Landlord and Tenant to Be Printed.

ColmanLANDLORD & TENANT- Jamaica,Barbados,St.Kitts and Belize The Relationship Between Landlord & Tenant The 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 landlord’s right to distress is no longer available in Jamaica. However, the court may make an order accordingly. The tenant is estopped from denying the landlord’s title and likewise the landlord from denying the tenant’s 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. • • -1- Colman • • • • 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 Relationship A 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 & TENANT Lecturer: Date: Mr. Carson October 21, 2004. The Subject Matter of the Relationship The 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- Colman 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 Lease Whether 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 could 1 “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 94 Lease of registered land -3- Colman show that he had carried out acts in performance of the contract, that is, the doctrine of part performance. Essentials of the agreement 1. 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 & TENANT Lecturer: Date: Mr. Carson October 28, 2004. The Doctrine of Part Performance Where 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.” -4- Specific performance. [1956] 3 All ER 705. the conduct of the party 2. which we have. Steadman [1947] 2 All ER 977. Ames [1925] Ch. These include: 1. Leases As we know. Pillersdorf v. 2. 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. 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. See Steadman v. Greatex [1957] 1 WLR 31. This may include equitable damages. 2004. 96 3. This must be referable to an oral contract. The payment of rent in advance might also constitute an act of part performance.Colman 1. The carrying out of repairs and alterations to the premises to be leased See Rawlinson v. or 2. Damages are the ordinary common law remedy for a breach of contract. Denny (1975) 10 BLR 30. whether the party has delayed unreasonably in enforcing his rights. Carson November 4. Specific Performance If either party refuses to go ahead with the agreement to grant or to accept a lease the other party has two remedies: 1. 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. parties may disregard entering into an agreement for a lease and proceed to the lease itself. Damages. complies with certain formalities. whether hardship may result with a grant of the order and 3. The taking of possession of land by one party with the consent of the other. LANDLORD & TENANT Lecturer: Date: Mr. See the cases of Williams v. Leases cont’d -5- . and if for more than three years or as otherwise provided by the statutes. 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. however. the rule does not apply to leases for life. 2. If the landlord wishes to enter the premises he must specifically reserve the right to do so6. 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. This kind of situation. however. Once however. or during the duration of a marriage. Formalities At common law a lease could be validly created by a purely oral transaction. Lack of Formalities Prior 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. must be in writing and ought to be noted by the Registrar. a demise until “the river changes its course”. These exceptions are statutorily based. under seal. persons enter into unusual agreements which make the period of the tenancy uncertain. is treated by equity as an agreement for a lease for which specific performance 6 It should be noted that the right to renew a lease is the tenant’s option and once the tenant chooses to exercise the option. except in the case of Jamaica where it is one year. These are basically as follows: 1. or modified to suit the particular circumstances. In the case of registered land the provisions of S. that is to say. Occasionally. Once the maximum period is known then it remains a valid lease. Thus a lease which is void at law because it fails to comply with the requirements of formality. Except in the case of Barbados all leases of unregistered land must be by deed. D. if sufficiently evidenced in writing or supported by acts of part performance. In the vast majority of cases the period is clear and definite. though the right to exclusive possession does not preclude the existence of a licence. 51 of the Registered Land Act. the landlord cannot refuse. -6- . This principle has in some circumstances been altered by statute and certain formalities have been made mandatory. all leases for more than two years. In the case of Barbados leases of unregistered land for more than one year need only be created by an instrument in writing. The various registered land statutes provide a pro forma example of a basic lease which can be used as is. This was confirmed in the case of Walsh v. See The Conveyancing Act.Colman Exclusive Possession This is the right to control the demised property and to exclude all other persons from it including the landlord. Definite Period This requirement is not always free of difficulty. In addition. 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. The Judicature Act resolved this conflict by providing that where there is difference between law and equity the equitable rules should prevail. 9. Lonsdale (1882) Ch. In the case of registered land. For example. 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. See Coathsworth v. Somma v. If it is for less than 3 years and it is unregistered land it may be made orally or in writing or by deed. It is for more than 3 years and there is neither a sufficient memorandum nor part performance. 391. v. such a practise has taken place for some time now as evidenced by the number of decisions in this area. 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.R. 70 of the Registration of (Titles) Act of Jamaica 3. But there are instances where equity will not assist: 1. If it is for more than 3 years and is made orally and there is part performance an equitable lease will arise 5. Licensees and tenants-at-will are not considered by the legislation. Mountford [1985] 2 All ER 289. 2. In England. See the case of Metcalfe & Eddy v. Because an equitable lease is dependent upon the remedy of specific performance being granted a tenant guilty of a breach of covenant. See Adiscombe Gardens v. Hazelhurst (1979) 37 P. LANDLORD & TENANT Lecturer: Date: Mr. the court once again had to 7 8 @845 [1978] 1 WLR 1014 -7- . 2. More recently in Street v. Edgehill 5 WIR 417 Conclusion A lease may be validly created as follows: 1. Leases & Licences The distinction between a lease and a licence is very important. Shell Mex Ltd. Manchester [1971] 1 All ER 8417 Esso Petroleum Co. 2004. Carson November 11. As such legislation is designed primarily to protect tenants. Crabbe [1985] 1 QB 513. for example. particularly in jurisdictions with Rent Restriction Acts. v.Fumegrange Ltd. will not be granted this remedy. If it is for more than 3 years and there is a sufficient memorandum in writing an equitable lease will also arise 6. See however. [1994] 46 EG 199. specific performance will not be granted but if the tenant enters into possession and pays rent a periodic tenancy will arise. If it is for more than 3 years and is unregistered land it must be by deed 4. Ltd. As a result. An equitable lease is not always enforceable against third parties acting in good faith and without notice. Johnson (1885) 55LJQB 220.Colman 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. 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. lawyers are frequently called upon to use agreements to create licences and so avoid the effect of the legislation. S. [1978] 2 All ER 10118. & C. 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. Hoare Sup. 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. See the case of Cherrington v. Since that decision there have been a number of decisions which have applied that case including the Trinidadian case of Ramnarace v. 359. Family relationships. A contractual licence. 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. NB The Nature of a Licence A licence does not create any estate in that part of the property to which it relates. This decision was also a Privy Council decision out of Trinidad. 4. What we say is not always what we mean. That concept of “intention” is difficult as it is difficult to construe what the parties intended at the time of the agreement. 2. there are a range of factors which may give rise to that. any licence which is not coupled with a grant but which is supported by valuable consideration for example the right to enter a cinema. that it was a tenancy agreement. 110/76. Street v Mountford [1985] 2 All ER 289 was founded against the backing of certain statutory provisions which do not exist in the Caribbean. Lutchman (2001) 59 WIR 511. Bare licence. Employer employee relationships. Long friendship. Bryson (1952) 1 TLR 1386. 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. Additionally one will have to consider the capacity of the party to grant a tenancy. 