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LANDLORD & TENANT- Jamaica,Barbados,St.Kitts and Belize

The Relationship Between Landlord & TenantThe relationship of landlord and tenant arises where a person who has an estate in real property grants or is deemed to have granted to another person an estate which is less than that of the grantor. A lease is an estate less than freehold and there is always a reversion on a lease. Thus a lease arises where a landlord confers on a tenant by way of a contract the right to exclusive possession of land for a period which is either subject to a definite term or can be made subject to a definite term by either party. Because the creation of such a relationship is a contractual one it is affected by the fundamental requirements of a contract as to capacity, offer and acceptance, privity of contract, mistake and misrepresentation and now it might even be affected by the rules governing persuasion. Subject to any statutory provisions the rights and obligations of the parties, will be only those which they have agreed to and in the absence of agreement will be determined with reference to practice and the common law. Where there is any doubt then the rights of the estate holder will prevail. The value of the estate holders are limited by the time limit of the lease. Once the estate is created the landlord only has a right to a reversion which can be affected by various factors, (such as acts of waste) where he may need to seek to protection of his reversion. He has created an estate in the land by which he is bound. He may have certain rights which he reserves via the contract (lease) or conferred by statute. Always consider both the right of the estate and the contract when dealing with a problem (moreover, the overall picture must be considered. Are the terms of the contract reflective of the actual). Many agreements are done orally. This gives rise to the difficulty of determining the terms of the agreement.

The Consequences of an Estate Being Created The relationship is one of tenure, therefore the covenants which touch and concern the land and run with the land will bind the assignee. The common law rules have been modified by statute. Payment of rent is deemed to be made for the land and arising from this is the right to distress i.e. the right of the landlord to levy distress on the goods of the tenant to recover rent. Since 1978 a landlords right to distress is no longer available in Jamaica. However, the court may make an order accordingly. The tenant is estopped from denying the landlords title and likewise the landlord from denying the tenants title. There is no requirement in law for the landlord to prove title but this can be made a term of the agreement to lease. There can exist concurrent interests on the same land.

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The duration of the tenure must be certain or capable of being made certain before commencement. See Lace v. Chantler.[1944] KB 368. A lease can provide for early termination. Sub-tenancies can be created and the tenant can assign a lease unless otherwise stated in the lease. Principle: - You have an estate in the land you do what you wish unless the reversion is affected or the landlord prohibits it. Jamaica has no statutory duty that a landlord shall not unreasonably withhold consent. This is justified in practice in Jamaica. The estate ends on the expiry of the contract. If the tenant holds over and no provisions are put in place the tenant is holding the land adversely if there is no statute intervening. The Rent Restriction Act may operate to defeat a claim under adverse possession. A statutory tenant has no estate in the land therefore their rights and liabilities are based solely on the statute. Tenancies at will and at sufferance are not real tenancies although the relationship of landlord and tenant exists.

The Creation of the RelationshipA tenancy may arise in one of three ways: Agreement: It may be created by an express or implied agreement between the two parties. This may be by way of simple oral agreement with the most elementary terms the parties, property, rent and the period/duration. It may be by way of a formal document, by way of a deed which runs into many pages and which deals with every possible eventuality, from responsibility to cleaning the windows to liability in the event of destruction by aircraft. Attornment: It may be created by attornment i.e. an acknowledgement by the tenant that he is a tenant. For example, where a mortgagee forecloses under a mortgage and the tenant acknowledges the mortgagee as the landlord. Statute: It may be created by statute.

LANDLORD & TENANTLecturer: Date: Mr. Carson October 21, 2004.

The Subject Matter of the RelationshipThe relationship of landlord and tenant may arise in relation to an infinite variety of real property. The central requirement is that there must always be a letting or demise of land. Thus a tenancy may be created in relation to a mine or even a hole in the ground. The possible situations in which it may arise are limited as the cases amply demonstrate. Recall time share provisions and the fact that one can lease a time share. THE CREATION OF LEASES -2-

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Normally there are two stages to the creation of a lease: - firstly; the agreement for a lease and secondly; the grant of a lease. By an agreement for a lease the parties agree that the landlord will grant1 and the tenant will take a lease. The subsequent granting of the lease is the realisation of the lease, but it is not necessary that there be both an agreement for a lease and then the lease itself. Usually the parties will proceed straight to the lease without a prior written agreement for it. Sometimes they will not proceed beyond the agreement, that is to say, having agreed the tenant will enter into possession of the premises. Sometimes the agreements are very important as they may give rise to other tenancies such as a tenancy at will, depending on the agreement and the surrounding circumstances. The legal effect of the two stages are different. However, it should be noted that a document entitled a tenancy agreement or a lease agreement is often not an agreement at all but an actual lease. Terminology may not automatically imply the existence of the lease.

An Agreement For a LeaseWhether there is a binding agreement for a lease has to be decided by reference to the ordinary rules of the law of contract. See Rossiter v. Miller (1878) 3 AC 11242 These rules as you will recall require that there be an offer by one party and an acceptance of that offer by the other party. In the case of an agreement for a lease the offer will be to let or demise land at a certain rent for a certain period and from a certain date. See the cases of Chew v. Richmond (1962) LRBG 31, Jaigobin v. Dias (1965) LRBG 530 and Harvey v. Pratt [1965] 2 All ER 786. A formal written agreement is not necessary to bind the parties and the agreement may be an oral one or by an exchange of correspondence. However, while a formal written agreement is not necessary, it has the practical advantage of reducing possible disputes between the parties because it will be clear that there is an agreement upon specified terms. If the parties do not wish to bind themselves in the initial stages it is sometimes the practice to add the words subject to contract to their negotiations and correspondence. Although, as was just stated, an agreement for a lease need not be in writing to be valued it might be unenforceable because of the provisions of the Statute of Frauds Act 16673. The object of that statute was to prevent fraudulent practices in relation to various sales including the disposition of land. These statutory provisions therefore require that the party seeking to enforce an agreement has to produce some evidence in writing of the agreement signed by the party (to be charged). With respect to leases specifically the various statutes provide that leases granted by word of mouth are to be treated as leases at will. They also provide however, that leases for three years or less need not be in writing4. Other statutory provisions also apply. In the case of Jamaica S. 70 of the Registration of Titles Act preserves the applicability of the Statute of Frauds. Section 945 onwards deals with leases. Equity developed an exception to the statutory requirement of writing in favour of a party who could1

will grant wording like this will give rise to difficulty in that this indicates action in the future and the immediate occurrence of a lease 2 @1151 3 Applies in Jamaica. 4 In Jamaica, leases for one year need not be in writing.5

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Lease of registered land

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show that he had carried out acts in performance of the contract, that is, the doctrine of part performance.

Essentials of the agreement1. It must be in writing. See Burgess v. Cox [1951] 1 Ch 383, North v. Loomes [1919] Ch. 378. 2. It must contain the material terms of the agreement, that is to say: a) The full description of the parties, that is, name, address and occupation. If it is a company the statutory basis of the company b) Consideration; The rent and if there is to be a premium the quantum c) The description of the property which may be a simple address or a surveyors plan d) The period of the tenancy 3. It must be signed by the party to be charged, that is the person against whom it is enforceable, therefore, a landlord and tenant arrangement needs to be signed by both parties.

LANDLORD & TENANTLecturer: Date: Mr. Carson October 28, 2004.

The Doctrine of Part PerformanceWhere there is an oral agreement for a lease and there is no memorandum in writing the agreement may still be enforceable if there is part performance of the agreement but in order to establish this, the party seeking to enforce the agreement must show that: 1. There is a binding agreement (this a determination for the courts); 2. There had been sufficient acts of part performance; and 3. Those acts of part performance indicate the existence of an agreement and are consistent with the agreement alleged. If the party can satisfy the court on these matters the court will normally give effect to the agreement by means of the equitable remedy of specific performance. The principle underlying the doctrine of part performance is that where one party to an agreement has carried out whether in whole or in part the contract it would be inequitable to allow the other party to rely on the Statute of Frauds. See the case of Maddison v. Alderson [1883] 8 AC 461.

Examples of Part Performance

Any freehold land under the operation of this Act may be leased for any term not being less than one year by the execution of a lease thereof in the form in the Sixth Schedule, and the registration of such lease under this Act; but no lease of any land subject to a mortgage or charge shall be valid or binding against the mortgagee or annuitant unless he shall have consented in writing to such lease prior to the same being registered.

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1. The taking of possession of land by one party with the consent of the other. This must be referable to an oral contract. 2. The carrying out of repairs and alterations to the premises to be leased See Rawlinson v. Ames [1925] Ch. 96 3. The payment of rent in advance might also constitute an act of part performance. See Steadman v. Steadman [1947] 2 All ER 977.

