REAL PROPERTY II

LAW OF LEASES - LANDLORD AND TENANT RELATIONSHIPS

This topic is essentially concerned with the relationship between a lessor (owner of land) and the
lessee (tenant).

Under a Landlord and Tenant relationship, the rights and obligations are laid down partly by the
lease itself, which is a contract. This governs the relationship between the parties. In addition,
certain principles implied by statute and case law may also govern the relationship between
landlord and tenant.

A Leasehold is type of estate – (determines how long the owner of an estate can retain the land).
A leasehold is often called a term of years i.e. the period of time for which P is entitled to occupy
the land.

Another term for the leasehold is “demise”.

Demise must be distinguished from devise (a situation where a person leaves land by will to
someone else).

A lease is essentially a contract between landlord and tenant. Traditionally, leaseholds were
treated simply as contracts. Later, however, around the 15th century, leases were regarded as not
merely contracts but interests in an estate.

One of the essential characteristics of a lease is the fact that if the lessee was dispossessed he
could recover possession of it by an action in court. However, if the lease was a contract, there
was only a right to sue for damages for breach of such; recovery of possession was not possible.

At that point, the leasehold was seen as a kind of tenure. This was paradoxical because
throughout history, the leasehold was considered to be outside the doctrine of tenure [such was
only applied originally to fee simple, fee tail and life estates]. However, over time, the doctrine of
tenure became obsolete except in circumstances where it applied between landlord and tenant.

When the lessee holds land for the lessor, one of the consequences of the tenure is that he is
required to pay for the privilege of occupying such land. Today, rent is often paid. In the past
however, services were rendered. This was later commuted to money payments.

THE ESSENTIAL CHARACTERISTICS OF A LEASE

1. There must be exclusive possession i.e. the tenant must have exclusive possession of the
land.
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 2. The duration of the lease must be sufficiently certain.

1. THERE MUST BE EXCLUSIVE POSSESSION

The lessee/tenant must be able to exclude all other persons from the land including
the landlord himself. No other person has a right to enter the land without his prior consent. If
someone does so, he becomes a trespasser and could therefore be sued. An injunction may be
granted in an effort to restrain that person. This equally applies to landlords; they are not
permitted during the continuation of the lease to enter the land unless such is permitted by virtue
of the lease itself.

The right to exclusive possession essentially means that the lessee can use the machinery of the
law to restrain others from so entering on his land.

Where the lessee has exclusive possession, he has an interest in land which could be
assigned / transferred to another person. Such can take place inter-vivosly or through
testamentary disposition [by will].

It however does not mean that if a person has exclusive possession that he is automatically a
lessee, since a license may act in such a way also. A person may be granted possession of land
exclusively by virtue of a license which is of a lesser interest as compared to a leasehold. In those
circumstances, one can only sue for damages for breach of the license contract. As he would have
no proprietary interest in the land, he can only sue for the breach of contract.

In certain jurisdictions, there is legislation called the Rent Restriction Act. This gives to
the lessee:

1. The right to seek rent control – prevent the landlord from charging more…
2. Gives to the tenant security of tenure – on the expiry of the contractual lease, the
tenant can stay on in possession of the land indefinitely, providing that he is confirming to
the terms of the lease. In these circumstances, the landlord can only evict him if he can
only show certain causes exist, such as, the fact of requiring possession for himself /family
and where the tenant has acted in a manner detrimental to the property.

The Rent Restriction Act has lost its way in Trinidad & Tobago and England. Jamaica
applies it but it has never been enforced in Barbados.

The Rent Restriction Act was a social legislation to protect tenants against landlord. The political
situation however led to it not being enforced eagerly in many jurisdictions.

Potential landlords may be reluctant to rent out their property as such there is a shortage of
rented accommodation. [given that the tenant can stay on indefinitely].
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The law was somewhat simplified in 1985:

Street v Mountford [1985]

By an agreement dated 7 March 1983 S granted M the right to occupy two rooms for GBP37 per week
subject to termination by 14 days' notice and subject to conditions set forth in the agreement, which was
entitled "licence agreement" and which contained a declaration signed by M to the effect that she
understood that the agreement did not give her a tenancy protected under the Rent Acts. M and her
husband then moved into the rooms, of which they had exclusive occupation. In August 1983 S sought
an order in the county court declaring whether the occupancy under the agreement was a licence or a
protected tenancy. The recorder held that it was a tenancy. On appeal by S the Court of Appeal declared
that M occupied the rooms under a licence.

Held - where residential accommodation had been granted for a term at a rent with exclusive
possession, the grantor providing neither attendance nor services, the legal consequence was the
creation of a tenancy; and that, accordingly, on its true construction, the agreement between S
and M, notwithstanding the use of the word "licence," had the effect of creating a
tenancy.

Test for determining whether a lease or licence had been created:

Lord Templeman:

Where residential accommodation is offered and accepted in exclusive possession

for a term at a rent, the result is a tenancy.

If the tenancy is residential in nature, exclusive possession is given and rent is payable = lease.
Where possession is given periodically, it is more akin to a tenancy e.g. monthly tenancy –
tenancy comes to an end by notice to quit either tendered by the landlord or tenant. If it is a
monthly tenancy, then 1 month‟s notice is granted.

A Lease is more often used for a fixed period. However, this is not a hard and fast rule; the terms
are often used inter-changeably.

Prior to that Street, it was said that it all depends on the intention of the parties as to whether
they wanted to create a lease or a mere license. Accordingly lawyers would have drafted a
standard form of license agreements and landlords wishing to avoid the consequences of granting
a tenancy [where Rent Restrictions Act applied], drafted the agreements as licenses.

If exclusive possession was not granted then there could be no lease. Instead there
would have been a license.

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e.g. a married/unmarried couple wants to share a leased premises. They go to the real estate
agent and ask for such. The real estate agent shows them the property and they agree to take it.
They are asked to sign separate agreements.

Mr. X [signs an agreement called Licence] and Ms. Y signs an agreement called Licence] – stating
that each is liable for separate rent and that the owner of the premises is entitled to put other
persons, including himself, into occupation of the premises with either of them. Hence, this
nullified exclusive possession.

Somma v Hazelhurst

Held: since they had signed licensed agreements they could not be tenants / lessees.

Street v Mountforth

In respect of the example [above], such cases were a sham. They were not really licenses. They
were in fact leases masquerading as licenses. If the true intention was that these two people were
to share the premises, but the clauses speak to the fact of the landlord sharing the property with
them or any other person for that matter, the court will not allow the landlord‟s scam to succeed
but will render it a lease having exclusive possession.

Antoniades v Villiers

An unmarried couple wanted to share an apartment. They went to a real estate agent who showed
them certain premises. They liked it and went into occupation. When they were given a choice of
single /double beds, they chose double beds. The landlord wished to avoid the application of the
Rent Restrictions Act, and as such, drafted two separate agreements with specific /individual
obligations.

The issue raised was whether this was a sham in order to restrict the application of the Rent
Restrictions Act. One of the terms of the agreement was that the landlord himself or a third party
could be put into occupation with the couple.

Held: the intention of the landlord was not to grant separate licenses to both applicants.
The terms in the agreement whereby the landlord purported to put himself or third party
into occupation with them, amounted to a mere sham. Both occupied the property as a joint
tenancy and therefore had exclusive possession, hence a landlord-tenant relationship arose.

AG Securities v Vaughn

Four young men signed separate agreements on different dates with different amounts of
payments. It was argued that they had a joint tenancy.

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Held: this was a genuine case of four separate licenses. In order for there to be a joint tenancy
there must exist the four unities – interest, possession, title and time. There was no unity of
possession (rather separate possession). This was unlike the Antoniades case, whereby the
apartment was designed in such a way as to exclusive possession by the couple.

Ramnarace v Latchman

This is an example of a tenancy at will. Please see case……..

In an effort to answer the question as to whether the test is exclusive possession or intention of
the parties in respect to the grant of a lease or license, the court has established certain
requirements:

- If the person is given exclusive possession as an act of friendship/generosity or

by way of family arrangement:

Edwards v Brathwaite

B‟s mother owned a parcel of land in Barbados. Before she died, she allowed her son to go into
possession of a house spot on the land. B placed his chattel house on the land and he lived there
from 1938-1978. After the death of the mother, his father continued to live on the land but at no
time did he require B to pay rent. During the 40 year period, B erected a fence around the house,
kitchen garden and planted fruit trees. The issue was whether B was a tenant at will or licensee.
He alleged that he had acquired a title by adverse possession. Suffice, he could only acquire such
title if he was a tenant at will.

Held: since the reason for his possession of the property was by way of family
arrangement, he was only a licensee and not a tenant.

Ramanarace v Latchman

There was a tenancy at will because the Claimant had been let into possession of the family
property not simply by way of family arrangement but she intended to purchase the property from
the family. It was not merely a family arrangement but rather a commercial agreement.

1. CERTAINTY OF DURATION
In order to be valid, a lease must have a certain “commencement” and a certain “end” time.

E.g. if a lease agreement states that “a lease is hereby granted for a term of 5 years commencing
on the 1st February 2010….” there is indeed certainty of duration given that the lease stated that it

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should begin on “February 1st” and continue for a fixed period ending only after 5 years. This is
referred to as a fixed term lease.

The other is a periodic tenancy – where the landlord permits the tenant to go into
possession of the property where he can pay periodically (monthly or annually). Such
can only come to an end where there is notice to quit. Note well that the term of years with
respect to the duration is indefinite. In any event, the periodic tenancy does satisfy the rule that
there must be certainty of duration even though one would not know exactly when notice to quit
will be given. Each period, month, quarter or year, is fixed.

Lace v Chantler - where a tenancy was granted during war time and the agreement stated that
the “tenancy shall continue for the duration of the war”, such was held to be void. It was not a
fixed tenancy nor was there an indication of a periodic date when the tenancy should have come
to an end.

Recently, in Prudential Assurance v London Residuary Body, where the applicant was not
aware of when, if ever, the local authority would need the land for road widening, it was held that
the lease was void for inconsistency.

Exceptions

- The lease for the life of a person is not void for uncertainty even though no one
knows how long the person will live for.

- The date of commencement must be certain, however, there is sufficient of

certainty if it is agreed that the lease should begin upon the occurrence of a
certain event e.g. this lease shall begin when the premises becomes vacant.

- A lease may be valid granted for a discontinuous period, as in the case of some
timeshare agreements relating to holiday homes; for example, in Brilliant v Michaels
[1945], it was held that the lease of a house for one week in each year for 80 consecutive
years was a valid lease for a discontinuance period of 80 years.

RECAP
Landlords practiced using occupational agreements in such a way that the premises were at least
prima facie occupied under a license and not a lease. The purpose for doing this was to avoid the
application of the Rent Restrictions Act which gave security of tenure to the tenant. However, over
time, the court recognized such conduct, viewed it as a scam and rendered such agreements
enforceable as tenancy agreements.

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 FORMALITY FOR THE CREATION OF LEASES
These formalities are derived from statutory provisions which vary from one jurisdiction to
another.

In order for a valid lease to be granted at common law, certain formalities must be
met:

1. A lease for three years or more must be made by deed. On the contrary, a lease for less
than 3 years can be made orally.

An exception is Barbados, a lease for 1 year or more must be made by deed. The effect of
non-compliance – if the lessor purports to grant the lease without using the necessary statutory
formalities – the lease will be void at common law. However, if the lessee goes into possession
and pays rent periodically, then a periodic tenancy will arise and the length of the period will be
measured by the frequency of payment of the rent. E.g. a monthly tenancy.

This is an area where common law and equity take different views. If the lessor purports to grant
the lease for a fixed period without the necessary formalities having been met, this may give rise
to an agreement for a lease (applicable only in equity).

Walsh v Longsdale

W entered into a written agreement [not a formal lease] for a 7 year lease. It was agreed that
under the formal lease [when it came into effect] rent would be payable 1 year in advance on
demand of the landlord. W entered into possession of the property immediately. He paid the rent
quarterly in arrears. L then requested from W 1 year‟s rent in advance. L argued that W was in
breach of the agreement. He [L] also contended that he had an entitlement to distrain the
property until he was paid. W, on the other hand, argued that the agreement to pay 1 year‟s rent
in advance did not take effect as yet since no formal lease had been executed as at the time in
question.

L petitioned the court of equity for specific performance.

Held: in equity, the lease was executed even though the formal agreement was not
concluded as yet. “…Equity regards as done that which ought to be done….” W was
therefore was obligated to make the requisite payments. Specific performance was thus
ordered. It was held that specific performance was awardable since the formation
of the initial contract was an enforceable one in equity. W was thus distrained of
this property.

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However, at common law, the landlord could not have recovered the payments since the payment
was dependent on the conclusion of the formal lease agreement. As such, where the initial
contract was breached by the defendant, only damages would have been awardable.

Suffice, it has to be determined which type of tenancy is at the disposal of the parties – yearly
tenancy require 6 months notice, for example.

The type of tenancy [yearly, bi-annual, quarterly is determined by reference to the period by
which the rent is reckoned /calculated [not paid].

If there is a conflict between common law and equity, equity prevails.

Is an agreement to lease may be good as a lease?

a. As between lessor and lessee, both are bound by the terms of the agreement
whether it is a mere agreement to lease or a legal lease.

However, in certain respects, an agreement to lease may not be as good as a lease.

1. Dependent on Specific Performance - being a purely equitable interest, it is dependent

on the availability of specific performance. This remedy compels a party to an agreement to
carry out the obligations of the agreement. Suffice to say, specific performance may only be
granted where there is an agreement to sell, mortgage or lease land. Specific performance,
as a discretionary remedy, will however not be granted if the claimant‟s conduct was in a
non-diligent way. .”….he who comes to equity must come with clean hands.” E.g. the lessee
who fails to make the necessary investigations into pre-existing title (Rice v Rice).

Warmington v Miller

D had a 21 year lease of a property but such depended on his work on the said property. Under this
lease [properly executed], D covenanted that he would not assign part/whole of the property to
another. However, he needed a car sprayer by his side. He therefore entered into a contract to grant 1
year‟s tenancy to the P [to use part of the premises for panel reconfiguration and car spraying]. Tenant
was then evicted in breach of the contract to grant him a tenancy. P argued that this was a situation
where specific performance would lie as equity regards that which ought to be done as done.

Held: the agreement for a lease depended on the availability of specific performance; a
contract for 1 year‟s tenancy is not a good as a lease for 1 year‟s tenancy.

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The Court refused to compel D to do what he didn‟t want to do – for in fact D already had a 21 year
lease. The court could not order D to breach his 21 year lease agreement in favour of P‟s subsequent
agreement. A lease creates a legal interest but the contract for a lease /sale creates a mere equitable
interest – equity regards that which ought to be done as done –specific performance [once available at
the time of the signing of the contract for sale] remains available throughout. However, the legal title
still resides in the original owner. If the original owner sells [conveys] the same property to another P2
[not P1 –who is claiming in equity], there is a competing interest as P2 has legal title to the property.
Equity solves the competition of interest conflict by holding that the person whose interest was created
first is afforded priority [order of priority rule].

2. Third Parties - An agreement for a lease, being an equitable interest, will be void against
the bona fide third party who purchased the property without notice and for value
/consideration. Legal leases on the other hand are not subject to this requirement. Notice,
in the instance of the first situation, may also depend of registration of documents as a
statutory requirement.

Metacaff v Edgill

An agreement for a lease was entered into with the landlord that the lease would have been 3 years.

Held: the tenant, though he has not entered into the formal conveyance as yet, was bound by
equitable lease. As specific performance was available, equity regarding as done that which has
been done, rendered the agreement enforceable.

Richards v Alladeen
The wife in question contributed to the purchase of the property. She thus had equitable interest.
The husband, while the divorce proceedings had commenced in court, succeeded in selling the
property to a purchaser under a formal conveyance. The wife did not seek to have the dispute as
between her and the husband published and as such a purchaser could not know that the property
was the subject of litigation. An action was brought by the wife for recovery of her interest in the
property.
Held: since the purchaser acquired the legal estate he had become a bona fide purchaser
and as such had legal title to the property.

3. Assignment - A legal lease can be assigned / transferred [to another person by the
lessee]. The transferee or assignee steps in the shoes of the original lessee i.e. subject to
all the rights and liabilities exactly the same way as the transferor has. This is not the case
in respect of equitable interests. The assignee in equity can take the benefits of the lease
but is not subject to the burdens /covenants of such by the previous lessee e.g. not bound
to refrain from committing nuisance /paying rent /repairing. As such, an agreement to
lease cannot be as good as a lease.
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 TYPES OF LEASES
1. LEASE FOR A FIXED PERIOD
A lease can be granted for any period. When the lease comes to an end, it in effect automatically
determines. The technical term used to describe the expiration of a lease for a fixed term is
effluxion of time. In such circumstances, there is no such thing as a notice to quit. It must
continue until it determines. However, in at least two types of circumstances it may come to an
end prematurely:

a. Where there has been a breach of covenant by the tenant and the landlord has a
right under the lease to forfeit the lease. E.g. if the tenant has not paid his rent/ has
failed to repair the premises as agreed.

b. Surrender of a lease – where the tenant approaches the landlord and asks for a release
from his obligations under the lease. The landlord may choose not to agree, but if he does
agree, the lease may then be surrendered. However, the landlord cannot be compelled to
accept the surrender.

2. PERIODIC TENANCY
This surrounds the payment of sums within given periods of time (in respect of the rent). There is
accordingly a corresponding period of notice to quit. The length of notice depends on the length
of time for the payment of rent. E.g. monthly tenant is required to give 1 month‟s notice to quit.

3. TENANCY AT WILL
The tenant does have exclusive possession of the premises although rent is not paid. He can
maintain an action in trespass against one who trespassed on his property.

Romany v. Romany (1972) 21 WIR: de la Bastide JA: “A tenancy at will exists when a person
occupies the land of another on the understanding that he may go when he likes and
that the owner may terminate his interest at any time the owner wishes to do so. A
tenancy at will has been properly described as a personal relationship between the landlord and
his tenant and it is important, in this case, to note that it is determined by the death of either of
them or by one of a variety of acts, even by an involuntary alienation, which would not affect the
subsistence of any other tenancy.”

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Cyrus v Gopaul, Edoo JA: „the rule is clear. A tenancy at will can only exist as a result of an
agreement between the parties and an intention on the part of the landlord to create such a
tenancy.‟

Deen v Mahabir

M entered into a verbal agreement with D while on friendly terms. M allowed D to occupy her
house rent free for 3 / 4 months while D‟s house was under construction. Some considerable time
elapsed and D‟s house was still not built, so D stayed on. M then asked D to leave but he refused
to do as such. An action was brought before the court and the Magistrate issued an ejectment
order. D appealed against the ruling of the Magistrate stating that the Magistrate had no
jurisdiction to determine the matter because there was a landlord and tenant relationship between
them and not a mere license. The issue was whether D had exclusive possession over the
property.

Held: given that D had exclusive possession he was a tenant. While he was a tenant at will,
given that he didn‟t pay rent, anytime the landlord wished him to leave he had to leave
providing that notice was granted. The court accordingly granted an order of ejectment.

Tenancy at Sufferance
This arises where T remains in possession of L‟s land after the expiry of his lease, without L‟s
assent or dissent. L may claim possession at any time and is entitled to claim compensation for T‟s
use of and occupation. He is different from a trespasser by virtue of the fact that his original entry
unto the land was lawful whereas the trespasser does not enter on the land without the
permission of the landlord. A tenant at will is on the land consent, whereas with tenancy at
sufferance, there is

The landlord may either distrain the T from the use of the property or claim compensation for
such. Subsequently, the landlord may decide to allow the T to stay there periodically on the
condition that rent is paid.

Seetahal v. Batchasingh (1987), H.C. T & T)

Deyalsingh J: “ A tenant at sufferance is one who has entered by a lawful demise or title, and
after that has ceased, wrongfully continues in possession without assent or dissent of the
person next entitled; as where a tenant for years holds over after expiry of his term; or where
anyone continues in possession without agreement after a particular estate is ended…An under
tenant who is in possession at the determination of the original lease, and is suffered by
the Reversioner to hold over, is only a tenant at sufferance. Where a tenancy at will is
determined by the landlord exercising acts of ownership, and the tenant remains in possession, he
becomes a tenant on sufferance only: but slight evidence would be sufficient to show a new

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creation of a tenancy at will, or he may by payment of rent, or other acknowledgement of
tenancy, become tenant form year to year.”

Tenancy by estoppel
If L purports to grant a lease of land to T, but L has no title to the land, a tenancy by estoppel
arises. It is binding on L and T but is invalid vis-à-vis third parties. If the tenant accepts the lease
and goes into possession, there is as between the grantor and grantee a valid tenancy but this is
not valid against third parties [true owner of the land].

Bank of England v Cutler

Covenants contained in the lease are enforceable by and against L and T and their successors.

LEASEHOLD COVENANTS – RIGHTS AND OBLIGATIONS

OF LANDLORD AND TENANT

THE IMPLIED COVENANTS

This applies to terms which are not actually written into the covenant or tenancy but are implied
by statute.

IMPLIED OBLIGATIONS OF THE LANDLORD

1. THE COVENANT FOR QUIET ENJOYMENT

This requirement demands:

a. That the landlord put the tenant in possession of the property

b. That person shall have quiet enjoyment during the course of the leasehold tenancy

Note that the word quiet does not necessarily refer absence of noise. The tenant is entitled to
enjoy the occupation of the tenancy without disturbance from the landlord.

Forms of disturbance
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Massai Aviation Services v AG

The Bahamas government granted a 21 year lease of a site at the Nassau International Airport to
the Appellants. The Appellants went into occupation but they discovered that, in breach of the
covenant of quiet enjoyment, the Bahamian government had allowed its national airline, Bahamas
Air, to remain in occupation of certain areas on the site. Suffice, the lease encompassed the entire
site.

This was held to breach of the first arm of the covenant (in possession of the entire premises).

Ali v Enmore Estates

P was a tenant of agricultural land owned by the D. D wanted to extend their sugar plantation and
as such requested of the P to surrender their tenancy in consideration for a tenancy elsewhere. P
denied the request. The D moved in with a bulldozer and destroyed certain buildings on the
property.

The action of the landlord was held to be a flagrant breach of the covenant of peaceful enjoyment.

Ram v Ramkissoon

A building was divided into 3 sections. The tenant occupied the middle of the building where he
carried out his art of jewelry making. The landlord wanted to recover possession of the middle
floor, as such, he removed the roof of the two outer portions. In consequence, rain water
penetrated the P‟s property and caused damage.

Held: the actions of the landlord were sufficiently substantial to amount to a breach of the
covenant.

Wooding CJ was not convinced that the action of the landlord was a flagrant breach of the
covenant. This was however an attempt to subtly smoke out the tenant i.e. make his occupation
so uncomfortable that he had no choice but to leave.

