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LAND | Ownership

Leasehold Covenant:
Overview
Revision Note | Degree

28 JULY 2015

Introduction
• covenants entered into by tenant & landlord cover most obligations in residential & commercial leases
• rules governing enforcement of covenants in leases completely different to freehold covenants
• covenants in leases may be expressly created or implied

Quiet enjoyment
• when landlord grants lease to tenant in absence of express provision, implied covenant by landlord for quiet
enjoyment
• threats may breach right to quiet & peaceable enjoyment of premises

KENNY V PREEN [1963] 1 QB 499

• landlord's threats to evict tenant (shouting & knocking on door) breached his covenant for quiet
enjoyment
• 'enjoy' is translation of Latin word 'fruor' & refers to exercise & use of the full benefit of the right
not just enjoyment

CRIMINAL LAW ACT 1977

• s.6: criminal offence to use or threaten violence to secure entry to premises when known
someone who is opposed to entry is on premises

PROTECTION FROM EVICTION ACT 1977

• s.1(1): applies to residential occupiers

• s.1(2): offence if landlord unlawfully deprives tenant of occupation & cannot prove that he
believed, or had reasonable cause to believe, tenant ceased to reside in the premises

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 • s.1(3): acts likely to interfere with tenant's peace or comfort done with intent to cause him to give
up occupation an offence

• action available if tenant unlawfully evicted

HOUSING ACT 1988

• s.27: tenant may claim damages from landlord if unlawfully evicted

• s.28 : measure of damages: difference in value between valuation of landlord's interest if tenant
retains right to occupy premises & no longer has right to occupy

TAGRO V CAFANE [1991] 2 ALL ER 235

• tenant awarded £31 000 damages

• day to day noise may breach peaceful enjoyment

SOUTHWARK LBC V MILLS [2001] 1 AC 1

FACTS:

• Ts were council tenants

• Ts complained that lack of soundproofing meant they could hear daily activities of neighbours

ISSUE:

• was council in breach of right to peaceful enjoyment of property?

HELD:

• Lord Hoffmann: did not see 'why, in principle, regular excessive noise cannot constitute a
substantial interference with the ordinary enjoyment of the premises'
• covenant not apply to things done before grant of tenancy: inadequate soundproofing existed at
date of lease, so no cause of action

Repairs
• common law: landlord does not give any implied warranty as to condition or fitness of property
• limited obligation

SMITH V MARRABLE (1843) 11 M & W 5

• implied term: furnished tenancy that premises are fit for human habitation

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 SARSON V ROBERTS [1895] 2 QB 395

• only implied respect of state of property at date of the letting (afterwards landlord does not know
or control state of property)

HART V WINDSOR (1843) 12 M & W 68

• not implied if lease for unfurnished property

• generally courts unwilling to imply terms especially due to the costs of remedying older properties

SOUTHWARK LBC V MILLS [2001] 1 AC 1

• 'the judges are not equipped to resolve them'

• occasionally courts will imply terms

LIVERPOOL CC V IRWIN [1976] 2 ALL ER 39

FACTS:

• Ts complained landlord did not maintain common areas of block of flats & particularly there was
inadequate lighting in stairwells

ISSUE:

• could terms be implied?

HELD:

• Court of Appeal (Lord Denning): judges should imply terms if 'reasonable'

• House of Lords: criticised Lord Denning as 'way beyond sound authority'
• correct approach: what must be implied - test of necessity rather than reasonableness
• in instant case, tenancy of flat useless unless tenant can access so easement implied to use
stairs
usually no obligation on servient owner to maintain subject matter of easement
landlord obligation : reasonable care to maintain adequate lighting where natural light was either
non-existent or insufficient

• obligation to maintain easement in Liverpool CC V Irwin seems to be narrowly applied to facts

DUKE OF WESTMINSTER V GUILD [1985] QB 688

• no general obligation to maintain easement: landlord not obliged to maintain drain under his land