Specific PerformanceIf either party refuses to go ahead with the agreement to grant or to accept a lease the other party has two remedies: 1. Specific performance; or 2. Damages. Specific performance is an equitable remedy by which the court orders that the party in breach shall perform his side of the agreement but because it is an equitable remedy it is granted at the discretion of the court and in exercising its discretion the court has regard to a number of matters. These include: 1. the conduct of the party 2. whether hardship may result with a grant of the order and 3. whether the party has delayed unreasonably in enforcing his rights. See the cases of Williams v. Greatex [1957] 1 WLR 31; [1956] 3 All ER 705, Pillersdorf v. Denny (1975) 10 BLR 30. Damages are the ordinary common law remedy for a breach of contract. This may include equitable damages. The party complaining of a breach of an agreement for a lease instead of suing for specific performance can instead bring an action to recover damages but where nonperformance by the landlord is due to defective title the tenant cannot recover damages for loss of his bargain but only the actual expense to which he has been put for the breach of the contract.

LeasesAs we know, parties may disregard entering into an agreement for a lease and proceed to the lease itself. A lease is created when the landlord grants to the tenant the right of exclusive possession of land for a definite period or for a period which can be made definite by either party, and if for more than three years or as otherwise provided by the statutes, which we have, complies with certain formalities.

LANDLORD & TENANTLecturer: Date: Mr. Carson November 4, 2004.

Leases contd

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Exclusive PossessionThis is the right to control the demised property and to exclude all other persons from it including the landlord. If the landlord wishes to enter the premises he must specifically reserve the right to do so6. Where a person is granted the right to use premises without the right to exclusive possession the grant is a licence and not a lease, though the right to exclusive possession does not preclude the existence of a licence.

Definite PeriodThis requirement is not always free of difficulty. In the vast majority of cases the period is clear and definite. Occasionally, however, persons enter into unusual agreements which make the period of the tenancy uncertain. For example, a demise until the river changes its course. This kind of situation, however, should not be confused with the situation where a grant is made for a definite period but the grant may be terminated at an earlier time upon the occurrence of a specific event. Once the maximum period is known then it remains a valid lease. In addition, the rule does not apply to leases for life, or during the duration of a marriage. These exceptions are statutorily based.

FormalitiesAt common law a lease could be validly created by a purely oral transaction. This principle has in some circumstances been altered by statute and certain formalities have been made mandatory. These are basically as follows: 1. Except in the case of Barbados all leases of unregistered land must be by deed, that is to say, under seal. See The Conveyancing Act. In the case of registered land, all leases for more than two years, except in the case of Jamaica where it is one year, must be in writing and ought to be noted by the Registrar. The various registered land statutes provide a pro forma example of a basic lease which can be used as is, or modified to suit the particular circumstances. NB that with the exception of Barbados, leases for more than 21 years are entitled to be evidenced by way of a certificate of lease as distinct from the lease merely being endorsed on the title or lodged in the Registry or Titles Office as the case may be. In the case of Barbados leases of unregistered land for more than one year need only be created by an instrument in writing. In the case of registered land the provisions of S. 51 of the Registered Land Act. 2. Once however, a lease has been validly created it must be assigned by deed or by transfer in the case of registered land for there to be a valid legal assignment.

Lack of FormalitiesPrior to the Judicature Act (JA) of 1873 a tenant under an informal lease would have different rights depending on whether the matter was before a court of law or of equity. The Judicature Act resolved this conflict by providing that where there is difference between law and equity the equitable rules should prevail. This was confirmed in the case of Walsh v. Lonsdale (1882) Ch. D. 9. Thus a lease which is void at law because it fails to comply with the requirements of formality, if sufficiently evidenced in writing or supported by acts of part performance, is treated by equity as an agreement for a lease for which specific performance6

It should be noted that the right to renew a lease is the tenants option and once the tenant chooses to exercise the option, the landlord cannot refuse.

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might then be granted and further where the tenant has the right to apply for specific performance in equity the lease will be deemed to have been granted whether or not the tenant seeks specific performance. But there are instances where equity will not assist: 1. Because an equitable lease is dependent upon the remedy of specific performance being granted a tenant guilty of a breach of covenant, for example, will not be granted this remedy. See Coathsworth v. Johnson (1885) 55LJQB 220. 2. An equitable lease is not always enforceable against third parties acting in good faith and without notice. See the case of Metcalfe & Eddy v. Edgehill 5 WIR 417

ConclusionA lease may be validly created as follows: 1. If it is for less than 3 years and it is unregistered land it may be made orally or in writing or by deed. 2. If it is for registered land and more than 1 year in the case of Barbados and Jamaica and 2 years in the case of the other jurisdictions it must be in writing. See however, S. 70 of the Registration of (Titles) Act of Jamaica 3. If it is for more than 3 years and is unregistered land it must be by deed 4. If it is for more than 3 years and is made orally and there is part performance an equitable lease will arise 5. If it is for more than 3 years and there is a sufficient memorandum in writing an equitable lease will also arise 6. If it falls within 4 or 5 but the tenant has been guilty of bad conduct or for some other reason which will affect the grant of specific performance there will be no equitable lease but if the tenant enters into possession and pays rent a periodic tenancy will arise 7. It is for more than 3 years and there is neither a sufficient memorandum nor part performance, specific performance will not be granted but if the tenant enters into possession and pays rent a periodic tenancy will arise.

LANDLORD & TENANTLecturer: Date: Mr. Carson November 11, 2004.

Leases & LicencesThe distinction between a lease and a licence is very important, particularly in jurisdictions with Rent Restriction Acts. As such legislation is designed primarily to protect tenants. Licensees and tenants-at-will are not considered by the legislation. As a result, lawyers are frequently called upon to use agreements to create licences and so avoid the effect of the legislation. In England, such a practise has taken place for some time now as evidenced by the number of decisions in this area. See Adiscombe Gardens v. Crabbe [1985] 1 QB 513, Shell Mex Ltd. v. Manchester [1971] 1 All ER 8417 Esso Petroleum Co. Ltd. v.Fumegrange Ltd. [1994] 46 EG 199, Somma v. Hazelhurst (1979) 37 P. & C.R. 391; [1978] 2 All ER 10118. More recently in Street v. Mountford [1985] 2 All ER 289, the court once again had to7 8

@845 [1978] 1 WLR 1014

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construe a document described as a licence to determine whether in fact it was a licence. The House of Lords held, however, that it was a tenancy agreement. Since that decision there have been a number of decisions which have applied that case including the Trinidadian case of Ramnarace v. Lutchman (2001) 59 WIR 511. Prior to the latter case we were still following the previous lines of authority which said it was the intention of the parties which would determine whether it was a lease or licence. This decision was also a Privy Council decision out of Trinidad. That concept of intention is difficult as it is difficult to construe what the parties intended at the time of the agreement. What we say is not always what we mean. Ramnarace v. Lutchman (2001) 59 WIR 511 solved this problem where the Privy Council followed Street v Mountford [1985] 2 All ER 289 in that the determining factor is now exclusive possession. The House of Lords decision in Street v Mountford [1985] 2 All ER 289 signalled a return to the traditional test of whether exclusive possession has been granted. There Lord Templeman stated that the true test is whether the occupier has been granted exclusive possession for a fixed or periodic term at a stated rent. If these requirements have been satisfied a tenancy arises unless there are some special circumstances which negative a presumption of a tenancy. Then it may be necessary to consider the intention of the parties. The usual special circumstances that will arise are: 1. Family relationships; 2. Employer employee relationships; 3. Long friendship; See Romany v. Romany (1972) 21 WIR 491, Fachini v. Bryson (1952) 1 TLR 1386. 4. Additionally one will have to consider the capacity of the party to grant a tenancy. Street v Mountford [1985] 2 All ER 289 was founded against the backing of certain statutory provisions which do not exist in the Caribbean. Although following the cases, in circumstances not covered by legislation we may still have to consider the intention of the parties and the circumstances surrounding the letting.NB

The Nature of a LicenceA licence does not create any estate in that part of the property to which it relates. There are basically three categories of licences: 1. Bare licence; this is a licence granted without any valuable consideration to support it so that it does not even amount to a contract. See the case of Cherrington v. Hoare Sup. Ct. (Bel) Action no. 110/76. If one is given a notice to leave but rides out after the notice then if the statutory passage of time passes then estate may pass by way of adverse possession. Although there may be no consideration of the face of it, there are a range of factors which may give rise to that. 2. A licence coupled with an interest such as the right to enter land and enjoy an incorporeal hereditament. See the case of Binions v. Evans [1972] Ch. 359; [1972] 2 All ER 70 3. A contractual licence, that is, any licence which is not coupled with a grant but which is supported by valuable consideration for example the right to enter a cinema.