Tapper v Myrie

A tenant of residential accommodation was paying a sum of 2p 15s per month as rent. The
landlord demanded an additional payment of 5s every month. The landlord served on the tenant a
notice to quit where T failed to subsequently meet his demands. The tenant refused to leave on
the basis of the notice to quit but when he returned later, he found that there was no light in his
room. He spoke to the landlord about this and he [landlord] responded “I cut of your light, I want
you to come out and you will come out”.

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 Held: even though there was no direct connection in respect of the property itself,
the covenant was breached.

In order for there to be a breach of the covenant for peaceful enjoyment there must be some
physical interference. The covenant for quiet enjoyment doesn‟t mean that there must be an
absence of noise. Unless the landlord is directly involved in the commotion or raucous
behaviour, he will not be responsible for such noises in respect of breach of covenant.
He is not responsible for the disorderly conduct of his tenants.

In an old Case, a tenant‟s premises became invaded by rats which had come from the landlord‟s
adjoining premises.

Held: the landlord was not liable for the invasion of rats for he had done nothing to let
them loose.

2. NON DEROGATION FROM THE GRANT

This is relevant to both landlord and tenant relationships and easements.

A landlord may not grant a lease for a particular purpose and then use his adjacent land to render
the use of the property leased impossible. He must not do anything to frustrate the lease /
tenancy.

Timber Merchant

He was granted a lease of premises. On this premises he stored wood which particularly required
the provision of air to dry them [timber] out. The landlord proceeded to erect buildings which
prevented the flow of air into the premises.

Held: this was a breach of the implied covenant not to derogate from the grant.

Newman v Real Estate Debenture Corporation

In an apartment complex, if the landlord lets one room for residential living and then grants
another for business purposes, he would be in breach of the covenant.

However, to be in breach of this covenant the landlord must do something which renders the
premises “substantially less fit for their purpose”.

It is not a breach of the covenant if the landlord lets premises for a particular purpose i.e. for
business or trade, and lets the neighbouring premises for such also, which in essence promotes
competition. In so doing, the landlord is not creating a situation less fit for the purpose, he is
merely allowing an unwelcomed invasion.

A mere invasion of privacy is not a breach of covenant.

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Brown v Flower

A landlord let the ground floor apartment to a tenant for residential purposes. He then let an
upper apartment to another and in so doing there was a stairs which allowed people to look into
the P‟s room.

Held: there was not a breach of the right to the enjoyment of premises. The premises were
not less fit for the purpose.

3. COVENANTS AS TO FITNESS FOR ACCOMDATION

At common law, there is no general implied provision that the premises should be fit for human
habitation at the commencement of the tenancy, except where such place [residential] is
furnished.

Furnished Lettings
In so far as this is concerned, the plumbing should be adequate, the premises should not be
infested with insects; it should not be unhealthy to live in (free from damp, dust).

The obligation at common law is only to have the premises fit for human habitation at the
commencement of the tenancy this obligation is not extended during the course of the
habitation. If the property becomes subsequently unfit, the landlord is not liable.

High rise apartment buildings

Liverpool City Council v Irwin

Held: the landlord of residential apartments in a high rise building is under an implied obligation
to keep the common parts in a fit condition. i.e. lighting, garbage disposal and elevators. Living
without such fitness may be horrendous, as such, this duty extends throughout the continuance of
the tenancy.

Statutory provisions
The common law position has been modified by statute in some jurisdictions.

S 157 (d) Barbados Property Act – in the case of a lease of a dwelling house, both furnished
and unfurnished, there is an implied covenant that the house will be fit for human habitation at
the commencement of the tenancy.

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Belize [Landlord and Tenant Act, s 6], Guyana [Landlord and Tenant Act, s 44 (1)], and
T & T[Letting of Houses (implied terms) Act s 3] – where a house is let for residential
purposes, there is an implied covenant for it to be fit for human habitation. This obligation
continues throughout the duration of the tenancy.

Hamblin v Samuel Case

The owner of a house decided to convert the basement area into two self-contained apartments.
Officials of the Rent Assessment Board visited the premises and found that the ventilation of the
apartments was inadequate, that the one bedroom window in each apartment could not be
opened at all, and that the one sitting room window in each apartment in each had generally been
kept closed because of the prevailing dust.

Held: the conditions to which the apartments were subject were almost, if not wholly,
subhuman.

Wooding CJ

Fit for human habitation [given its natural meaning] – “fit for human beings to live in”.

Factors to be taken into account in respect of fitness for human habitation:

State of repair – if the premises are in a state of disrepair it may not be fit for human
habitation.
Stability
Freedom from dampness – living in a damp house can cause many illnesses
Natural lighting – building is not for human habitation if there are no windows
Ventilation – if one is living in an apartment where there is no ventilation, this may not be
fit for human habitation
Water supply – water is essential to life, without it there can be no such thing as fit for
habitation.
Sewage – in good working condition
Sufficient facility for the storage and preparation of food

If the premises are deficient in one or more of the areas, it may be held unfit for human
habitation.

4. REPAIRING OBLIGATIONS
Usually, the obligations of the landlord and tenant are expressly spelt out in the lease. At common
law however, there is no implied obligation on the landlord to do repairs. Suffice, statutory
provisions may impose such obligations.

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 Barbados Property Act s 157 (c) and (e)-

The covenant includes an implied obligation to do repairs. Repair includes:

Keeping in repair –

The roof;
The main walls and;
The main drains.

The common passages and installations in apartments must also be kept in good repair.

In the case of fire, riot, hurricane or earthquake, there is an implied obligation on the part of the
landlord to do repair.

If the landlord does not reply to a request for repair as obligated under the statute, the tenant
cannot stop paying rent. He can however, proceed to get estimates from builders [at least 2] for
carrying out the repairs. After such, if the landlord still does not do the repairs, the tenant is free
to choose one of the estimates, pay him to do the repairs, and then deduct the cost from future
payments of rent.

Milo Butler and Sons Investment Co Ltd v Monarch Investments

The landlord had covenanted to “keep and maintain the main structure and all exterior
parts....including the roof….in good and tenantable repair”.

The tenant informed the landlord in writing that the roof was in urgent need o repair, and after
the landlord‟s failure to respond, the tenant gave notice of his intention to effect the repairs and to
deduct the cost from future rent payments.

Held: the tenant was not liable for failure to pay rent equivalent to the cost of carrying out
the necessary repairs.

TENANT’S IMPLIED OBLIGATIONS

Obligation not to commit waste
The tenant is under an implied obligation not to commit waste. Suffice, different types of tenants
appear to have different types of obligations:

Voluntary and permissive waste

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Voluntary waste refers to deliberate acts of damaging or destroying the premises while
permissive waste refers to a situation of allowing the premises to run into a state of disrepair.

A tenant for a fixed term, e.g. one for 21 year lease4, has an implied obligation not to commit
both voluntary and permissive waste.

On the other hand, a periodic tenant is only liable “to use the premises in a tenant-like manner”
– per Lord Denning in Warren v Keen: the tenant must:

Take care of the place

Clean the chimneys
Clean the windows
Mend the electric light when it fuses
Unblock the drain with it becomes blocked by his waste
He must not willfully or negligently [him or his guests] damage the premises.

Where, in respect of fair wear and tear, or the elapse of time, the premises become damaged, the
tenant is not liable for such.

The statutory provisions in some jurisdictions impose liability on tenants for voluntary waste but
not permissive waste.

S 11 Belize Landlord and Tenant Act and s 8 of [Guyana’s A ct] – “a lessee shall not make
voluntary waste of the land held under the tenancy without the permission of the lessor and, I he
does so, the lessee shall be liable to pay damages to the lessor, but no action shall be brought by
any landlord against any tenant or in whose land or buildings any fire shall accidentally begin in
respect of any damage suffered by him in consequence thereof.”

Conclusion

Only tenants for fixed terms are liable for permissive waste. But both types of tenants are liable for
voluntary waste. .

EXPRESS COVENANTS
Provisions expressly set out in the covenant or leasehold agreement may require that certain
obligations be fulfilled.

1. COVENANT TO PAY RENT

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The correct term for the payment which the tenant makes to the landlord is “rent service”. Rent
today however, invariably involves cash.

The amount of rent must be sufficiently certain – in most instances, this is the case.
However, where there are disputes, the rule applies that there is no valid lease if there is
uncertainty as to the amount of rent to be paid.

Adam v Besseling

Where there was an option to renew a lease at a rent to be agreed, the uncertainty could be cured
and the agreement rendered valid if the parties agreed on the rent before the time for the exercise
of the option had arrived.

The option to renew, the rent is to be assessed by an independent third party or in accordance to
property values at the time of renewal – given that there is a mechanism for ascertaining the value
renders it certain.

The court does not like striking down leases for uncertainty unless in exceptional circumstances.

In commercial leases, which tend to be longer, it is common to have a “rent review” clause.

e.g a commercial lease for 21 years of a shop. It will be normal to review a rent review clause
whereby every 5 or 7 years rent will be increased. In the rent review clause there must be some
machinery for fixing the rent at the given period e.g. an independent arbitrator.

Beer v Bowden

Where a 10 year lease rent was fixed for the first five years and was thereafter to be “as agreed”
it was held that a reasonable rent, to be assessed at the end of the first period was payable for
the second period.

2. COVENANT TO REPAIR
There are certain implied terms in a covenant to repair. However, in many circumstances, the
lease itself may state in express terms upon whom the obligations lie to carry out such repairs.
Such obligation may rest on the landlord, tenant or both. The matter is one of negotiation
between the parties.

Common expressions used

Where the tenant agrees that he will “keep the premises in good and substantial repair / in
good tenantable repair.”

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If there is no express provision in the lease relating to repairs, under the doctrine of waste, it
would appear that the tenant would be under the obligation to repair [at least for a fixed term
tenancy].

Certain statutory provisions impose an obligation to repair:

Barbados, Property Act, s 157 (C) – the landlord is under an implied obligation to keep the
roof, common areas in good repair.

S 158 (C) – an obligation on the tenant to keep the interior of the premises in good repair.

These statutory implied covenants can be expressly overridden by express terms in the lease

The standard of repair

This is governed by the following factors:

Locality of premises
Character of premises
Age of premises

Locality

Where the property is situated in an expensive, upscale community, the standard of repair will be
higher than if is a lower scale community.

Character

Contrast a well preserved plantation house and an agricultural workers cottage. In the former,
there is a higher standard of repair expected when compared to the latter.

Age

If the building is very old it may be more difficult to keep it in a good state of repair. The
obligation is not to rebuild but to keep in a reasonable condition as is expected. It may however
involve adding some materials necessary for good habitation of the premises. It is a question of
degree as to what is expected: repair or re-construction.

Ravenseft v Davstone

The stone cladding on a building became cracked owing to the absence of expansion joints, which
were not included in the original design, the tenant was under an obligation not only to replace

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the stone cladding, but also to insert expansion joints in order to prevent recurrence of the
problem.

Rule: where an inherent defect has caused damage the tenant may be under an obligation to
rectify not only the damage, but the cause of the damage, even though it is an inherent defect, if
it is the proper practice to do so, or it is necessary to do so in order to do “the job properly once
and for all”.

If the foundation of a house is defective, the tenant is not under an obligation to repair such.
Suffice, he may be required to repair the wall or floor.

International Hotels v Commonwealth Holdings

A lease of a hotel required the tenant to keep and maintain the premises, with its fixtures and
fittings, “in good and substantial repair and condition”.

Held: the replacement of dilapidated equipment with upgraded equipment, currently

available on the market, could not be regarded as the tenant giving back to the landlord a
wholly different thing from that for which it had covenanted at the commencement of the
lease. it was “obligatory” on the part of a tenant, who is under liability to substantially
repair demised premises and to keep them in a state of good repair, to do so, even if they
were not in a state of tenantable repair at the inception of the tenancy”, so long as it will
not “involve giving back the landlord a wholly different thing from that which he demised‟.

FAIR WEAR AND TEAR

The meaning of “fair wear and tear excepted”

If a tenant has a repairing obligation, his covenant would be to keep the tenancy in repair “fair
wear and tear accepted”.

This absolves the tenant from liability for:

- Damage due to the ordinary operation of natural causes – wind, rain etc
- Disrepair caused by reasonable use of the premises

Haskell v Marlow

Although the tenant is not liable for fair wear and tear, [if .e.g. there is wind and rain which blows
off a tile/slid from the roof, the tenant is not liable for the missing tile but if as a result of the
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missing tile, rain water gets in and rots the interior of the building] he will be liable for the
consequential damages. It is therefore within his interest to replace the missing tile/splint.

Contrast:

A stone stair which is gradually worn away by usage, the tenant is not liable for such.

3. THE COVENANT NOT TO ASSIGN OR SUBLET

Assigning /subletting – a tenant who has a lease can assign [transfer] it to another person for
value. There is no rule at common law which prohibits a tenant from doing such but the express
terms of the lease will usually state that the tenant shall not assign without the consent of the
landlord. Similarly, this exists in respect to subletting.

The difference between the two:

Assignment - The entire legal interest is transferred and in effect possession is given up in favour
of the assignee.

Subletting – the tenant is only creating a new lease of one part of the premises.

A common term is in leases therefore is that neither assignment nor subletting is permitted
unless the tenant gains the consent of the landlord.

Should he sublet, the landlord may:

- Sue for
damages
- Forfeit the
lease?

Why does the lessor often include an express covenant not to assign or sublet?

The landlord has accepted the original tenant as a fit and proper person to occupy the
premises. As such, if there is a possibility that the tenant may wish to assign or sublet the
premises, he may do so to one who would not keep the property in good repair, use it for
immoral purpose or not pay rent. This may be detrimental to the landlord‟s interest.

REASONABLENESS OF REFUSAL OF CONSENT

In some statutory provisions, the landlord shall not unreasonably refuse assignment or
sublet.

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 In many leases, the above term is mentioned expressly. However, only upon reasonable
grounds on which the landlord can refuse consent:

Personality of the proposed assignee or

The use to which the premises is likely to be put by the proposed assignee.

There must however not be an arbitrary refusal of permission.

The principle aptly applies that a covenant against assignment / sublet is construed
against the landlord [if there is any ambiguity the tenant will get the benefit of the
doubt].

In some cases, the tenant may sublet part of the premises without the consent of the landlord.
The covenant usually says the tenant “shall not assign or sublet the premises” – this applies to
the whole premises not just part of it.

In drafting the covenant, the landlord should hasten to state “shall not assign or sublet the
premises or part thereof”.

EFFECT OF BREACH
In some cases, the landlord refuses consent, and the tenant may believe that such
refusal is unreasonable. He can go ahead with the subletting and then throw the onus
on the landlord to bring an action for damages or forfeiture of the lease [the court will
then decide as such].

If the court decides in the tenant favour, the subletting / assignment will continue. However,
where such action succeeds, i.e. the refusal is reasonable, the tenant will be in breach of the
covenant and therefore liable for damages or forfeiture.

He may also bring an action before the court alleging that the landlord has unreasonably
refused consent to grant the assignment / sublet.
The tenant should not neglect entirely to seek consent and, then depending on what the
landlord says, he should then decide what to do. If however, he doesn‟t seek consent at
all, then he will be liable for damages / forfeiture.

4. OPTION TO RENEW THE LEASE

There may be an express provision stating that at the end of the lease, the landlord can choose to renew
the lease on same or different terms.

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Broadway Import and Export v Levy

If the option is made conditional on the lessee having complied with all the terms of the lease, any breach
of covenant existing at the relevant date will disentitle the lessee from exercising the option, even though
the breach may be trivial and the lessor has not complained of it.

Past breaches which have become “spent”, will not prevent exercise of the option, whether the covenants
concerned were negative or positive.

Usually, a covenant to renew must be exercised by a written notice. But, where there is no stipulation for
the option to be exercised in writing, an oral exercise [given at or before a stated time before the
termination of the lease] will be valid: Hadad v Elias.

5. OPTION TO PURCHASE THE REVERSION

This is the right to buy the landlord‟s fee simple.

Notice must be given in a certain period may be required – the exercise of the option is subject to
the tenant having abided to the terms of the lease. His failure to do so may debar him.

The purchase price which the fee simple will be sold under the option will normally be
specified but where such is not mentioned, then the market price would in fact be the measure of how
much is to be paid.

On the death of the lessee, the benefit of the option devolves with the lease on his personal
representatives.

1. Bradbury v Grimble - an option to purchase the reversion will usually terminate on expiry of the
lessee and will not be exercisable by a tenant who holds over after such.

2. Lord Ranelagh v Melton - Where certain matters are made conditions precedent to the exercise
of the option, the conditions must be observed strictly. E.g. notice of a desire to exercise the option
must be given within the specified period, as time will normally be the essence of the contract. If
payment of the purchase money at the expiration of the notice is made as a condition precedent,
the payment must be duly made, otherwise the option will be unenforceable. If the lease expressly
states that performance of all the covenants therein is to be the condition precedent for the exercise
of the option, the lessee must show such performance, though strict performance may be waived by
the lessor.

3. Buckingham Canal v Cartwright -the lease will normally require notice of interest to exercise an
option to be in writing; and where writing is not expressly required, such a requirement will be
implied.

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 ASSIGNMENT OF LEASE
A lease is an interest in land. Accordingly, it can be transferred [assigned] to another person normally for
value.

Similarly, the landlord‟s interest is called the reversionary interest which can also be transferred /assigned.

Remainder – where there is a life interest e.g. X for life, remainder to Y. When the life interest terminates,
the property passes on to Y.

Reversioner – when the owner of fee simple rents out his land under lease or tenancy, at the termination
of such a lease, the land reverts to him [landlord].

1. Where there is privity of contract between the parties, both are bound.

2. Where there is privity of estate between the parties, only covenants which touch and concern the
land are enforceable.

3. Under the rule in Spencer’s Case, benefits of L’s covenants and burdens of T’s covenants
run with the lease.

4. Under the Conveyancing Act, 1881, ss 10 and 11 and LPA 1925, ss 141 and 142 and
equivalents in Caribbean jurisdictions, benefits of T’s covenants and burdens of L’s covenants
run with the reversion.

If T1 assigns the lease on 31st March but on that same day he owes $5,000 in arrears of rent, as the
original landlord is still in tact, the money remains owed to L1. However, on the 30th April, if L1 assigns the
reversion to L2, because of the Statute, the benefits and burdens of the tenant covenants go with / pass to
L2.

Arlesford Trading Co v Sevansingh

L1 to whom the money is really owed loses his right to sue for the money, that right is passed with the
reversion to L2. Only L2 can sue T1 for the rent owed even though there is no privity of estate between L2
and T1.

SUMMARY OF RULES
When a lessee assigns the lease or the lessor assigns the reversion, the question arises as to whether the
assignee:

a) is entitled to the benefits of the covenants made in favour of the assignor; and
b) is subject to the burdens of the covenants entered into by the assignor.

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In other words, where T1 asigns the reversion to L2, is T2 entitled to enforce the landlord‟s covenants (for
example, where the landlord has covenanted to repair), and is T2 bound by the tenant‟s covenants (for
example, where T1 has covenanted to pay rent)?

Similarly, where L1 assigns the reversion to L2, is L2 entitled to enforce the tenant‟s covenants, and is L2
bound by the landlord‟s covenants?

The principles may be summarized as follows:

Where there is privity of contract between the parties, both are bound. There is privity of
contract between the original lessor and the original lessee. This relationship, created by the
contract of lease itself, continues to subsist between lessor and lessee despite any
assignments of their respective interests.

Thus, if L1 and T1 are parties to a lease, and T1 later assigns the lease to T2, L1 remains liable to T1 and
T1 remains liable to L1 on the covenants in the lease because there is privity of contract between them.
Similarly, if L1 assigns the reversion to L2, L1 and T1 remain liable to one another on the covenants,
because there is privity of contract between them.

Where there is merely privity of estate between the parties, only covenants which touch and concern
the land are enforceable. Privity of estates „describes the relationship between two parties who
respectively hold the same estates as those created by the lease‟.

There will be a privity of estate between the parties where:

a. T1 (the original lessee) holds the lease and L1 (the original lessor) holds the reversion; that is,
where there has been no assignment of the lease or the reversion. In this case, there is no
privity of contract between T1 and L1;
b. T2 (an assignee) holds the lease and L1 (the original lessor) holds the reversion;
c. T1 (the original lessee) holds the lease and L2 (an assignee) holds the reversion; and
d. T2 (an assignee) holds the lease and L2 (an assignee) holds the reversion.

Touching and concerning the land

A covenant „touching and concerning‟ the land has been defined as one which „affects the landlord in his
normal capacity as landlord, or the tenant in his normal capacity as tenant‟. Examples include:

a. to pay rent
b. to repair
c. to insure the premises against fire
d. not to assign or sublet without consent
e. to renew the lease
f. not to serve notice to quit for three years, unless the premises are required for the landlord‟s own
occupation
g. not to allow a third party, X, to participate in the running of a business on the premises
h. not to build on adjoining land so as to interfere with the enjoyment of the demised property.

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On the other hand personal or collateral covenants do not touch and concern the land, since they are not
directly relevant to the relationship of landlord and tenant.

THE RUNNING OF BENEFITS AND BURDENS OF COVENANTS

At common law or under statutory provisions, the position now is that, in a legal lease, the benefits and
burdens of covenants touching and concerning the land are enforceable not only by and against L1 and T1
but also by and against L2 and T2 and further assignees of the lease and the reversion, viz:

a. under the rule in Spencer’s Case, the benefits of the landlord‟s covenants and the burdens of the
tenant‟s covenants run with the lease;
b. by ss 10 and 11 of the Conveyancing Act 1881 (UK), the benefits of the tenant‟s covenants
and the burdens of the landlord‟s covenants „go with‟ the reversion. These provisions were
reproduced in:
a. ss 141 and 142 of the Law of Property Act 1925 (UK)
b. ss 19-21 of Cap (Belize)
c. section 18 of Cap 61:01 Guyana
d. Sections 160 and 161 of Cap 236 (Barbados) are also of similar effect.
Re King [1963]

Held: the effect of the latter sections is that the assignee of the reversion is the only person entitled to
sue the tenant for rent or for any breach of covenant, whether such rent accrued or such breach occurred
before or after the assignment.

Thus, for example, on 1 Feb 1998, L1 grants a 10 year lease to T1. On 1 April 1999, T1 assigns the lease to
T2. On that date, T1 owes L1 arrears of rent amounting to $6,000. On May 1999, L1 assigns the reversion
to L2. T2 owes no arrears of rent. In this case, only L2 can sue T1 for the $6,000 rent, even though the
obligation arose before L2 acquired the reversion, and there never was any privity of estate between L2
and T1.

In a covenant, one party may agree to pay a sum of money to the other. The payment of money is not
referable to the relationship between both landlord and tenant.

Where the landlord agrees that he will not open up another business 5 miles from the place from where he
has let the property. It does not bind successors in time. It is only binding on the landlord and tenant.

