Leasehold obligation - summaries from handouts, plus summaries of a few articles whose names have being PDF

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summaries from handouts, plus summaries of a few articles whose names have being referenced....

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Every lease will contain provisions which define the obligations of the landlord and the tenant. We call these ‘leasehold covenants’. In addition to any such express covenants as are agreed to, other ones may be implied common obligations: covenant to pay rent-For residential leases entered into after the Housing Act 1988 came into force, there are no major legal restrictions on what can be charged -in longer leases, the parties agree to review the rent at intervals -If rent is not paid by midnight on the required day then it is in arrears: Dibble v Bowater (1853) 2 E. & B. 564. The landlord will be able to claim these sums save in very specific circumstances. One example is a valid ‘set off’: when a tenant who conducts repairs which are the responsibility of the landlord may recoup the costs of the work out of future rents payable. Other remedies may also be open to the landlord. Firstly, they may seek to forfeit the lease (the law on which will not be considered here). In commercial leases, moreover, there is a remedy of distress (the seizure of goods on the premises in satisfaction of the debt) under the procedure in Chapter 2 and Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 covenant for quiet enjoyment-if this isn’t expressly stated in the contract then it is implied: : Markham v Paget [1908] 1 Ch. 697.

“… the landlord, by letting the premises confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of the right to possession during the term”: Kenny v Preen [1963] 1 Q.B. 499, 511 per Pearson L.J.

The covenant for quiet enjoyment is breached if: (i) the landlord (or someone authorised by them to act in the way complained of) ‘substantially interferes’ with the tenant’s ordinary and lawful enjoyment of the leased premises; and (ii) the conduct complained of was not reasonably contemplated by the parties at the time of the letting (Southwark LBC v Mills [2001] 1 A.C. 1). Examples of a ‘substantial interference’ are removing the doors and windows of the leased premises (Lavender v Betts [1942] 2 All E.R. 72); cutting the supply of gas and electricity (Perera v Vandiyar [1953] 1 W.L.R. 672); and excessive noise (Southwark London Borough Council v Mills [2001] 1 A.C. 1. As regards the requirement that the

interference was not reasonably contemplated at the time of the letting, see:Lyttelton Times Co Ltd v Warners Ltd [1907] A.C. 476 remediesmay seek breach of covenant, and also seek for an injection other claims may also be brought, for example- trespass to land, and private nuisance covenant is also identical tot he landlords duty to not derogate from their grant Restrictions on the user of the premisesunless the agreement states, the tenet can make use fo the property for any reason. however, in most commercial cases the agreement would have some restrictions posed on the property owner. covenant restrictions are enforceable by induction, damages may also be awarded The courts, however, would almost never order specific performance of a positive user covenant: Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] A.C. 1 implied warranty of availability and fitnessexcept otherwise stated int he agreement- there is generally no implied warranty by the lessor that the demised premises will be habitable, or indeed fit for any particular purpose: Hill v Harris [1965] 2 Q.B. 601. This general rule is subject to some exceptions:

1.In the case of a letting of furnished accommodation, there is an implied condition that the accommodation is fit for occupation at the beginning of the tenancy: Smith v Marrable (1843) 11 M. & W. 5.

Under the Landlord and Tenant Act 1985, s 8(1), if a house is let at a very low rent, there is an implied condition that the house is (and will remain) fit for human habitation. The rent limit is £80 per annum in London and £52 elsewhere (note reform to extend this protection discussed in section 3.2) In addition, leases frequently also contain express or implied repairing obligations. Compliance with these will often (but not always) ensure that the property remains habitable. obligation of repair and maintenancesometimes implied obligation to repair are placed on the land-landlord by statute which cant be avoided. there are some common law obligations on the tenants as well: “The tenant must take 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 sink when it is blocked by his waste. In short, he

must do the little jobs about the place which a reasonable tenant would do. In addition, he must… not damage the house, wilfully or negligently; and he must see that his family and guests do not damage it”. (Warren v Keen [1954] 1 Q.B. 15, 20 per Denning L.J.) express repairing covenantsthis indicates that the parties have discussed about this from the creation of the agreement- however, the terms- good repair, habitable repair and tenantable repair adds only little to the term repair as seen in proudfoot v hart (1890). there is however a breach of repair covenant if: covenant extends to the part(s) of the property in issue :those part(s) are in ‘disrepair’ :dealing with the disrepair would not constitute a ‘renewal scope of the covenant: they often refer to the structure and exterior of the property structure aree those elements which give the property its stability and shape (grand v gill (2011) they include plasters but not decorations irvine v moran (1991) exterior are the external parts of the building- windows, enclosed walls e.t.c. means of access don’t add as exteriors/structures (edwards 2016)

disrepair: A state of ‘disrepair’ involves “a deterioration from some previous physical condition”: Post Office v Aquarius Properties Ltd [1987] 1 All E.R. 1055, 1065 per Slade L.J. The relevant ‘condition’ in this regard is that which is proper to expect in light of the age, character and locality of the property: see Proudfoot v Hart (1890) 25 Q.B.D. 42. Thus in Plough Investments Ltd v Manchester CC [1989] 1 E.G.L.R. 244, there was no breach when hairline cracks began to appear in brickwork that was more than sixty years old.

