Real Property Law

Leasehold Covenants

The liabilities of the lessor and the lessee are normally to be found in the express covenants
(obligations) contained in the deed of the lease, or in the covenants implied by statute or by the
law. They may be considered under the following heads.

Landlord‘s Implied Obligation

Covenant for quiet enjoyment

At common law, there is implied in every lease a covenant on the part of the landlord that the
tenant shall be put into possession1 of the demised premises and that he shall have ‘quiet
enjoyment’ of the premises during the continuance of the lease.2 The word ‘quiet’ in the
covenant does not refer simply to the absence of noise, but rather to the enjoyment without
interference (Southward London Borough Council v Mills). Accordingly, the tenant is entitled to
recover damages from the landlord if the landlord or any other person claiming through him,
substantially disturbs or physically interferes with the tenant’s enjoyment of land (Jones v
Lavington).

1
Miller v Emcer Products Ltd [1956] 1 All ER 237. In Singh v Szala (1975) Full Court, Guyana (unreported), L granted
to T a monthly tenancy of a cottage and a storeroom below. L kept the storeroom locked and never gave T
possession of it up to the time of the present action. Bollers CJ and Mitchell J held that ‘there was a direct physical
interference with the room… by keeping it locked’, and impliedly [L] was under an obligation at the
commencement of the tenancy to put [T] into possession of that tenancy… and to see that he remained quietly in
possession if it.

2
Markham v Paget [1908] 1 Ch 697
 Quiet enjoyment may be interfered with where L in order to ‘get rid of’ T, removes
doors, windows or roof of the building,3 causes the water or electricity supply to be cut off, 4 or
subjects T to persistent harassment or intimidation (Kenny v Green).

On the other hand, since there must be some physical interference with the enjoyment of the
premises let, mere noise or disorderly conduct emanating from the landlord’s adjoining
premises may not amount to a breach of the covenant for quiet enjoyment,5 although it may be
actionable as a nuisance or constitute a derogation from the lessor’s grant if the latter has
participated in it. 6 Furthermore, a disturbance of enjoyment, even where caused by the lessor,
which is merely temporary and which does not interfere with the lessee’s possession, is not a
breach of the covenant.7

Covenant not to derogate from the Grant

There is an implied covenant that the landlord will not derogate from his grant. As Bowen LJ
said, ‘a grantor, having given a thing with one hand, is not to take away the means of enjoying it
with the other’. 8 For instance, there was a breach of the covenant where L, having let land to T
for the purpose of carrying on business as a timber merchant, erected buildings on adjoining
land that interrupted the free flow of air to the sheds that T used for drying timber (Aldin v
Latimer). Similarly, where L lets to T an apartment in a building intended for purely residential

3
Lavender v Betts [1942] 2 All ER 72

4
Tapper v Myrie (1968) 11 JLR 102, Court of Appeal, Jamaica

5
Jenkins v Jackson (1888) 40 Ch D 71, in which the lessor was held not liable for an invasion by rats, where he ad
done nothing to attract them to the demised premises, nor let them loose there.

6
Belridge Property Trust Ltd v Milton (1934) 78 SJ 489,

7
Manchester, Sheffield and Lincolnshire Rly Co v Anderson [1898] 2 Ch D 295, at 313.

8
Birmingham, Dudley and District Banking Co v Rose (1888) 38 Ch D 295, at 313.
use, he commits a breach of covenant if he subsequently lets most of the other apartments in
the building for business purposes.9

To constitute a breach of the covenant, L must do some act that renders the demised
premises ‘substantially less fit for the purpose for which they were let’. Thus, there will be no
breach where L, having let premises to T for use in a particular trade, later lets adjoining
premises to a rival trader, because the premises let to T will still be fit for the purpose for which
they were let, albeit that T’s profit may be reduced (Port v Griffith).

Many acts that constitute a breach of this covenant may also constitute a breach of the
covenant for quiet enjoyment: for instance, where L operates machinery on the adjoining land
that causes structural damage to the house to let to T; or where excessive dust or fumes
emitted from neighboring land seriously interfere with T’s enjoyment of his premises.