TERMINATION OF TENANCIES

1. Forfeiture
At common law, a distinction is drawn between breach of a condition and breach of covenant.

Where a condition in a lease is breached, the landlord is entitled to resume possession by re-entry upon the
premises and the lease will be terminated, as the continuance of the lease has been made conditional on
the tenant‟s carrying out his obligations.

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Where a covenant is breached, on the other hand, the landlord is entitled to re-enter only if the lease
contains an express forfeiture clause.

In practice covenants are far more common than conditions.

Where the tenant is in breach of the covenant, the landlord may forfeit the lease provided that there is an
express forfeiture clause in the lease. Where such clause is not expressly provided for, the landlord will not
be able to remove/take away the lease in the event of breach of the lease by the tenant.

If there is a breach of covenant, the lease becomes voidable, in the sense that the landlord has the option
whether to terminate it or not. It is only when the landlord does some unequivocal act which shows that he
intends to terminate it that the lease will be avoided. Such an act may be:

a. Actual re-entry by the landlord; or

b. The granting of a new lease to a third party; or
c. The commencement of ejectment proceedings, in which the landlord seeks a possession order from
the court.

If there is a forfeiture clause, he can bring an action for breach of the lease and in effect, he
can claim possession. In order to forfeit a lease, there are two possible ways of achieving that
result [depending on whether the tenant occupies the property]:

a. If the premises are vacant, it will be in order for the landlord, assuming that there has been
a breach of covenant, to enter the premises, change the locks and doors, and in effect,
go into possession of the premises.

b. If, however the tenant is still in occupation, it will be most unwise for the landlord to forfeit the
lease by entry onto the premises, because of the likelihood of breach of the peace [forcible entry
onto premises]. The landlord‟s best for of recourse is to bring an action for ejectment. If the
court finds that there has in fact been a breach of the covenant, it will make an order of
possession in favour of the landlord. The procedure for forfeiture depends on whether there
is a breach of the covenant to pay rent or a breach of some other covenant.

Under s 146 [statutory provision], where there is a breach other than the covenant to pay rent,
before re-entering the premises, the landlord must serve notice on the tenant stating:

- The nature of the breach of covenant

- Require that the tenant remedies the beach – if it is so capable of being remedied –
Scala House v Forbes – breaches incapable of being remedied].
- If the landlord wants compensation, he must so state, damages for breach.

If, after a reasonable time, the tenant fails to remedy the breach and pay reasonable compensation, then
the landlord will proceed in a court action to regain possession of the premises. The amount of time
which the tenant is given to remedy the breach, will depend on the type of breach it is. E.g.
where there is a covenant to keep the premises in good repair, and a corresponding failure to do so, the

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landlord, having served notice on the tenant, and there is again a subsequent failure to repair the premises
within a reasonable time, the landlord may bring the lease to an end via forfeiture. However, if the tenant
puts the premises into good repair, the landlord will not be permitted to forfeit the lease. A repairing
covenant is one which can be easily remedied.

IMMORAL USER
Where the tenant has allowed prostitution to take place on the premises [immoral purposes], case law
suggests, that breach of the covenant cannot be remedied. When the premises have been used for immoral
purposes, the premises become forever stained. Given that such a breach cannot be remedied, there is no
point in giving the tenant time to remedy the breach.

Scala House v Forbes

Where the breach is incapable of being remedied, the tenant is only given 14 days to bring an action
before the court for relief against forfeiture. If the tenant does not bring such an action within that 2 week
period, an action against him for forfeiture will be maintained.

The relief doctrine was initially provided for under equity, but now is cemented in statutory provisions. The
court thus takes into account all the circumstances of the case.

Where there is a breach of the covenant to pay rent, the landlord does not have to serve notice. If the
premises are vacant he can regain possession. If not, he will have to bring an action for forfeiture.

See Colonial Minerals Ltd v Dew

C Ltd was assigned a 10 year mining lease by G. The lease contained a term that if the mine was not
worked for a period of 12 calendar months successively, the landlord should have the right to re-enter and
forfeit the lease.

Lower court: there had been a breach of the covenant; the tenant had failed to work the mine for 12
successive calendar months. However, in the notice tendered to C, there was no request for compensation
nor was there a request to remedy the breach. Suffice, there was no obligation on the landlord to ask for
compensation if he does not want it. In addition, there was no need to request a remedy of the breach,
since the breach was incapable of being remedied, i.e. it was impossible for C Ltd to put the
clock back and work the mine properly for 12 months preceding the relevant date.

C.A: The notice which was tendered did not comply with s 9 (1) and that it was only an intimation that D
Ltd had already re-entered. The letter of April 26th was not the same as the breach alleged in the notice of
September 9th.

WAIVER OF FORFEITURE
If there is a forfeiture clause in the lease and the tenant has committed a breach of covenant, this entitles
the landlord to bring a suit for forfeiture.

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Following such, if the landlord demands or accepts rent from the tenant, then he would be said
to have waivered forfeiture. If its rent which fell due before the breach, then there will not be a waiver.

Central Estates v Woolgar (No 2)

If the landlord [or his agent], by mistake, accepts rent due after the breach, he will be deemed to have
waived the right to forfeit the lease.

Segal Securities v Thoseby

Even if the landlord accepts rent falling due after the breach “without prejudice” [i.e. no legal consequences
can arise upon such acceptance], nevertheless there can be said to be a waiver of the right to forfeiture.

Ramjakansingh v Khan

R let a building to K on a five year lease from 1st Dec 1975, rent of $400 per month. K covenanted in the
lease not to use the premises or part thereof except for business purposes such as bar, grocery and
residential purposes. K later erected an extension to the building in the form of a shed and he used this as
a pool room. User of the premises in this way was a breach of the covenant. In Dec 1976, the landlord R,
served a writ claiming possession of the premises. The evidence showed that one year later, Dec 1977, K
paid to R one month‟s rent which R accepted. The tenant, K argued that by accepting the rent [1 month‟s]
the landlord had waived his right to forfeit.

Held: this did not amount to a waiver; the acceptance of rent took place after the landlord had commenced
proceedings in court to put an end to the lease. He unequivocally stated that he intends to forfeit
the lease and therefore anything he does after this, cannot be deemed as having waivered the
forfeiture.

Relief Against Forfeiture:

Gill v Lewis [relief against forfeiture in respect of non-payment of rent].

The tenant has a right to relief against forfeiture. In effect, he can go to court and give an explanation for
the breach of covenant; if such explanation is found to be justifiable, relief will be granted. If the court so
decides to grant in favour of the tenant, it [court] may also impose certain obligations i.e. no further
breaches / court has a complete discretion to revoke lease for subsequent breach.

ISSUE:
Suppose that the breach of the covenant is one against subletting of the premises without the landlord‟s
consent. The landlord can bring forfeiture proceeds, which if successful, the lease and sublease will also be
destroyed because the sublease depends on the main lease.

However, to protect the sub-tenant, statutory provisions provide that where there has been a breach of
covenant not to sublet without permission, both the sub-tenant and tenant can petition the court for relief
against forfeiture.

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If the original lease holder is found not to provide a justifiable explanation but the sub-tenant does, then
the sub-tenant takes the place of the original tenant and now has a leasehold relationship with the landlord.

Ewart v Fryer

The court will not grant the sub-lessee a term longer than his sublease.

2. Surrender
Acceptance of surrender by the landlord is voluntary. He cannot be compelled to so accept.

EXPRESS SURRENDER
S 165 (1) (a) Barbados Property Act, - in order to expressly surrender a lease there must be a written
document. A merely oral surrender is not effective even though the tenancy or lease was originally created
orally.

IMPLIED SURRENDER
An example of this is where the tenant hands over the key to the landlord and the landlord accepts it.
White v Brown
W rented a room from B for a monthly tenancy. B served W with a notice to quit, but W continued to
occupy the room after expiry of the notice. B filed ejectment proceedings against W. W moved to new
premises, handing over the key to the room on the same day. One month later, B employed a bailiff to levy
distress [before it was abolished in Jamaica] on W‟s furniture at her new residence for arrears up to
September. W brought an action against B for trespass consequent on illegal distress. B pleaded s 3 of the
Landlord and Tenants Law which permitted a landlord to levy distress on chattels found on premises other
than those out of which the rent issue, where the tenant had fraudulently or clandestinely removed his
chattels in order to prevent the landlord form levying distress on them.
Held: the tenancy had been brought to an end when B accepted the key to the room on 24th
September, and B‟s right to levy distress ceased at that moment. In addition, there was no evidence
that W‟s removal of her furniture to the new premises was fraudulent or clandestine or designed to
elude distress; so B had no right to size W‟s goods there.

ISSUE:
Suppose that the tenant has been absent from the premises for a very long time.

Preston v Fairclough
The mere fact that tenant has been away from the premises for a long time, even though he
has not been paying rent, does not give rise to an implied surrender. There must be some
positive act on the part of the landlord which suggests that he accepts the surrender.

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Metacalf v Boyce
Both landlord and tenant may agree on a new lease. When the fresh lease commences, the parties may be
deemed to have surrendered the original lease.

Foster v Robinson
There may be surrender where it is agreed that the tenant will remain in possession rent free, not as
tenant, but as a licensee.

3. Merger
This arises where the tenant purchases or acquires a reversion. The lease and the reversion are merged by
virtue of the tenant‟s acquisition of the reversion. As such, the lease is destroyed.

4. Effluxion of time – [expiry of time]

This arises where the lease is for a fixed period and comes to an end after such time.

Where there is a lease for a fixed term there is no need for a notice to quit. The lease simply comes to an
end by itself. However, in some jurisdictions which still have Rent Restrictions Legislation where a lease
for a fixed term comes to an end by virtue of effluxion of time, the tenant can continue in possession until
such time as the landlord can prove that he requires the premises for some very necessary purpose. The
tenant remains in possession as a statutory tenant. As the contractual lease terminates, the statutory lease
arises.

Trinidad statute has lapsed because it was subject to review by parliament.

Scott v Lerner Shop Ltd

In making a possession order on expiry of a lease by effluxion of time, the resident magistrate had a
discretion to postpone the order for possession for a period [e.g. 13 months]to give the tenant time to find
alternative accommodation.

5. Notice to quit
Periodic tenancies are terminated by a valid notice to quit given by the landlord or tenant, and unless the
contrary is proved, the tenancy comes to an end when the notice to quit has been submitted in accordance
with the length of the tenancy. e.g. where there is an annual tenancy, 6 months notice is required.

Rules regarding notice to quit:

a. The notice to quit must be unconditional and unambiguous; it must be clear from the wording of the
notice that it is not to be subject to any conditions or exceptions. E.g. I intend to quit the premises
by the 31st March, unless I cannot find alternative accommodation by that time. This is not a valid
notice to quit because it is not unconditional.

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 b. Where one has to give a period of notice, the period must be equivalent to the length of the
tenancy. E.g. notice to quit in respect of a monthly / weekly [7 clear days]tenancy must correspond
with the respective period of the tenancy. E.g. notice to quit is given on the 1st of March, it expires
on either the 30st of April or 1st of May.

c. Half year‟s notice to quit should be given in respect of an annual tenancy- half year‟s notice must
expire either on the last day of a year of the tenancy [the day before the anniversary of the
beginning of the year] or on the following day. [“at the expiration of the year of your tenancy which
will expire next after the end of one half year from the service of this notice].

d. If a notice to quit “on or before” or by a certain date given by the landlord it is valid [Dagger v
Shepherd] but not valid if given by the tenant – in the latter case, the landlord is left unsure as to
when the tenant will leave.

Monthly tenancy – notice must expire on the same day of the following month or on the first of the new
month.

Pollonais v Gittens
A monthly tenancy commenced on the 3rd April 1969. On the 10th February 1973, landlord served a notice
to quit on the tenant to expire on the 9th of March.

Held: this was void; the monthly tenancy began on the 3rd of the march. In order to be valid, the
notice of quit must have been given on the 3rd of April and not on the 10th February.

Mohammed v Radoo
The monthly tenancy began on the 11th of August. On the 22nd of July 2003, the landlord served on the
tenant notice in the following terms “take notice that you are hereby required to quit and deliver up vacant
possession of the premises which you hold and occupy of me as a monthly tenant.” On the 11th September
2003, the notice was scheduled to expire. The Tenant argued that the notice to quit was bad because it
was supposed to have been served on the 11th of August whereas it was served on the 22nd of July.

Held: the notice was good because there was nothing which states that the amount of notice to quit has to
be one month so long as the notice expires on the anniversary of the tenancy. What is required is that it
was expired on the 11th.

Reakin v Kamana
Once a valid notice to quit is served, it will still be valid even though a second notice is served providing
that the second does not invalidate the first. The purpose of serving the second or third notice to quit is
simply to reinforce the first and not to supplant it.

In Simmons v Crossley, a Divisional Court consisting of Swift and Acton, JJ. Decided that in the case of a
monthly tenancy it was not necessary for a notice to quit to expire at the end of a current period of the
tenancy.

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BUT in the case of Queen’s Club Garden Estates Estates Ltd. v. Bignell Lush J. in a very careful
judgment analyzed and examined the question in detail and rejected as incorrect the view expressed
in the Crossley case. He said:

“I think the true view is that in any periodic tenancy, whether it be yearly, quarterly,
monthly or weekly the notice to quit must expire at the end of the current period.”

In the instant case, “the point was not whether the notice was clear and unambiguous but whether it was
effective to determine the tenancy at the end of the current period. In our opinion it clearly was not
because 9 February was not the end of the current period of the tenancy. It was accordingly not a valid
notice to quit and ineffective to determine the appellant‟s tenancy. The appeal must therefore be allowed
and the order of possession set aside.”

Note that if the notice to quit were a valid one the acceptance of rent after serving the notice on the tenant
amounts to a waiver of the notice. It may be well observed that although acceptance by the landlord of
rent due after the expiration of a valid notice may be evidence upon which a court may infer the creation of
a new tenancy, in each case this must depend on the intention of parties to be gathered from their words
of conduct. This is a question of fact.

In Previous v Reedie, Bailhache J’s words:

“…after referring to the Crossley case and the Bignell case, he said that they came to the conclusion
that, to determine a monthly tenancy, a notice to quit must correspond in length with the period of the
tenancy and must terminate on the date of the month on which the tenancy began, unless there was some
agreement to the contrary.

Method of service of the notice to quit

The notice to quit doesn‟t have to be served on the tenant personally, though this may be the best way.
However, it may not be feasible to so do.

A notice to quit may not be served on a tenant personally but may be so served on an agent of the tenant
who has been asked to receive the notice.

e.g. if an attorney was appointed as an agent to receive the notice, once notice is received by him, the
tenant could be said to have notice.

The attorney was given the task of paying the tenant‟s rent every month, this implied not only this duty but
also to receive the notice to quit. But once cannot assume that by the mere presence of an attorney that a
duty arises.

Where a notice is served on someone in the household e.g. the wife, housekeeper, maid …the position is
not very clear.

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If the notice to quit is served on a member of the tenant‟s household, there is a rebuttable presumption
that it was received by the tenant and that this person has not been appointed as an agent to receive the
notice. The court will presume that once the person received it, he has an obligation to pass it on to the
tenant. However, the tenant could rebut the presumption that he has not received the notice to quit.

In Ramlal v Chong, McMillan J emphasized that „a notice to quit need not be served on a tenant
personally. It may be served on a person constituted the agent of the tenant for the purpose of receiving
the notice. Even if the notice, after it being received by the tenant‟s agent, was never actually received by
the tenant, its notice is still valid and is sustainable for ejectment proceedings.

Similarly, in HV Holdings Ltd v Jumadeen, the service of notice to quit on a member of the tenants
household – in this case, the tenant‟s common law wife- was sufficient.

Where a valid notice to quit has been issued and the tenant remains on the premises beyond the expiry
date no subsequent notice is necessary, as the tenant would have already been effectively notified.

In Lee Kin v Cumana Consumers Co-operative Society Ltd, the landlords served a valid notice to quit
on the tenant on 30 March 1979. The tenant remained in possession, asking for two extensions of time,
which were granted. Finally, on 20 March 1981, the landlord served a second notice to quit requiring
possession on or before 30 April 1981. When the tenant failed to vacate the premises, the landlord brought
proceedings for possession.

Collymore J, in the T and T High Court, held that Lowenthal v Vanhoute was authority for the
proposition that, where a valid notice to quit has been given, a subsequent notice is of no effect
unless it can be inferred from other circumstances that a new tenancy has been created after
expiry of the first notice.

Hence in Lee Kin v Cumana the clear inference from the parties‟ conduct was that the tenancy had been
terminated by the first notice in 1979, and the second notice in March 1981 was therefore superfluous and
not necessary.

6. Frustration
The question arises as to what extent the doctrine of frustration applies to a lease. One argument is that a
lease is a kind of contract and should thus be subject to the doctrine of frustration.

At common law, a lease was not nearly a contract but created an interest in land which cannot be
frustrated in a manner that an ordinary contract can.

Redmond v Dainton
Where building was let for a period during war time, and an enemy bomb destroyed the building, it was
held that the lease continued.

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Smiley v Townsend
The government requisitioned the property and used it for war time activities which meant that the tenant
could not use the premises. Yet, the lease continued and rent had to be paid by the tenant.

National Carriers v Panalpina

There was a lease of a warehouse for 10 years. The local authority closed the only access road to the
warehouse which rendered it unusable for just under a year.
Held: this did not frustrate the lease; the non-usability for just under a year was not so far beyond
the contemplation of the parties that it would be unjust to enforce the lease.

The House of Lords accepted that the doctrine of frustration on rare occasions would apply to a lease.
Where there was a supervening event so far beyond the contemplation of the parties that it would be
unjust to enforce the lease, frustration will apply to the lease in question.

However, a lease could be frustrated by a physical catastrophe such as an earthquake or tsunami.

A Judge stated that “a vast convulsion of nature which swallows up the property all together or buries it in
the depths of the sea would be sufficient to frustrate a lease.”

7. Distress
This has been abolished in Jamaica and a number of other jurisdictions but remains effective in Trinidad
and Tobago. Here, the bailiff is called and removes the tenant‟s goods.

Essentially, it is an ancient common law remedy when the tenant is in arrears of rent, the landlord has a
right to seize the tenants good, sell them and monies recovered are given to the landlord [police officer
usually accompanies the bailiff]. The cause of action must be pursued between sunrise and sunset. Nb:
Walsh v Longsdale – the distress was levied.

White v Brown
W rented a room from B for a monthly tenancy. B served W with a notice to quit, but W continued to
occupy the room after expiry of the notice. B filed ejectment proceedings against W. W moved to new
premises, handing over the key to the room on the same day. One month later, B employed a bailiff to levy
distress [before it was abolished in Jamaica] on W‟s furniture at her new residence for arrears up to
September. W brought an action against B for trespass consequent on illegal distress. B pleaded s 3 of the
Landlord and Tenants Law which permitted a landlord to levy distress on chattels found on premises other
than those out of which the rent issue, where the tenant had fraudulently or clandestinely removed his
chattels in order to prevent the landlord form levying distress on them.
Held: the tenancy had been brought to an end when B accepted the key to the room on 24th
September, and B‟s right to levy distress ceased at that moment. In addition, there was no evidence
that W‟s removal of her furniture to the new premises was fraudulent or clandestine or designed to
elude distress; so B had no right to size W‟s goods there.

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Rule

The distrainor may enter the land through an unlocked door, and he may enter by unlocking a door or
padlock with a key in the normal way, but he may not break open an outer door, not may he enter through
a closed window.

In the Jamaican case of Thompson v Facey:

F the head-lessee of a house of which T was landlord. The house consisted of four apartments, three of
which were occupied by F, the fourth being sublet by E. When F fell into arrears with his rent, T decided to
distrain upon F‟s goods. Being under to enter through F‟s front door, T gained access to F‟s part of the
building by first entering E‟s room through an unlocked door, then breaking the lock of the door connecting
E‟s room with F‟s part of the building.

The issue was whether T‟s entry into F‟s part of the premises was lawful.

The magistrate held that although the door was inside the building, it was to be treated as an outer door
because it in fact separated his holding from E‟s.

The Jamaican Court of Appeal, on the other hand, held that the real test for determining whether a door
is an outer door is whether it „served the purpose of a protection against the outer world‟. The door broken
in this case did not serve that purpose; it „served only to provide privacy as between the respective
occupants of the rooms on either side therof‟. T‟s entry was therefore, not unlawful.

Rule per Walkins JA

An illegal distress is one which is wrongful at the very outset, either where there was no right to distrain or
where a wrongful act was committed at the beginning of the levy invalidating all subsequent proceedings so
as to render the distrainor a trespasser.

Examples of illegal distress:

a. When no rent is in arrear

b. A distress made in an unlawful manner, as by breaking open an outer door.

Origin of the unlawful act of breaking open an outer door:

The doctrine of the inviolability of the outer doors of a house and its precinct has long been established by
English law. The principle is one which carries us back in imagination of the wilder times, when the outer
door of a house, or the outer gates and enclosures of land, were an essential protection, not merely against
fraud, but violence…To break open either was to deprive the owner of the protection against the outer
world for his family, his goods and furniture and his cattle.

The entire house in the instant case formed a part of the relevant demise and not merely the portion in
actual occupation by the tenant. The real test is as to whether the door or other apparatus, whatever it
may be, which has been broken or forcibly unbarred, served as a protection against the outer world”.

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The door broken in this case did not serve that purpose: it „served only to provide privacy as between the
respective occupants of the rooms on either side thereof.

It was contended, however, that whilst that intervening door constituted an inner door looking at the house
as a whole, it in fact constituted an outer door in relation to the area occupied by the respondent and this
indeed was the ground on which the decision of the learned resident magistrate in his favour rested. „For all
practical purposes‟, he said, „this was the plaintiff‟s outside door, for it separated his holding form the at of
the subtenant Vera Edwards‟. With respect to the learned resident magistrate and to counsel at the Bar,
this, it seems on the authorities, is not the test at all. First of all, the right of distress extends over all the
demise out of which the rent issues. The entire house in the instant case formed a part of the relevant
demise and not merely the portion in actual occupation by the respondent. Next, the real test is as to
whether the door or other apparatus, whatever it may be, which has been broken or forcibly unbarred,
served as a protection against the outer world. This intervening door serve only to provide privacy as
between the respective occupants of the rooms on either side thereof.

Distrainable Goods
At common law, the basic rule is that all goods and chattels found on the premises out of which the rent
issues are distrainable, whether they belong to the defaulting tenant or to a third party, such as a lodger;
but this power has been severely curtailed by:

a. The concept of privileged goods; and

b. Statutory provisions designed to protect third parties from seizure of their chattels.

Doolan v Ramlakan And Abdool

The appellant‟s rent was in arrear and the respondents levied upon a building owned by her. The arrears
having been paid no sale was effected, but the appellant brought an action for wrongful levy on the ground
that she owed no rent. She appealed against the dismissal of her action and in dismissing the appeal the
court

Held: (i) that only goods and chattels may be distrained for arrears of rent;

(ii) that no distress may be levied for arrears of rent on anything that is a fixture.