In principle, something that is inherently defective cannot be said to be in ‘disrepair’. Quick v Taff-Ely BC [1986] Q.B. 809 if the defect is inherent and extends to something extending to the covenant then it can be simply patched and mended. the courts may however take a different stance if dealing with the default is the only solution sensible. stent (1987) covenant doesn’t extend to renewals: A covenant to ‘repair’ is not the same thing as a covenant to ‘renew’. Even if there is disrepair, there is no obligation to remedy it insofar as that would involve a renewal. A

‘renewal’ is the “replacement of substantially the whole” of the premises, as opposed to the replacement of only the defective parts: Lurcott v Walsh [1911] landlord and tenants act 1985 s(11)only for leases granted for less than 7yrs-obligations on the landlords parts: :to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes) :to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity). :to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water the obligations are limited by 11(2) by not been applied to duties or repairs which are by virtue of the duty of the tenant to use the property in a tenant like manner. proper work means- able to function under circumstances of supply that is reasonable to anticipate will occur- o’connor v old etonian housing (2002) dealing with disrepair: necessity of noticeA tenant is in breach of a repairing covenant as soon as the disrepair occurs, even though they may be unaware of it, even landlords as well (murphy v hurley 1922). an implied term that a landlord is not liable for disrepair in the leased area until they have notice of the problem and have failed to deal with it within a reasonable time: British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch. 69. extent of the work requiredall that needs to be remedied is the deteroriated part of the property only, any work beyond will count as improvement. so for example- When replacing a broken part (e.g. a window), therefore, the replacement part need only be (i) of a comparable quality; or (ii) of a better quality, but only trivially more expensive——- as seen in minja v cussins (1988) remedieslandlord and tenant covenants act 1995 the tenant is liable for any tenets covenant, so is the landlord, however if the property is to be sold, the land lord has to relieve himself of the duty in the landlord covenant by serving a notice on the tenant.

general remedies- landlord breach specific performance damages- aimed at putting the tenant where he was before breach if the landlord after been notified doesn’t do anything, the tenant can repair the issue then deduct the cost from the rent payment. tenants are also able to seek damages for any injury or ill health suffered and the cost of alternative accommodation if the disrepair means they are unable to live in the property whilst repairs are conducted (Calabar Properties v Stitcher [1984] 1 WLR 287) remedies for privately owned/rented blocks of flatswhere this is the case, the tenant can appoint a receiver who hen receives management of the property from the landlord, collects the rent and uses it to pay for the repairs, in some cases,cases, the tenant can require the landlord to pay the cost inquired from appointing the receiver. doesn’t apply to local housing (parker v camden 1985) general remedies- tenant breachdamages landlord may reserve right to enter property and fix the repair at the expense of the tenant, this may however be in breach in tort. (provided that they have been notified of it or they or ought in all the circumstances to have known of it: s 4(4) of the Defective Premises Act 1972) to escape the tortious duty. human rightsThe concept of ‘repair’ under the 1985 Act is approached in the same way as it is with express repairing covenants does require landlord to keep the premises in good condition (lee v leeds city council 2002) alternative protectionsProtection for Houses in Multiple Occupation (HMOs) :Mandatory licensing of HMOs came into force in 2006. A landlord who lets a property to 5 or more people – from 2 or more separate households – must be licensed by their local housing authority :covers HMO properties which are less than three storeys high :2018 (‘the Mandatory Conditions Regulations 2018’) introduces new conditions that must be included in licences that have been granted—- which are—— -Mandatory national minimum sleeping room sizes (6.51 m2 for one person over 10 years of age , 10.22 m2 for two persons over 10 years of age , 4.64 m2 for one child under the age of 10 years. any room of less than 4.64 m2 may not be used as sleeping accommodation).

Waste disposal provision requirements. If convicted for a breach of minimum room size requirements, the licence holder is liable to an unlimited fine. The local housing authority may impose a financial penalty of up to £30,000 as an alternative to prosecution. Enforcement however, relies heavily on Local Authority inspection and enforcement public regulationUnder the Housing Act 2004, local authorities have the power to serve notices on owners of private renal property, requiring them to deal with ‘hazards’ this is often problematic as it requires the public authority to act on the issue and this tends to be quite problematic. reforms fo the current lawlaw commission proposals leading to a new billIn 2018, following decades of unsuccessful attempts at reform in England, The Homes (Fitness for Human Habitation) Bill finally progressed to the report stage and has received official backing from the Government. The new Bill will amend the Landlord and Tenant Act 1985 and will introduce an implied covenant into leases of less than 7 years that the landlord ensure that the dwelling is:

s9A (a): fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and (b) will remain fit for human habitation during the term of the lease. s9B (1): It will apply to leases where the dwelling is let wholly or mainly for human habitation and (a) the lease is for a term of less than 7 years, or (b) the lease is of a kind mentioned in subsection (1A) or (1AB) of section 13 (leases to which section 11 applies: secure, assured or introductory tenancies for fixed term of 7 years or more).