Covenant as to fitness for habitation

At common law, there is no implied covenant by a landlord that the premises are or will be fit
for human habitation, nor is there any implied covenant that the landlord will do any repairs
whatever. However, there are the following exceptions.

Furnished lettings

Where residential premises are let furnished, there is an implied condition that they are fit for
habitation at the commencement of the tenancy (Collins v Hopkins). However, the landlord has
no obligation to keep the premises habitable, so if they subsequently become unfit, the tenant
is liable (Sarson v Roberts).

9
Newman v Real Estate Debenture Corp Ltd [1940] 1 All ER 131
High-rise apartment buildings

It was held in Liverpool CC v Irwin, that a landlord of a residential apartment in a high-rise

building is under an implied duty to keep in a reasonable state of repair the lifts, staircase and
other common facilities, such as lighting and garbage chute, for the benefit of all of the tenants
in the building.

Covenant to repair

Repairing covenants, other than covenant as to fitness for habitation, are normally expressly
inserted in a lease. At common law, there is no implied obligation on the part of the landlord to
do repairs.

Where a landlord has covenanted or is subject to statutory obligation to repair and,

having been notified by the tenant of the need for certain repairs, 10 fails to carry them out, the
tenant is entitled to arrange to have the work done and to deduct the cost from future
payment of rent (Lee-Parker v Izzett).

In Milo Butler and Sons Investment Co Ltd v Monarch Investment Ltd, in which the landlord had
covenant ‘to keep and maintain the main structure and all exterior parts… including the roof…
in ‘good and tenable repair’. The tenant informed the landlord in writing that the roof was in
urgent need of repairs and to deduct cost from future rent payments.

Allen J, in the Supreme Court of the Bahamas, held that the tenant was not liable for
failure to pay rent equivalent to the cost of carrying out the necessary repairs.

10
A landlord’s liability does not arise until he has been notified of the need for repair, or otherwise acquires
knowledge of such need: O’Brian v Robinson [1973] 1 All ER 583
Tenant’s implied obligation

Obligation not to commit waste

A tenant for a fixed term is liable for both voluntary waste (that is, positive acts of injury to the
property, such as altering or destroying it) and permissive waste (that is, allowing the property
to become dilapidated through omission to repair) and, therefore, in the absence of an express
stipulation to the contrary, he must keep the premises in proper repair (Yellowly v Gower).

A yearly tenant is certainly liable for voluntary waste,11 but it is unsettled as to his liability for
permissive waste.

The tenant is required to use his premises in a tenant like manner (Warren v Keen). In the said
case Lord Denning noted thus:

The tenant must take care of the place… he must clean the chimneys, when
necessary, and also the windows. He must mend the electric light when it fuses.
He must unblock the sink when it is blocked by his waste. In short he must do the
little jobs about the place which a reasonable tenant would do. In addition, he
must, of course, not damage the house, willfully or negligently; and he must see
that his family or guests do not damage it: and if they do, he must repair it. But,
apart from such things, if the house falls into disrepair through fair wear and tear
or lapse of time, or for any reason not caused by him, then the tenant is not liable
to repair it.

Register Land

Section 95(b) of the Registration of Titles Act of Jamaica provides that, in every lease made
under the provisions of the Act, there is to be a covenant that the lessee ‘will keep and yield up
the leased property in good and tenable repair, accidents and damages from storm and

11
tempest, or other acts of God and the Queen’s enemies, and reasonable wear and tear
excepted’.12

Express Covenants

To a large extent the rights and liabilities of the landlord and tenant are regulated by express
covenants inserted in the lease or tenancy agreement. There are an infinite variety of such
covenants, but those that are most significant, and most commonly encountered concern
payment of rent, obligation to repair, and obligation not to assign, underlet or part with
possession of the premises without the landlord’s consent.

Covenant to pay rent

The rent payable by a tenant under a lease is more properly called ‘rent service’, which signifies
that, historically, T held the land in return for services, which were later commuted for fixed
monetary payments. Although today, rent almost invariably consist of money payments, there
is nothing to prevent rent from taking the form of delivery of chattels or produce, or the
performance of personal service (Duke of Marborrough v Oxborn).