[Per Curiam: It is a long-established practice in this country that, if a house is let to a tenant who gets
into arrear with his rent, the landlord distrains the tenant‟s furniture if the tenancy is of a house; but if
building land is let to a tenant who is likewise in arrear, he distrains or purports to distrain the building of
the tenant standing thereon. How this practice began it is difficult to say, but it certainly has become
established. However, the practice is wrong and indefensible in law. The mistaken notion that it is the right
thing to do should therefore be removed from the minds of landlords and bailiffs as speedily as possible.
The appeal was dismissed.

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Tenant’s right to fixtures

The maxim quic quid plantatur solo solo cedit applies– whatever is affixed to the land of his landlord
becomes part of the land unless it remains a chattel.

If it is put there to enhance the land, then it will be rendered a fixture.

The tests for determining whether a chattel has become a fixture

1. Degree of annexation; and
2. Purpose of annexation – where a tenant fixes something to the land he may remove it before the
end of the tenancy if it falls in the property of tenant‟s fixtures – trade and ornamental and
domestic fixtures. There are certain exceptional circumstances when he could remove the tenant
fixtures after the time of the expiration of the tenancy.

Belize [s 13 - Cap 153]] and Guyana [s 15 - Cap 61:01] have abolished the maxim.

If a tenant puts a chattel house on the land, if it is not attached to the land in any meaningful way then it
remains a chattel but where it is affixed to the land, then it becomes a fixture.

It doesn‟t matter whether the house is a chattel or fixture for it can be removed before the tenancy expires.

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 RESTRICTIVE COVENANTS
These covenants prevent the purchaser of land from using it in certain ways. They are entered into by fee
simple owners. However, there can also exist restrictive covenants in leaseholds.

The purpose
To preserve the saleable value and amenities of a neighborhood or a particular property, covenants may
be imposed on land restricting its use. E.g. where X, the owner of BlackAcre and WhiteAcre sells WhiteAcre
[the servient tenement] to Y, he may require Y [purchaser] to enter into certain restrictive covenants, e.g.
not to carry on trade or business on WhiteAcre; not to erect more than one dwelling house on WhiteAcre
so as not to diminish the value of BlackAcre [the dominant tenement] retained by him. Such covenants
remain binding between X and Y personally [in contract], but the question may arise:

1. As to whether the burden of the covenants runs with WhiteAcre i.e. so as to bind future purchasers
of WhiteAcre, and

2. As to whether the benefit runs with Blackacre i.e. so as to be enforceable by the purchasers of
Blackacre.

Dominant tenement - Land in whose favour the covenant is taken [BlackAcre]

Servient tenement – the land which is burdened by the covenant [WhiteAcre].

Whereas the original parties to a covenant, X and Y are bound by contract, the purchaser of Whiteacre, is
bound by the restrictions on his use of Whiteacre, but what happens where the purchaser sells whiteacre
to someone else?

The important thing is to ensure that the original covenant binds not only the original covenantor
[purchaser] but all his successors. If such is effective, the servient covenantor will be bound perpetually by
the restrictive covenant.

The owner of the dominant tenement can enforce the covenants against the purchaser and the successor
in title. The successor in title of the dominant tenement can also enforce against future purchasers.

THE BURDEN
1. The burden of a covenant between freeholders e.g. vendor and purchaser of land
does not run at common law.
The burden of a covenant between lessor and lessee does run, if it touches and concerns the land.

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It is convenient to look at the running of the burden first in addressing a problem type question. If the
burden does not run there is no point in considering the running of the benefits.

2. Under the rule in Tulk v Moxhay [1848] the burden of restrictive [negative]
covenant between freeholders runs in equity, provided:

a. The covenant is negative in substance

Tulk v Moxhay [1848]
In 1808, P was a fee simple owner of a plot of land in the center of Leister city in London. He sold this plot
of land to Mr. Elms and retained some other land in the Leister square area. Mr. Elms covenant for himself
and his assigns that he and they would forever “keep the plot in an open state”, uncovered by any
buildings. The plot passed by various conveyances and eventually came into the hands of the D. D knew
that there was a covenant on the land but nevertheless he proposed to build on the land in breach of the
covenant. The original vendor who still retained land in the area, brought an action for injunction to
restrain the D from building on the land.

Held: He succeeded in the grant of the injunction.

Although the burden of the covenant does not run at common law, in equity it would be unconscionable to
allow a successor to build on the land, with the knowledge of the existence [notice] of the covenant. It was
contrary to conscience that he should come to the land knowing that there was a restrictive covenant and
still build on it.

The covenant in question was negative in substance [not to build on the land]. In order to prevent
unconscionable conduct, the court will be prepared to grant an injunction restraining the D from building
on the land *especially where it doesn’t require supervision of the courts+.

The form of the terms in the covenant was couched in positive language, but in substance was negative.

Similarly, there may be terms couched in negative terms, e.g. “not to allow a fence to fall into disrepair” –
this is a positive covenant as it requires a positive act of expenditure.

An encumbrance – an obligation binding on a piece of land e.g. restrictive covenant binding a servient
tenement for the benefit of the dominant tenement.

b. The covenantee owns a dominant tenement to be benefited [LCC v Allen (1914)]

There must be a dominant tenement capable of benefiting from the restrictive covenant and at the time of
the sale, the covenantee must own the dominant tenement. If the vendor sells all of his land to the
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purchaser and the purchaser promises not to do certain things on the land, the vendor cannot claim that
there exists a restrictive covenant since he did not in fact retain ownership of any land adjacent thereto.

Formby v Barker [1903]

F owned a large area of land. He sold it to two separate purchasers. One of the purchasers entered into a
restrictive covenant. The issue was whether the restrictive covenant, though binding on the original
purchaser, was binding on successor purchasers.

If the original covenantee did not retain any land, then succeeding purchasers would not be bound by the
restrictive covenant.

London County Council v Allen

A [building] contractor entered into a covenant with the LCC whereby he agreed not to build on a plot of
land located at the end of a proposed street. This covenant was given in return for the permission of the
council to construct a new street on the contractor’s land. Clearly, this is a contract binding as between the
council and contractor. The plot of land however eventually came into the hands of X, successor in title of
the contractor, and the issue was whether the covenant was binding on X. X went ahead and built three
houses on the land based on a mortgage from the bank.

Was the Council entitled to prevent building on the land? The answer depended on whether the burden of
the covenant had in fact run from the original contractor to X.

The burden did not run to X because the covenantee, LCC, did not own any dominant land; they merely
entered into a contract with the building contractor.

Re Gadd’s Land Transfer (1966)

Retention by the covenantee of a road leading to the servient tenement was sufficient to enable him to
enforce the restrictive covenant against successors in title of the original covenantor.

Apparent exception to the Rule

Where the restrictive covenant is contained in a lease, there will be no need to depend on the Tulk v
Moxhay principle, as the lessor will be able to enforce it against assignees of the original lessee under the
rule in Spencer’s case and the doctrine of privity of estate between lessor and sub-lessee, so that any
negative covenants in the lease will be enforceable against the sub-lessee only if the post-Tulk v Moxhay
requirements are satisfied (retention of adjacent land by the covenantee/lessor). It seems that the lessor’s
reversion in the demised premises is sufficient to satisfy the requirement.

c. The covenant touches and concerns the dominant tenement

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“Touches and concerns” essentially mean that the covenant has some relevance to the use or value of the
land. The typical types of restrictive covenants are – “not to build a house worth less than a certain price”,
“not to use the land for business purposes” etc. The covenant to pay a sum of money every month does not
touch and concern the dominant tenement.

d. The parties intended the burden to run [LPA 1925, S 79 [UK]; Cap 236, s 84 (1)
Barbados and equivalents.
It must not only be shown that the parties intended that the original coventor to be bound but also the
successor in title. Such intention must be made clear. The covenant may be pretty useless if such an
express intention is not made clear.

Statutory provisions [Barbados, Belize, and Bermuda] automatically demonstrate that there is intention on
the part of the parties that the burden should run.

A restrictive covenant satisfying these four requirements would be enforceable not only against the fee
simple owner of the servient tenement but all other person in occupation – tenant or licensee.

Mander v Falcke (1891)

This case involved a covenant in a lease. The lessee covenanted not to use the premises for any purpose
which will cause a nuisance to joint-premises which was owned by the landlord. The lessee sublet the
premises and the sub-lease eventually became vested in Mr. X. X did not occupy the premises himself but
allowed his father to live in it as a licensee. The father was supposed to have used the premises as a bar
and refreshment room, but in reality he used it as a brothel.

Such user of premises caused great annoyance to the neighborhood. Here, P was an assignee of the
reversion. It was argued that the father had no interest in the land.

Held: a restrictive covenant binds anybody who happens to be in occupation of the land; hence an
injunction was granted to restrain the obnoxious trade of the father, licensee.

Because restrictive covenants are included in conveyances and are encumbrances on land, it must be noted
that in conveyancing – unregistered v registered – the former is the traditional common law type – [title
deeds – examined going back 15 / 20 years etc], while the latter – there is no need to conduct such
investigation, mere registration of the land confers good title.

In respect of the latter [registered conveyance – Jamaica], an encumbrance such as a restrictive covenant
should be entered on the register. If such is not the case, the purchaser may get an indefeasible title.

Restrictive covenant will not be binding on a bona fide purchaser of legal estate in the servient land
without notice of the covenant. In jurisdictions where a system of registration of titles operates, it can be

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protected by entry of a memorandum on the certificate of title or a caution on the register of the servient
tenement. (Barbados, Belize, Antigua & Barbuda, BVI, St. Lucia).

Positive Covenants v Negative Covenants

In order for the burden of a covenant to be enforced in equity, it must be a negative of restrictive covenant.
However, if it is a positive one, it cannot be enforced against the successor in title. Often times there is
however a mixture, which causes inconvenience.

In order to maintain the standard and value of the property, there must be maintenance of the facilities,
fences, access roads, hedges around the various lots – maintaining such costs money, the conveyance of
each of these will include a covenant that the purchaser has to pay to contribute to such maintenance, only
in respect of the original covenantor and not the successor in title.

Methods of attempting to ensure that positive covenants are enforceable against successors in title:

1. Instead of selling the individual lots in freehold, the covenantee can lease them. Here, Spencer’s
case will apply, and the burdens will run with the covenant. Suffice, in most cases, this device does
not work.

2. Chains of indemnity covenants – the original covenantor remains liable on the covenant even after
he has parted with the land - whether the covenant is positive or negative, he remains liable
*because it’s a contractual relationship+. Thus, if a successor in title fails to maintain the access to
the road, the covenantee can in fact enforce the obligation on the original covenantor and the
successor to his tile will have to indemnify him. Each purchaser agrees to indemnify his covenantor.
This is a fairly precarious method, because if the original covenantor dies, or disappears, then the
scheme fails. If somewhere along the chain there is a break, one of the vendors fails to make out an
indemnity covenant, the scheme will also fail.

3. The rule in Halsell v Brizzell [1957 - Lord Denning – an equitable concept – he who takes the benefit
must accept the burden. Where there is a housing estate, with common facilities, a person who
lives on the estate and holds a property thereon would no doubt have the benefit of using the
common facilities, he must also be prepared to pay his fair share for its maintenance and up keep.

Facts: a building estate had been developed in 1857 and various plots of land had been sold to each
purchaser. Each purchaser covenanted that he and his successor in title will contribute to maintenance of
the sea wall, sewage and access roads. D was the successor in title of the original purchaser, and refused to
make contributions toward the upkeep.

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Held: the covenant was a positive one and did not run with the covenant. However, since D had been
enjoying the benefits, he should be prepared to make a fair share in respect of contributions.

The rule in this case only applies where the D has in fact obtained benefits under the covenant. The best
proof is his very possession of the premises.

4. Right of re-entry may be reserved in the conveyance exercisable on breach of the positive
covenant, subject to the rule against perpetuities.

B. THE BENEFIT
Running of the Benefit
The position at common law

Benefit of covenant between freeholders capable of running providing 2 conditions are fulfilled:

a) Covenant touches and concerns the covenantee’s land

This requirement is satisfied if the covenant is made for the benefit of the covenantee’s land and not merely for
the covenantee’s personal advantage. It must affect the value of the dominant land. It is a question of fact
determined on expert advice presented to the court. The burden of proof is on the covenantor to show that a
covenant does not touch and concern either originally (when it entered into) or at the date of the action.

b) covenantee has a legal estate in the land benefited

Any legal estate suffices. An assignee of a fee simple estate of the dominant land, as well as a tenant under a
legal lease of the land will be entitled to enforce the covenant.

Positive and Negative covenants

It is immaterial whether the form of the covenant is positive or negative, the benefit will run at common law.

Sharp v Waterhouse (1857): a covenant to supply the covenantee’s land with water was enforceable by successors of
the covenantee.

No need for servient tenement

There must be a dominant tenement for the running of a benefit of a covenant, but there is no need for a
servient tenement. Smith and Snipes Hall (1949): there is no requirement that the covenant should impose
a burden on any land belonging to the covenantor, and the latter will be bound even though he owns no
land.

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The position in Equity
There are a number of severe limitations to the running of the benefit at common law. As such, the assignee may be
obliged to depend on the equitable rules for the running of the benefit in the following circumstances:

a) Covenantee (s) /assignee (s) are merely equitable owners of the land benefited.
b) Covenantor is no longer the owner of the servient tenement, having assigned it, enforcement against the
assignee of the servient tenement depends upon the rule in Tulk v Moxhay.
c) Where only part of the benefited land is assigned to the P, since at common law the benefit cannot be
assigned in pieces Re Union of London and Smith’s Bank Ltd Conveyance, Miles v Easter (1933)
d) Where the P relies upon his land being part of a “scheme of development”

P must show the following to establish that the benefit has run in equity:

a) Annexation of the benefit to the dominant land; or

b) Express assignment of the covenant with the dominant; or

c) A scheme of development

ANNEXATION
Annexation is an abstract concept, whereby the covenant is deemed to be attached to the title of the land so that all
future owners will automatically be entitled to the benefit.

If the assignee of the covenantee can show that the covenant has been annexed to the land benefited, then he and
his successors in title can enforce the covenant, and thus the benefit passes to them. Whether annexation takes
place depends upon “the intention of the parties to be inferred from the language which they used in the deed
creating the covenant”.

Land benefited must be clearly identified in the conveyance of the servient land which contains the covenant.

Rogers v Hosegood (1900) [classic formula for annexation+: “with intent that the covenants might so far as possible
bind the premises thereby conveyed and every part thereof and might enure to the benefit of the vendors…their
heirs and successors and others claiming under them to all or any of their lands adjoining or near to the said
premises”

Drake v Gray (1936): it is sufficient for annexation that the covenant is made “for the benefit of Blackacre”.

Renals v Cowlishaw (1878): annexation will not occur where there is no reference to any land.

Pass v Ramsahoye (1996): annexation will not occur where there is no reference to a particular land.

Halfmoon Bay Ltd v Crown Eagle Hotels Ltd (1996):

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The purchaser for itself and its successors covenanted “with the vendor, its successors and assigns”.
Held: there was no annexation to the benefit of the covenants. There was no expression of the covenants being
for the benefit of any land or made with the vendor as owner of any particular parcel of land to be benefited.

Three questions are asked even if the parties intended to annex the benefit of the covenant of some land by
express words or necessary implication:
The court must ascertain the identity of the land to which the covenant is annexed.
It must then determine upon the construction of the words by which the annexation is effected whether the
covenant is annexed to the whole of the land referred to as a whole, or to such land as a whole and also to
each and every part of it.
The court must also determine whether the benefit of the covenant is “touched and concerned” by the
covenant …… if not the annexation fails.

Wade points out that there is a struggle between conveyances which insist on strictness of form in the interest of
conveyancing, convenience and certainty, and on the other, judges who seek to liberalise the law by looking for the
intention of the parties rather than a mechanical formula.
Theory of Implied Annexation
Megarry & Wade: annexation can be implied where the facts make the connection with the benefited land so
obvious that to ignore it would not only be an injustice, but a departure from common sense. With implied
annexation the benefit of the covenant will run even though the accepted form of words is not used.

Arguments for implied annexation include the following:

a) There is no requirement at common law for formal annexation, only that the covenant should touch and
concern the covenantee’s land and that the assignee should have a legal estate. It is out of character for
equity to be more formalistic than the common law.
b) Express annexation is not needed in order for the burden of the covenant to run, nor for the burdens and
benefits in leases under Spencer’s case, nor for the running of the benefit or burden under easements.
c) The benefit of a covenant can be assigned in equity without the need for any particular form of words.

Jamaica Mutual Life Assurance Society v Hillsborough Ltd

There were no express words in the conveyance to the covenantor stating that the restrictive covenants contained
therein were intended for the benefit of any land retained by the covenantee.

Held: annexation could be implied from the surrounding circumstances.

Carey JA: the real question is one of intention, which is permissible to ascertain from an examination of the
surrounding facts at the time of sale

Statutory Annexation
Federated Homes Ltd v Mill Lodge Properties Ltd (1980)
M Ltd owned a site which included three areas, represented as red, green and blue. They conveyed the blue area to D but
it contained a restrictive covenant to the effect that they would not build “at a greater density than a total of 300 dwellings
so as not to reduce the number of units which the vendor might eventually erect on the retained land under planning
consent.” P became owners of lands red and green and they obtained planning permission to develop the lands. When D
obtained planning permission, they were permitted to develop the land at a density higher than that permitted by the
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restrictive covenant. P argued, when D proceeded to build, that such would’ve prejudiced the development of red and
green land. P therefore sought an injunction against D to restrain them from building on the blue land in breach of the
restrictive covenant.
Held: since the covenant touched and concerned the covenantee’s land, s 78 had the effect of annexing the
benefit to the land. P’s application for an injunction was therefore successful.

The Law of Property Act s78 has the effect of annexing the benefit of a covenant to the dominant land, without the need
for express words of annexation. S78 wording has been substantially reproduced in some Caribbean statutes (Barbados s
83 (1), Bermuda, Belize, Jamaica):

A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in
title and the persons deriving title under him or them, and shall have the effect as if such successors and other persons
were expressed. Successors in title shall be deemed to include the owners and occupiers for the time being of the land of
the covenantee intended to be benefited.

The covenant touched and concerned the covenantee’s land (affected the number of houses he could build), s78
had the effect of annexing the benefit to the land.

The D’s were the original covenantors, not the assignees (no need to rely on the Tulk v Moxhay principle) and it was
possible to decide the case on common law principles but based on the court’s interpretation of s78, the same
decision would have been reached if the D’s had not been the original covenantors but rather assignees of the
burdened land (once other requirements have been fulfilled).

Roake v Chadha (1983): if the original covenanting parties had stipulated that the benefit of their covenant should
not pass to subsequent purchasers of the dominant tenement, s78 could not apply so as to pass the benefit.

Area to be benefited
Re Ballard’s Conveyance (1937): there will be no effective annexation if the area of the dominant land is greater than
can be reasonably be benefited, i.e. there can be no annexation unless substantially the whole of the dominant
land is capable of benefiting from the covenant.

The Covenant was stated to be made for the benefit of ‘the owners for the time being of the Childwickbury estate”.
Restriction was imposed on a plot of 18 acres while the whole of the land comprised 1700 acres. Covenant not
enforceable as it was found as a fact that most of the estate could not be directly affected by a breach of the
covenant.

Marquess of Zetland v Driver (1938): if the covenant is stated to be for the benefit of the whole or any part of the
estate, it could have been enforced by the successor in title to any part of the land which the covenant in fact
benefited.

Russell v Archdale (1962) and Re Jeff’s Transfer (no 2) (1966): if the benefit of the covenant is annexed only to the
whole and the covenantee or a successor sells part of the land the purchaser of the part will be unable to enforce
the covenant. “for the benefit of the remainder of Chorleywood Estate belonging to the vendor”.

Re Selwyn’s Conveyance (1967): “for the benefit of the adjoining or neighbouring land part or lately part of the
Selwyn Estate” did annex the benefit to separate parts of the land.

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Federated Homes Ltd v Mill Lodge Properties Ltd (1980): Brightman LJ criticized the rule as being arbitrary and
inconvenient. ‘…I would have thought that if the benefit of a covenant is, on proper construction of a document
annexed to the land, prima facie it is annexed to every part thereof, unless a contrary intention appears”. P held to
be able to enforce the covenant.

b. Express Assignment
Re Union of London and Smith’s Bank Ltd’s Conveyance, Miles v Easter (1933): Romer LJ laid down 5 requirements

1) covenant must have been taken for the benefit of the land of the covenantee
2) dominant tenement must be indicated with reasonable certainty (but need not be indicated on the
conveyance)
3) dominant tenement must be retained in whole or in part by the P
4) dominant tenement must be capable of benefiting from the covenant
5) assignment of the covenant and the conveyance of the land to which it relates (i.e. the dominant land)
must be at the same time

With express assignment of the benefit of a covenant to a purchaser of a part, only of the dominant tenement is
effective.

Newton Abbot Co-Operative Society Ltd v Williamson and Treadgood (1900): on death of the covenantee the
benefit automatically passes to the personal representatives upon trust for the devisee of the dominant tenement,
and may be assigned to the devisee.

c. Schemes of development
Restrictive covenants are enforceable in equity by and against successors of the original contracting parties.

Elliston v Reacher (1908): Parker J formulated the requirements for the existence of a scheme:

a) P and D in the action for breach of the restrictive covenant must have derived their titles from a common
vendor.

b) Before sale to P and D the common vendor must have laid out his estate for sale in plots subject to the
restrictions which it was intended to impose on all the lots

c) Restrictions were intended by the common vendor to be, and were for, the benefit of all the lots sold.
Inferred from the circumstances, if the restrictions are calculated to enhance the value of each lot.

d) Original purchasers must have bought their lots on the understanding that the restrictions were to enure
for the benefit of the other lots.

e) Geographical area to which the scheme extends must be ascertained with reasonable certainty

These requirements are considered to be a valuable guide, but there are cases where schemes have been held to
exist despite the absence of one or more of the requirements.

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Baxter v Four Oaks Properties (1965): scheme of development was held to exist even though (b) was lacking, but it
was held that there was sufficient evidence to of an intention to create mutually binding covenants.

Re Dolphin’s Conveyance (1970): held to exist even though (a) and (b) were lacking.

The modern position is that 2 requirements are needed to establish a scheme of development:
1) that the land to which the scheme relates must be identified
2) that there must be a common intention on the part of the purchasers that there should be reciprocity
of obligation
“confirmed” in two JCPC cases (read pgs 169-172) - *cases held that there was no scheme:
Jamaica Mutual Life Assurance Society v Hillsborough Ltd (1989) & Emile Elias and Co Ltd v Pine
Groves Ltd (1993).

DISCHARGE AND MODIFICATION *suggest reading this section from the text = exam!
The court has an inherent power to discharge or modify a restrictive covenant if there is sufficient evidence:
a) that a covenantee (or any of his assignees) has acquiesced in a course of conduct which is inconsistent
with its continuance, as where he has disregarded past breaches of the covenant, or

b) that the character of the neighbourhood has changed to such an extent that it would be inequitable or
senseless to continue to insist on observance of a covenant which, in effect, has become redundant.