3. -8- . Fachini v. The usual special circumstances that will arise are: 1. (Bel) Action no. Romany (1972) 21 WIR 491. 2. See Romany v. this is a licence granted without any valuable consideration to support it so that it does not even amount to a contract. A licence coupled with an interest such as the right to enter land and enjoy an incorporeal hereditament. If these requirements have been satisfied a tenancy arises unless there are some special circumstances which negative a presumption of a tenancy. There are basically three categories of licences: 1. Although there may be no consideration of the face of it. Although following the cases.Colman construe a document described as a licence to determine whether in fact it was a licence. that is. The House of Lords held. Then it may be necessary to consider the intention of the parties. Ramnarace v. See the case of Binions v. 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. in circumstances not covered by legislation we may still have to consider the intention of the parties and the circumstances surrounding the letting. Ct. [1972] 2 All ER 70 3. however. Evans [1972] Ch. if it was intended that the occupier should have exclusive possession in the room he will generally be a tenant. A lodger is entitled to live in the premises but cannot call the place his own. The requirement may be contained in his contract of employment or implied from the circumstances of his employment10. If on the other hand residential 9 This is an important consideration where the employment ends and the employer seeks to remove the “employee” or tenant from the premises. 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. may be a service tenant in which case he would be in the same position as an ordinary tenant. Torbet v Faulkner (1952) 2 TLR 659. An employee. See. In many cases. if the right to occupy is not required for the better performance of the employee’s duties but is in reality a part of the remuneration for his services then a tenancy is prima facie created. 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. 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. An occupier of residential accommodation at a rent is either a lodger or a tenant. This is very important where the Rent Restriction Act applies. however. however. See Glasgow City Corporation v Johnstone [1945] AC 609. 2004. -9- . 11 Under the Rent Restriction Act a person can be a tenant in a single room. Employees Where 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. Lodger The word “lodger” is used in cases where the landlord lives in the same house as the occupier.Colman 4. however. 10 Contract should be drawn up so that employment is linked to occupation so that where one ends the other ends. However. LANDLORD & TENANT Lecturer: Date: Mr. if it was intended that he/she should merely have personal permission to occupy the room he will generally be a licensee. Licence by estoppel. 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. 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 who has no separate accommodation is generally a licensee. Carson November 18. If it is not included then the term runs and if one wants to determine they must be prepared to supply compensation. it is called a reversionary lease or a future lease. that is to say. See Hill and Redman on Concurrent leases. that is to say. LANDLORD & TENANT Lecturer: Date: Mr. This must be included in the agreement. -10- . an option to determine. Mr. 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. This type of lease is known as a concurrent lease.Colman accommodation is granted for a term at a rent with exclusive possession the landlord providing neither attendance nor services the grant is a tenancy. 2004 Types of Tenancies contd. Where a lease takes effect in the future. 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. whether it is for a month. A lease may also be granted for a term that commences before a previous lease expires or is otherwise determined. DaSilvaesa [1986] EGLR 618. Further.”12 Lodger here also means border. a break clause. TYPES OF TENANCY Tenancies For a Fixed Term The simplest kind of term is a lease for a fixed period. or a number of years. 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. 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. week. 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. Carson November 25. Rennals RM Civil Appeal No. They may also be made terminable on the happening of some specified event. The term must. however. Two such agreements came before the Court in Crancour Ltd v. be certain or capable of being made certain before it begins. Justice Rowe was persuaded to this view at least in respect of commercial lettings in the case of Yapyoung v. 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. It should be noted that in practice. they hold over as a statutory tenant and therefore the statutory provisions with respect to notice would apply. 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. 10/84. Landlords wishing to avoid the statutory protection offered to tenants therefore enter into lodging agreements. 3. either party restricting their right to terminate see for example Centaploy Ltd. Whatever period id chosen. The important thing to remember with respect to periodic tenancies. The usual periods are a year. but subsequently pays or agrees to pay rent on the same terms as under the expired lease. 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. the practice still continues. -11- . as a result of the tenant holding over and paying rent after the original lease has ended. A yearly tenancy will arise by implication whenever the following conditions are satisfied: 1. Such a tenancy cannot be terminated before the end of the second year. 764.Colman However the more recent decisions of Crampad International Marketing Co. A tenant holds over after the expiration of a fixed term tenancy as a tenant at will or at sufferance. But. 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. that tenancy will be determinable on the anniversary of the determination of the original term. a quarter a month or a week. he becomes a tenant from year to year upon such terms of the lease agreement as are applicable to a yearly tenancy 13 14 RM Civil Appeal No. Rennals13. v. In such cases. The lease granted to the tenant is in fact void because it was not made by deed or in writing. (1914) Ch. But until notice is given. v. Matlodge Ltd.14 A periodic tenancy differs fundamentally from a fixed term tenancy. never the less. and may be determined at the end of the first or any subsequent year by service of a valid notice to quit. as the case may be. Periodic Tenancies A 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. 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. 1 and Re Midlands Railway Companies Agreement. When a tenancy from year to year does arise. have overruled Yapyoung v. or words of similar intent. in that in the case of the latter the maximum duration is fixed from the outset. that is the minimum duration of the tenancy.Val Benjamin Thomas (1989) 37 WIR 315 and Dabdoub v. Britissh Railway Board [1971] Ch. 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. Charles lay & Sons Ltd. if the tenant can show that he has in fact entered into possession of the premises and has paid a yearly rent. the tenancy is regarded as one continuous tenancy without break and without renewal. Saba (1991) 39 WIR 263. Yearly Tenancy Tenancies from year to year may be created by express agreement or implication.v. The minimum period of such notice would have to be six months. As the tenancy progresses from one period to another. but any period may be chosen. 10/84 The Rent Restriction Act has a sample Notice to Quit included in the schedule. its total duration will not be certain. There are some landlords who restrict the use of the premises by way of contract. 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. Mr. The repairs were never done and the tenant decided to move out. -12- . He said one way of dealing with this scenario would be under sanitation. would not be consistent with a yearly tenancy. An example was given of a person who took a lease and paid a three months deposit on the lease. that will give rise to a yearly tenancy. The landlord decided that the tenant’s deposit would not be returned as the tenant was in breach of contract. In contrast. this will be deemed to be a tenancy from year to year. especially if there is a soak away pit which may be strained by the large number of users. The payment of rent does not of itself create a tenancy from year to year. 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. a covenant to do expensive repairs.15 This person was entitled to their deposit and damages for breach of contract.Colman The tenant has entered into possession and paid part of a yearly rent. but this is a rebuttable presumption. Carson mentioned a scenario where a three bedroom house was rented and there were numerous tenants living in the premises. or to paint every three years. monthly or weekly basis. The requirement that there be a yearly rent is satisfied if the rent reserved is expressed as an annual sum. where rent is paid and accepted on a quarterly. but there is no agreement in writing. there are statutory and common law provisions which will govern the lease. 