect this? ■ If he had entered into possession, then the covenant of quiet enjoyment might have been breached, but because he had never entered into possession, so you cannot have been said to be substantially disturbed by the breach of such covenant. ● Covenant for not to derogate from grant

Andrew and David Problem: David is unable to enjoy the land – breach of (implied covenant) covenant for quiet enjoyment (Hudson v Cripps) Covenant usually provides for quiet enjoyment ‘without interruption by

the landlord or any persons rightfully claiming under or in trust for him’ → breach usually relates to some prospective act done by the landlord or persons under him. (The tenant will be free from disturbance or substantial physical interference with tenant’s use or enjoyment of property…blah blah blah from the textbook.) ● Interference must be substantial or permanent (Ridge v Golden Castle) ○ Water in garden hinders gardening. Interference with the use of the garden as the flooding of the garden makes it impossible to use the garden to plant vegetables. ● Scope: obligation is confined to the subject matter of the grant – what happened in the leased premises and condition of the premises affected ● Determination of breach is a question of fact and a matter of degree and extent (Fortune Global Development Ltd) Covenant not to derogate from his grant The general principle is that a grantor must not derogate from his grant, ie. the landlord must not do anything which will frustrate the purpose for which the tenancy was granted (Harmer v Jumbil (Nigeria) Tin Areas Ltd). ● The obligation said to be necessarily implicit has to be one which both parties must necessarily be taken to have accepted as part of the transaction (Rank Profit Industries Ltd. v Secretary for Justice/ Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd and Another???). ● The purpose of letting the garden is to use the garden, which is to garden and plant flowers and vegetables. Purpose frustrated by the excessive water caused by Andrew’s negligent maintenance....