In an addition to the inherent power, statutory provisions (Barbados s 196 (1), Jamaica) provide for discharge or
modification of restrictive covenants, and, in those jurisdictions, it is invariably the statutory provisions which are
relied upon.

S3(1) of the Restrictive Covenants (Discharge and Modification) Act of Jamaica provides that an application for
discharge or modification may be made to a judge of the Supreme Court on all or any of the following grounds
(applicant has to satisfy the burden of proof, but the court is exercising discretion)

a) OBSOLESCENCE
By reason of the changes in the character of the property or the neighborhood which the judge may think material,
the restriction ought to be deemed obsolete. This provision essentially reproduces the inherent jurisdiction referred
above.

Stephenson v Liverant (1972)

The applicant’s petitioned the court to modify the restrictive covenant *which prevented them from using the
purchased lots for trade/business purposes]. They argued that the character of the neighborhood had sufficiently
changed so that the covenants should be deemed obsolete. They alleged that letting their houses to tourists, even if
in breach of the restrictive covenant, was not sufficient to render a decision against them, as the character of the
neighbourhood had changed.
Held: notwithstanding any proved or admitted breaches of the covenants, the changes in the character of
the neighbourhood were not so far reaching as to render the covenants obsolete.

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Obsolescence is a difficult ground to prove since, “a change in the character of the neighbourhood does not
necessarily result in the covenant being deemed to be obsolete. The court is obliged to consider the further question
whether the changes are such that the covenant ought to be deemed obsolete” pg 174

Re Truman, Hanbury, Buxton and Co Ltd’s Application (1955) Romer LJ: whether the original purpose for which the
covenant was imposed can or cannot still be achieved; if it can, the covenant is not obsolete; if it cannot, it is
obsolete.

b) IMPEDING THE REASONABLE USER OF THE LAND

The continued existence of such restriction (or continued existence without modification) would impede the
reasonable user of the land for public or private purposes. The restriction does not secure to any person practical
benefits sufficient in nature or extent to justify the continued existence of such restriction (or continued existence
without modification). In this regard, courts take a very restricted approach and successful applications are rare.

Stannard v Issa (1987)

An area of land was divided into 11 lots, 10 of which were sold subject to common covenants not to subdivide the
lots, not to erect any building of less than 2000 prime cost, and not to carry on any trade or business or use the land
for any commercial purposes, save that of a medical practice. For a long time, the development was entirely
residential constituting a “peaceful seaside enclave of a family nature.” The applicant was an original covenantor who
owned two lots; he obtained planning permission to erect 6 blocks of 3 storey buildings, comprising 40 residential
apartments together with amenities, including two swimming pools. She applied for a modification of the covenants
so as to permit this development.
Held: the continued existence of the covenants in their present form did not impede the reasonable use of
the applicant’s land, and the proposed modification would adversely affect the practical benefits secured to
the objectors of the covenants. Here, there was no evidence of any difficulty in developing the applicant’s
land or in disposing of it for development within the framework of the existing restrictions, nor was there any
suggestion that the restrictions had the effect of sterilizing the land.

In order to succeed, the applicant must show that the restrictions ‘have sterilized the reasonable use of the land’,
i.e. the court must be satisfied (difficult):
o that the permitted use is no longer a reasonable one
o that the applicant’s proposed use is the only reasonable one
o the restrictions do not secure any practical benefits to any person

No definition has been provided for “practical benefits” but it is accepted that they would include such benefits as
privacy and view, low density of occupation, peace and quiet, security, maintenance and property values.

JCPC emphasized that s 3(1)(b) of the Jamaican Act was not to be interpreted as being identical to the equivalent
English provision (s84(1) Law of Property Act 1925) as it had been amended by s28 of the Law of Property Act 1969
by substitution of the phrase “some reasonable user” for the “reasonable user”. This widened the scope of the
modification where money would be adequate compensation for the objectors. The Jamaican section has to be
interpreted in light of cases decided before 1969 and based on the narrower wording.

c) AGREEMENT TO DISCHARGE OR MODIFICATION

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A covenant may be discharged or modified if ALL the dominant owners entitled to the benefit of the restriction have
agreed whether expressly or by implication by their acts or omissions to the same being discharged or modified.
However, this ground is rarely relied upon.

Suffice, if all the dominant owners come to such an agreement they will normally execute a deed to that effect. In
this regard, this ground could be applied in the instance where persons entitled to benefit of the covenant have
acquiesced in past breaches to such an extent that they must be presumed to have consented to the discharge of
the covenants.

Re Federal Motors Ltd’s Application (1966):

The applicant company sought the discharge of a restrictive covenant in order to enable it to service vehicles on its
land.
Held: the fact that the surrounding owners had not objected to the applicant’s breaches for more than two
years did not indicate agreement by implication to the discharge of the covenant.

d) NO INJURY TO OBJECTORS
Under this head, it is alleged that the proposed discharge or modification will not injure the persons entitled to the
benefit of the restriction (has much in common with the second limb of –b). If the applicant fails to satisfy the
second limb of (b), he will often fail here.

Re System Sales Ltd Application

Lots within a residential scheme of development were described as “a quiet and peaceful enclave”. They were
subject to covenants not to erect more than one freehold dwelling house on each lot, not to subdivide any lot and,
not to use the land for any trade or business. Barbados Telephone Co wished to erect a substation on part of one lot,
and, with the consent of the owner of the lot, S Ltd, had obtained planning permission to do so. S Ltd sought to
discharge or modify the covenants. Objections were raised that the volume of vehicular traffic would grow, the value
of the properties would fall, and the removal of the restrictions attaching to the applicant’s lot would encourage
other lot owners to make similar applications for subdivision or for setting up other types of business.

The issue was whether S Ltd had established that the objections raised are trifling and insubstantial and can be
dismissed as no more than frivolous.

Held: the application for modification was refused because the objections were not insubstantial.

Stannard v Issa (1987): once it was decided that the continued existence of the covenants did secure substantial
practical benefits to the objectors it was a short step to holding that the objectors would be injured by the proposed
modification of the covenant.

Ridley v Taylor (1965): Russell LJ severely limited the scope of the ground when he applied a restrictive
interpretation of the ground being “designed to cover the case of the, proprietarily speaking frivolous objection” and
that it was “so to speak, a long-stop against vexatious objections to extended user”

Re McAuley Heights (1989):

There was a covenant restricting subdivision of the land and prohibiting the erection of more than one private
dwelling house thereon.

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 Held: Application for modification was granted. The Land was situated in an isolated area; the house would
be designed to give the outward appearance of a single unit; each family unit would provide security for each
other in an isolated crime-prone parish. And by their very presence would provide additional security for the
neighborhood including the houses of the objectors.

THE “THIN EDGE OF THE WEDGE” ARGUMENT

Stephenson v Liverant (1972) and Re System Sales Ltd’s Application (1992): application should not be approved
within ground (d) where this might set a precedent for the granting of future applications for discharge or
modification…which might ultimately lead to the dismantling of the entire residential scheme.

McMorris v Brown (1998)

It is difficult to say that the particular thing which the applicant wishes to do will of itself cause anyone any harm; but
that harm may still come to persons entitled to the benefit of the restriction if it were to become generally allowable
to do similar things. The onus is on the applicant to show that a first relaxation of the covenant would not
“constitute a real risk as a precedent, so disturbing the pattern of a block of family homes in exceptionally
extensive grounds”.

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 THE LAW OF CONDOMINIUMS
There is condominium legislation across the region.

On the interpretation of the legislation, the Bahamas [The Law of Property and Conveyancing
[Condominiums] Act and Barbados Act, Cap 224 are applicable.

The condominium concept has become more popularized in the Caribbean in the last ten or so years. The
Bahamas however may be an exception to this rule. Condominiums are very popular and they are used by
both citizens and visitors alike.

Condominiums are thought of as being analogous to lease holds. The legal structure of the former could be
thus thought of side by side with the latter.

INTRODUCTION
Unlike in some metropolitan countries where condominiums are a normal way of living for local people, in
the Caribbean such is not the case, private houses are predominant. Very few live in a condominium as
their first home.

However, the concept of condominiums arose out of the increased need of tourists /visitors for housing
close to the sea. This scheme indeed facilitates them leaving from time to time without worrying about
anything going wrong while they are away.

In Caribbean jurisdictions, condominiums are often used by small business, boutiques, shops etc. The
legislation [aforementioned] has created the structure of a condominium.

Most of the condominium legislation have been derived from the American Federal Housing Legislation
(1961).

The genesis of the condominium concept and the need for such was explained in:

Bank of Nova Scotia v GLT Corporation

At common law, one cannot have a building divided into horizontal units with ownership in respect of a fee
simple. A lease hold will instead be created. Suffice, a leasehold is a diminishing asset.

Under the statute however, the condominium concept enables a person to hold a fee simple in a building
divided horizontally.

Smith J: “The Act was passed to make provision for the horizontal division-up of the fee simple estate in
land”.

What happens if the building subject to a condominium is destroyed?

The question is asked, was the interest of the unit owner comprised of the tangible part of the property?

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South Air Bahamas Ltd v Signet Bank

Held: the interest of the unit ownership survives the destruction of the building. The interests don‟t only
include the bricks and mortar but the airspace which continues to exist.

Each fee simple owner has a fee simple unit plus a share in the common property [the common parts of the
building, stairs, lifts, corridors, yards, gardens, parking areas, storage space].

The legal structure must exist in order for there to arise a condominium scheme.

Under the legislation, every condominium must have 3 legal documents:

1. The declaration of condominium which governs the condominium structure

2. Bye-laws
3. Individual unit deeds [title deeds belong to each unit owner].

The content of the declaration

If the declaration is defective, it will be void and the whole condominium scheme would not legally exist.

The person who is primarily responsible for the drafting of the declaration is the property developer. He has
to make sure that such is properly drafted.

S 4 Bahamas [and Barbados] Condominium Acts:

- A description of the property – its location must be precisely identified;

- A description of the building – how many floors /stories the buildings have, if there are any
basements/cellars, how many units, and the materials from which the building is constructed
- A description of every unit in the building and each must be referred to by its floor space [to
precisely ascertain its boundaries].
- Drawings and plans of the building [drawn by a surveyor].
- Any covenants or conditions or restrictions affecting the use of the units must be stated in
the declaration.
- The by-laws of the condominium must be attached to the declaration.
- The declaration must state the method of amendment of the declaration [by what
procedure and by whom].

Goodyear v Maynard

D entered into an agreement to purchase a condominium apartment. The purchaser refused to complete
the purchase on the ground that the declaration was defective i.e. it did not provide for the methods of
amendment to the declaration. The vendor argued that there was a clause in the declaration which
provided that the unit entitlement of each unit owner could be varied by the consent given by D and all the

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other unit owners. The vendor / owners argued that by the fact that this procedure was included, the
declaration was sufficient.

Held: although it was true that the variation of unit entitlements and the details of such were included,
details of other types of amendments were not included; as such, the declaration was defective. The
prospective purchaser was entitled to withdraw from the sale because the declaration, being defective,
would imply that the purchaser was buying a defective title – in these circumstances, the court would not
impose such terms on the purchaser.

Per Henry J: “The declaration is the foundation stone on which the entire legal edifice in the act was built”
and if the declaration is defective, “the edifice must fall.”

Who must execute the declaration?

S 4 Condominium Act:

The declaration must be executed [drafted and created] by the person or persons having the legal and
equitable fee simple absolute title to the property.

Any other body having legal interests in the land must execute the declaration. If the land is mortgaged to
the bank, the bank is obliged to participate in the execution of the declaration.

Johnson v Wallace

A prior mortgagee had not joined in the declaration although the mortgage was already paid off. The
declaration in question was held void. Conveyances of units to several purchasers were set aside
when it was found out that the declaration was void; the conveyance had been executed on a false
assumption i.e. that the condominium scheme was legally sound. However at the operative time, the
scheme was ineffective.

The Judge regarded such a situation where the vendor and vendee were under a common mistake, that a
valid condominium scheme was not in operation.

In order to be fair to the purchasers, the conveyances were set aside, a fresh declaration was asked to be
executed and new conveyances entered into.

If there is a declaration which is defective, is it is possible for the new declaration to

contain [new] terms which were not in the original one?

Glington v Albacore Development

It was argued that since the original declaration was void it was to be treated in law as if it never existed
and that there was no reason why the new declaration should contain the same terms as the old one.

On the other hand, it was argued that although the original declaration was void, it in fact constituted
representations made by the vendor to the unit purchasers and that the unit purchasers had bought their
units on the terms specified by the vendor and therefore they should not be subject to new terms. If such

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was permitted, then there was a fear that many lawsuits would arise in respect of purchasers claiming that
they are deprived by the new terms.

Held: the original declarations constituted a contractual warranty which could not be varied, and the terms
of the new declaration should, therefore, not differ from those in the old one.

In Roberts v Albacore it was held that an architect‟s certificate submitted subsequent to the original
declaration being voided could be incorporated into the new declaration without express words of
incorporation. CERTIFICATES SUBMITTED SUBSEQUENT TO ORIGINAL DECLARATION BEING VOIDED CAN
BE INCORPORATED INTO A NEW DECLARATION

THE ELEMENTS

A. Registration of declaration

Barbados – a declaration must be registered in the Condominium Land Register, which the Registrar of
Titles is required to compile under s 12 of the Land Registration Act.

Bahamas – there is no system of registration of title, as such, the declaration must be lodged for recording
at the Registry Records – s 6 (1).

B. Unit entitlement

The floor space of each unit must be precisely defined. This is important because the voting rights of each
unit owner depend on the size of the unit. The larger the unit the greater voting rights he has. Voting rights
include the right to vote members of the body corporate [management of the condominiums]. All the unit
owners would however not participate in the day to day running of the scheme. This scheme emphasizes
the view that this is a communal type scheme. The amount of common assessments to be paid toward the
maintenance of the building depends on the size of the unit. The larger the unit size, the greater the
assessment that has to be paid – s 4 (5) – Bahamas LPCCA.

C. Drawings and plans

S 4 (1) and (6) Bahamas LPCCA - Plans must be drawn by a competent field [architect]. This enables
any prospective buyer to see what he /she is buying and the size and physical relationship between the
units. The plans must be approved by the Chief Town planner, certifying that the drawings are accurate.

Sawyer v Family Guardian Insurance Co

A certificate submitted subsequent to an original void declaration could be incorporated into a second valid
declaration without express words of incorporation.

S 5 (2) Barbados LPCCA - where, at the date of recording of the declaration, the building is not
complete, the architect‟s statement is to be lodged for record in the Registry upon completion of the
building and before any unit is conveyed.

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 D. Existing Mortgages

S 6 (2) Barbados LPCCA – where, before the first conveyance of any unit, there is in being any mortgage
or charge affecting such unit, every such mortgage or charge must be satisfied, or the unit must be
released from the encumbrance, or the mortgagee or chargee must join in the conveyance.

Bank of Nova Scotia v GTL Ltd

It cannot be entertained that execution of a declaration of condominium had the effect of extinguishing an
existing mortgage over the building.

E. No Partition of Common Property

No share in the common property shall be disposed of, except as appurtenant to the unit to which it
relates; and no unit owner may bring an action for partition of any interest in the common property. An
exception to the latter is where the court orders the removal of the property from the provisions of the Act
– S 7 (2) LPCCA Bahamas.

BY-LAWS
These support the declaration and both are interrelated.

The by-laws would generally contain:

- Provisions dealing with the composition of board of management

- The procedure for elections
- Duties and powers of the board
- Voting procedures; and
- Duties of unit owners.

Every unit owner is subject to the by-laws.

BODY CORPORATE (S 13 LPCCA Barbados)

This is the management of the condominium. As from the date of the declaration, all the owners of the
units constitute a body corporate which operates or manages the condominiums. It has independent legal
personality [can sue and can be sued and can enter into contracts with third parties]. Just like in the case
of a company, the unit owners are not liable for the breaches of contract or any other misfortune of the
body corporate [the principle of separate legal personality - the unit owners don‟t wish to be overwhelmed
by legal suits]. The only liability of the unit owner is to abide by the by-laws and to pay the
regular assessments.

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The question of management of the condominium could be a tricky one because the founder
/developers of the initiative may wish to exercise control over the condominium scheme.

Cannes Resort v Gaudet

A clause in the declaration, clause 22 stated, “the company reserves the right to appoint the majority of the
directors of the body corporate until such time as all the units of the condominiums have been sold”.
Whereas the by-laws specifically gave the unit owners the sole power to elect the directors. Before all the
units had been sold, the unit owner appointed the D as directors at a meeting. Representatives of the
company went to court and asked the court to determine whether the Ps were entitled to exercise the
powers of the board at the expense of the company under clause 22.

Held: this was “a thinly veil attempt by P in drafting clause 22 to control the property by controlling the
board of management”. But clause 22 could not be reconciled with s 15 [1] of the Act which states
that every unit member must be a member of the body corporate. Thus, under the Act, it was the unit
owners who were entitled to elect the members of the board of management. Clause 22, being in conflict
with such, was void and therefore the unit owner‟s power of election of the P was legitimate.

THE DUTIES OF THE BODY CORPORATE

Under the Act, the body corporate is comprised of all the unit owners together. However, the actual
management of the scheme would be carried out by those who are appointed as directors.

The body corporate is a separate legal person. The members of the body corporate are not liable for the
debts it incurs.

The body corporate is like a company which has its own legal personality. The unit owners, as individuals,
have no personal liability for the acts or omissions of the body corporate.

The only liability of the unit owners is to pay their regular contributions which are fixed [this facilitates the
maintenance of facilities]. The regular contributions can be quite considerable if the condominiums have
extensive facilities. The amount of contribution depends on the size of the condominium unit.

Three main duties of the body corporate:

1. To operate the property for the benefit of all the unit owners and to be responsible for the
enforcement of the by-laws.
2. To keep the common property [common areas, stairs, corridors, lifts, lighting, car park, gardens,
swimming pools] in good repair.
3. To restore the building to its replacement value against fire, hurricane and sea wave.

Issue: a unit owner who is flouting the by-laws, e.g. painting with a different colour outside of
the unit or hanging his clothes outside the window, who is responsible for preventing such?

The body corporate is responsible for enforcing the by-laws.

“…shall be maintainable by the body corporate acting on behalf of the unit owners”.

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If one of the unit owners is in breach of the by-laws, the body corporate can bring an action to remedy
such, and if the body corporate fails to do as such, an aggrieved unit owner, can bring an action.

Strachan v The Owners, Strata Corp

Some unit owners made alterations to the exterior of the building while others were using their units for
commercial purposes [serious breach].

If the body corporate fails to fulfill the obligations under the by-laws, then an action can be brought by the
aggrieved unit owner by virtue of a mandatory injunction to direct the body corporate to bring an action.
The responsibility for enforcing the by-laws falls squarely on the body corporate.

The body corporate operates the property for the benefit of all unit owners:

Mallis v Town Court

A unit owner, returning one evening was accosted in the car park, robbed and shot by a mask bandit. He brought an
action against the body corporate alleging that the body corporate failed to provide adequate security and lighting.

Held: the body corporate was not negligent. Their ability to provide security and lighting was dependent on the
contributions of the unit owners and where the financial resources are not available, then much cannot be expected to
be rendered in return.

DEFAULT IN PAYMENT OF CONTRIBUTIONS

The success of the condominium scheme depends on the prompt discharge of the unit owners of their contributions.
Under the act, where a unit owner defaults on payment, the body corporate can pursue either or both of two forms of
action:

Remedies

1. S 18 LPCCA – Bahamas - An action for debt [for the amount owed].

2. S 21 LPCCA – Bahamas - To enforce a charge against the unit [sale of the unit and what the unit owner
gets is what is left after the debt is paid off].

The power of the body corporate to sell the unit where the unit owner is in default is similar to the mortgagee who is
empowered to sell the property if the mortgagor defaults on his payments.

Issue: what happens if the body owner fails to carry out the duty to carry out repairs?

The unit owners are making contributions and as such, they should be provided with adequate facilities and
have them in good repair.

Issue: Can the unit owner withhold the contribution where the body corporate fails to carry
out the obligation to do repairs?

The payment of contribution must be made whether or not the body corporate carries out its obligations.

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An exception to this rule is a situation where the unit owner has no good title to his unit, then he may
withhold the payment of contributions.

Tower Condominium v Lawrence

The court had to consider whether the obligation to pay contributions was independent of the condo association‟s duty
to maintain and repair and whether the association could disconnect a utility if a unit owner failed to pay his
contribution. The court held that breaches of the duty to maintain and repair did not justify withholding
contribution. A unit owner was obligated to pay fees as long as he had title not as long as the building was kept in a
certain condition. As such if a unit owner withheld contribution the association would be justified in disconnecting the
utility of a delinquent owner if that were the policy agreed on by the board.

TERMINATION OF THE SCHEME

S 31 LPCCA – Bahamas - the condominium scheme can be brought to an end by a court order or where at least
90% of the unit owners have resorted to bring the scheme to an en d.

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 EASEMENTS
DEFINITION
An easement is a right attached to one particular piece of land (dominant tenement) which allows the owner of that
land to use another piece of land (servient tenement) in a particular manner.

This right “over the land of another” may arise where a landowner grants certain rights over his land to another
person, which falls short of a grant of possession.

Examples:

 He may wish to grant to an adjoining landowner a right to pass and re-pass over his land on foot or with
vehicles [easement of way];
 A right to lay pipes under his land to convey water or sewage;
 He may agree to curtail his own portion of his land so as to ensure that light continues to reach his
neighbour‟s windows [easement of light].
 He may agree not to pull down his own portion of a duplex house so as to withdraw support from his
neighbour‟s portion [an easement of support]/

Interference with an easement may give rise to an action for damages in nuisance, and for an injunction
to restrain further interference.

DISTINCTION BETWEEN EASEMENTS, PROFITS, LICENSES AND RESTRICTIVE COVENANTS

Restrictive covenants – these are particularly appropriate where the right granted is a “negative” one – i.e. one
under which the grantor agrees not to use his land in a particular way. E.g. not to erect a building on his land.

Licenses – appropriate where the right granted is a positive one – i.e. one which allows the grantee to use the
grantor‟s land in a particular way. E.g. to use a footpath on the grantor‟s land.

Both types of right, positive and negative, can be created by easement.

POSITIVE vs NEGATIVE EASEMENTS

A right is positive if it requires expenditure of money by the grantor

A right is negative if it does not require expenditure of money by the grantor.

As a general rule, the law does not recognize positive easements in this sense. In effect, a right will not be held to be
an easement if it requires expenditure of money by the grantor.

Exception:

The easement of fencing – this requires the grantor to maintain the fence for the benefit of the grantee – it has
been called a “spurious easement”.