15 Someone at the legal aid clinic informed this person that they had no cause of action. monthly and weekly tenancies with appropriate modifications. and tenants do not have an absolute right to use the premises as they choose during their tenancies. or to give two years notice to quit. So for example where the rent is $12000 per year payable monthly. Even if there are no contractual obligations not to use the premises in a certain way. They took the lease on the condition that certain repairs were to be made within a specified period. 2004. for example a covenant to pay rent in advance or to keep the premises in a good and tenantable repair. Mr. Landlord & Tennant Date: Lecturer: December 2. it does not matter by what instalments the annual sum is payable. They can be created in the same way as a yearly tenancy that is with express agreement or by implication. 4. Other Periodic Tenancies What has been said with respect to other yearly tenancies applies mutatis mutandis to quarterly. Peter Carson There are no absolute rights. It should be noted however that even with the payment of rent. and this tenancy at will.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. Dictated notes Tenancies at Will17 A tenancy at will arises where a landlord lets a tenant into possession of land and that tenant holds18 at the will of the landlord. and any repairs arising after this are the responsibility of the tenant. will remain until some other interest is granted or is inferred from the payment of rent. Where a tenancy at will is by expressed agreement that agreement may provide for rent to be paid. but stay on intending to become a tenant. the circumstances may still indicate a tenancy at will See Hagee Ltd. Erikson [1976] QB 209. James (1968) 6 GLR 39. This becomes complicated if the premises are advertised for sale or lease. It is not uncommon in this jurisdiction for purchasers to enter into possession and for this to give rise to trouble later. See the case of Bertram Palmer v. the law will imply a tenancy at will.” Very important area. 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. or an agreement which is not specifically enforceable. One example arises where there has been entry on the premises under a lease or agreement which is in fact void. 18 occupies 19 There was a previous mention of a situation where person enters into occupation pending the creation of a lease. Vincent Clarke (1983) 20 JLR 81. this tenancy will be a tenancy at will. 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. Gordon 7JLR 88 and Walter Hoilett v. especially in the case of family agreements. It is suggested that in a case such as this the premises are inspected thoroughly16. Bramwell v. For example pending a mortgage and miss the deadline. 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. It is advised that persons entering into occupation pending purchase not be charged rent.Colman We were told of lease agreements which specified that the tenant has inspected the premises and had decided to take it as is. A tenancy at will may be created by express agreement or by implication. Such a tenancy can obviously be created only by 16 17 It is suggested that the inspections take place “after a shower of rain. See Romany v. This person could be a paid tenant at will. Romany (1972) 21 WIR 491 and Ramnarace v. Lutchman20(2001) 59 WIR 511 Tenancy at Sufferance A tenancy at sufferance arises where a tenant holds over on the expiry of his lease without the consent or dissent of the landlord. A tenancy at will comes to an end if either party dies or parts with his interest in the land. In practice it is sometimes going to be difficult to distinguish between a tenancy at will and a licence. 20 Very important case -13- . If a person is allowed to occupy premises rent free. v. If the tenant has not paid any rent. Tenancies at will are not protected by statute so rent restriction legislation will not apply. Tenancy by Estoppel Estoppel is a principle of equity and of the law of evidence. 2. This tenancy is called a tenancy by estoppel. and it may not be based on any intention to deceive. 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. 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. Likewise. Mr. although no estate in land has in fact been granted21 Landlord & Tennant Date: Lecturer: December 9. if a person purports to grant a lease of land. And it binds both parties and their successors in title. Absolute Owners The 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. 2004. In most of our jurisdictions. In landlord and tenant law. Joint Tenants (Owners) and Tenants(Owners In Common) In either situation. a partition may be possible. It may be that in the case of a tenancy in common depending upon the circumstances. a person who is under no personal disability which incapacitates him form contracting or from holding land is able to accept any such lease. In fact if one joint tenant or tenant in common demises without the consent of the other.Colman implication. entitling him to grant a lease. -14- . both parties will nevertheless be bound by that purported lease. The tenant’s recourse would then be an action for breach of contract and breach of quiet enjoyment. 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. 3. 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. 21 This tenancy is quite common in our jurisdictions. but has no legal estate in the land. such statutes exist. Aliens The right of aliens to own or lease land is governed by statute. the innocent owner can evict the tenant. and they will be estopped as against each other from denying that the grant was effective. It operates to prevent one party from denying the existence of certain facts which he has previously represented to be true. This situation will not apply however where there is a statutory right to remain. Peter Carson Persons Who Have Capacity To Create Leases 1. In the case of the former. 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. and the Law of Property Act Barbados. 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. otherwise the lease will be ultra vires and therefore void25. 5. the lease is voidable at the election of the disabled person. set out the objects for which it was incorporated or b. 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. This would also include the situation where the party is given too much to drink. A company incorporated under a Companies Act must either: a. the lease will be void. a tenant for life can grant leases. There 22 23 Minors is the term preferred by Mr. 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. 25 We need to know the status of Executive Agencies. A corporation created by an act of parliament.Colman 4. Like a minor. enjoy the status of an individual with full powers to act. at common law any lease of agreement of a lease made by or to a minor was voidable. -15- . this may be somewhat unclear as it relates to some of the new Executive Agencies created recently by the Jamaican Government. Tenant for Life Under our various Settled Land/Estates legislation. 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 commission of lands usually handles such matters for the state. The Crown/The State The sovereign is a corporation sole and at common law can grant leases and accept them. If the other party was aware of the mental condition. In the law of contract. 8. 6. Minors The general rule in respect to infants or minors22. corporations are usually created either by an Act of Parliament or under the provisions of the Companies Act. 7. Carson (as opposed to infants). 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. In our jurisdictions. a mentally disabled person may be liable for necessaries supplied to him24. There are usually limitations often with reference to the value of contracts. the memorandum and objects will have to include the granting or acceptance of leases or contain a “Bell Houses” clause. a minor can be held liable on a contract for necessaries supplied to him. 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. 24 Necessaries may include suitable accommodation. Such a contract is valid and binding and can include accommodations suitable to the minors status. while others require them to sign on behalf of the person on whose behalf the power of attorney is granted. See the legislation. (decided in 2004. with respect to the duration of the demise. whereas.) PART 1 COMPLETE COVENANTS 26 In practice. in compliance with the relevant statutory provisions. it is the duty of personal representative to realise the property within a reasonable time. Texaco Caribbean Inc. Some allow the “attorney” to sign in their own name. that the rules relating to a mortgage differ with respect to registered and unregistered land. That is to say with unregistered land. in the case of registered land. -16- . 