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4. Licence by estoppel.

EmployeesWhere an employee such as a caretaker or farm overseer or university warden is required to occupy premises for the better performance of his duties he is considered to be a service licensee or service occupier9. The requirement may be contained in his contract of employment or implied from the circumstances of his employment10. An employee, however, may be a service tenant in which case he would be in the same position as an ordinary tenant. This is very important where the Rent Restriction Act applies. The test to distinguish between the two categories is whether the employee is required to occupy the premises for the better performance of his duties as employee. See, however, Torbet v Faulkner (1952) 2 TLR 659. The question whether the test of requirement to occupy has been satisfied must always be determined by a consideration of the substance of the agreement and not by the use of particular terms. See Glasgow City Corporation v Johnstone [1945] AC 609. In many cases, if the right to occupy is not required for the better performance of the employees duties but is in reality a part of the remuneration for his services then a tenancy is prima facie created.

LANDLORD & TENANTLecturer: Date: Mr. Carson November 18, 2004.

LodgerThe word lodger is used in cases where the landlord lives in the same house as the occupier. A lodger who has no separate accommodation is generally a licensee. Whether the occupier of a single room11 in a house is a tenant or a licensee depends primarily on the nature and quality of the occupancy. However, if it was intended that the occupier should have exclusive possession in the room he will generally be a tenant, however, if it was intended that he/she should merely have personal permission to occupy the room he will generally be a licensee. Lord Templeman in Street v Mountford [1985] 2 All ER 289 illustrates the meaning of exclusive possession by comparing a tenant with a lodger and said: In the case of residential accommodation there is no difficulty in deciding whether the grant confers exclusive possession. An occupier of residential accommodation at a rent is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own. If on the other hand residential9

This is an important consideration where the employment ends and the employer seeks to remove the employee or tenant from the premises. 10 Contract should be drawn up so that employment is linked to occupation so that where one ends the other ends. 11 Under the Rent Restriction Act a person can be a tenant in a single room.

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accommodation is granted for a term at a rent with exclusive possession the landlord providing neither attendance nor services the grant is a tenancy.12 Lodger here also means border. Landlords wishing to avoid the statutory protection offered to tenants therefore enter into lodging agreements. Two such agreements came before the Court in Crancour Ltd v. DaSilvaesa [1986] EGLR 618. The Court of Appeal in England adopted the approach of considering which terms of the agreements were obviously shams (bogus) and then considered whether exclusive possessions had been conferred on the occupiers.

TYPES OF TENANCYTenancies For a Fixed TermThe simplest kind of term is a lease for a fixed period, whether it is for a month, week, or a number of years. It may be made to begin immediately or at some time in the future or even at a date earlier than that of its execution. The term must, however, be certain or capable of being made certain before it begins. Where a lease takes effect in the future, it is called a reversionary lease or a future lease. A lease may also be granted for a term that commences before a previous lease expires or is otherwise determined. This type of lease is known as a concurrent lease. Such a lease operates as a lease of the reversion and has the effect of substituting the new tenant of the reversion as landlord in relation to the existing lease as long as the two interests subsist concurrently. See Hill and Redman on Concurrent leases. A lease for a fixed term comes to an end automatically when the term expires without there being any need for a notice for termination. Further, fixed term tenancies may be made terminable before the expiration of the term on notice being given by one party or the other to terminate the tenancy at given intervals during its currency, that is to say, a break clause. They may also be made terminable on the happening of some specified event, that is to say, an option to determine. This must be included in the agreement. If it is not included then the term runs and if one wants to determine they must be prepared to supply compensation.

LANDLORD & TENANTLecturer: Date: Mr. Carson November 25, 2004

Types of Tenancies contd.It should be noted that in practice, notice is usually given with respect to property that is subject to rent Restriction Legislation, the usual reason given is that if the tenant holds over, they hold over as a statutory tenant and therefore the statutory provisions with respect to notice would apply. Mr. Justice Rowe was persuaded to this view at least in respect of commercial lettings in the case of Yapyoung v. Rennals RM Civil Appeal No. 10/84.12

The court will check the agreement and the arrangements to determine if it is merely an attempt to circumvent the grant of exclusive possession.

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However the more recent decisions of Crampad International Marketing Co. v.Val Benjamin Thomas (1989) 37 WIR 315 and Dabdoub v. Saba (1991) 39 WIR 263, have overruled Yapyoung v. Rennals13, never the less, the practice still continues.

Periodic TenanciesA periodic tenancy is one which continues automatically from period to period until it is determined by a valid notice to quit by one party given to the other.14 A periodic tenancy differs fundamentally from a fixed term tenancy, in that in the case of the latter the maximum duration is fixed from the outset. The usual periods are a year, a quarter a month or a week, but any period may be chosen. Whatever period id chosen, that is the minimum duration of the tenancy. But until notice is given, its total duration will not be certain. As the tenancy progresses from one period to another, the tenancy is regarded as one continuous tenancy without break and without renewal. The important thing to remember with respect to periodic tenancies, is that the parties must avoid any provision which is repugnant to the nature of such a tenancy and which would therefore be void and unenforceable i.e. either party restricting their right to terminate see for example Centaploy Ltd. v. Matlodge Ltd. (1914) Ch. 1 and Re Midlands Railway Companies Agreement, Charles lay & Sons Ltd.v. Britissh Railway Board [1971] Ch. 764.

Yearly TenancyTenancies from year to year may be created by express agreement or implication, and may be determined at the end of the first or any subsequent year by service of a valid notice to quit. A yearly tenancy may be created by the parties agreeing to a tenancy from year to year or that the tenant shall be a yearly tenant, or words of similar intent. But, a tenancy for one year and so on from year to year is a tenancy for a fixed term of one year followed by a yearly tenancy. Such a tenancy cannot be terminated before the end of the second year. A yearly tenancy will arise by implication whenever the following conditions are satisfied: 1. A person occupies land with the owners permission and not as a licensee nor for an agreed period but rent is paid and accepted and is expressed to be or calculated as a yearly sum 2. A tenant holds over after the expiration of a fixed term tenancy as a tenant at will or at sufferance, but subsequently pays or agrees to pay rent on the same terms as under the expired lease. When a tenancy from year to year does arise, as a result of the tenant holding over and paying rent after the original lease has ended, that tenancy will be determinable on the anniversary of the determination of the original term. The minimum period of such notice would have to be six months. 3. The lease granted to the tenant is in fact void because it was not made by deed or in writing, as the case may be. In such cases, if the tenant can show that he has in fact entered into possession of the premises and has paid a yearly rent, he becomes a tenant from year to year upon such terms of the lease agreement as are applicable to a yearly tenancy13

14

RM Civil Appeal No. 10/84 The Rent Restriction Act has a sample Notice to Quit included in the schedule.

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The tenant has entered into possession and paid part of a yearly rent, but there is no agreement in writing. The mere fact of payment of the rent and acceptance of it will if not otherwise explained be admission of the fact that a tenancy exists in the absence of any evidence to the contrary, this will be deemed to be a tenancy from year to year, but this is a rebuttable presumption. The payment of rent does not of itself create a tenancy from year to year. The requirement that there be a yearly rent is satisfied if the rent reserved is expressed as an annual sum, it does not matter by what instalments the annual sum is payable. So for example where the rent is $12000 per year payable monthly, that will give rise to a yearly tenancy. Where a tenancy from year to year arises by implication, the tenant holds under such of the terms of the former or intended lease as are not inconsistent with those of a yearly tenancy, for example a covenant to pay rent in advance or to keep the premises in a good and tenantable repair. In contrast, a covenant to do expensive repairs, or to give two years notice to quit, or to paint every three years, would not be consistent with a yearly tenancy.

4.

Other Periodic TenanciesWhat has been said with respect to other yearly tenancies applies mutatis mutandis to quarterly, monthly and weekly tenancies with appropriate modifications. They can be created in the same way as a yearly tenancy that is with express agreement or by implication, where rent is paid and accepted on a quarterly, monthly or weekly basis.

Landlord & TennantDate: Lecturer: December 2, 2004. Mr. Peter Carson

There are no absolute rights, and tenants do not have an absolute right to use the premises as they choose during their tenancies. There are some landlords who restrict the use of the premises by way of contract. Even if there are no contractual obligations not to use the premises in a certain way, there are statutory and common law provisions which will govern the lease. Mr. Carson mentioned a scenario where a three bedroom house was rented and there were numerous tenants living in the premises. He said one way of dealing with this scenario would be under sanitation, especially if there is a soak away pit which may be strained by the large number of users. An example was given of a person who took a lease and paid a three months deposit on the lease. They took the lease on the condition that certain repairs were to be made within a specified period. The repairs were never done and the tenant decided to move out. The landlord decided that the tenants deposit would not be returned as the tenant was in breach of contract.15 This person was entitled to their deposit and damages for breach of contract.15

Someone at the legal aid clinic informed this person that they had no cause of action.