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• landlord's obligation to repair may be imposed in certain situations

BARRETT V LOUNOVA (1982) LTD [1990] 1 QB 348

• landlord under implied obligation: if tenant under obligation to carry out internal repairs & can
demonstrate such repairs could not be done unless landlord undertook some responsibility for
repair

ADAMI V LINCOLN GRANGE MANAGEMENT LTD (1997) 30 HLR 982

• Barrett v Lounova decision not a general principle

• some statutory provisions regarding state of property

LANDLORD AND TENANT ACT 1985

• s.8(1): implies a term that dwelling house should be fit for human habitation at the
commencement of the tenancy & maintained throughout
• s.8(2): landlord has right to inspect state of property with 24 hours notice
• s.8: only applies to leases not exceeding £52 (so rarely applicable)
• s.10: factors affecting whether house fit for human habitation:
repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water
supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for
the disposal of waste water
• s.11(1): implied covenant by lessor: to keep in repair the structure & exterior of dwelling-house
to keep in repair & proper working order installations for supply of water, gas, electricity &
sanitation
to keep in repair & proper working order installations for space heating & heating water
• s.11(3): standard of repair required depends on location, age & character of dwelling
• 11(4): covenant by lessee for repair has no effect if relates to categories in s.11(1)
• s.11(6): lessor or agent has implied covenant to enter premises for viewing state of premises
(with 24 hrs written notice)
• s.12: clauses in leases purporting to exclude liability under s.11 void unless authorised by court
• s.13(1): s.11 applies to lease of dwelling house, made after 24 October 1961 & for term less than
7 years

• waste is a tort
voluntary waste: arises where tenant causes damage to property ( tenant may be liable)
permissive waste: allowing property to fall into disrepair by tenant's neglect (tenant not liable)
• if no express or implied obligations on tenant

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 WARREN V KEEN [1954] 1 QB 15

• tenant expected to use property in a tenant-like manner: 'carry out little jobs about the place
that a reasonable tenant would do'
• tenant not liable: repairs needed due to fair wear & tear or lapse of time

RAVENSEFT PROPERTIES V DAVSTONE [1980] QB 12

• landlord may be obliged to remedy inherent defect in construction if necessary in order to carry
repair under s.11 TA 1985

QUICK V TAFF ELY BC [1986] QB 809

FACTS:

• Ts council tenants complained of condensation which damaged decorations

ISSUE:

• did landlord have duty to repair?

HELD:

• implied duty to repair structure & exterior: insufficient evidence damage to structure itself (such as
walls)

O'BRIEN V ROBINSON [1973] AC 912

• landlord not liable to carry out repair until he has been notified of need for repair

• landlord's liability for personal injury

MCNERNY V LAMBETH LBC (1988) 21 HLR 188

• followed decision in Cavalier v Pope [1906] AC 428: 'fraud apart the is no law against letting
a tumble down house and the tenant's remedy is upon contract'
• bare landlord: landlord who lets unfurnished property & not negligent builder
• bare landlord not liable in negligence

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 DEFECTIVE PREMISES ACT 1972

• s.4(1): where tenancy puts on landlord an to tenant for maintenance or repair of premises
landlord owes to all persons who might reasonably be expected to be affected by defects in the
state of the premises
duty to take reasonable care in all the circumstances to see that they are reasonably safe from
personal injury or from damage to their property caused by a relevant defect
• s.4(2): duty applies if landlord knew or ought to have known of relevant defect
• s.4(3): 'relevant defect': defect in state of premises existing arising from, or continuing because
of, an act or omission by landlord which constitutes (or would if he had had notice of the defect)
failure by him to carry out his obligation to tenant maintenance or repair of premises
• s.4(4): if landlord has express or implied permission to enter premises to carry out any
maintenance or repairs then s.4(1) - (3) apply

This article can be found online at www.bitsoflaw.org/land/ownership/revision-note/degree/leases-covenants where links to further resources are
available.

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