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. This is because consent is required by the beneficiaries. It is to be remembered however. a power of attorney given by only one of those persons cannot be used over that property. they will not be implied. It is however submitted that they must get involved to determine if there are minors. Mortgagor or Mortgagee A 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 the Administrator General who must administer the estate26. Where property is owned jointly. Peter Carson Agents Under A Power of Attorney How one signs under a power of attorney is dependent on the document creating the power of attorney. the legal estate vests in the mortgagee with the equity of redemption being in the mortgagor. Until administrators are appointed. As a general rule. The power to accept or grant leases has to be expressly stated. Mr. Landlord & Tennant Date: Lecturer: January 6. 9. It is often better to have different signing sheets where there are several beneficiaries. See the case of Rory Robinson v. of course. powers of attorney are strictly construed and so general clauses contained in the power are not likely to be construed as granting specific powers.Colman are certain statutory restrictions however. An agent acting under a power of attorney may grant or accept a lease if expressly given the power to do so. It may even be difficult to appoint administrators. the legal estate remains in the mortgagor with the right to sell or foreclose being granted to the mortgagee. 2004. they will tell you they are only concerned with matters if there are minors involved. Peter Carson January 13. Rent is payable by the tenant to the landlord or to his authorised agent. 2005. [1981] 1 All ER 161has said however that the doctrine of frustration may apply although in a restrictive way to leases31. the obligation to pay rent will continue unaffected by any changes in the nature of the demised premises. If the lease does not state the manner of payment. 31 This applies whether the premises “sinks below the sea level” or burns down. The court in National Carriers Ltd. or to provide persons with literary skills. Rent is the compensation or consideration which the tenant pays to the landlord for the exclusive possession of land under a lease. Caveat = Caution. such as Property Tax legislation. Rent does not have to be money. it may be the performance of services. [1956] 2 All ER 33 rent based on “as many hours as the landlords requires” in Barnes v. a caution is used. In any kind of legal practice. there should also be an inventory list which includes the brand etc. See James v. v. See Montaque v. or it may be payment in kind. (a.)the tenant has paid sums which the landlord has a legal duty to pay30. 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. It is to be noted that: 1. This goes back to feudal times where feudal lords were required to provide men of arms to the king. Panalpia Northern Ltd. So for example.” 29 If the landlord wants their tent in advance. Rent must be certain or capable of being ascertained with certainty. 28 BLACKS LAW DICTIONARY: “A clause in a deed by which the grantor reserves some new thing (esp. it is essential that a checklist is kept. 30 This applies to statutory obligations on the landlord. they have to specifically state this or the rent is payable at the end of the period. If the premises are furnished. Venezuela (1959) WIR 281. The checklist will also need to be updated to keep abreast of the law. and it must be paid in the manner specified in the lease. 3. Rent is payable without deductions unless. Barratt [1970] 2 All ER 483was said to not be sufficiently certain. Browning [1954] 2 All ER 602. Co-Operative Insurance Society Ltd. rent) out of what had been previously granted. Caveats are used in Jamaica. 5. Landlord & Tenant Lecturer: Date: 27 Mr. 4. -17- . 2005. 6. Payment of Rent The rent clause is called reddendum28. In other jurisdictions. This allows the attorney to see which of the essential things are done. See item 21 on the checklist.Colman 27 See the Landlord and Tenant inventory from January 6. These checklists may be simple or become more complex as a result of the complexity of the of the case.) the lease authorises the making of deductions or (b. Unless there is an express covenant to the contrary. rent varying with the value of gold was said to be certain in TresederGriffin and another v. 2. of the items in the premises. 2.This is a rent reserved on the lease of a mine or other wasting asset which is payable throughout the term.This is similar to a rent charge but without an express power of distress. A Rent Charge: . This is found in Jamaica on Bauxite mining areas or marl quarries. Usually. 6. 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. Rack Rent: . 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. ALWAYS ON THE EXAM. The following are not rent: 1. the agreement between the parties may not in fact be a tenancy see Barnes v. or where the rent reserved is fixed by reference to a factor such as the tenant’s trade as it relates to his net or gross profits. but if a question is asked on distress. 4. Further if the payment is not rent. annually etc. This type of rent is more commonly found in long leases and building leases. Rent Review Provision: . 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. This is usually used in fixed tenancies for a long period.e. A variable or Sliding Scale Rent: .This is where provision is made for rent to be reviewed at a determined period i.This is a very nominal ground rent for example 10. Best Rent: . 7. if it is not. 8. Barrat [1970] 2 All ER 483. Peppercorn Rent: . For. with an express power of distress to secure the payment of the money. Ground Rent: That is less than a rack rent. Rent Payable in a Foreign Currency: This is not illegal and the parties may agree to pay the rent in a foreign currency.c per year. -18- .The best rent that can be reasonably obtained on the type of lease. the difference having been capitalised in the form of a premium taken by the landlord on the granting of the lease. 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.This is rent fixed by reference to the cost or value of some commodity. It may be increased by royalties. 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. 33 This is also called dry rent. Dead Rent: . A Rent Seck33: .This is a sum of money charged upon land for a term or in perpetuity. 32 Jamaica does not have distress. A royalty is a true rent if properly reserved. 5.Is a rent of the full annual value of the property or within a reasonable margin of it at the commencement of the lease.Colman Types of Rent 1. 3. This for example may be gold or the cost of living index. you need to answer the question as it relates to a jurisdiction which has it. and the obligation is purely contractual. For example. tennis court. A premium: This is not rent at common law. is not rent and cannot be treated as rent for the purpose of distress.These are incidental to the use of the premises.Colman 3. 35 Covenant to pay rent -19- . Rent … Deductions Permitted From Rent A tenant may only make deductions from the rent where permitted by the lease. Rent is due on the morning of the day specified for payment. 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. This is not rent and is therefore not distrainable34. Rent is payable either to the landlord or his agent. See Re Aspinall v. 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. This will not apply however to statutory deductions. 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. the entire rent is due to the survivors. after it has been paid. we need to look for these payments which should not be calculated in the rent. or by statute. a yearly rent will be implied. the imposition of a premium is illegal. but if there is no stipulation as to the periods. Aspinall [1961] 2 All ER 751. club house etc. James v. 4. 34 In considering the rent under the Rent Restriction Act. When drafting a lease. Rent is payable in arrears unless expressly agreed to be payable in advance. but before the due date. 5. and any such agreement will be construed strictly against the landlord. the use of facilities such as swimming pools. Venezuela (1959) 1 WIR 281. Rent paid before the due date is not strictly satisfactory of the obligation so that if a third person acquires the landlords reversion. spouses are not automatically agents of each other. 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. 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. In jurisdictions with rent control legislation. Peter Carson January 20. but it is not in arrear until after midnight. Service charges which have nothing to do with the property which is rented. On the death of the landlord. See however. Payment of Rent The rental period and the date on which the rent is payable for each period should be clear from the lease. expressly or impliedly authorised to receive. any one of them can sue and give a receipt for the entire rent and on the death of any. Landlord & Tenant Lecturer: Date: Mr. Service charges and other payments: . 