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We were told of lease agreements which specified that the tenant has inspected the premises and had decided to take it as is, and any repairs arising after this are the responsibility of the tenant. It is suggested that in a case such as this the premises are inspected thoroughly16.Dictated notes

Tenancies at Will17A tenancy at will arises where a landlord lets a tenant into possession of land and that tenant holds18 at the will of the landlord. A tenant in this situation does not hold an estate in the land and either party can determine a tenancy at will at any time. A tenancy at will comes to an end if either party dies or parts with his interest in the land. Tenancies at will are not protected by statute so rent restriction legislation will not apply. A tenancy at will may be created by express agreement or by implication. Where a tenancy at will is by expressed agreement that agreement may provide for rent to be paid.19 If there is no agreement as to the length of time for which the tenancy is to last but the person becomes a tenant at the premises, the law will imply a tenancy at will. One example arises where there has been entry on the premises under a lease or agreement which is in fact void, or an agreement which is not specifically enforceable. If the tenant has not paid any rent, this tenancy will be a tenancy at will. If a person is allowed to occupy premises rent free, this will be regarded as a tenancy at will and the same situation will arise where the tenant has been let into possession of the premises during negotiations for their sale, and this tenancy at will, will remain until some other interest is granted or is inferred from the payment of rent. See the case of Bertram Palmer v. James (1968) 6 GLR 39, Bramwell v. Gordon 7JLR 88 and Walter Hoilett v. Vincent Clarke (1983) 20 JLR 81. It should be noted however that even with the payment of rent, the circumstances may still indicate a tenancy at will See Hagee Ltd. v. Erikson [1976] QB 209. It is not uncommon in this jurisdiction for purchasers to enter into possession and for this to give rise to trouble later. For example pending a mortgage and miss the deadline, but stay on intending to become a tenant. This becomes complicated if the premises are advertised for sale or lease. It is advised that persons entering into occupation pending purchase not be charged rent. The best thing to do is to add a premium to the sale price as the cost of occupation pending the completion of the sale. It is better to charge this premium than to have the person become a tenant protected by the rent restriction act. In practice it is sometimes going to be difficult to distinguish between a tenancy at will and a licence, especially in the case of family agreements. See Romany v. Romany (1972) 21 WIR 491 and Ramnarace v. Lutchman20(2001) 59 WIR 511

Tenancy at SufferanceA tenancy at sufferance arises where a tenant holds over on the expiry of his lease without the consent or dissent of the landlord. Such a tenancy can obviously be created only by16 17

It is suggested that the inspections take place after a shower of rain. Very important area. 18 occupies 19 There was a previous mention of a situation where person enters into occupation pending the creation of a lease. This person could be a paid tenant at will. 20 Very important case

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implication. This situation will not apply however where there is a statutory right to remain. It is to be noted however that a tenant at sufferance might be able to claim in due course a right to title to the land by way of adverse possession.

Tenancy by EstoppelEstoppel is a principle of equity and of the law of evidence. It operates to prevent one party from denying the existence of certain facts which he has previously represented to be true. In landlord and tenant law, if a person purports to grant a lease of land, but has no legal estate in the land, entitling him to grant a lease, both parties will nevertheless be bound by that purported lease, and they will be estopped as against each other from denying that the grant was effective. This tenancy is called a tenancy by estoppel. And it binds both parties and their successors in title, although no estate in land has in fact been granted21

Landlord & TennantDate: Lecturer: December 9, 2004. Mr. Peter Carson

Persons Who Have Capacity To Create Leases1. Absolute OwnersThe owner of a fee simple absolute who is an individual and is under no personal incapacity has the power to grant leases for such periods and on such terms and conditions as he pleases. Likewise, a person who is under no personal disability which incapacitates him form contracting or from holding land is able to accept any such lease.

2.

Joint Tenants (Owners) and Tenants(Owners In Common)In either situation, they must act together since neither is agent for the other and failure to do so will affect the rights of the tenant over the estate. In fact if one joint tenant or tenant in common demises without the consent of the other, the innocent owner can evict the tenant. The tenants recourse would then be an action for breach of contract and breach of quiet enjoyment. It may be that in the case of a tenancy in common depending upon the circumstances, a partition may be possible.

3.

Aliens

The right of aliens to own or lease land is governed by statute. In most of our jurisdictions, such statutes exist. The term non-belonger may be used in some jurisdictions. Jamaica has no such requirements and we no longer have exchange control requirements as it relates to conducting business from outside the jurisdiction.21

This tenancy is quite common in our jurisdictions, and it may not be based on any intention to deceive, the best example is the oldest male who assumes by primogeniture that they own the land and then they later discover that they hold with all their other siblings.

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4.

Minors

The general rule in respect to infants or minors22, at common law any lease of agreement of a lease made by or to a minor was voidable. That is to say the lease or agreement could be repudiated or disclaimed by the minor without liability before or within a reasonable time after attaining majority. If the minor took possession under a lease he would therefore be liable under that lease if he did not disclaim on reaching full age. In the law of contract, a minor can be held liable on a contract for necessaries supplied to him. Such a contract is valid and binding and can include accommodations suitable to the minors status.

5.

Mentally Disabled Person

The general position with regard to the granting of a lease by a mentally disabled person or his acceptance of a lease is that the lease is binding upon him provided the other party did not know of his disability so as to take advantage of it23. If the other party was aware of the mental condition, the lease is voidable at the election of the disabled person. Like a minor, a mentally disabled person may be liable for necessaries supplied to him24.

6.

Corporations

A corporation exists as a legal person in its own right but is subject to certain disabilities which, vary according to the method by which the corporation was created. In our jurisdictions, corporations are usually created either by an Act of Parliament or under the provisions of the Companies Act. A corporation created by an act of parliament, will poses only those powers that are expressly conferred upon it by the enabling Act or derived by necessary implication from its provisions otherwise, the lease will be void. A company incorporated under a Companies Act must either: a. set out the objects for which it was incorporated or b. enjoy the status of an individual with full powers to act. In the case of the former, the memorandum and objects will have to include the granting or acceptance of leases or contain a Bell Houses clause, otherwise the lease will be ultra vires and therefore void25.

7.

The Crown/The State

The sovereign is a corporation sole and at common law can grant leases and accept them. The commission of lands usually handles such matters for the state.

8.

Tenant for Life

Under our various Settled Land/Estates legislation, and the Law of Property Act Barbados, a tenant for life can grant leases. The tenant for life is the person who is for the time being beneficially entitled under a settlement to possession of the settled land for their life. There22 23

Minors is the term preferred by Mr. Carson (as opposed to infants). This would also include the situation where the party is given too much to drink. 24 Necessaries may include suitable accommodation. 25 We need to know the status of Executive Agencies; this may be somewhat unclear as it relates to some of the new Executive Agencies created recently by the Jamaican Government. Does the head of the National Land Agency have the power to tell the Registrar of Titles what to do?? We need to know their powers and know what they are able to tell clients what to do. There are usually limitations often with reference to the value of contracts.

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are certain statutory restrictions however, with respect to the duration of the demise. See the legislation.

9.

Personal Representatives

Theses are either executors under a will or administrators appointed under letter of administration in either case they are placed in the shoes of the deceased and can grant leases although, of course, it is the duty of personal representative to realise the property within a reasonable time. Until administrators are appointed, it is the Administrator General who must administer the estate26.

Landlord & TennantDate: Lecturer: January 6, 2004. Mr. Peter Carson

Agents Under A Power of AttorneyHow one signs under a power of attorney is dependent on the document creating the power of attorney. Some allow the attorney to sign in their own name, while others require them to sign on behalf of the person on whose behalf the power of attorney is granted. An agent acting under a power of attorney may grant or accept a lease if expressly given the power to do so. As a general rule, powers of attorney are strictly construed and so general clauses contained in the power are not likely to be construed as granting specific powers. The power to accept or grant leases has to be expressly stated, they will not be implied. Where property is owned jointly, a power of attorney given by only one of those persons cannot be used over that property.

Mortgagor or MortgageeA mortgagor of land who retains possession or a mortgagee who is in possession may lease land subject to express statutory limitation and subject to the terms of the mortgage. It is to be remembered however, that the rules relating to a mortgage differ with respect to registered and unregistered land. That is to say with unregistered land, the legal estate vests in the mortgagee with the equity of redemption being in the mortgagor, whereas, in the case of registered land, the legal estate remains in the mortgagor with the right to sell or foreclose being granted to the mortgagee, in compliance with the relevant statutory provisions. See the case of Rory Robinson v. Texaco Caribbean Inc. (decided in 2004.) PART 1 COMPLETE

COVENANTS26

In practice, they will tell you they are only concerned with matters if there are minors involved. It is however submitted that they must get involved to determine if there are minors. It may even be difficult to appoint administrators. This is because consent is required by the beneficiaries. It is often better to have different signing sheets where there are several beneficiaries.