Of all the three rights, easements, restrictive covenants and licenses, easements is the fullest in law, since a legal
easement is a right in rem, binding on the whole world, whereas a restrictive covenant is binding only in equity and
may be defeated by a bona fide purchaser for value of the legal estate without notice of the covenant or, where title
to the burdened land is registered, it may be void against a subsequent purchaser unless protected by an entry on the
register.

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A license is a much less valuable right when compared to an easement, since it is a right in personam.

Asburn v Arnold [1988] – if the license is a contractual one, it will generally be binding only on the original parties
to the agreement and is not binding on successors in title to the original parties.

Denson v Bush - an estoppel license is binding only on successors in title having notice of its existence.

Where the license is an oral permission [neither arising by contract nor estoppel], unsupported by consideration to use
a footpath on the licensor‟s land, then the rights of the grantee can be revoked at any time by the licensor and cannot
be legally enforced at all, even against the licensor.

Public / customary right – this is not right “appurtenant” to a particular parcel of land.

Examples at common law:

 The right of inhabitants of a village to walk across another‟s land to reach the local church
 The right of fishermen to dry their nets on another‟s land;
 The right of the general public to pass along a highway;
 The right of the general public o fish in the sea to bathe on a beach.

Easement – this is a right “appurtenent” to a particular parcel of land – a right which is exercisable by the owner for
the time being of the land for the benefit of which the easement exists.

Beach Control Authority v Price

Under s 3 A (1) of the Prescription Act (Jamaica), a right to use a beach for fishing, bathing or recreation may be
acquired by prescription in the same way as an easement of light.

REQUIREMENTS OF A VALID EASEMENT

A legal easement, once acquired, is enforceable by all successors in title of the dominant tenement against all
successors in title to the servient tenement, irrespective of whether the successors to the servient tenement had
notice of the existence of the easement. However, for such rights to exist as easements, certain requirements must be
satisfied:

1. THERE MUST BE A DOMINANT AND A SERVINENT TENEMENT

It is essential for the right to be appurtenant to land – i.e. there must be a dominant tenement to which the right is
attached.

Example:

 X, the owner of WhiteAcre, grants to Y, who does not own any neighbouring land, the right to use a pathway
running across WhiteAcre, Y‟s right cannot be an easement. It is instead a privilege which is personal to Y, as
there is no dominant land to which the right can be said to be attached.

Y’s right will be at more, a mere license.

 Y is the owner of adjoining land, BlackAcre, then the right will be a easement [assuming that the other
requirements of an easement are satisfied] since X has granted the right not to Y personally, but to Y in his
capacity as owner of BlackAcre, and the right may be said to have been granted for the benefit of BlackAcre.

Thus, not only Y, but all Y’s successors in title will be entitled to exercise the right of way.

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There cannot be an “easement in gross”, i.e. an easement that is independent of the ownership of land by the
claimant. Ownership in this context includes not only the fee simple owners of the dominant tenement, but also those
who own lesser estates in the land; e.g. a lessee of the dominant tenement is entitled to enjoy all easements which
exist for the benefit of that tenement.

There must be a servient tenement over which the easement is exercised. This must be defined sufficiently clearly in
the grant (normally through a plan of the servient tenement).

Keefe v Amor

Land was conveyed „together also with a right of way on foot or with vehicles over the land shown and coloured
brown on the plan hereto annexed.‟

Where an easement is acquired by prescription – by virtue of long usage and without any express grant, there will be
no documents to define the dominant and servient tenements. Oral evidence will thus be required to establish that
those tenements are.

2. AN EASEMENT MUST ACCOMMODATE THE DOMINANT TENEMENT

The right claimed must be sufficiently connected with the requirement of the dominant tenement and must be for its
benefit. The easement must not merely confer some personal benefit on the grantee, but must serve to make the
dominant tenement “a better and more convenient property”.

Regard is often given to the purposes for which the dominant tenement is used.

Examples:

 Re Ellenborough Park - if the dominant tenement is a dwelling house, a right to use a garden on adjoining
property or;
 Hart v Pierce- to cross adjoining land to reach a beach

……. will accommodate the tenement, since it enhances its use and enjoyment.

Miller v Emcer Products Ltd- if the dominant tenement is an apartment used for business purposes, the right to
use a washroom in the apartment immediately above will accommodate the dominant tenement since it enhances its
use.

Moody v Steggles - where the dominant tenement is a public house, an easement to fix a signboard to an adjacent
building will accommodate the dominant tenement, even though it benefits the business carried on in the pub rather
than the dominant tenement itself.

The value of the dominant tenement is not conclusive as to whether it accommodates the tenement, but it is a
relevant factor to be considered.

A. PROPINQUITY
Although normally the dominant and servient lands will be adjacent to each other, it is not essential that this should
be so, provided they are sufficiently close so that the dominant land receives the practical benefit from the right.

If however the two tenements are many miles apart, clearly there can be no easement in favour of one against the
other.

Bailey v Stephens

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Byles J: “You cannot have a right of way over land in Kent appurtenant to an estate in Northumberland [about 300
miles from Kent]”.

Phillips v Halliday

A pew in a church was held to be sufficiently close to a house in the parish, so that the owners of the house acquired
an easement to use the pew.

B. PERSONAL ADVANTAGES
A right will not accommodate the dominant tenement if it is granted solely for the personal benefit of the grantee, and
not for the benefit of the land occupied by him.

Hill v Tupper

T, a canal company leased land adjoining the canal to Hill, granting him the sole and exclusive right to put pleasure
boats on the canal. T disregarded this privilege by putting his own rival boats on the canal. H sought to restrain T,
claiming that T was interfering with his easement to put pleasure boats on the canal.

Held: the right granted to H was not an easement, but only a license, since it was not acquired in order to benefit
H‟s land as such, but merely so that he could further an independent business enterprise.

A different result may have been reached if the right granted had been to cross the canal in order to have access to
and from H‟s land, and if T‟s boats had been so numerous that they interfered with that right. In such a situation, H
would have had an easement of way and he could have obtained an injunction to restrain T from interfering with the
easement.

C. THE DOMINANT AND SERVIENT TENEMENTS MUST NOT BE BOTH OWNED AND
OCCUPIED BY THE SAME PERSON
It is a basic rule that a person cannot have an easement over his own land.

Example:

X, the fee simple owner of two adjacent plots, BlackAcre and WhiteAcre, and he is in the habit of driving across
WhiteAcre in order to reach the main road, he is not exercising an easement of way over WhiteAcre; he is simply
exercising his rights of ownership of WhiteAcre itself.

Here, X is both owner and occupier of both tenements, and as such, an easement is incapable of arising.

X‟s right in this case is called a “quasi-easement” for some purposes, and if X later sells the quasi-dominant tenement
[BlackAcre] and retains the quasi-servient tenement [WhiteAcre]. The purchaser of BlackAcre may acquire a
permanent easement over WhiteAcre.

If X, whilst remaining the fee simple owner off both plots, lets BlackAcree to T, a tenant. The two plots are now
occupied by different persons. Here, T can acquire an easement over WhiteAcre by express or implied grant [Miller v
Emcer Products Ltd], but he cannot acquire an easement by prescription [Kilgour v Gaddes].

If X lets BlackAcre to T and WhiteAcre to X, there will be diversity of occupation, and T can acquire an easement over
WhiteAcre by implied or express grant, though not by prescription.

Majid v Beepath

A tenant may acquire an easement against another tenant of the same landlord by grant, but for a period not
exceeding that of the latter tenant‟s lease.

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 3. THE RIGHT MUST BE CAPABLE OF FORMING THE SUBJECT MATTER
OF A GRANT
All easements “lie in grant” – in theory, every easement is created by grant, whether expressed or implied or
presumed.

No right can be an easement unless it is capable of being granted.

This proposition is unhelpful because it does not define what characteristics a right must possess in order that it may
be granted. But there are some basic requirements:

A. THE RIGHT MUST BE SUFFICIENTLY DEFINED – IT MUST NOT BE TOO VAGUE

If the right claimed as an easement cannot be reasonably defined, then it cannot exist as an easement. As such, a
right to light shinning into a particular window on the dominant tenement is sufficiently certain, but a general right to
the air flowing indiscriminately over the servient tenement is too vague to be an easement.

Webb v Bird

P claimed an easement of the free access of air to the sails of his windmill which he had enjoyed for 30 years (a claim
by prescription), and which had been obstructed by a building erected by the D.

Held: he could not acquire a right to wind and air coming in an undefined channel, for this was not a right known
to the law; it was too vague and uncertain.

A right to privacy may also be too uncertain to be rendered an easement.

Browne v Flower

An apartment consisting of 12 rooms on the ground, first and second floors of a building was let to T. Two years later,
another apartment on the ground floor was let to the P. Both apartments had windows overlooking a garden used by
the landlord. Some time afterwards. T subdivided her apartment and, with the landlord‟s consent, built and iron
staircase leading from the garden to an entrance t her apartment on the first floor. The staircase was ereted in such a
way that persons going up and down could see directly into the P‟s bedroom.

Held: there was no easement which had been interfered with by the building of the staircase. The law does not
recognize any easement of privacy.

An easement “jus spatiandi” – a right to wander at large over the servient tenement [e.g. where the servient
tenement is a park of field] – is generally too vague to be an easement.

The right to use a defined pathway across the servient tenement to pass from the dominant tenement to a place
beyond the servient tenement is recognized as an easement of way, but the right to wander at large for recreation has
always been considered to be too vague and uncertain to be an easement.

Re Ellenborough Park

The White Cross Estate which included Ellenborough Park, was being developed as a housing estate. The land
surrounding the park had been divided into plots and sold to different purchasers. The conveyances of each plot
granted to the purchaser “full enjoyment at all times hereafter, in common with the other persons to whom such
easements may be granted, of the pleasure ground”. The vendors covenanted to keep Ellenborough Park as an
ornamental pleasure ground, the expense to be shared by all the purchasers.

Held: the rights were valid easements, notwithstanding that they might involve a jus spatiandi or some
analogous right, since:

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  There were clearly dominant and servient tenements
 The servient tenement accommodated the dominant tenements [adjacent dwelling houses] since the right to
use the park was connected with the enjoyment of the residences. The park was to be a communal garden for
the benefit of the owners of the adjoining houses and clearly enhanced the enjoyment of those houses] and;
 The right was not too vague or uncertain, since it was for the benefit of a limited number of houses, all
bordering the park.

B. THE RIGHT MUST NOT SUBSTANTIALLY DEPRIVE THE SERVIENT OWNER OF

POSSESSION OF THE SERVIENT TENEMENT
A right will not be recognized as an easement if it substantially deprives the owner of the servient tenement of his
possession of the land or if it amounts to a claim to joint possession of the servient tenement.

Copeland v Greenhalf

P was the owner of an orchard and an adjoining house. Access to the orchard was by way of a strip of land [also
owned by P] about 150ft long and averaging 25ft in width. D was a wheelwright whose premises were directly
opposite the strip of land. D proved that for 50 years, he and his father before him had, to the knowledge of the P.
used one side of the P‟s strip of land to store and repair vehicles in connection with his business. He always left room
for the P to have access to the orchard. D claimed that he had acquired an easement by prescription to park and
repair his vehicles on the strip. P sought to restrain him from doing so.

Held: the right claimed by D was not an easement, since it was “virtually a claim to possession of the servient
tenement” – the D claimed to leave as many vehicles as he liked there, for as long as he liked, and he claimed to
enter whenever he liked and do repair work there.

Upjohn: “that is not a claim which can be established as an easement. It is virtually a claim of possession of the
servient tenement; if necessary, to the exclusion of the owner; or at any rate to a joint user.”

In other words, the right claimed was both too uncertain and too extensive to be an easement. However, this was a
claim to an easement by prescription, and therefore the question whether such a right could be acquired as an
easement by express grant or reservation was left open.

Grigsby v Melville

Held: the right to occupy a cellar in the P‟s house could not be an easement since, to all intents and purposes, it
would give an exclusive right to use the whole of the servient tenement [cellar] and would substantially deprive
the owner of the servient tenement of possession of it.

Although Brightman J expressly followed Copeland, he need not have done so because:

In Grigsby – there was an easement of storage by way of express reservation in the conveyance “there is reserved to
the vendor such rights and easements as may be enjoyed in connection with the said adjoining property.”

Copeland was a case of prescription, and the question as to whether an easement such as the one claimed could have
been acquired by express grant or reservation was left open, as such, it was not necessary for Brightman to have
followed Copeland.

Wright v Macadam

Held: the right of a tenant to store her coal in a shed was capable of being an easement and could pass on a
conveyance under s 62 of the Law of Property Act 1925.

Grigsby is difficult to reconcile with Wright v Macadam.

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Brightman J disposed of Wright on the ground that the facts were not wholly clear from the report, so that it was
difficult to know whether the tenant had exclusive use of the coal shed or of any defined part of it.

Miller v Emcer Products

An easement to use a washroom was upheld, even though it could be argued that the servient owner would be
dispossessed from the washroom when it was in use.

In this area, there seems to be some uncertainty as to whether rights of storage can rank as easements.

PARKING
It is doubtful whether a right to park a vehicle in a particular place can be an easement.

Newman v Jones

A right to park a car anywhere in a large area does not amount to a claim to possession of any space and so can rank
as an easement, but a right to park a car in a particular reserved space amounts to a claim to possession of the whole
servient space, and so cannot be an easement.

This would be very inconvenient where there are apartment blocks with ground floor or basement car
parks, and where car spaces are allotted to the residents.

Hayton (1973)

If the interpretation of Copeland and Grigsby is correct, the most practical solution would be either to grant leases
or licenses of each parking space to each resident, or to grant a general easement of parking to all the residents,
ensuring that some sort of practical arrangement is worked out as between all the residents involved.

C. THERE MUST BE A CAPABLE GRANTOR AND GRANTEE

In the case of a grantor, if the grantor has no power to grant easements [e.g. where the grantor is a company or a
statutory corporation and the grant would be ultra vires], then any purported grant would not create an easement.

With respect to the grantee, [such as inhabitants of a village] he /they cannot acquire an easement, although he /they
can acquire a customary right to do something, e.g. to use a footpath across private land in order to reach the local
church, or to play cricket on an area of land.

4. AN EASEMENT MUST BE NEGATIVE FROM THE POINT OF VIEW OF

THE SERVIENT OWNER- IT MUST NOT INVOLVE THE SERVIENT
OWNER IN ANY EXPENDITURE
A right cannot be an easement if it involves expenditure by the alleged servient owner.

Rance v Elvin

A servient owner is under no obligation to carry out any maintenance or construction work which may be needed for
the enjoyment of an easement.

Exceptions:

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 a. Crow v Wood - where there is an easement of fencing, the servient owner is bound to maintain the fence for
the benefit of the dominant tenement, notwithstanding that the maintenance will involve expenditure of
money; and

b. Where the parties have expressly or implied agreed that the servient owner is to be responsible for
maintenance; Liverpool CC v Irwin - a local authority which had let apartments in a high-rise building to
tenants was held liable under an implied contract to maintain easements of access over the common parts of
the building.

LEGAL AND EQUITABLE EASEMENTS

Easements, at common law, usually take effect as legal interests binding all successors in title to the servient
tenement.

In order to be valid at law, an easement must be created by deed.

S 60 (Barbados Law of Property Act) – only requires writing.

Legal easements may also be acquired by prescription, in which case long use in effect takes the place of a deed.

Wash v Longsdale principle– an easement which is granted without the proper formalities may take effect as
an equitable easement.

In Barbados (s 3), Belize and England – an easement other than for an interest in fee simple or for a term of
years [e.g. an easement for life], will take effect as an equitable easement only.

ACQUISITION OF EASEMENTS
1. EXPRESS GRANT
No special form of words is required for the express grant of an easement, provided the extent of the easement and
the description of the dominant tenement and servient tenements are reasonably clear.

Johnstone v Holdway

The dominant tenement will usually be described in the deed, but, if it is not, the court may consider all surrounding
circumstances in ascertaining whether there is a dominant tenement.

2. EXPRESS RESERVATION
This arises where the owner of land sells part and retains the rest, and wishes to reserve an easement over the land
sold in favour of the land retained by him.

At common law, a vendor cannot directly reserve for himself any easements over the land sold. He can only do so
indirectly by getting the purchaser to re-grant the easement back to him by executing the conveyance.

Section 69 of the Law of Property Act, Barbados, has now made such a re-grant unnecessary, by providing that
the reservation of a legal estate or interest shall “operate at law without any execution of the conveyance by the
grantee or any re-grant by him.

It is possible on the sale of land for the vendor to reserve for himself and easement in favour of land retained by him
and against the land sold.

Johnstone v Holdway
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The vendor conveyed land to the purchaser, and in the conveyance inserted “except and reserving unto the company
and its successors in title… a right of way at all times and for all purposes (including quarrying).”

Held: an easement of way had been validly reserved by the vendor.

IMPLIED GRANT
If D owns two adjacent plots, BlackAcre and WhiteAcre, and D habitually crosses WhiteAcre in order to reach a
minimart on the other side of WhiteAcre, D is not exercising an easement, but simply making use of his rights as
owner of WhiteAcre.

Although a person cannot have an easement over his own land there is nothing to prevent a purchaser of land from
acquiring an easement over other land retained by the vendor.

BlackAcre is called the quasi-dominant tenement and White-Acre the quasi-servient tenement. Such an easement may
be granted expressly; but if, owing to incompetent drafting of the conveyance or for any other reason, no express
grant of easements is made, the purchaser may still be able to rely on the rules of law whereby easements are implied
in his favour.

There are three categories of easement which may be implied in favour of the purchaser:

1. Easements of necessity
2. Intended easements; and
3. Easements under the rule in Wheeldon v Burrows.

1. EASEMENTS OF NECESSITY
This most often arises when the land sold is completely surrounded by the land retained by the vendor, or by the
retained land and land in possession of a third party, and unless a right of way is implied over the surrounding
land, the purchaser of the landlocked plot would have no access to and from his land. In these circumstances, an
easement of way will be implied over the quasi-servient tenement.

Crooks v Browne

In registered land, the omission to indicate the landlocked parcel and the proposed right of way on the certificate
of title of the servient land does not prevent an easement of necessity from arising.

Nikerson v Barraclough

First instance: Megarry J: - the doctrine of easements of necessity is based on public policy, in that it is against
public policy that the land should be made inaccessible.

Court of Appeal: the doctrine was based on the presumed intention of the parties.

Given this ruling, the distinction appears be blurred between easements of necessity and intended
easements.

Wong v Beaumont Property Trust

By lease made in 1957, three cellars were let to the predecessor in title of the present tenant by the predecessors
of the present landlord, for a period of 21 years. In the lease, the tenant covenanted to use the premises as a

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 popular restaurant and to control all odors according to health regulations, so as not to become a nuisance.
Although the parties did not realize it at the time the lease was made, it was necessary, in order to prevent smells,
to construct a ventilation duct to the outside wall of the premises, the wall being in the possession of the landlord.
Because the parties did not realize the necessity of this, no duct was built. In 1961, P bought the remainder of the
lease and developed the premises into a successful Chinese restaurant. The odors coming from the restaurant
caused the occupant of the floor above to complain, and the public health inspector required the duct to be built.
The landlord refused to allow the duct to be built, and the P sought a declaration that he was entitled to do so.

C.A (including Denning MR): The P was entitled to an easement of necessity, since the covenants in the lease
relating to the carrying on of the restaurant business, not to cause a nuisance by ordors, and to comply with
the Public Health Regulations, could not be performed without the ventilation duct. The result was that the P
was entitled to construct the duct and to enter the landlord‟s part of the premises in order to maintain and
repair it.

Meaning of “Necessity”
An easement of necessity will be implied in a conveyance only where, without such an easement, the
property could not be used at all.

It will not be implied merely on the ground that it would be necessary to the reasonable enjoyment of the property.

MRA Engineering v Trimster

Held: the conveyance of the quasi-dominant tenement was not granted an easement of necessity in the form
of a drive-way for cars. There was no existing access to the property by the car, but there was access by foot
over a public footpath. The lack of access by car made the use of the quasi-dominant tenement more difficult
and inconvenient but it was not inaccessible.

Manjang v Drammeh

Access was available by water across the River Gambia, “albeit less convenient than access across terra firma.”

Held: no easement of necessity would be implied.

Boisson v Letrean

The court refused to imply an easement of necessity where there was a means of access, albeit over
mountainous and difficult terrain.

Hamel-Smith J: although the mountain terrain to the dominant tenement is difficult, there is access and a way of
necessity can only exist where the alleged implied grantee of the easement has no other means of reaching his land.
If other means of access exist, no matter how inconvenient, an easement of necessity cannot arise, for the mere
inconvenience of an alternative way will not itself give rise to a way of necessity.

Rampersad v Jattan and Ramdass v Ramdass

a. The doctrine applies not only where the common owner of two parcels of land sells one for value [retaining
the other], but also where one parcel is devised by will or conveyed voluntarily inter vivos.
b. Once the P has established that his parcel is landlocked, the onus shifts to the D to show the existence of an
alternative route.
c. The D must show that there is a legally enforceable means of access. Any access over private land, where use
is by permission of the owner, will be disregarded.
d. Where the court does imply an easement of necessity, it must be a convenient one;
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 e. A way of necessity, once created, may not be varied by the servient owner, even where the altered way is
equally convenient.

2. INTENDED EASEMENTS
Pwllbach Colliery Co v Woodman – Per Lord Parker:

The court may readily imply the grant or reservation of easements as may be necessary to give effect to the common
intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land
granted is to be used. But it is essential for this purpose that the parties should intend that the subject of the grant
should be used in some definite and particular manner.

Intended easements in this sense are not essentially different from easements of necessity, in that a common
intention to grant a particular easement will normally exist only in cases of necessity. Wong v Beaumont Property
Trust - this case can be categorized under either heading.

Also, the mutual easements of support implied in favour of adjoining duplex houses would appear to fall under both
heads.

EASEMENTS IMPLED UNDER THE RULE IN WHEELDON V BURROWS

Example:

X owns two adjoining tenements, GreenAcre and BlueAcre, and he is in the habit of walking or driving across BlueAcre
as an alternative means of access from GreenAcre to the outside world, one cannot speak of X enjoying an easement
over BlueAcre, as X is merely exercising his rights as owner of BlueAcre itself;

but if X sells GreenAcre to Y, the doctrine of non-derogation from grant requires that Y should not be in a less
favourable position than X was, and Y may be entitled to an easement of way over BlueAcre.

X‟s enjoyment of the access across BlueAcre may conveniently be called a quasi-easement, which, on the sale of
GreenAcre, ripens into a full legal easement [Principle in Wheeldon v Burrows].

Held: upon the grant of part of the grantor‟s land, there would pass to the grantee as easements all quasi-easements
over the land retained which:

a. Were continuous and apparent; and

b. Were necessary to the reasonable enjoyment of the land granted; and
c. Had been, and were at the time of the grant, used by the grantor for the benefit of the part granted.