2005. 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. A Payment in Gross: This is a payment reserved in favour of someone other than the landlord. Charges for security etc. it was unreasonable for the landlord to re-enter. But. Where the rent is reserved free of deductions. equity tends to intervene in those circumstances and even though rent was owing given the circumstances. In fact it is better to take the landlord to court for breach of covenant. where payment by a penalty gives a right to set off. 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.Colman 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. one needs to be careful to inform the landlord that they need to repair. the tenant could set off those payments. Rent Review Clauses In many medium and long term leases particularly of commercial properties.e. if they were in a coma. In some jurisdictions. However. Remedies for Non Payment of Rent A landlord usually has three distinct remedies against a tenant who is in arrears with the rent: 1. it is common today for a rent review clause to be included in the lease. This would apply if the tenant was in default through no fault of their own i. Such a clause usually provides for the rent to be reviewed at fixed intervals during the term. at each review date. If the landlord fails to repair. 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. this however does not apply as it relates to statutory deduction as these can be deducted regardless of the clause36. -20- . If a deduction is made to the rent with regard to an obligation of the landlord. one needs to ensure that competent persons are found to carry out the repairs. the tenant can carry out these obligations and deduct the cost from the rent. the landlord may levy distress upon the tenant’s goods which ultimately he may sell to pay off such arrears as remain unpaid. 2. With the exception of Jamaica. the market rent then current for the devised property will be assessed and substituted for the rent previously 36 37 Personal notes from lecturer’s comments not dictated. it is an automatic right38. The land lord may sue the tenant on the covenant to pay rent or. Where the property falls under rent restriction legislation however. the tenant cannot make 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. distress can be brought for the full rent even thought is sued for the full rent. 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. reserved expressly under the lease in the event of non-payment of rent. The landlord may seek to terminate the tenancy by forfeiture in exercise of a right to re-enter. it is submitted that the tenant should seek an order from the court before making any deductions from the rent. 3. A premium should not be confused with rent. light and telephone. 2005. mainly because they have not been well drafted. there has been a spate of litigation over along period of time with respect to rent review clauses. Thus. In addition Ewing considers quantum that should be reasonably applied. a deposit placed in an escrow 41 account. For this purpose. and more so if the premium is paid in instalments. In this case. any fine. It is in fact a contractual obligation which is not attached to the demised estate. For example. then the landlord won’t want to delay. Ewing (1977) 65 Cr. the effect of the clause on the demise Premiums A premium is a sum paid for the grant or renewal of a lease. In England. Peter Carson January 27. Whether time is to be of the essence40 2. Where the land values are going up. The form of these clauses varies from lease to lease.e. 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. a premium is described in wide terms to include. See Samuel v. the position where time is made of the essence 3. This may happen because each person may appoint their own arbitrator and they disagree. This prevents a landlord from collecting any sum other than the rent he is entitled to. It is important to state that the matter must be settled by a specific time. Salmon & Gluckstein Ltd. the obligation is not transferred upon an assignment. 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. 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. the landlord and their valuator or mediator may wish to delay. Landlord & Tenant Lecturer: Date: Mr. It is not always easy however to distinguish between a rent and a premium. and a landlord cannot levy distress for non-payment. [1945] 2 All ER 520. 39 40 Butterworth’s Encyclopedia of forms and precedents This is important because the situation may go on indefinitely where no provision is made for this. -21- .Colman payable. the position where no formula is provided for determining a new rent 5. App R. 4. interest must also be returned with the relevant deposit. but where the property values are going down or the area has declined. 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. the effect of delay by the landlord 4. the duty of an arbitrator or valuator 6. see however R v. loan. or other pecuniary consideration which is in addition to rent. It is submitted that most security deposits are illegal with respect to controlled premises. The following should be taken into consideration in drafting such a clause39: 1. In addition.Colman See the Sunday Observer January 23. offices. This is -22- . it is generally more convenient for him to provide common services to all of the tenants whether it is a block of apartments. Service Charges Where the leasehold premises is only one of several units in a residential or business complex. Service charges may be made payable to a third party for example a managing agent or a maintenance company. The complex must be insured and the complex must charge a service charge for this reason. the general position is that the standard or assessed rent should reflect the total consideration for the use and occupation of the premises. But it is possible to describe a service charge expressly as rent and thus enjoy the remedies available for the non payment of rent. Each proprietor has the right along with the others to determine a number of things which relate to the complex including the maintenance charges. it enables him to maintain a high degree of control and to ensure uniform standards of maintenance. The solution to these difficulties is to provide a satisfactory mechanism for reviewing the facilities provided and the costs involved. they have complete control over this service charge. 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. 2005 for the notice on the “Average Clause”. The liability to pay a service charge will arise as a result of a covenant in the lease and not otherwise. the landlord cannot increase the assessed rent by imposing service charges which would amount to additional rent. There are several types of complexes: 1. Statutory Restrictions Where leased premises are governed by rent restriction legislation. 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. Where the complex is owned by the landlord. A service charge is a payment which is separate from and additional to rent. The most usual method is to apportion the service charge on a fixed percentage basis. In the case of a complex owned by a company or a landlord. This would not however include services that would not have been considered when the rent was being determined for example security costs. 19 or the Sunday Gleaner of January 23. The condominiums or strata titles complex or 2. 2005 p. The Landlord or Management Company owned complex Under the condominium or strata titles act. 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. That is to say. or a shopping plaza rather than leaving individual tenants with this responsibility. Business Tenancies Business tenants except those protected by statute must comply with their leasehold obligations to pay service charges. each unit is owned by one proprietor and is a separate legal entity. The landlord under this covenant is responsible for: a. Further. the court held that there was only a loss of privacy. the tenant will not be able to bring proceedings against the person with a superior title to the landlord. 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. Thus if a landlord turns out to have a defective title. 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. Mills etc. The classic illustration of the application of the covenant is the case of Lavender v. the tenant also had to show some physical interference to constitute a breach of covenant. Lavington [1903] 1 KB 253.Colman usually based on the floor area of the premises. 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. Mesne Profits -23- . the Court of Appeal held that there was a breach of covenant for quiet enjoyment although there was no physical interference. 