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27

See the Landlord and Tenant inventory from January 6, 2005. If the premises are furnished, there should also be an inventory list which includes the brand etc. of the items in the premises. See item 21 on the checklist, Caveat = Caution. Caveats are used in Jamaica. In other jurisdictions, a caution is used.

Payment of RentThe rent clause is called reddendum28. Rent is the compensation or consideration which the tenant pays to the landlord for the exclusive possession of land under a lease. It is to be noted that: 1. Rent does not have to be money; it may be the performance of services. This goes back to feudal times where feudal lords were required to provide men of arms to the king, or to provide persons with literary skills. See Montaque v. Browning [1954] 2 All ER 602, or it may be payment in kind. 2. Rent must be certain or capable of being ascertained with certainty. So for example, rent varying with the value of gold was said to be certain in TresederGriffin and another v. Co-Operative Insurance Society Ltd. [1956] 2 All ER 33 rent based on as many hours as the landlords requires in Barnes v. Barratt [1970] 2 All ER 483was said to not be sufficiently certain. 3. Rent is payable by the tenant to the landlord or to his authorised agent, and it must be paid in the manner specified in the lease. See James v. Venezuela (1959) WIR 281. 4. If the lease does not state the manner of payment, rent is payable at the end of each period of a periodic tenancy or at the end of each year of a term of years29. 5. Rent is payable without deductions unless, (a.) the lease authorises the making of deductions or (b.)the tenant has paid sums which the landlord has a legal duty to pay30. 6. Unless there is an express covenant to the contrary, the obligation to pay rent will continue unaffected by any changes in the nature of the demised premises. The court in National Carriers Ltd. v. Panalpia Northern Ltd. [1981] 1 All ER 161has said however that the doctrine of frustration may apply although in a restrictive way to leases31.

Landlord & TenantLecturer: Date:27

Mr. Peter Carson January 13, 2005.

In any kind of legal practice, it is essential that a checklist is kept. This allows the attorney to see which of the essential things are done. These checklists may be simple or become more complex as a result of the complexity of the of the case. The checklist will also need to be updated to keep abreast of the law. 28 BLACKS LAW DICTIONARY: A clause in a deed by which the grantor reserves some new thing (esp. rent) out of what had been previously granted. 29 If the landlord wants their tent in advance, they have to specifically state this or the rent is payable at the end of the period. 30 This applies to statutory obligations on the landlord, such as Property Tax legislation. 31 This applies whether the premises sinks below the sea level or burns down.

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Types of Rent1. 2. 3. 4. 5. Best Rent: - The best rent that can be reasonably obtained on the type of lease. Rack Rent: - Is a rent of the full annual value of the property or within a reasonable margin of it at the commencement of the lease. Ground Rent: That is less than a rack rent, the difference having been capitalised in the form of a premium taken by the landlord on the granting of the lease. This type of rent is more commonly found in long leases and building leases. Peppercorn Rent: - This is a very nominal ground rent for example 10.c per year. Dead Rent: - This is a rent reserved on the lease of a mine or other wasting asset which is payable throughout the term. It may be increased by royalties. This is found in Jamaica on Bauxite mining areas or marl quarries. A royalty is a true rent if properly reserved. A variable or Sliding Scale Rent: - This is rent fixed by reference to the cost or value of some commodity. This for example may be gold or the cost of living index, or where the rent reserved is fixed by reference to a factor such as the tenants trade as it relates to his net or gross profits. The difficulty with a sliding scale rent is that the books may be cooked to show a lower profit and therefore the rent may not be appropriately measured. Rent Payable in a Foreign Currency: This is not illegal and the parties may agree to pay the rent in a foreign currency, but where the property is under Rent Restriction Legislation and the currency is experiencing devaluation the rent may be in breach of the Rent Restriction Act. Rent Review Provision: - This is where provision is made for rent to be reviewed at a determined period i.e. annually etc. This is usually used in fixed tenancies for a long period.

6.

7.

8.

The Distinction Between Rent and Other Periodic Payments It is important to be able to determine particularly for jurisdictions other than Jamaica whether a particular payment though called rent is indeed rent. For, if it is not, it cannot be distrained32 for and therefore may be enforceable only between the original parties and not for example against an assignee of the tenant. Further if the payment is not rent, the agreement between the parties may not in fact be a tenancy see Barnes v. Barrat [1970] 2 All ER 483. The following are not rent: 1. A Rent Charge: - This is a sum of money charged upon land for a term or in perpetuity. Usually, with an express power of distress to secure the payment of the money, but is not rent, because it is not an incident of tenure and the owner of the rent charge has no reversion in the land charged 2. A Rent Seck33: - This is similar to a rent charge but without an express power of distress.32

Jamaica does not have distress, but if a question is asked on distress, you need to answer the question as it relates to a jurisdiction which has it. ALWAYS ON THE EXAM. 33 This is also called dry rent.

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3. 4. 5.

A Payment in Gross: This is a payment reserved in favour of someone other than the landlord. A premium: This is not rent at common law, and the obligation is purely contractual. In jurisdictions with rent control legislation, the imposition of a premium is illegal. Service charges and other payments: - These are incidental to the use of the premises. For example, the use of facilities such as swimming pools, tennis court, club house etc. This is not rent and is therefore not distrainable34.

Payment of Rent The rental period and the date on which the rent is payable for each period should be clear from the lease, but if there is no stipulation as to the periods, a yearly rent will be implied. Rent is payable in arrears unless expressly agreed to be payable in advance, and any such agreement will be construed strictly against the landlord. Rent is due on the morning of the day specified for payment, but it is not in arrear until after midnight. See Re Aspinall v. Aspinall [1961] 2 All ER 751. Rent paid before the due date is not strictly satisfactory of the obligation so that if a third person acquires the landlords reversion, after it has been paid, but before the due date, the tenant will be obliged to pay the rent to the assignee unless the tenant had no notice of the assignment before the due date. See however, James v. Venezuela (1959) 1 WIR 281. Rent is payable either to the landlord or his agent, expressly or impliedly authorised to receive, spouses are not automatically agents of each other. On the death of the landlord, the rent is payable to his personal representative until the reversion becomes vested by their assent or by conveyance in some other person. Where the landlords are joint tenants, any one of them can sue and give a receipt for the entire rent and on the death of any, the entire rent is due to the survivors. Where the reversion is assigned the assignee becomes entitled to receive the rent but the tenant will not be prejudiced if he continues to pay it to the assignor until he has received notice of the assignment.

Landlord & TenantLecturer: Date: Mr. Peter Carson January 20, 2005.

When drafting a lease, it is important to ensure that one does no copy from another document is such a way that irrelevant and ambiguous provisions are copied as well. Rent Deductions Permitted From Rent A tenant may only make deductions from the rent where permitted by the lease, or by statute. Or where the sum paid ought to have been paid by the landlord under some statutory obligation and so the tenant can treat the sum as a set off. Often the reddendum35 reserves the rent free of all deduction which might preclude the tenant from deducting sums he would otherwise have been entitled to deduct in the absence of any agreement. This will not apply however to statutory deductions.34

In considering the rent under the Rent Restriction Act, we need to look for these payments which should not be calculated in the rent. Charges for security etc. Service charges which have nothing to do with the property which is rented, is not rent and cannot be treated as rent for the purpose of distress. 35 Covenant to pay rent

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If the rent does not mention a rent free of deductions and the landlord has certain duties and obligations which he fails to carry out, the tenant can carry out these obligations and deduct the cost from the rent. Where the rent is reserved free of deductions, the tenant cannot make any deductions from the rent, this however does not apply as it relates to statutory deduction as these can be deducted regardless of the clause36.