A. CONTINUOUS AND APPARENT QUASI-EASEMENTS

These are quasi-easements which are “accompanied by some obvious and permanent mark on the land itself, or at
least some mark which will be disclosed by a careful inspection of the premises.”

Examples:

Brown v Alabaster – a made road

Hansford v Jago – a worn track

Pyer v Carter – drains discoverable with ordinary care

Allen v Taylor – windows enjoying light.

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 B. NECESSITY TO THE REASONABLE ENJOYMENT OF THE LAND
Horn v Hiscock - this requirement may be satisfied despite the presence of some alternative means of access.

If the easement simply enhances the enjoyment of the land – e.g. where it affords a “short-cut” to some place outside
– the requirement will be satisfied.

C. USED PRIOR TO AND AT THE TIME OF THE GRANT

There must be evidence of actual use by the common owner prior to and at the time of the grant.

Sovmots Investment v Secretary of State for the Environment

A large high-rise office complex, “Centre Point”, was owned by S. at the time of the action, the building had never
been occupied, although it had been completed several months previously. 36 maisonettes on the top six floors of the
building were compulsorily acquired by the Camden Borough Council, which claimed that it had acquired easements of
support for the maisonettes from the building below. The council argued that the easements had passed under the
Wheeldon v Burrows doctrine.

Held: the doctrine did not apply since:

a. It was based on the principle that the grantor must not derogate from his grant, and it had no application
where the quasi-dominant tenement was acquired by compulsory purchase order;
b. The 3rd requirement of the Wheeldon v Burrows principle was not satisfied – there must be actual use and
enjoyment of the quasi-easement by the grantor at the time of the grant. This was not satisfied, since Centre
Point had never been acquired.

Myer v Charles

M agreed to sell a parcel of land in Antigua to C. The only means of access to the parcel was by an access road over
land retained by M. It seemed that, in any event, C was entitled to an easement of necessity over the land…however…

Held: C had acquired an easement under the rule in Wheeldon v Burrows.

Floissac CJ:

First, the appellants were the common owners of parcel 55 and the access road.

Secondly, during the common ownership, the appellants used the access road as the sole means of access to
parcel 55 from the public road, and vice versa.

Thirdly, the user of the access road was continuous and apparent [it was exercised over a visible access road]
and was evidently necessary for the reasonable enjoyment of parcel 55.

Fourthly, had parcel 55 and the access road belonged to different owners, the user of the access road would
have been indicative of an easement or right whereby parcel 55 would have been classified as the dominant
tenement and the access road would have been classified as the servient tenement. Thus, where the
appellants revered their ownership by selling parcel 55 [quasi-dominant tenement] to the respondents and
retained the access road [quasi-servient tenement], the grant of an easement or right of way over the access
road for the benefit of parcel 55 had to be implied.

IMPLIED RESERVATION

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This may arise where the common owner of two tenements sells the quasi-servient tenement and retains the quasi-
dominant tenement.

a. A grant is construed in favour of the grantee;

b. A grantor must not derogate from his grant.

Because of the [above principles], the law is reluctant to imply easements in favour of the vendor of land. If the
vendor wishes to retain rights over the quasi-servient tenement, he should expressly reserve them in the conveyance.
The only easements which will be implied in favour of the vendor are:

a. Easements of necessity; and

b. Intended easements.

Easements of necessity

The same rules apply here as apply to implied grant.

If the dominant tenement [BlackAcre] is completely surrounded by other land and the only means of access to and
from it is by way over the quasi-servient tenement [WhiteAcre], on a sale of WhiteAcre by the common owner, an
easement of way over WhiteAcre will be impliedly reserved for the benefit of BlackAcre retained by the vendor.

Intended easements

Any easements which are required in order to carry out the common intention of the parties will be impliedly reserved
for the grantor.

Shubrook v Tufnell

Where the owner of a duplex house sells one part and retains the other, an easement of support will be impliedly
reserved for the vendor‟s part, since this would be necessary to carry out the parties‟ common intention.

Non-applicability of Wheeldon v Burrows

The rule in Wheeldon v Burrows does not apply where the quasi-servient tenement is sold and the quasi-dominant
tenement is retained. If the vendor wishes to reserve easements in his favour, he should do so expressly in the deed
of conveyance.

SALES OF BOTH QUASI-DOMINANT AND QUASI-SERVIENT TENEMENTS

Where the common owner does not retain any land but sells both tenements to different purchasers, the result
depends on whether the sales are contemporaneous or not:

a. Where the sales are contemporaneous, the rule in Wheeldon v Burrows applies. All those continuous and
apparent quasi-easements which were in use at the time of the sales pass by implication with the quasi-
dominant tenement. Where for e.g. V sells the quasi-dominant tenement to X and the quasi-servient tenement
to Y, and the sales are contemporaneous, the result is the same as if V had sold the quasi-dominant tenement
and retained the quasi-servient tenement; X will be entitled to easements of necessity, intended easements
and continuous and apparent easements under Wheeldon v Burrows.

b. Where the sales take place at different times, the rule is that the later purchaser is in the same position as his
vendor. If the vendor first sells the quasi-servient tenement, he will not, in the absence of an express
reservation, be entitled to easements over the land sold, except for easements of necessity and intended
easements over the land sold, nor will a subsequent purchaser of the quasi-servient tenement be in any better
position; but if he first sells the quasi-dominant tenement, the purchaser may also enforce continuous and
apparent easements under Wheeldon v Burrows against a subsequent purchaser of the quasi-servient
tenement to the same extent as he could have done against the vendor.
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ACQUISITION UNDER STATUTORY PROVISIONS
Section 62 (1) Law of Property Act, 1925 – unless a contrary intention is expressed in the conveyance:

A conveyance of land shall be deemed to include, and shall by virtue of this Act operate to convey with the
land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, watercourses, liberties,
privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land or
any part thereof, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.

A similar provision can be found in Section 66 [Barbados] / s 9 of Conveyancing Act [Jamaica].

PUPROSE OF THE PROVISIONS

The object is to ensure that a purchaser of land will automatically acquire the benefit not only of easements
appurtenant to the land, but also of other rights and privileges which have previously been enjoyed by the owners and
occupiers of that land.

The purchaser will acquire all such rights without the need for express words in the conveyance.

The wording of this provision is so wide that the purchaser will acquire even those privileges that were previously
enjoyed only by way of permission of the vendor; the provisions have the effect of converting mere licenses into
easements.

International Tea Stores v Hobbs

D, who owned two houses, let one of them to a tenant for business purposes, and frequently gave permission to the
managers of the business to pass and re-pass across a yard in the D‟s possession. The tenant later purchased the
reversion of the property let, nothing being expressed in the conveyance about any right of way across the yard.

Held: he had acquired an easement of way by virtue of s 6 of the Conveyancing Act, 1881, since the statute
was wide enough to convert mere licenses into easements.

The provisions apply wherever there is a conveyance of land.

Conveyance includes not only a conveyance on sale of the fee simple, but also the renewal of a lease, provided that it
is made by deed or writing and not merely by word of mouth.

Wright v Macadam

In 1940, M let a top floor flat in his house to W for one week. After the end of the week, W continued in occupation as
a statutory tenant under the Rents Act. One year later, M gave W permission to use a shed in the garden to store her
coal. Two years later, M granted a new tenancy of the flat to W by an unsealed written document which made no
reference to the use of the shed. W enjoyed the use of the shed until 1947, when M demanded that she pay an extra
rental for the privilege. When W refused, M denied her further use of the shed.

Held: W had acquired an easement to use the shed under s 62, and was entitled to an injunction to restrain
interference with her use of it.

a. The word “conveyance” included a tenancy made in writing, since the agreement passed a legal estate and
therefore amounted to a conveyance;
b. A right enjoyed by mere permission can pass as an easement under s 62 [Hobbs Case];
c. To pass an easement, the right must be one known to the law, - one which is capable of being recognized as
an easement right to use a coal shed for the purpose of storing coal for domestic use could clearly be

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 recognized as an easement. It was a right of a kind which could have been included in a lease or conveyance
by the use of appropriate express words and
d. It could not be said that the parties intended a merely temporary right to use the shed, since no time limit
was set for the use.

LIMITATIONS ON THE APPLICATION OF THE PROVISIONS

For a license to be converted into an easement under s 62 and its equivalents, it is irrelevant whether the purchaser
had an enforceable right over the vendor‟s land before the conveyance.

The question rather is whether a licence or privilege was in fact enjoyed by the purchaser. It is was enjoyed, then it
will ripen into an easement by virtue of the section.

The vendor of land [as in Hobbs] or the lessor about to renew a lease should be careful to expressly exclude the
operation of the provisions from the conveyance, lest any licenses or privileges should be converted into fully fledge
easements.

THE RIGHT CLAIMED UNDER THE PROVISIONS MUST BE CAPABLE OF BEING AN

EASEMENT – IT MUST BE RECOGNISED BY LAW AS AN EASEMENT
A right to protection from the weather, or a right to privacy, because they are not capable of being an easement, a
claim on their behalf will fail.

Green v Ascho Horticulturalist

In 1939, the landlord B, granted a lease of premises to G for use as a shop. When this lease expired, in 1945, B
renewed the lease, and in 1959 the lease was further renewed. B, who also owned adjoining property, allowed G to
use a passageway which ran from the back of the demised premises to the main street, for the purpose of loading and
unloading his fruit. G made considerable use of this passageway, but B told him he could not use it at certain times
when B required it for his own purposes. G acquiesced to that restriction. G claimed that this privilege had been
converted into an easement of way by virtue of s 62 when the lease was renewed in 1945.

Held: the right claimed was incapable of being an easement, since G‟s alleged right of way was restricted in
that he could only exercise it when B permitted him to do so.

Cross J: “a purported right of way for such period as the servient owner may permit one to use it would not confer
any legal right at all”.

Such a restriction is inconsistent with an easement of way, the essence of which is that it can be exercised at any time
without regard to the wishes of the owner of the servient tenement. G could not therefore claim that he had acquired
an easement under s 62.

Wright v Macadam

The right to store coal in a shed on the servient land was capable of being an easement and passed as such under s
62.

Newman v Jones

A right for a landowner to park a car anywhere in a defined area nearby is capable of existing as an easement. On the
facts, the right to park on the forecourt of an apartment block passed as an easement under s 62.

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SECTION 62 WILL NOT OPERATE UNLESS THERE HAS BEEN SOME DIVERSITY OF
OWNERSHIP OR OCCUPATION OF THE DOMINANT AND SERVIENT TENEMENTS PRIOR
TO THE CONVEYANCE.

Long v Gowlett has been criticized by academic writers.

Sovmots Investments Ltd v Sec of State for the Environment

One of the claims of Camden Borough Council was that the effect of the compulsory purchase order relating to the
maisonettes in the Centre Point complex was to bring s 62 into play, so that the council acquired all ancillary rights of
support, drainage, etc, automatically as easements.

Held: s 62 did not apply, since there had been no diversity of ownership or occupation prior to the
conveyance, in that Sovmots Ltd had at all times owned the entire complex and no part of it had been
occupied by anyone else.

Lord Wilberforce:

Whatever the owner does, he does as owner, and until separation occurs, of ownership or at least of
occupation, the condition for the existence of rights, etc does not exist.

THERE MUST BE A “CONVEYANCE” OF LAND

Wright v Macadam

The word “conveyance” was interpreted widely to include not only deeds of conveyance and leases by deed, but also
tenancies made by writing.

However, excluded are: purely oral tenancies [Rye v Rye] and agreements to lease [Re Ray].

SECTION 62 MAY BE EXCLUDED BY EXPRESS EXCEPTION IN CONVEYANCE

The vendor or lessor may expressly exclude the operation of s 62 or its equivalents in the conveyance or lease. He can
insert a clause in the conveyance or lease expressly excepting from it any advantages, privileges, or licenses hitherto
enjoyed in respect of the land sold. In reality, the prudent vendor or lessor should always ensure that such a clause is
inserted.

David v Stollmeyer

CS granted a 99 year lease of a parcel of land with a dwelling house thereon to the D / appellant. The lease contained
the usual covenants, but there was no reference in the lease to the supply of water. At the time of the execution of
the lease, water was supplied to the premises by a pipe through which it was conveyed by natural gravitation from a
reservoir situated on premises which were retained by CS. The source of the water that flowed into the reservoir was
a natural spring. These waterworks had been operated by CS for many years prior to the lease, and, after execution of
the lease, the appellant continued to receive water from the reservoir. In Feb 1951, the reversion in the parcel of land
demised to the appellant, together with the other part of the estate retained by CS, was sold and conveyed to the P
company. The company brought an action claiming the sum of $74 for water supplied to the appellant. The appellant
argued that he had a right to the supply of water by way of easement which had arisen on the execution of the lease,
by virtue of s 16 (2) of the Conveyancing and Law of Property Ordinance, which provided that “a conveyance of land,
having houses or other buildings thereon, shall be deemed to included and shall….operate to convey with the land…all

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watercourses, liberties, privileges, easements, rights and advantages…appertaining to the land…or at the time of the
conveyance…enjoyed with the land..”

Held: at the time of the execution of the lease, the appellant acquired a right to the normal water supply that
flowed from the reservoir of the demised premises, such right being capable of passing to a lessee as an
easement under s 16 (2) of the Ordinance.

ACQUISITION BY PRESUMED GRANT [PRESCRIPTION]

The law presumes that a person who has, in fact, enjoyed a right for a considerable period of time was, at some time
in the past, granted an easement by deed. This concept of acquisition by long enjoyment is called prescription. It is a
legal fiction, designed to uphold a right which has been continuously enjoyed, and on the other hand, paying lip
service to the principle that every easement must originate in a grant.

BASIS OF PRESCRIPTION

The doctrine of prescription is based on acquiescence by the servient owner in allowing somebody to exercise what
amounts to an easement over his land for a long time without doing anything to stop him.

Dalton v Angus

Fry J: the law governing prescription rests upon acquiescence. Acquiescence in most cases involves: the
doing of some act by one man on the land of another; the absence of a right to do that act in the person
doing it; the knowledge of the affected by the act to prevent such act either by act on his part or by action in
the courts; the abstinence by him from any such interference for such a length of time as renders it
reasonable for the courts to say that he shall not afterwards interfere to stop the acts being done. In the case
of lights for e.g. some of these ingredients are wanting….generally…there must be (i) knowledge of the
acts done (ii) a power in him to stop the acts or to sue in respect of them; and (iii) an abstinence
on his part from the exercise of such power.

REQUIREMENTS FOR PRESCRIPTION

The long enjoyment must be:

a. As of right
b. Continuous and
c. In fee simple.

A. USER AS OF RIGHT
The enjoyment must not have been by force, in secret or by permission [nec vi, nec clam, nec precario].

Nec vi:- user by force includes not only physical violence [where the claimant breaks open a locked gate or pulls
down a fence], but also where the claimant continues his user despite the servient owner‟s continual protests for in
neither case can the enjoyment be said to have been acquiesced in by the servient owner.

Nec clam:- the user was secret i.e. without the knowledge of the servient owner, there can be no prescription;

Liverpool Corp v Coghill

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Ps claimed an easement to discharge waste fluid from a factory into sewers belonging to a local authority.

Held: the Ps had not acquired an easement by prescription since the discharge had been nocturnal and
intermittent, and without the knowledge of the local authority.

Union Lighterage v London Graving Dock Co

D claimed an easement of support for its wharf.

The claimed failed because D had fixed its wharf to P‟s land by means of underwater rods which were invisible, apart
from two nuts protruding above the surface of the water.

If the servient owner deliberately shuts his eyes to the conduct of the claimant, the defence of claim will not avail him,
since he will be held to have constructive knowledge of the user.

Diment v Foot Ltd

D and F owned adjacent farms. F claimed that, between 1936 and 1976, he and his predecessors in title had used a
way across an outlying part of D‟s farm. The only visible evidence of access from F‟s farm to D‟s farm was a gate fixed
at the point where F claimed the access. During the period of user, D had been absent from her farm, visiting it only
once a year. The farm had been let on 4 separate agricultural tenancies, and a firm of surveyors had been appointed
as agents to manage the land during D‟s absence. D argued that F could not have acquired an easement by
prescription since she, D, was unaware that F or his predecessors were crossing her land.

Held:

a. D did not have constructive knowledge of F‟s user; the mere sight of a gate leading to D‟s land would
not have put D on any further inquiry as to why the gate was there;
b. Although there is a presumption that the servient owner knows of a user of way, the presumption
could be rebutted by evidence that he did not have such knowledge, as was the case here; and
c. No knowledge was proved to have acquired by D‟s agent, so no knowledge could be imputed to D.

Nec precario:- user who has been enjoyed with the permission of the servient owner cannot become an easement
by prescription, for the fact that the permission was granted shows that the servient owner could not have acquiesced
in the claimant‟s exercising the easement as a matter of right, since the permission could be withdrawn at any time.

Gardner v Hodgston’s Kingston Brewery

Held: a woman who had used a cart-way from her stables through the yard of an adjoining inn for 60 years
did not acquire an easement, because she paid 15 shillings a year for the privilege. The user was by
permission and not as of right.

A landowner can easily prevent a neighbour from acquiring a prescriptive easement of way over his land
by requiring that the neighbour make a nominal periodic payment for the use of the way.

A license or permission granted as an act of good neighbourliness cannot be converted into an easement by
prescription.

Although a license to do something on the servient owner‟s land, whether gratuitous or contractual, cannot develop
into an easement by prescription, since the user will be by permission, it may be converted into an easement under s
62 of the Law of Property Act or its equivalents if the conditions of the section are met.

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B. CONTINUOUS USER

The degree of continuity needed depends on the type of easement claimed.

An easement to receive support from a building must necessarily be enjoyed “round the clock” whereas an easement
to receive an uninterrupted flow of light must be enjoyed during the daylight hours.

An easement of way will be regarded as sufficiently continuous even where it is used only intermittently, for, by its
very nature, it will be used from time to time.

If the user is very occasional, for e.g. where a way was used only three times in 36 years, clearly there could be no
claim to an easement by prescription.

The user need not have been by the same person throughout the whole period. It is sufficient that the user is by
successive owners or occupiers of the dominant tenement – which would be the most usual case. Nor is there a
requirement for the user to be by the owner or occupier personally. It is sufficient if members of his family or regular
employees enjoy the user.

Ansaldi v Lee Lum

The use of a way by occasional day labourers going to and from their work did not confer an easement on the
employer/owner.

C. USER IN FEE SIMPLE

The user cannot ripen an easement unless it is by or on behalf of a fee simple owner against another fee simple
owner.

Practical effects:

a. An easement for a term of years cannot be acquired by prescription [though it can be acquired by
express or implied grant or reservation]. An easement acquired by prescription must be for an estate
equivalent to a fee simple estate;
b. In order to acquire an easement by prescription, it must be shown that the user began at a time
when the servient tenement was in the hands if a fee simple owner, since only then could a grant by a fee
simple owner be presumed. If at the time when the user began the servient tenement was occupied by a
tenant under a lease, there can be no easement by prescription. However, provided the servient tenement
was occupied by a fee simple owner at the beginning of the period of user, an easement may be claimed
despite the fact that, subsequently, the servient tenement was let to a tenant.
c. A tenant can claim an easement by prescription only on behalf of his landlord, i.e. he cannot claim an
easement for the remainder of his tenancy only. The rule that the tenant‟s claim must be on behalf of his
landlord has the following consequences:

 A tenant cannot claim an easement by prescription over other land occupied by his landlord, since a
person cannot have an easement against himself.

Example:

L, the owner of a two storey building lets the upper apartment to T, and occupies the lower apartment; T cannot
acquire by prescription an easement to use a toilet on the ground floor; though he could acquire such an easement by
express grant or under s 63 of the Law of Property Act or its equivalents.
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  If the landlord leases two separate plots to two tenants, one tenant cannot acquire an easement by
prescription against the other tenant, since the landlord cannot have an easement against himself.

METHODS OF PRESCRIPTION
These methods are cumulative and it is common for a claimant to rely on all three simultaneously.

1. PRESCRIPTION AT COMMON LAW

The claimant must show that he has enjoyed the user since time immemorial, i.e. from the time at which legal
memory is taken to have begun. This date is fixed at 1189 by the Statute of West Minister 1275.

The claimant must show enjoyment since 1189.

Darling v Clue

In order to relieve him from discharging this impossible burden of proof, the courts are willing to presume that
enjoyment has lasted from 1189, if proof is given of an actual enjoyment for 20 years.

This presumption however can be rebutted by proof that the easement could not possibly have existed since 1189.

Example:

If an easement of light to a building is claimed, the servient owner can rebut the presumption of user from 1189 by
proving that the building was constructed in 1975.

If the servient owner can show that at any time since 1180 the dominant and servient tenements were owned and
occupied by the same person, any easement would have been extinguished and the claim at common law would fail.
For this reason, claims to prescription at common law rarely succeed and claimants prefer to rely on the other two
methods.

2. PRISCRIPTION UNDER THE DOCTRINE OF THE LOST MODERN

GRANT
The courts, in light of the difficulties of proof under the common law, have developed the “very questionable theory”
and the “revolting fiction” of the lost modern grant.

If the claimant can show actual enjoyment of an easement for at least 20 years, the court will presume that an actual
grant was made at the time when enjoyment began, but that the deed had been lost.

Tehidy Minerals v Norman

D proved that they had been accustomed to graze their sheep on the servient tenement for more than 21 years.

Held: they had acquired a profit of pasture under the doctrine of the lost modern grant.

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The court presumed that sometime between Jan 20 1920, when the user began, and 5 Oct 1921, a grant by deed had
been made, but the deed had been lost in circumstances unknown to anyone. Even though it was extremely unlikely
that this had happened, the court was prepared to uphold the fiction.

The presumption of the lost modern grant cannot be rebutted by evidence that no such grant was, in fact made.

The doctrine is a pure legal fiction.

3. PRESCRIPTION UNDER THE PRESCRIPTION ACTS

EASEMENTS OTHER THAN LIGHT

Section 2 – Prescription Act 1832 – two prescription periods:

1. Where an easement has been actually enjoyed without interruption for 20 years, it shall not be
defeated by proof that it commenced later than 1189, but it may be defeated in any other way possible at
common law.

While the claim cannot be defeated by proof that the right could not have been enjoyed since time immemorial, it can
be defeated by proof that it was enjoyed by force, or secretly or by permission, or that there was no capable grantor.

2. An easement which has been enjoyed without interruption for 40 years is to be absolute and
indefeasible unless it appears that it was enjoyed by some consent or agreement expressly given by deed or
writing.

The only distinction between the 20 year and 40 year prescription periods is that an oral permission may defeat a
claim under the 20 year period, but not one under the 40 year period. Despite the wording “absolute and indefeasible”
it appears that user must be as of right and there must be a capable grantor.

Section 35 Limitation and Prescription Act (Barbados) contains identical provisions as the above.

Trinidad and Tobago (ss 2 and 4) however has a single prescription period of 16 years.