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. this is a question of fact. In the case of Kenny v Preen [1962] 3 All ER 814 . Flower. this covenant was not a covenant in the acoustic sense of the word quiet. however in Owen v Gadd and others [1956] 2 All ER 28. acts done by the landlords servants or agents acting under the landlords authority whether lawful or unlawful c. So for example in Browne v. but imposed an obligation on the landlord to ensure that the tenant would have peaceful possession of the premises. [1999] 4 All ER 449 and. thus it was described as a covenant to secure title and possession. Peter Carson February 3. to protect the tenants estate. Landlord & Tenant Lecturer: Date: Mr. See the case of Jones v. that is to say. At one time. Hodgson-Pressinger [1981] 3 All ER 710. Quiet Enjoyment See the case of Southwark London Borough Council v. 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. 2005. but no physical interference. See the case and the comments which the tenant made with reference to the breach of quiet enjoyment Traditionally. the rule was that a tenant had to show that there was a substantial interference with his ordinary enjoyment of the premises. Betts [1942] 2 All ER 72 where the landlord removed the windows and doors. it does not protect the tenant from someone with a superior title otherwise called title paramount. See also Sampson v. As long as it is limited to protecting the tenant from lawful eviction or interruption by the landlord or anyone claiming by. or a person with a superior title. and will have the same effect as the implied covenant. Douglas v. or under him. In addition. Breach of the Covenant of Quiet Enjoyment See the articles. The wrongful conduct of the landlord. Mark Azan. but will have the added advantage from the tenant’s point of view of enduring throughout the term granted. Remedies For Breach of Covenant A tenant may either seek an award for damages for breach of contract. may also amount to a tort in which case aggravated or exemplary damages may be awarded. Rampersaad (1970) 17 WIR 12(Trinidad) and Drane v. If the lease agreement does not include the covenant. There are a number of West Indian cases where we have seen excessive tactics on the part of the landlord.Colman Mesne profit is not a rent. See the article. an express covenant for quiet enjoyment may be drafted so as to include even a claim by title paramount. Injunction The grant of an injunction is a discretionary remedy. The express covenant where it exists must be read carefully. Damages will be measured by the loss resulting from the breach. Bowen (1974) 22 WIR 333 and Drane v. Bowen (1974) 22 WIR 333. If the tenant is in a position to negotiate for an express covenant for quiet enjoyment and included a person with a superior title. It may be difficult to get a landlord to agree to such an agreement. See the case of Younis Investment Ltd. then the landlord would be bound by that agreement and would therefore have to compensate the tenant accordingly. An express covenant is usually qualified however. however. So a tenant might obtain an injunction to prevent a 42 43 [1978] 1 WLR 455 [1978] 1 WLR 455 -24- . and will only be granted where damages would not be an adequate remedy. the court can grant damages for mental distress. 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 Douglas 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. from. See for example. it is usually nothing more than a repetition of the common law position or 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. or [1999] 4 All ER 449. it will be construed as qualified and will not protect the tenant from eviction by someone with a title paramount. the covenant will be implied by common law and statute. Rampersaad (1970) 17 WIR 12. v. However. Evangelou [1978] 2 All ER 43743. The covenant for quiet enjoyment cannot be avoided. or they might seek an injunction. Valentine v. See also the case of Valentine v. Quiet enjoyment cases are essential. See the Southwark cases [2001] 1 AC 1. That is.R. This is considered where someone takes on an obligation to repair with a new building which quickly falls into disrepair. See Garner on “A Practical Approach To Landlord and Tenant” (the latest edition which contains a full discussion in this area. v. See for example Brew Bros. affect any rights which he has created. This derogation from grant has now been widened to include persons claiming under the landlord. having given a tenancy with one hand he is not to take away the means of enjoying it with the other.J. 44 45 [1924] 1 K. Generally however. 716.K. 130 L. 2005. See the Registration of Titles Act and Rent Restriction Act. 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. 691. These statutory provisions are non-defining and therefore the common law is what provides the definition for repairing. there was a clear distinction between the covenant for quiet enjoyment and the obligation not to derogate from grant.Colman landlord from breaching the covenant for quiet enjoyment where damages would not compensate for the inconvenience. However. In this case.B.B.L. Covenant To Repair There are statutory provisions which speak to the obligation to repair. Nevertheless the definition given in Anstruther-Gough-Calthorpe v. 40 T. Up until recently. Jo. 19844 is a good starting point. Rep. It involves renewal of existing parts. Landlord & Tenant Lecturer: Date: Mr. 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. recently the distinction between the two has become substantially blurred. 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. This applies even though the landlord has had no impact on the actions which actually derogate from the grant. McOscar [1923] All E. Snax (Rose) [1970] 1 All ER 68745. 367 [1970] 1 QB 162 -25- . This is in light of the fact that we are in an earthquake and hurricane zone. 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. either by the landlord or the tenant. Non-Derogation of Grant This covenant embodies the principle that a landlord shall not by his voluntary act. Peter Carson February 17th.T. 223. 68 Sol. One needs to consider when reading the cases that the construction methods used in the United Kingdom is different from that used here.R.” 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 meaning of the word repair in the context of the law of landlord and tenant is not clearly defined as the cases will demonstrate. 273. 93 L. 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.) Prior to this. What is habitable and furnished may also be in dispute.Colman Landlord & Tenant Lecturer: Date: Mr. to leave. 38 W. 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. 2005. there is an implied obligation on the part of the tenant to use the premises in a tenant-like manner. 6 T. In short term leases. 171. roof. At common law. Keane [1953] 2 All ER 1118. (See the residential lease at clause three page 2. Also at common law. 78248 is:46 This apportionment can be done in several different ways. fittings.L. then neither party is obliged to repair the demised premises. Keane [1953] 2 All ER 1118 the scope and meaning of these obligations were said to be doubtful. There are basically four kinds of repairing covenants that one can find: 1.e.Q. It is therefore usual to make express provisions for one party to repair or for the repairs to be apportioned as between the parties46. and neither can require the other to carry out repairs. Concrete residential houses have a 60 year life. the landlord will often be responsible for general repair (general means structure. 20. See the case of Warren v. it will usually be the tenant. walls. With regard to the latter.R.B. Rep. 55 J.”) 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. 305 [1890] 25 QBD 42 47 -26- . If there is no express covenant or statutory requirement to repair by either party. but roofs have a 15-20 year life. furniture and fixtures. i. at the most it would seem that a tenant from year to year is only liable for minor repairs. The plumbing may also go before the life. deliver and yield up in repair 3. there is an implied covenant that premises that are let furnished must be habitable at the beginning of the letting. “To keep and maintain the interior of the rented premises including all windows. 48 59 L. Peter Carson February 24th. walls etc. 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. 63 L.) while in long term leases.R. the general rule as described by Lord Esher in Proudfoot v. (This term is usually in all leases and legislations). In leases of apartments or offices which form part of a larger building. But in the case of Warren v.R. carpets. It has been said that a tenant from year to year must keep the premises wind and watertight and make fair and tenantable repairs.T. to repair and renew 4. Hart [1886-90] ALL E. water apparatus. 389.J. to keep in repair (is usually more wordy) 2.P. to carry out structural repairs Those are the usual types of repairing covenant. that is he must take proper care of the premises. It should be noted that buildings have a “life”. electrical and sanitary equipment. 730. drains. you do structural and I do everything else. A tenant will therefore be excused from carrying out repairs which become necessary through the passage of time. See Proudfoot v. To leave.R. 171. 