Where the property falls under rent restriction legislation however, it is submitted that the tenant should seek an order from the court before making any deductions from the rent. This is because a tenant in this case is a statutory tenant and therefore is best advised to apply to the court before applying common-law remedies. If a deduction is made to the rent with regard to an obligation of the landlord, one needs to be careful to inform the landlord that they need to repair. If the landlord fails to repair, one needs to ensure that competent persons are found to carry out the repairs. In fact it is better to take the landlord to court for breach of covenant. The difference between a right to deduct and a right to set off is this: The amount of a rightful deduction is pro tanto satisfaction of the rent due and therefore cannot be distrained for. But, where payment by a penalty gives a right to set off, distress can be brought for the full rent even thought is sued for the full rent, the tenant could set off those payments. Remedies for Non Payment of Rent A landlord usually has three distinct remedies against a tenant who is in arrears with the rent: 1. With the exception of Jamaica, the landlord may levy distress upon the tenants goods which ultimately he may sell to pay off such arrears as remain unpaid. 2. The land lord may sue the tenant on the covenant to pay rent or, 3. The landlord may seek to terminate the tenancy by forfeiture in exercise of a right to re-enter, reserved expressly under the lease in the event of non-payment of rent. However, equity tends to intervene in those circumstances and even though rent was owing given the circumstances, it was unreasonable for the landlord to re-enter. This would apply if the tenant was in default through no fault of their own i.e. if they were in a coma. In some jurisdictions, the registered land legislation expressly provides for a landlord to forfeit and reenter as an implied right37, so even if the lease does not provide for it, it is an automatic right38. Rent Review Clauses In many medium and long term leases particularly of commercial properties, it is common today for a rent review clause to be included in the lease. Such a clause usually provides for the rent to be reviewed at fixed intervals during the term, at each review date, the market rent then current for the devised property will be assessed and substituted for the rent previously36 37

Personal notes from lecturers comments not dictated. Section 96(b) of the Registration of Titles Act (Jamaica) 38 There are now some rental agreements which now require a guarantor to pay the rent if the tenant fails to pay.

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payable. The form of these clauses varies from lease to lease. In England, there has been a spate of litigation over along period of time with respect to rent review clauses, mainly because they have not been well drafted. The following should be taken into consideration in drafting such a clause39: 1. Whether time is to be of the essence40 2. the position where time is made of the essence 3. the effect of delay by the landlord 4. the position where no formula is provided for determining a new rent 5. the duty of an arbitrator or valuator 6. the effect of the clause on the demise Premiums A premium is a sum paid for the grant or renewal of a lease. A premium should not be confused with rent. It is in fact a contractual obligation which is not attached to the demised estate. Thus, the obligation is not transferred upon an assignment, and a landlord cannot levy distress for non-payment. It is not always easy however to distinguish between a rent and a premium, and more so if the premium is paid in instalments. See Samuel v. Salmon & Gluckstein Ltd. [1945] 2 All ER 520. Statutory Restriction Against Premiums The general rule is that the requirement of a premium in return for the grant or assignment of a statutory tenancy is illegal. This prevents a landlord from collecting any sum other than the rent he is entitled to. For this purpose, a premium is described in wide terms to include, any fine, loan, or other pecuniary consideration which is in addition to rent. The majority of residential property landlords require a deposit to cover damage to fittings and furnishings and to insure against non-payment of public utility bills i.e. light and telephone. It is submitted that most security deposits are illegal with respect to controlled premises, see however R v. Ewing (1977) 65 Cr. App R. 4. A security deposit however that will yield no additional financial benefit and which is designed to protect the reversion and to cover outstanding utility bills which have been to the benefit of the tenant does not in my view breach the legislation. For example, a deposit placed in an escrow 41 account. In this case, interest must also be returned with the relevant deposit. In addition Ewing considers quantum that should be reasonably applied.

Landlord & TenantLecturer: Date: Mr. Peter Carson January 27, 2005.

39 40

Butterworths Encyclopedia of forms and precedents This is important because the situation may go on indefinitely where no provision is made for this. This may happen because each person may appoint their own arbitrator and they disagree. It is important to state that the matter must be settled by a specific time. Where the land values are going up, then the landlord wont want to delay, but where the property values are going down or the area has declined, the landlord and their valuator or mediator may wish to delay. 41 This is an account which is in the name of the parties and the interest goes to the party entitled at the end of the period.

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See the Sunday Observer January 23, 2005 p. 19 or the Sunday Gleaner of January 23, 2005 for the notice on the Average Clause.

Service ChargesWhere the leasehold premises is only one of several units in a residential or business complex, the lease often provides for the payment of a service or maintenance charge. This sum ought to reflect the value of services provided by the landlord or the body managing the complex. Where the complex is owned by the landlord, it is generally more convenient for him to provide common services to all of the tenants whether it is a block of apartments, offices, or a shopping plaza rather than leaving individual tenants with this responsibility. In addition, it enables him to maintain a high degree of control and to ensure uniform standards of maintenance. The liability to pay a service charge will arise as a result of a covenant in the lease and not otherwise. Service charges may be made payable to a third party for example a managing agent or a maintenance company. A service charge is a payment which is separate from and additional to rent. But it is possible to describe a service charge expressly as rent and thus enjoy the remedies available for the non payment of rent. There are several types of complexes: 1. The condominiums or strata titles complex or 2. The Landlord or Management Company owned complex Under the condominium or strata titles act, each unit is owned by one proprietor and is a separate legal entity. Each proprietor has the right along with the others to determine a number of things which relate to the complex including the maintenance charges. The complex must be insured and the complex must charge a service charge for this reason. In the case of a complex owned by a company or a landlord, they have complete control over this service charge. Service or maintenance charges which are imposed on a condominium or strata titles complex are very different in application from those in a complex owned by a management company of a landlord. Statutory Restrictions Where leased premises are governed by rent restriction legislation; the general position is that the standard or assessed rent should reflect the total consideration for the use and occupation of the premises. That is to say, the landlord cannot increase the assessed rent by imposing service charges which would amount to additional rent. This would not however include services that would not have been considered when the rent was being determined for example security costs. Business Tenancies Business tenants except those protected by statute must comply with their leasehold obligations to pay service charges. Sometimes disputes arise between landlord and tenant when the tenant believes that the standard of service provided is inadequate or where the amount charged is inadequate or seems unreasonable. The solution to these difficulties is to provide a satisfactory mechanism for reviewing the facilities provided and the costs involved. The most usual method is to apportion the service charge on a fixed percentage basis. This is

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usually based on the floor area of the premises. But you may also want to consider the type of business being carried on for example a business which uses more water etc would pay more.

Quiet EnjoymentSee the case of Southwark London Borough Council v. Mills etc. [1999] 4 All ER 449 and. See the case and the comments which the tenant made with reference to the breach of quiet enjoyment Traditionally, this covenant was not a covenant in the acoustic sense of the word quiet, but imposed an obligation on the landlord to ensure that the tenant would have peaceful possession of the premises, thus it was described as a covenant to secure title and possession, that is to say, to protect the tenants estate. The landlord under this covenant is responsible for: a. acts done by him whether the acts are done on or off the premises and regardless of whether the acts are lawful or unlawful b. acts done by the landlords servants or agents acting under the landlords authority whether lawful or unlawful c. lawful acts of persons claiming title under the landlord for example under other tenants of property owned by the landlord The implied covenant for quiet enjoyment is not an absolute covenant and therefore, it does not protect the tenant from someone with a superior title otherwise called title paramount. Thus if a landlord turns out to have a defective title, the tenant will not be able to bring proceedings against the person with a superior title to the landlord. See the case of Jones v. Lavington [1903] 1 KB 253. At one time, the rule was that a tenant had to show that there was a substantial interference with his ordinary enjoyment of the premises; this is a question of fact. The classic illustration of the application of the covenant is the case of Lavender v. Betts [1942] 2 All ER 72 where the landlord removed the windows and doors. Further, the tenant also had to show some physical interference to constitute a breach of covenant. So for example in Browne v. Flower, the court held that there was only a loss of privacy, but no physical interference, however in Owen v Gadd and others [1956] 2 All ER 28, the court of Appeal held that the erection of scaffolding in close proximity to the shop entrance and window of the demised premises constituted a breach of the covenant. Today there is a movement away from the traditional view that there must be physical interference before a tenant can establish a breach of the covenant. In the case of Kenny v Preen [1962] 3 All ER 814 , the Court of Appeal held that there was a breach of covenant for quiet enjoyment although there was no physical interference. See also Sampson v. Hodgson-Pressinger [1981] 3 All ER 710.

Landlord & TenantLecturer: Date: Mr. Peter Carson February 3, 2005.