The amount to be paid as rent must be sufficiently certain. It need not be certain at the
date of the lease, but it must be ‘calculated with certainty at the time when payment comes to
be made’. 13 It has been held that a option to renew a lease is void for uncertainty if the rent is
‘to be agreed’14 or subject to ‘re-negotiation’,15 but a term in a rent book to the effect that rent

12
See Frater v Wedderburn (2010) Court of Appeal, Jamaica, Civ App No 23 of 2009 (unreported) [Carilaw JM 2010
CA 95]

13
Cheshire and Burn, fn 22, p 381.

14
Adam v Besseling (1987) High Court, Trinidad and Tobago, No 2504 of 1987 (unreported), Mustapha Ibrahim J
pointed out that, where there was an option to renew a lease at a rent to be agreed, the agreement could be
cured and the agreement rendered valid if the parties agreed on the rent before the time of the exercise of the
option had arrived.
‘was subject to be increased or decreased on notice being given’ was held valid, as also rent to
be fixed at a price to be determined, having regard to the market value of the premises and it is
also sufficient if the parties provide that the rent shall be fixed by a third party. The court will
attempt to interpret provision as to rent to achieve certainty. Thus, where rent is fixed for the
first five years, and thereafter to be agreed, it was held that a reasonable rent, to be assessed
at the end of the first period, was payable for the second period. 16

A lease may contain a ‘rent review clause’ enabling rent to be raised at regular intervals
to reflect the fair market value of the demised premises. The clause may provide for reviews,
for example, every seven, five or three years, and will specify the administrative procedures for
ascertaining the fair market rent.17

At common law rent is payable in arrears, but this may be, and usually is, displaced by
agreement between the parties or by a custom that rent should be paid in advance.18

Covenant to repair

The obligation to repair the demised premises may rest on the landlord, or on the tenant, or
partly on the landlord and partly on the tenant. The matter is entirely one for negotiation
between the parties, and the extent of the obligation depends on the wording of the covenant.
Expressions often used are ‘good tenable repair’, 19 ‘sufficient repair’, ‘good and substantial
repair’, If there is no express provision for repair in the lease, the tenant may be held liable for
them under the doctrine of waste.

15
Hemmings v Attorney General (2004) Supreme Court, Jamaica, No E 315 of 1998 (unreported)

16
Beer v Bowden [1981] 1 WLR 522

17
Hill v Redman, Law of Landlord and Tenant, Issue 46, Vol 1, London: Butterworths.

18
See Francis v Daley (1964) 6 WLR 256

19
‘Good and tenable repair’ has been held to mean ‘such repair as, having regard to the age, character and locality
of the house, would make it reasonably fit for the occupation of a reasonably minded of the class who would be
likely to take it’: Proudfoot v Hart (1890) 25 QBD 42, 52 per Lord Escher MR
 At common law the standard of repair required is that in which, after making due
allowance for the locality, character and age of the premises at the date of the lease, a
reasonably minded owner would keep them (Lurcott v Wakely).

As it regards locality, it is clear that a house situated in an exclusive residential suburb would
demand a higher standard of repair than one situated in a run-down urban or inner-city area.20
As it regards character, it is equally clear, that the standard of repair applicable to a mansion
house would be much higher than that applicable to an agricultural worker’s cottage.21 An
important principle is that the character of the premises and locality at the beginning of the
tenancy that must be considered. Thus, if, at the commencement of a long lease, the house is a
desirable one situated in an expensive and fashionable locality, but after several years the
neighborhood and the property becomes run-down, the covenantor must put the property
back into its original state: he cannot argue that his obligation is to be measured by the current
low standards of locality (Anstruther-Goug-Calthorpe v McOscar).

With regard to the age of the property, the covenantor is under an obligation to keep it
in a reasonably good condition for a building of that age. 22 If, to keep property in such a
condition, it becomes necessary to renew or replace parts of the building, such as a defective
wall or roof, the covenantor must do all the renewal or replacement. However, the covenantor
is not bound to reconstruct the building. Example, the tenant would not be bound to replace a
defective foundation with an entirely different character’, because that would in effect amount
to reconstruction. The obligation to do repair does not normally require the rebuilding of
premises that ‘through inherent defects’ have passed beyond repair, or doing work which
cannot fairly be called repairing the premises as they stood when demised’, 23 and ‘it is always a
question of degree, whether that which the tenant is being asked to do can properly be

20
Cheshire and Burn, fn 22, p385.

21
Ibid.

22
Ibid

23
Megarry and Wade, fn 35, p 27
described as repair or whether, on the contrary, it would involve giving back to the landlord a
wholly different thing from that which he demised.’