273. fair wear and tear excepted.P.B.J. 63 L. Effects of Various Covenants 1. McOscar [1923] All E. To keep in repair. Jo. 6 T. 367 59 L. he will be required to put the premises in a proper state of repair and to keep them as such. 68 Sol. 223.B. Hart50. See Regis Property Co. See Anstruther-Gough-Calthorpe v. A number of factors may be important: 1.L. 130 L. Dudley [1958] 3 All ER 49151 (especially the judgement of Lord Denning). 2. 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. 93 L. Persons in Portmore for instance live in a flight path and should include a provision for aircraft damage.J. 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. Ltd v. 40 T.Q. 19849.T. Rep. 38 W. (sometimes expressed as acts of god and the queens enemies) See the case of Gutteridge v. 716.R. 305 [1890] 25 QBD 42 51 [1959] AC 370 -27- . Munyard (1834) 1 Moo & R 334.K. the rental fee 3. 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. In this type of covenant no liability can arise until the end of the tenancy.B. 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. 691. 730. “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.” Further in determining the standard this must be considered at the beginning of the lease and not at the end of it. 49 50 [1924] 1 K.T. 20.L. 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. the use of the building.Colman “such repair as having regard to the age.R.R. So that if a tenant leases premises that are in disrepair. the time of the lease 2. 389. 55 J. R. Renewal by itself means the reconstruction of the whole or substantially the whole. 626. 558. See Sotheby v Grundy [1947] 2 All ER 761. as the cases show. 9 T.L. v. The rule was that a repairing covenant did not include renewal which amounted to a reconstruction of all or most of the premises.L. that is to say. 38852.B.J. See Collins v Flynn [1963] 2 All ER 1068. 176. 9 T. v. a repairing covenant did not include any obligation to repair inherent defects. Lane [1891-94] ALL E. 725.Q. The duration of the tenancy and the cost of the rent should always be taken into account.Q. Rep. floors and roofs etc. 69 L. 725. 212. 69 L.” This approach is relatively straightforward and it does help. 38853.B.J. To carry out structural repairs: This requires repairs to the main structure of the building. 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.B.Colman Landlord & Tenant Lecturer: Date: Mr. Tankersley Sawyer (1984) 270 EG 140. 37 Sol.R. Rep. Davstone Holdings Ltd. including the Court of Appeal in Elmcroft Developments Ltd. Jo. 474 53 [1893] 2 Q. This dictum was approved in a number of subsequent cases. 583. 54 Recently however. 4 R. 3. 62 L. whether the work to be done amounts to repair work as a matter of fact and degree.R. 37 Sol. 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. Jo. In practice. that it is always a question of degree whether that which the tenant is being asked to do can properly be described as repair. 474 54 See the dissenting judgment of Justice Roy Jones in the Janice Allen matter -28- .R. The test for determining the effect of a repairing covenant was at one time decided by distinguishing ‘repair’ from ‘renewal’. 176.P. 41 W. 4. or whether on the contrary it would involve giving back to the landlord a wholly different thing from that which he demised. the test for determining the obligation to repair has been replaced by the “degree test”. 503. 57 J. 558. The approach adopted in Ravenseft Properties Ltd.R. 4 R. 583. 626. 503. Lane [1891-94] ALL E. See for example the case of Lister v. [1980] 1 QB 12 by Justice Forbes is this: “The true test is. it is easy to distinguish between ‘repair’ on the one hand and ‘improvements’ and ‘renewal’ on the other. See the case of Lister v.T.B. 52 [1893] 2 Q. the Occupiers Liability Act allocates liability for damage suffered by persons lawfully on the premises to the occupier of the premises. it is often very difficult. Peter Carson March 3rd. 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. 2005.P.T. 57 J. 212. that is to say walls. In theory. Accordingly. In deciding this question. 41 W. 62 L.R. In Jamaica and Barbados. 31.B. having regard to how long the term runs for. necessary to put the premises into the state of repair required by the specific covenant. The approach adopted by the cases is this:  One must begin by identifying the parts of the premises which are out of repair. He may sue for damages for breach of covenant 2. [1980] 1 QB 12. See Post Office v. All of this must be placed against the background of the duration of the tenancy. 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.  Then one must determine whether it is necessary to remedy a design fault when carrying out the repairs. Under land registration legislation he may forfeit the lease even if there is no provision for forfeiture under the lease itself. 2005.Colman However. Landlord & Tenant Lecturer: Date: Mr. At common law. In the former. Weeks [1891] 2 Q. See Quick v. Aquarius PropertiesLtd. However. Davstone Holdings Ltd. -29- . If there is a provision for forfeiture in the lease. That is. (Under the registration of titles act. the less this diminution should be. he may forfeit the lease in the manner laid down by statute. the measure of damages is the actual cost of carrying out the repairs. [1987] 1 All ER 1055. it must be expressed in the lease. the longer the residue of the term. v. Peter Carson March 10th. Remedies For Breach of Covenant To Repair A. Taff-Ely Borough Council [1985] 3 WLR 981. In the latter case. the fact that there is an inherent defect does not by itself exclude a liability to repair.) 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. 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. The Landlord 1. 3. everywhere else. Accordingly. See the case of Joyner v. if not then the tenant will not be required to carry out repairs to the inherent or design fault. there is an implied right given to the landlord to forfeit for breach of covenant. the measure of damages is the diminution of the value of the reversion which results from the breach. the measure of damages is based on the tenant’s covenant to yield up the premises in repair. See the case of Ravenseft Properties Ltd. 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. When 55 56 1891 2 QB [1974] Ch. or may withhold the rent if not restricted by the covenant to pay rent. The tenant may initiate proceedings to recover such damages. [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.) Specific Performance In appropriate cases. The extent of a landlord’s liability to repair. (There is obiter in contradiction to this. set off the landlords claim. Izett [1971] 3 All ER 109957. 3. The Tenant The tenant may: 1. See Obrien v Robinson55.Colman B. and then if sued by the landlord for arrears of rent. like that of a tenant depends on the exact wording of the covenant. However. but so far no ratio. 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 for example June v Queens Cross Properties Ltd. 2. 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. The tenant may then seek to recover the expenditure out of future rents. (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 this is so even if he is aware that there is disrepair. see Hewitt v. 97 57 [1971] 1 WLR 1688 -30- . but should apply to a court for an order to be made with respect to the property. bring an action for damages or breach of covenant bring an action for specific performance of the landlords covenant. See the case of British Anzani (Felixstowe) Ltd v International Marine Management (Uk) Ltd [1979] 2 All ER 1063. or have the repairs done and then recoup the expenditure from the landlord (this is often a controversial remedy). and Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] 2 All ER 176. it is submitted that a tenant ought not to adopt the self help remedy. 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. See the case of Lee-Parker v. With respect to rent restriction legislation. Rowlands (1924) 93 LJKB 1080. and not repaired. and a tenant at sufferance is liable for voluntary waste. THE TYPES OF WASTE ARE AS FOLLOWS: 1. A weekly tenant is only liable to use the premises in a tenant like manner. for which a tenant for life can be liable. Equitable Waste: . Waste is any act. 2.Colman one is utilising self help etc. it is a breach without a penalty. altering or converting premises. Waste The 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.This is an aggravated form of voluntary waste. Permissive waste: -such waste is based on negligence and omission. 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. one cannot put the premises in a better condition than it was in and then deduct it from future rent. 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. -31- . This obligation is founded in the law of tort and is independent of any contract. This is subject to age and reasonable user. A periodic tenant is liable for voluntary waste. and he is not liable for mere wear and tear. but not permissive waste. Ameliorating Waste: – This is a forma of voluntary waste which improves the value of the premises. which alters the leasehold premises for better or for worse.This is a positive act. destruction addition improvement or neglect. Voluntary waste: . So although ameliorating waste is a breach of a tenant obligation. See the case of Mancetter Developments Ltd v Garmanson Ltd and another [1986] 1 All ER 449. in practice. 