Mesne Profits

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Mesne profit is not a rent, but is the sum recovered for the occupation of the premises after the tenant holds over outside the contract between the parties. See the case of Younis Investment Ltd. v. Mark Azan. See the article. Breach of the Covenant of Quiet Enjoyment See the articles. Quiet enjoyment cases are essential. See the Southwark cases [2001] 1 AC 1, or [1999] 4 All ER 449. The covenant for quiet enjoyment cannot be avoided. If the lease agreement does not include the covenant, the covenant will be implied by common law and statute. The Express Covenant for Quiet Enjoyment The express covenant for quiet enjoyment or title in any form will displace the implied covenant in qualified form. An express covenant is usually qualified however, and will have the same effect as the implied covenant, but will have the added advantage from the tenants point of view of enduring throughout the term granted. As long as it is limited to protecting the tenant from lawful eviction or interruption by the landlord or anyone claiming by, from, or under him, it will be construed as qualified and will not protect the tenant from eviction by someone with a title paramount. However, an express covenant for quiet enjoyment may be drafted so as to include even a claim by title paramount, or a person with a superior title. If the tenant is in a position to negotiate for an express covenant for quiet enjoyment and included a person with a superior title, then the landlord would be bound by that agreement and would therefore have to compensate the tenant accordingly. It may be difficult to get a landlord to agree to such an agreement. The express covenant where it exists must be read carefully, however, it is usually nothing more than a repetition of the common law position or statute. Remedies For Breach of Covenant A tenant may either seek an award for damages for breach of contract, or they might seek an injunction. There are a number of West Indian cases where we have seen excessive tactics on the part of the landlord. See the case of Douglas v. Bowen (1974) 22 WIR 333. See also the case of Valentine v. Rampersaad (1970) 17 WIR 12(Trinidad) and Drane v. Evangelou [1978] 2 All ER 437(British)42 where the tenant after seeking a declaration of rent returned home to find his things outside and the doors locked to him and several persons in occupation. Damages will be measured by the loss resulting from the breach. In addition, the court can grant damages for mental distress. The wrongful conduct of the landlord, may also amount to a tort in which case aggravated or exemplary damages may be awarded. See for example, Valentine v. Rampersaad (1970) 17 WIR 12, Douglas v. Bowen (1974) 22 WIR 333 and Drane v. Evangelou [1978] 2 All ER 43743. Injunction The grant of an injunction is a discretionary remedy, and will only be granted where damages would not be an adequate remedy. So a tenant might obtain an injunction to prevent a42 43

[1978] 1 WLR 455 [1978] 1 WLR 455

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landlord from breaching the covenant for quiet enjoyment where damages would not compensate for the inconvenience. Generally however, it will not be easy to get an injunction in landlord and tenant matters because most breaches of covenant can be compensated for by an award of damages.

Landlord & TenantLecturer: Date: Mr. Peter Carson February 17th, 2005.

Non-Derogation of Grant This covenant embodies the principle that a landlord shall not by his voluntary act, affect any rights which he has created. That is, having given a tenancy with one hand he is not to take away the means of enjoying it with the other. Up until recently, there was a clear distinction between the covenant for quiet enjoyment and the obligation not to derogate from grant. However, recently the distinction between the two has become substantially blurred. See Garner on A Practical Approach To Landlord and Tenant (the latest edition which contains a full discussion in this area.) Prior to this, the derogation from grant only applied to the actions of the landlord on the neighbouring land and they would have to know what the tenant was going to use the land for. This derogation from grant has now been widened to include persons claiming under the landlord. The derogation from grant therefore applies in the case of shopping malls where one tenant uses their demised premises in a way which derogates from the landlords grant. This applies even though the landlord has had no impact on the actions which actually derogate from the grant. Covenant To Repair There are statutory provisions which speak to the obligation to repair, either by the landlord or the tenant. See the Registration of Titles Act and Rent Restriction Act. These statutory provisions are non-defining and therefore the common law is what provides the definition for repairing. The meaning of the word repair in the context of the law of landlord and tenant is not clearly defined as the cases will demonstrate. Nevertheless the definition given in Anstruther-Gough-Calthorpe v. McOscar [1923] All E.R. Rep. 19844 is a good starting point. In this case, it was said by Lord Hoskin that repair means: Making good damage so as to leave the subject as far as possible as though it had not been damaged. It involves renewal of existing parts. It may also involve replacing a worn out or damaged article with one that is new corresponding as closely as possible to the original. The current approach by the courts in England is to see whether on a commonsense approach the work required falls within the ambit of the word repair. See for example Brew Bros. v. Snax (Rose) [1970] 1 All ER 68745. One needs to consider when reading the cases that the construction methods used in the United Kingdom is different from that used here. This is in light of the fact that we are in an earthquake and hurricane zone. This is considered where someone takes on an obligation to repair with a new building which quickly falls into disrepair.44 45

[1924] 1 K.B. 716; 93 L.J.K.B. 273; 130 L.T. 691; 40 T.L.R. 223; 68 Sol. Jo. 367 [1970] 1 QB 162

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Landlord & TenantLecturer: Date: Mr. Peter Carson February 24th, 2005.

If there is no express covenant or statutory requirement to repair by either party, then neither party is obliged to repair the demised premises, and neither can require the other to carry out repairs. It is therefore usual to make express provisions for one party to repair or for the repairs to be apportioned as between the parties46. In short term leases, the landlord will often be responsible for general repair (general means structure, roof, walls etc.) while in long term leases, it will usually be the tenant. In leases of apartments or offices which form part of a larger building, it is the usual practice to require the tenant to keep the interior in repair and for the landlord to be responsible for the exterior47. At common law, there is an implied obligation on the part of the tenant to use the premises in a tenant-like manner. (This term is usually in all leases and legislations), that is he must take proper care of the premises. See the case of Warren v. Keane [1953] 2 All ER 1118. It has been said that a tenant from year to year must keep the premises wind and watertight and make fair and tenantable repairs. But in the case of Warren v. Keane [1953] 2 All ER 1118 the scope and meaning of these obligations were said to be doubtful, at the most it would seem that a tenant from year to year is only liable for minor repairs. Also at common law, there is an implied covenant that premises that are let furnished must be habitable at the beginning of the letting. What is habitable and furnished may also be in dispute. There are basically four kinds of repairing covenants that one can find: 1. to keep in repair (is usually more wordy) 2. to leave, deliver and yield up in repair 3. to repair and renew 4. to carry out structural repairs Those are the usual types of repairing covenant. (See the residential lease at clause three page 2. To keep and maintain the interior of the rented premises including all windows, walls, electrical and sanitary equipment, water apparatus, drains, fittings, carpets, furniture and fixtures, gardens and fences in a good tenantable state of repair and condition and shall apply at least one coat of paint to the interior walls on the termination of this tenancy.) Standard of Repair The standard of repair required under a repairing covenant will depend on the terms of a particular covenant and the condition of the building. With regard to the latter, the general rule as described by Lord Esher in Proudfoot v. Hart [1886-90] ALL E.R. Rep. 78248 is:46

This apportionment can be done in several different ways, i.e. you do structural and I do everything else. It should be noted that buildings have a life. Concrete residential houses have a 60 year life, but roofs have a 15-20 year life. The plumbing may also go before the life. 48 59 L.J.Q.B. 389; 63 L.T. 171; 55 J.P. 20; 38 W.R. 730; 6 T.L.R. 305 [1890] 25 QBD 4247

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such repair as having regard to the age, character and locality of the house as would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it. Further in determining the standard this must be considered at the beginning of the lease and not at the end of it. See Anstruther-Gough-Calthorpe v. McOscar [1923] All E.R. Rep. 19849. A number of factors may be important: 1. the time of the lease 2. the rental fee 3. the use of the building. Effects of Various Covenants 1. To keep in repair, or to keep in good tenantable repair: this requires the landlord or the tenant as the case might be to repair the premises up to the standard described in the covenant and may require that the premises be put into repair if necessary and left in repair. See Proudfoot v. Hart50. So that if a tenant leases premises that are in disrepair, he will be required to put the premises in a proper state of repair and to keep them as such. 2. To leave, deliver and yield up in repair: this type of covenant is usually found in short leases and is commonly expressed as an obligation to deliver up the premises at the end of the tenancy in the same state of repair as they were at the commencement of the tenancy, fair wear and tear excepted. In this type of covenant no liability can arise until the end of the tenancy. Fair Wear & Tear Excepted This exception usually found in short term leases is intended to relieve the tenant from liability for disrepair due to the normal action of time and the elements and from normal and reasonable use by the tenant for the purpose for which the premises were left. (sometimes expressed as acts of god and the queens enemies) See the case of Gutteridge v. Munyard (1834) 1 Moo & R 334. A tenant will therefore be excused from carrying out repairs which become necessary through the passage of time, but it will not exempt him from liability for repairs necessary as a result of abnormal or extraordinary phenomena which was never contemplated by the parties. The tenant is also bound to do such repairs as may be required to prevent the consequences flowing originally from wear and tear from producing others which wear and tear would not directly produce if it had been dealt with at the time. See Regis Property Co. Ltd v. Dudley [1958] 3 All ER 49151 (especially the judgement of Lord Denning). Persons in Portmore for instance live in a flight path and should include a provision for aircraft damage.