In Ravenseft Properties Ltd v Davstone, in which it was held that where an inherent defect has
caused damage, the tenant may be under an obligation to rectify not only the damage but also
the cause of the damage, 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.’

Fair wear and tear

Tenants frequently covenant to keep premises in repair, ‘fair wear and tear excepted’. The
effect of the phrase is to absolve the tenant from liability for:

(a) Damage due to ordinary operation of natural causes, such as wind and rain; and

(b) Disrepair resulting from the reasonable use of the premises.

However, although the tenant is not liable for original damage or deterioration constituting
wear and tear, he is liable for any consequential damage resulting from his failure to rectify the
original damage, where it should be obvious that a reasonable person, if not rectified, further
and lasting damage would ensue (Haskell v Marlow).

Covenant not to assign, sublet or part with possession of the demised premises.

In the absence of any express stipulation to the contrary, a tenant is free to assign, sublet or
part with possession of the demised premises to a third party. However, in order to ensure that
the premises do not fall into the hands of an irresponsible person, it is usual for a lease to
contain an express covenant either that the tenant will not assign or sublet the premises (an
‘absolute covenant’) or, more commonly, that the tenant will not assign or sublet without the
consent of the landlord (a ‘qualified covenant’). The qualified covenant may be subject to an
express proviso that the landlord will not unreasonably refuse his consent to an assignment or
subletting.

The courts construe covenants against assigning, subletting or parting with possession
strictly against the landlord. For instance, a covenant against parting with possession is not
broken where the tenant allows another person to have the use of the premises without giving
him legal possession (Chaplin v Smith), nor is a covenant against assignment broken by a
subletting of the premises, and a covenant ‘not to subletting’ the premises is not broken by
subletting of part of the premises (Cook v Shoesmith).

Effects of a breach

The effects of a breach against assigning or underletting may be summarized as thus:

(a) An assignment or subletting made in breach of an absolute or qualified covenant is

nevertheless valid (Samad v Jordan), but may give rise to forfeiture of the lease and/ or
claim damages

(b) In the case of a qualified covenant, if the tenant omits to apply for consent to an
assignment or underletting, he is liable for damages in any event and to forfeiture of the
lease, although the court may grant relief against forfeiture.24

(c) In the case of a qualified covenant containing a proviso that the landlord will not
unreasonably refuse consent, a tenant to whom the consent has been refused may
nevertheless go ahead with the assignment or subletting and, if it is later found that the
landlord’s consent was unreasonable, the tenant will not be in breach of covenant; if, on
the other hand, the landlord’s consent is found to be reasonable, there will be a breach
of covenant and the tenant will be liable for damages and forfeiture (Lewis and Allen Ltd
v Pegge)

24
Home Property and Investments Co Ltd v Walker [1947] 1 All ER 789
Reasonableness of refusal of consent

The question of reasonableness of a refusal of consent is essentially a question of fact

depending on all of the circumstances of the case,25 but there is a strong authority for the view
that, in order to be reasonable, the reason for the refusal must be connected with the
personality of the assignee, or with the user or occupation of the premises. 26 For example, itt
may be reasonable to refuse consent where the proposed assignee intends to use the demised
premises for a purpose that will be injurious to the property owned by the landlord,27 or where
the assignee’s financial position is precarious, or where the assignment will enable the assignee
to acquire a statutory tenancy protected by the rent restriction legislation.

Reference

 G. Kodilinye, Commonwealth Caribbean Property Law (3rd edn, 2010) (London:

o Routledge/Cavendish)

25
Bickel v Duke of West Minister [1976] 3 All ER 801, at 804

26
Householder Bros and Co Ltd v Gibbs [1925] 1 Ch 575, at 585, per Warrington LJ

27
Bridwell Hospital v Governors v Fawkner (1892) 8 TLR 637