- Under section 9C (4) of The Bill the duty will also apply in relation to any “prescribed hazards”, this implied covenant for fitness will also extend to the common parts of the property (which the landlord has an estate or an interest ) so that the whole building will be fit for human habitation (includes outside walls and roofs of a block of flats), and internal common parts owned by the landlord. only recently included as a result of A dymons criticism 9a of the proposed bill has some exemption to the implied covenanti.e. unfitness arising…from a tenant’s failure to use the dwelling in a tenant-like manner; …..as a result of natural disaster: fire, storm, flood or other inevitable accident;

…….to carry out works or repairs requiring the consent of a superior landlord or other third party in circumstances where consent has not been obtained following reasonable endeavours to obtain it the Bill gives the tenants the right to take their landlord to court where the property is not fit - they will be able to apply directly to the Court for an injunction to compel a landlord to carry out works, or for damages The covenant will not apply to a lease granted before the commencement of the bill. For periodic or secure tenancies in existence on the date of the bill’s commencement, tenants will have to wait one year before the covenant is implied into their leases and they are protected. Those with fixed term leases will fare a little better. Where a fixedterm lease is granted or renewed before the date of commencement for a further fixedterm after the date of commencement, the renewal will be treated as the grant of a new lease at which point the covenant would apply tenants rights to stay in the propertyA private landlord can serve a s21 (Housing Act 1988) notice on a tenant if they want to evict them. to be served 2 months in advance in writing If you have a fixed-term tenancy and remain in the property at the end of the fixed term, without a new tenancy being granted, your tenancy continues as a ‘statutory periodic’ tenancy. can be brought to an end using the s21 notice (spencer v taylor 2013) if tenancy was periodic one can be evicted on a no fault after six months as long as the 2 months notice has been served they are difficult to challenge if the landlord has go through the right procedures to get it served ‘There is no concept that is more fundamental than a right of property. Where it exists, it is for the owner to exercise it as he pleases. He does not need the permission of the court, nor is it subject to the courts discretion…these are the rights which the court must respect and which it will enforce if asked to do so.’ Lord Hope Fisher v Brooker [2009] some form of protection for the tenant hereA s21 notice is invalid if the tenant has not been supplied at the start of the tenancy with a gas safety certificate, an Energy Performance Certificate, evidence that a deposit has been lodged with one of the tenancy deposit schemes, and a copy of the Government’s ‘How to Rent’ guide article 8 echr: right to a homein practice, any argument based on the substantive laws breach of article 8 is doomed to fail. It is not the substance of the right to possession that is open to challenge, it is only the process by which decisions to bring possession proceedings are made that may succeed—- evidential from courts statement in manchester v pinnock (2010)

Notably, a court could interfere if a private landlord’s sole motivation for serving a section 21 notice was discriminatory under the Equality Act 2010. This means that to some extent, human rights are protected in disputes between private landlords and tenants. However, McDonald means that human rights generally are not protected unless they fall within the limited scope of disability under the Equality Act 2010—- as seen from mcdonalds v mcdonalds (2016) protection against revenge evictionsunder s33 of deregulation act 2015- a landlord, after an order has been serve by the to local authority may not issue s21 to end the tenancy for 6 months afterwords. , any prior notice served by the landlord is invalidated if the tenant had first complained in writing to them, and had received either (i) no response in 14 days or (ii) no adequate response, still ends up to be sloppy as the notice still has to be served by the authority. as evidential, there is still imbalance of power btwn the tenants and the landlord which is still problematic. this is so as even though people make complains, it consent guarantee that the issue will be resolved.

A BILL FOR PURPOSE ARTICLE BY ANDREW DYMOND:

Parliament has acted with the introduction of the Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill 2017–19 Is it too much to ask that, as the Bill proceeds through Parliament, amendments can be made which will at least give them a remedy for defects in the common parts which render their homes unfit for human habitation? Is a duty which is not too onerous for landlords in Wales too much of burden for landlords in England?—- the current bill has the defect of not addressing this things.

from land law seminar- other acts which may serve to protect those who live in tenant residents i.e. HA 2004, EPA 1990, HMO LICENSING, HOUSING AND PLANNING ACT 2016. category 1 hazard most serious fuck ups to the house, thus requires notice, if its category 2 then the landlord can decide to do something if its an improvement notice, you must do something hazard awareness notice you don’t have top do something the council cant be forced to act even if the property is that of the local authority statutory dutiese.g. carbon monoxide alarms you cant use quite enjoyment to amount to a defect

will the new act really work?risk of retaliation? effect on the market? exceptions will lead to abuse? ignorance of law lack of security of tenure costs might just get passed on to folks who cant afford it legal aid

restrictions on notice i.e. s21 landlord has to be in a licensing scheme when the tenancy deposit isn’t protected revenge evictions

discuss about the remedies and which one is worth (display of commercial awareness)...