49 50

[1924] 1 K.B. 716; 93 L.J.K.B. 273; 130 L.T. 691; 40 T.L.R. 223; 68 Sol. Jo. 367 59 L.J.Q.B. 389; 63 L.T. 171; 55 J.P. 20; 38 W.R. 730; 6 T.L.R. 305 [1890] 25 QBD 42 51 [1959] AC 370

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Landlord & TenantLecturer: Date: Mr. Peter Carson March 3rd, 2005.

3.

4.

To repair and renew: The inclusion of renew in a covenant to repair adds nothing to the tenants obligation since repair in this sense means the restoration by renewal or replacement of subsidiary parts of the whole. Renewal by itself means the reconstruction of the whole or substantially the whole. See for example the case of Lister v. Lane [1891-94] ALL E.R. Rep. 38852. To carry out structural repairs: This requires repairs to the main structure of the building, that is to say walls, floors and roofs etc. In Jamaica and Barbados, the Occupiers Liability Act allocates liability for damage suffered by persons lawfully on the premises to the occupier of the premises.

The test for determining the effect of a repairing covenant was at one time decided by distinguishing repair from renewal. The rule was that a repairing covenant did not include renewal which amounted to a reconstruction of all or most of the premises. See the case of Lister v. Lane [1891-94] ALL E.R. Rep. 38853. The rule was also that the covenant did not include correcting defects by substituting something different from the original since this would amount to an improvement. See Sotheby v Grundy [1947] 2 All ER 761. Accordingly, a repairing covenant did not include any obligation to repair inherent defects. See Collins v Flynn [1963] 2 All ER 1068. 54 Recently however, the test for determining the obligation to repair has been replaced by the degree test, that is to say, whether the work to be done amounts to repair work as a matter of fact and degree. In theory, it is easy to distinguish between repair on the one hand and improvements and renewal on the other. In practice, it is often very difficult. The approach adopted in Ravenseft Properties Ltd. v. Davstone Holdings Ltd. [1980] 1 QB 12 by Justice Forbes is this: The true test is, as the cases show, that it is always a question of degree whether that which the tenant is being asked to do can properly be 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 deciding this question, the proportion which the cost of the disputed work bears to the value or cost of the whole premises may sometimes be helpful as a guide. This approach is relatively straightforward and it does help. The duration of the tenancy and the cost of the rent should always be taken into account. This dictum was approved in a number of subsequent cases, including the Court of Appeal in Elmcroft Developments Ltd. v. Tankersley Sawyer (1984) 270 EG 140.52

[1893] 2 Q.B. 212; 62 L.J.Q.B. 583; 69 L.T. 176; 57 J.P. 725; 41 W.R. 626; 9 T.L.R. 503; 37 Sol. Jo. 558; 4 R. 474 53 [1893] 2 Q.B. 212; 62 L.J.Q.B. 583; 69 L.T. 176; 57 J.P. 725; 41 W.R. 626; 9 T.L.R. 503; 37 Sol. Jo. 558; 4 R. 474 54 See the dissenting judgment of Justice Roy Jones in the Janice Allen matter

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However, the fact that there is an inherent defect does not by itself exclude a liability to repair. The approach adopted by the cases is this: One must begin by identifying the parts of the premises which are out of repair. See Quick v. Taff-Ely Borough Council [1985] 3 WLR 981. Then one must determine whether it is necessary to remedy a design fault when carrying out the repairs, if not then the tenant will not be required to carry out repairs to the inherent or design fault. See Post Office v. Aquarius PropertiesLtd. [1987] 1 All ER 1055. However, if there is damage which requires repairs and this is as a result of an inherent defect then that defect would have to be repaired. See the case of Ravenseft Properties Ltd. v. Davstone Holdings Ltd. [1980] 1 QB 12. All of this must be placed against the background of the duration of the tenancy. That is, having regard to how long the term runs for.

Remedies For Breach of Covenant To Repair

A.

The Landlord

1. He may sue for damages for breach of covenant 2. If there is a provision for forfeiture in the lease, he may forfeit the lease in the manner laid down by statute. 3. Under land registration legislation he may forfeit the lease even if there is no provision for forfeiture under the lease itself. (Under the registration of titles act, there is an implied right given to the landlord to forfeit for breach of covenant, everywhere else, it must be expressed in the lease.) Measure of Damages Recoverable The measure of damages which a landlord may recover for a breach of covenant to repair will depend on whether the action is brought during the currency of the lease or at the end of the lease. In the former, the measure of damages is the diminution of the value of the reversion which results from the breach. This is the amount by which the market value of the premises is affected by the lack of repair and it depends on the length of the unexpired term. Accordingly, the longer the residue of the term, the less this diminution should be. In the latter case, the measure of damages is based on the tenants covenant to yield up the premises in repair. At common law, the measure of damages is the actual cost of carrying out the repairs, necessary to put the premises into the state of repair required by the specific covenant. See the case of Joyner v. Weeks [1891] 2 Q.B. 31.

Landlord & TenantLecturer: Date: Mr. Peter Carson March 10th, 2005.

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B. The Tenant The tenant may: 1. 2. 3. bring an action for damages or breach of covenant bring an action for specific performance of the landlords covenant; or have the repairs done and then recoup the expenditure from the landlord (this is often a controversial remedy).

The extent of a landlords liability to repair, like that of a tenant depends on the exact wording of the covenant. However, a landlord is not in breach of a covenant to repair unless he has notice by a tenant or a third party on the need to repair. See Obrien v Robinson55, and this is so even if he is aware that there is disrepair. (what that means is where the landlord reserves a right to inspect and he sees it that is not enough) The Measure of Damages Recoverable The measure of damages is the difference in value to the tenant of the premises repaired, and not repaired, see Hewitt v. Rowlands (1924) 93 LJKB 1080. The tenant may initiate proceedings to recover such damages, or may withhold the rent if not restricted by the covenant to pay rent, and then if sued by the landlord for arrears of rent, set off the landlords claim. See the case of British Anzani (Felixstowe) Ltd v International Marine Management (Uk) Ltd [1979] 2 All ER 1063. The tenant is also entitled to recover the amount of damage to his personal property during the period of the landlords default in repairing and damages for injury to himself arising from the lack of repair. (There is obiter in contradiction to this, but so far no ratio.) Specific Performance In appropriate cases, a court will compel a landlord to perform his covenant to repair if he is clearly in breach and if it is clear what has to be done to make good the repairs. See for example June v Queens Cross Properties Ltd. [1973] 3 All ER 9756 Self Help A tenant may carry out repairs to the demised property where the repairs fall within the scope of the landlord covenant and the landlord having been given notice of the need for repairs fails to do so within a reasonable time. The tenant may then seek to recover the expenditure out of future rents. See the case of Lee-Parker v. Izett [1971] 3 All ER 109957, and Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] 2 All ER 176. With respect to rent restriction legislation, it is submitted that a tenant ought not to adopt the self help remedy, but should apply to a court for an order to be made with respect to the property. The way to treat that is to request that the court make the necessary order because the tenants are statutory tenants not contractual tenants and therefore have to comply with statutory provisions. When55 56

1891 2 QB [1974] Ch. 97 57 [1971] 1 WLR 1688

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one is utilising self help etc., one cannot put the premises in a better condition than it was in and then deduct it from future rent.

WasteThe obligation of a tenant where the lease contains no express obligation with regard to repairs or maintenance of the demised premises or where there are no implied statutory provisions for this, is based on the tenants implied obligation to use the premises in a tenant like manner and upon his implied duty not to commit waste. This obligation is founded in the law of tort and is independent of any contract, express or implied. Waste is any act, which alters the leasehold premises for better or for worse. Thus a tenant commits waste if he causes by act or omission any lasting alteration to the land or premises to the prejudice of the reversion by way of damage, destruction addition improvement or neglect.

THE TYPES OF WASTE ARE AS FOLLOWS: 1. Voluntary waste: - This is a positive act, for example pulling down a building, altering or converting premises, felling or cutting trees or shrubs, removing tenants trade fixtures and leaving the building exposed to the weather. An omission to do something can hardly ever constitute an act of voluntary waste. See the case of Mancetter Developments Ltd v Garmanson Ltd and another [1986] 1 All ER 449. Ameliorating Waste: This is a forma of voluntary waste which improves the value of the premises. For example by putting up a building or extending a building unless there is substantial alteration, the court will not usually restrain such waste by an injunction nor will the alteration be a basis for forfeiture under a proviso to forfeit. Nor in general can damages be recovered. So although ameliorating waste is a breach of a tenant obligation, in practice, it is a breach without a penalty. If the landlord can show that the work that has been done actually reduces the value of the reversion this may result in a remedy. Permissive waste: -such waste is based on negligence and omission. For example allowing a building to collapse for want of necessary repair, if the building was in a state of repair at the time of the demise, but not if the building was al