Hart v Pierce

P owned a property called “Cleveland”, situated on the seaward side of the main road at Worthing, Christ Church. D
owned a neighbouring house, “Penrith”. He was also the owner of a narrow strip of land, which he had purchased in
1962, located behind “Cleveland” and stretching from the main road to the sea. This strip was 20 ft wide and about
280 ft long, and provided the occupiers of “Perith” with access to the beach. Ps claimed that from 1943 until 1964,
they, they children and their servants had habitually walked over the strip to the beach without objection from the
owners of the strip and without any permission to do so. D argued that there was uncertainty as to the way over
which the easement was claimed, in that it was not clear whether the Ps had habitually walked down the centre of the
strip to the beach or whether they had used a 4 ft way running along the eastern portion of the strip.

Held: Ps were entitled to a right of way under s 34 of the Limitation and Prescription Act by virtue of
their continued use of the strip for 21 years.

The uncertainty as to the precise path used by the Ps was not fatal to their claim, and the path which they were
entitled to use would be that which constituted the nearest way they could take to the beach.

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OTHER PROVISIONS IN THE ACTS see pages 214-218

Prescription Act 1832:

a. Enjoyment must be for the period “next before the action” – 20 years or 40 years immediately
preceding the action.
b. Enjoyment must be without interruption by the servient owner, but no act of the servient owner will
be declared to be statutory interruption unless acquiesced in by the dominant owner for one year after he had
notice of the interruption.
c. Any period during which the servient owner was under a disability [infant, lunatic, or tenant for life or
during which time there was an action pending and diligently prosecuted] may be deducted from the 20 year
period. Except for tenancy for life, these disabilities do not apply to the 40 year period; though any period
during which the servient tenement was held for a term of years exceeding 3 year s must be deducted from
the 40 year [but not from the 20 year] period.

EXTENT OF EASEMENTS
Easements acquired by express grant or reservation
If an unrestricted right of way is granted expressly, it will not be confined to the purpose for which the dominant land
was used at the time of the grant.

White v Grand Hotel Ltd

An unrestricted right of way over the servient tenement was not to be limited to the purposes existing at the time,
that is, for the benefit of the private house.

When the private house was later converted into a hotel, the owners of the hotel were entitled to use the way for the
general purposes of the hotel.

National Trust v White

P was the grantee of a right of way over a track across the D‟s farm, under a 1921 conveyance, for the purpose of
access to a historic site. In 1973, the P built a lgarge car park at the end of the track. D complained of the increase in
volume of traffic using the track alleging that it adversely affected the enjoyment of the D‟s land.

Held: the user of the easement of way was not excessive, since access to the car park was required not for
the enjoyment of the car park itself, but in order to visit the site; the user was ancillary to this purpose and
came within the terms of the grant.

Naime v Rockley Country Club

M in 1937 conveyed a residential property to a purchaser, expressly reserving in favour of adjacent lad retained by
him, which at the time was a disused golf course, an easement over the property to go, return, pass and re-pass by
day and night over and along the said portion of land… with or without…carts, trucks, carriages or motor cars or other
motor vehicles of all kinds laden or un-laden. Ds, who subsequently purchased the dominant land from M, redeveloped
the land into a large resort, comprising over 300 apartments, a gold course, tennis courts, swimming pools,
restaurants, bars and a disco. P, the present owner of the House, claimed in 1980 that the D had caused an
unjustified enlargement of the right of way by altering the character, nature and extent of the user.
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He complained of a constant flow of traffic to and from the resort, including mini-mokes, private cars, coaches, and
even Transport Board buses.

Held: there was nothing in the context of the conveyance of 1937 which limited the words by which the
reservation o the right of way was made. Full effect must be given to the grant; one cannot consider the
subsequent user as in any way sufficient to cut down the generality of the grant.

St. Edmundsbury Diocesan Board v Clark

Land adjoin a church was conveyed by the church authorities to the D subject to a reservation of “a right of way over
the land coloured red on the plan to and from St. Botolph‟s church”.

Issue: whether the right of way reserved by the church authorities was a right exercisable on foot only, or whether it
included use with vehicles.

The land over which the right was exercisable was a narrow strip, two thirds of it being a derelict gravel and sandy
path covered with leaves. It was only 4.5. ft wide, and there were two gateposts at the end of it, only 4ft apart. There
was no evidence that the oath had been used by vehicles before the time of the grant in 1945.

Held: in light of the surrounding circumstances, the right of way would be construed as being limited to use
as a footpath only.

Easements acquired by implied grant or reservation

Corporation of London v Riggs

Land conveyed by the vendor to the corporation completely surrounded land retained by the vendor. At the time of
the conveyance, the landlocked plot was used for agricultural purposes.

Held: the easement of necessity was limited to those purposes and could not subsequently be used for
carrying building materials to and from the dominant tenement on which the owner proposed to build a
restaurant.

This was a case of implied reservation which, in accordance with the rule that a grantor must not
derogate from his grant, was construed strictly against the vendor.

It is not clear whether a different decision would have been reached had this been a case of an implied grant.
However, the extent of the right will be limited by reference to the established or contemplated use at the time of the
conveyance or transfer that gave rise to the easement.

Held: a way of necessity is strictly limited to the circumstances of the necessity which existed at the time of
the conveyance.

Milner Safe Corp v Great Northern and City Rly

Held: where a testator devised adjacent plots to different person, one of which was later bought by the
defendants for conversion into a railway station, a right of way which had been used in the testator‟s lifetime
for domestic purposes could not be converted into a means of access to the station for the general public.

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Easements acquired by prescription
The extent of such an easement is limited to the purposes for which the land has, in fact, been used
during the prescription period.

An easement cannot be extended to purposes radically different from those enjoyed during the period.

Example:

If a right of way over the servient tenement was acquired by 20 years‟ user, during which time it was used for
carrying agricultural produce to and from the dominant tenement, it cannot subsequently be used for transporting
heavy machinery to and from a factory which is later built on the dominant tenement.

Where an easement to use a path leading to a shop is acquired by prescription, and there is an expansion of the
business and consequent increase in the number of customers coming to the shop, the easement will extend to the
increased use, since it is a matter of increase in intensity rather than a change in character of the user.

Bernard v Jennings

TB, the P‟s predecessor in title, had regularly used a strip of land on the D‟s adjacent property for gaining access to his
property both on foot and with a mule-drawn cart which he used for conveying coca and copra. After TB died in 1947,
the Ps tended to TB‟s land and continued to use the strip of land, but only on foot. In 1962, the Ps conveyed a portion
of their land to CA, who built a house thereon. Shortly afterwards, the Ds erected a barbed wire fence and placed logs
across the strip in order to prevent cars from passing along it. Ps sought a declaration that they were entitled to an
easement of way over the strip on foot and with vehicles, under s 2 and 4 of the Prescription Ordinance.

Held: the right of way on foot had been acquired by the Ps under the Prescription Ordinance. However, the
award of damages was not justified, since the obstruction of the way was not wrongful, being designed to
prevent the passage of vehicles and not that of pedestrians. In addition, if the excessive user of an easement
cannot be abated without obstructing the whole user of the easement by the person who is unlawfully
exceeding his right, the owner of the servient tenement is entitled to obstruct the whole of that user.

EXTINGUISHMENT OF EASEMENTS
An easement may come to an end in the following ways:

1. BY UNITY OF OWNERSHIP AND POSSESSION OF THE DOMINANT AND SERVIENT

TENEMENT

If the fee simple of both tenements become vested in the same person, and that person is in actual possession of
both then any easement of way across the servient tenement is extinguished.

If X later sells the two plots to different persons, the easement is not revived. If there is unity of ownership only, the
easement continues until there is also unity of possession; and if there is unity only of possession, the easement is
merely suspended until the unity of possession ceases.

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Where the fee simple owner of the dominant tenement acquires a lease of the servient tenement, any easement will
be merely suspended and will revive when the lease terminates or is assigned.

2. BY EXPRESS RELEASE BY DEED

At common law, a deed is required for an express release of an easement.

Waterlow v Bacon

In equity, an informal lease is effective if, in the circumstances it would be inequitable for the dominant owner to claim
that the easement still exists, for e.g. where he has given verbal consent to the light being obstructed and the servient
owner has expended money in building the obstruction.

3. BY IMPLIED RELEASE [ABANDONMENT]

If the dominant owner, by his conduct, shows an intention to abandon the easement, then it will be extinguished by
implied release. Whether there was an intention to abandon is a question of fact in each case. Conduct showing such
intention may take the form of any of the following:

a. A particular act –e.g. where the dominant owner has an easement of light to a building, and he
demolishes the building without any intention to replace it with a new one.

b. Non-user for a period sufficiently long to raise a presumption of abandonment. Twenty years‟ non-
user will normally be sufficient to raise the presumption, but non-user will not suffice if there are other
circumstances which show that the dominant owner did not intend to abandon.

Example:

If the user of a right of way has been discontinued for many years because the dominant owner had a more
convenient route over his own land, this may be a satisfactory explanation of the non-user, an there will be no
abandonment.

Dear v Wilkinson

P and D were the fee simple owners of two adjoining properties, know as Deal and Bungalow respectively, which were
originally part of a large area in common ownership.

The conveyance of Deal to the P‟s predecessor in title in 1913 included a grant of a right of way to the sea over a
pathway which was to be laid out across the Bungalow property. No pathway was ever laid out, and the condition of
Bungalow underwent damages, including leveling up, the erection of a sea wall, the planting of trees, and enclosure
with a wire fence. The successive owners of Deal were allowed access to the sea across Bungalow by, in one case,
written and in another, oral permission, on payment of an annual fee. The P claimed that he had an easement of way
across Bungalow under the terms of the 1913 conveyance. D pleased abandonment.

Held: there had been a valid grant of an easement of way in the 1913 conveyance and the fact of non-user,
coupled with the acquiescence of the successive owners of Deal in the conduct of the owner of the Bungalow,
amounted to abandonment and the easement had become extinguished.

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 MORTGAGES

The Parties

Mortgagee – creditor – lender - usually institutions

E.g. banks, ins. co

Mortgagor – debtor - borrower - usually individuals

or businesses

Definition, Characteristics and Form

- A legal or equitable disposition of a freehold or leasehold interest in property (land, building

included, or rarely chattel) to secure a loan with the proviso that it will be reconveyed once the loan
is repaid.
- Where the property is unregistered the mortgage is created by the mortgagor transferring his
interest in the property to the mortgagee on the condition that it is retransferred to him upon full
repayment of the loan.
- Where the property is registered a mortgage comes into effect when an execution of a
memorandum of charge is lodged with the registry.
- Equitable mortgages may be created
a. By deposit of deed to secure a loan
b. Under the Walsh v Lonsdale principle where there is an agreement for a legal mortgage.
c. Where the mortgagor has only an equitable interest in the property.
- The rights of the mortgagee take precedence over those of other creditors of the mortgagor.
- As long as the value of the property does not fall below the amount of the loan, the mortgagee is
sure to recover at least the full amount of the loan.

Rights of the Mortgagor

1. Legal right to redeem

At common law the mortgagor had a right to redeem his interest in the property on the exact day stated in
the agreement after which his interest was lost. However the deed by which most modern day mortgages
are created allows the mortgagor to redeem within a period after full repayment of the loan.

2. Equitable right to redeem

Equity allows the mortgagor to redeem at any time after the contractual date. It comes into effect only
when the redemption date has passed. The right to redeem may not be unduly restricted. A provision to
that effect will be voided by the courts.
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 3. Equity of redemption (ER)

This is the aggregate of the mortgagor‟s interest in the property after the mortgage is completed. It comes
into effect when the mortgage is created. It is transferable.

Clogging of the ER

Equity operates on the maxim „once a mortgage always a mortgage‟. It therefore will not allow the equity
of redemption to be clogged. Clogging is an attempt by the mortgagee to take advantage of the
mortgagor‟s financial position by:

a. excluding the mortgagor’s right to redeem

The courts, in order to protect the mortgagor whose bargaining power is weakened, have therefore not
upheld options to purchase included in the mortgage agreement [Samuel v Jarrah Timber] but have upheld
them where they were granted as a subsequent independent transaction [Reeve v Isle].

b. postponing the right to redeem for longer than is reasonable

Equity ensures that the requirements of a mortgage are met and that unconscionable terms are not
enforced. It is generally considered unreasonable for a mortgagee to postpone redemption past the date
when the loan is repaid. However this may be allowed where

i. it is not oppressive;
In Knightsbridge v Byrne the court held a clause limiting redemption until after 40 years to
be reasonable because it was not oppressive and the agreement was between two
experienced commercial entities.

AND

ii. it does not make the right to redeem illusory.

In Fairclough v Swan Brewery a clause preventing the mortgagor from redeeming leased
property until shortly before the termination of the lease was voided because it made the
right to redeem illusory.

c. reserving collateral advantages to be enjoyed after redemption.

A mortgagee will not usually be allowed any benefit other than the repayment of the loan with interest.
However in the absence of harsh and unconscionable dealing or unequal bargaining power, equity will
uphold the sanctity of a contract that provides for a collateral advantage. This is provided that

i. the advantage is not unfair or unconscionable

It was held in Cityland & Property v Dabrah that an advantage is unfair and unconscionable
and will not be upheld if given under grievous necessity and want of money. However, in
Multiservice Bookbinding v Marden the term „unfair and unconscionable‟ was held to mean
not just unreasonable but „imposed in a morally reprehensible manner‟ which „affects the
mortgagee‟s conscience‟.

AND

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 ii. The advantage does not unfairly restrict redemption
The court will void any advantage that prevents the mortgagor being restored to the position
he was in prior to the mortgage. The mortgagor must be able to redeem his property free of
all the conditions of the mortgage. The courts will usually uphold unconscionable advantages
lasting for the period of the mortgage but do not usually uphold those extending afterwards
unless the agreement is between business enterprises of equal bargaining power. This was
demonstrated in the case of Kreglinger v New Patagonia.

Rights of a mortgagor in possession

Section 21 of the Jamaica Conveyancing Act provides that a mortgagor who remains in possession has the
right to:
a. collect and retain rents and profits derived from the premises
b. sue for any wrong done to the land, for example, trespass
c. grant valid leases under the common law or statute.

Rights of the legal mortgagee

1. Right to possession

In Four Maids Ltd. v Dudley Marshall (Properties) Ltd., Harman J. noted that a legal mortgagee has a right
to take possession of the mortgaged property „before the ink is dry on the mortgage‟, unless there is
something in the contract whereby he has contracted himself out of that right; and „the right of the
mortgagee to possession…has nothing to do with default on the part of the mortgagor‟.

Because to take possession would make the mortgagee strictly accountable for management of the
property, this is a right that is not usually utilized unless the mortgagor defaults on payment and the
mortgagee takes possession in order to ensure vacancy when exercising his power of sale.

In White v City of London Brewery the mortgagor was held accountable for the difference between the rate
they charged a tenant and the rate they could have charged him had they not let the property subject to a
restriction that he purchase beer only from them.

If the mortgagor is in possession of the property the mortgagee must bring an action for recovery.
However, equity has given the courts a discretion to refuse a possession order if it is inequitable to do so as
was demonstrated in BNS v Morrison. It has been held that a mortgagee will not be allowed to recover
possession where it is not sought in good faith for the purpose of enforcing his security.

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In Quennell v Maltby Q wished to recover possession of property rented to M in breach of a covenant in his
mortgage agreement with a bank. Because M became a statutory tenant, Q could not bring an action
against him. When the bank refused Q‟s request that they bring the action, Q‟s wife paid off the loan, had
the mortgage transferred from the bank to her and sued for possession as mortgagee. The court refused
the action on the ground that Q‟s wife had only been acting as his agent and trying to evict M.

This suggests that rather than having a right to possession the mortgagee simply has a right to a remedy of
possession, an idea that conflicts with the long established principle that he has a right to possession that
takes effect even „before the ink is dry on the mortgage‟.

2. Statutory power of sale

Sections 22-25 of the Jamaica Conveyancing Act gives the mortgagee of an agreement made by deed the
power to sell the fee simple interest in the property. Both the legal and equitable mortgagees are therefore
able to exercise this right. The power arises as soon as the date for repayment or the payment of an
instalment has passed but it does not become exercisable until:

a. three months have elapsed since the mortgagor has defaulted on payment and the
mortgagee has served him notice requiring repayment; OR
b. interest under the mortgage is two months or more in arrears; OR
c. the mortgagor or someone acting on his behalf has breached a provision of the
agreement.

Until the power of sale becomes exercisable, the mortgagee has no right to sell but he can pass good title
to a purchaser who is not aware that the power has not yet become exercisable. Section 22 of the Jamaica
Conveyancing Act provides that all or part of the property may be sold with or without charges by auction
or contract subject to conditions or not.

The mortgagee who exercises his power of sale is a trustee of the proceeds and must allocate them to the
payment of the expenses of the sale and the payment of the mortgage plus interest. He must pass any
balance to the subsequent mortgagee or if there is none to the mortgagor.

The conclusion of a contract for sale extinguishes the mortgagor‟s equity of redemption as well as the rights
of subsequent mortgages. The rights of prior mortgagees are unaffected and can be passed to their
successors in title.

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However a contract for the sale of mortgaged property can be set aside if the mortgagee sold in bad faith.

In Seepersad v Colonial Life Insurance Co the mortgagor contended that a sale was in bad faith because an
agent of the mortgagee had led him to believe that if he paid his arrears (which he did in part) the
mortgagee would not proceed with the sale (which they did). The court refused to set the sale contract
aside because the agent was debt officer who did not have the capacity to make binding promises of the
company‟s intention.

However in Alpras Investment v NCB (T&T) the mortgagee was held to have sold in bad faith when
without having accounted to the mortgagor it sold the property while the mortgagor‟s application for an
extension or alteration of payment plan of the agreement was still pending in court.

In Caribbean jurisdictions it has been held that the statutory restrictions on the exercise of the power of
sale can be negatived. However the court will not usually grant interlocutory injunctions to restrain the
exercise of a mortgagee‟s power of sale unless the mortgagor pays into the court the amount that the
mortgagee says is due to cover full repayment of the mortgage.

Duty of care

The mortgagee who opts to exercise his power of sale is not obligated to ensure he gets the best possible
price for the property either by waiting for a rise in market prices, by improving the property before sale, or
by selling by a particular method. His obligation is to act in his own best interest not that of the
mortgagor‟s.

In Cuckmere Brick v Mutual Finance the mortgagee was found liable in negligence when due to a failure to
advertise all the relevant information he obtained a lower price than it ought to. The court held that the
mortgagee owed both a duty to act in good faith and a duty to take reasonable precautions to obtain the
true market value of the mortgaged property at the date of sale.

In Dreckett v Rapid Vulcanizing the mortgagor brought a claim against the mortgagee for negligent and
reckless sale when the person to whom the mortgagee had sold the property resold it 9 months later for
more than twice the price. The court applying Cuckmere held that without proof of the market value of the
property at the date of sale by the mortgagee the claim must fail. The CA commented that the principle in
Cuckmere puts the law in a bad state but it is nonetheless the law. It seems that the mortgagor will not be
able to establish negligent or reckless sale without providing the court with some evidence of the market
value of the property at the date of sale. This is not always easy to ascertain.

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The requirement that the sale be genuine imposes on the mortgagee a duty to prove that the sale was
bona fide and he took reasonable precaution to obtain the best price reasonable. Where a sale is by auction
it will suffice if the mortgagee accepted the highest bid. The fact that the highest bid was relatively low
because the auction was poorly advertised or attended will not serve as proof of negligence or recklessness
in selling. However, a sale will not be considered genuine if the mortgagee sells the property to himself
either alone or together with someone else.

In Adams v Workers Trust the mortgagee was held to have fallen short of the standard of duty of care
when he sold the property to a person he mistaken believed he was compelled to sell to at a lower price
than that which he would have obtained had he not also failed to advertise.

3. Right of foreclosure

Once the date of redemption has passed the mortgagee has an equitable right to bring an action in court to
extinguish the equitable right to redeem and acquire both legal and equitable rights to the property. This is
the right to foreclose and it is not exercisable until repayment becomes due at law i.e. where the
contractual redemption date has passed or repayment has fallen due because of a breach of the mortgage
agreement. A foreclosure order forecloses all subsequent mortgages but does not affect prior mortgages.

In the case of a legal mortgagee, the court will issue an order nisi for an account to be taken and the
mortgagor given a deadline to pay the amount to discharge the debt. If the payment is not made by the
deadline, a motion may then be brought for the court to issue an order for foreclosure absolute. In the case
an equitable mortgagee the court must first order the mortgagor to convey the land to the mortgagee free
of the right to redeem. Alternatively the court may grant the equitable mortgagee an order of possession or
vest the legal estate in him so he can convey it to a purchaser.

Once the order absolute is made it is only in extreme or special circumstances that it will be reopened. In
certain cases, such as where the value of the property far exceeds the debt, the court may order sale in lieu
of foreclosure and use the proceeds to pay each mortgagee in turn with any balance being turned over to
the mortgagor.

4. Right to sue on the covenant

Although the mortgagor has transferred his interest in the property, unless he gets the mortgagee to grant
him an indemnity, he remains liable under the covenant and the mortgagee may sue him under it for the

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amount of the loan plus interest immediately upon one payment becoming overdue. Like the legal
mortgagee the equitable mortgagee has the right to sue for recovery.

5. Right to appoint a receiver

Sections 22-25 provide that where a mortgage is executed by deed and circumstances arise such as those
that could give rise to a power of sale the mortgagee will have a right to appoint a receiver (in writing) to
act as the agent of the mortgagor. It would be the receiver‟s duty to account for the finances of the
property by collecting all rents and profits and allocating it to the payment of any arrears in the loan
payments as well as other expenses then turning over the rest to the mortgagor.

The equitable mortgagee may exercise this right only where his mortgage is made by deed.

6. Right to tack further advances

Where a person mortgages his property to a bank with the provision that the property may be used as
security for further loans or advances by the bank, the bank has the right to tack advances so that later
advances will be given the same priority as the first advance over subsequent mortgages by the mortgagor
to other mortgages. The law generally allows tacking only where the first mortgagee has the legal title to
the estate or where the intervening mortgagee agrees to the tacking.

7. Right to consolidate

A mortgagee to whom more than one mortgages has been granted by a mortgagor may consolidate the
mortgages so that one cannot be redeemed without the other. This right is awarded by equity in order to
prevent the mortgagee being put at a disadvantage by the redemption of one property when the value of
the other depreciates. Section 20 of the act provides that the right does not exist unless a contrary
intention is expressed in one of the deeds but it is common practice for a deed to expressly grant the right.

Restraint of trade

Under the doctrine of restraint of trade any contractual provision restricting a person‟s freedom to trade or
pursue a profession is prima facie void and will only be upheld if the party imposing it can show that the
restraint is reasonable and in the public interest. In Esso Petroleum v Harper‟s Garage a postponement of
redemption that was neither unconscionable nor oppressive was held to be void as in restraint of trade.

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