3.. 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. but not for permissive waste. For example by putting up a building or extending a building unless there is substantial alteration. 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. Such tenants must carry out such repairs so as to keep the premises in a good a state of repair as at the beginning of the tenancy. 4. Nor in general can damages be recovered. LIABILITY FOR WASTE Tenants for a fixed term are liable for both voluntary and permissive waste. felling or cutting trees or shrubs. but not if the building was already in disrepair. express or implied. if the building was in a state of repair at the time of the demise. An omission to do something can hardly ever constitute an act of voluntary waste. A tenant at will is not liable for voluntary waste or permissive waste. removing tenant’s trade fixtures and leaving the building exposed to the weather. For example allowing a building to collapse for want of necessary repair. for example pulling down a building. For example the conversion of a house into separate apartments. in the case of voluntary waste only. 2005.Colman Remedies A landlord may: 1. Tenants Defences To An Action For Waste 1. reasonable and proper use of the premises 2. So for example. This is in keeping with the estate that the tenant enjoys. An alteration occurs when the actual fabric of the demised premises is altered. the damage resulted form an act of God or fire 3. See the case of 58 That is that the wood and timber is to be used for carrying out repairs. The Covenant With Respect To User The general rule is that a tenant is entitled to use the leased or demised premises for any lawful purpose. He will obtain damages only if substantial damage is proved. if the tenant extends a building. Injunction A court may be prepared to grant an injunction to restrain a tenant from committing voluntary waste. where the claim is that wood and timber have been cut the tenant is entitled to do so by reason of his common law right to estovers58. Jerome Lee “Drafting Commercial Leases” Alterations and Improvement A landlord may be satisfied to rely on the law of waste to protect his reversion against any damage caused by the tenant making alterations or improvements to the demised premises. Peter Carson March 14th. Fourth Party) [1948] 1 All ER 248. Third Party. the damage resulted from the ordinary. and Williams. See the Duke of Westminster v Swinton (Adams. The covenant may be an absolute one or it may be qualified by words such as “not without the prior consent of the landlord” additional words may be added such as “such consent not to be unreasonably withheld”. -32- . since this will normally be an alteration. and action in damages may well fail if the landlord cannot show that the alteration has resulted in a reduction in the value of the reversion. Seek an injunction. Most leases therefore contain a covenant by the tenant not to make any alterations to the demised premises. Normally there is no covenant against the making of improvements. Damages The quantification for damages is based on the damage to the value of the reversion and is not relate to the actual cost of making good the damage to the premises. Landlord & Tenant Lecturer: Date: Mr. Bring an action for damages or 2. The covenant will not however preclude the tenant from taking in paying guests or lodgers if the tenants partake in 3. This means a nuisance in tort. it is wider and is broken by any act which disturbs the reasonable peace of mind of an adjoining occupier. 4. 59 60 See number one directly below. for example. the tenant must have been found guilty of the offence. for residential purposes only. The reasons for doing this are many. Such a covenant is only broken by a nuisance in the technical sense 60. There may be an overlap of the express restriction and statutory restriction. which is less strict than the common law.Colman Solomon v. A covenant against carrying on a noisome or offensive trade. the rights of the tenant to use the premises for any lawful purpose are likely to be restricted by express restrictions or implied statutory restriction or both. any degree of business use amounts to a breach of covenant. to ensure that a contract of insurance is not invalidated In the case of three above for example. Where the use is restricted. or 3. For example hair dressing. This will not be broken by carrying on a dangerous trade which is neither noisome nor offensive. This is under the Rent Restriction Act. With respect to rent restriction legislation. nuisance or damage. Doig [1987] BHS J. even if the lease did not contain a proviso for forfeiture and reentry. but the more common ones are: 1. the lease will usually contain a provision which restricts the trade of individual shops to prevent competition between businesses within the same shopping development. Where the covenant is against any act which may lead to annoyance. No. there may be an express restriction for “residential use only” in an area which is zoned for commercial uses59. See Henderson v. If one contends that the premises are used for illegal purposes. where it was held that a covenant restricting use to a supermarket and allied purposes was not broken by the ancillary sale of freezers. To protect the residential nature of the premises 2. 2. Interpreting Express Covenants 1. See for example Calabar (Woolwich) v Tesco Stores Ltd. 23 1984 No. 493. then this is a common law matter which is determined by the courts. since a tenant will not be protected if he uses the premises for illegal or immoral purposes. to avoid competition in commercial activity 4. Emphasis here is on the word lawful. Covenants Which Prohibit Specified Trades or Businesses will not be broken of there is a minor breach of the prohibited activity. or to adjoining occupiers. [1977] 245 EG 479. the law permits a certain degree of business use even if the premises are rented for residential use. they may however be at variance. However. Khan (1962) 5 WIR 132. -33- . There may be a covenant against causing a nuisance to the lessor. Landlords have traditionally inserted covenants into leases restricting the tenant’s use of the premises. If one contends that the premises are being used for an immoral purpose. in letting shop units in a shopping arcade. to prevent nuisance or annoyance to neighbours. So a landlord can evict a tenant who does so. dress making etc. the covenants could not bind sub-tenants. there is good ground for saying that he waived or acquiesced in the breach. Acceptance of rent under protest does not waive the covenant. Peter Carson March 17th. 2005 Absolute Covenant (User) Where there is an absolute covenant restricting user the landlord cannot be forced to agree to an alteration in use even if the refusal can be shown to be unreasonable. many leases contain a clause which allows the landlord to collect rent despite the breach without preventing him from determining the lease later for the breach. the past breaches will have been waived. the tenant is entitled to ask the court for a declaration that consent was unreasonably withheld. Thus. Therefore. see Gittens v. See the case of Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 3 All ER 61062. It is important to check town and country planning restrictions which will also govern the user of the premises. Landlord & Tenant Lecturer: Date: Mr. It is important to consider if any change in user will affect an insurance covenant or policy. Privity of Estate At common law.Colman the family life. Third party interests in the contract might have arisen either by an inter vivos sale or transfer or by succession upon the death of one or both of the parties. Bernard (1962) 5 WIR 132. See Segal Securities Ltd v Thoseby [1963] 1 All ER 50061. so the original parties to the contract can enforce the terms of the contract. if the rent has been accepted with knowledge of the breach for a short period only. However. could only be enforced where there was privity of estate. Madden [1925] Ch. Qualified Covenants If the lease specifically states that consent to a change in use is not to be unreasonably withheld. covenants which touch and concern the land. These covenants only bound assignees if and so long as they held the estate with which the covenants ran. Privity of Contract Every landlord and tenant relationship originates in contract. third parties under this rule are excluded from being able to enforce any terms under the contract. but there will be no implied release from the covenant for future breaches. 847. and a landlord refuses to agree to a change of use. As a result of this. 61 62 [1963] 1 QB 887 [1972] 1 WLR 1048 -34- . However. Waiver of the Covenant If a landlord accepts rent with full knowledge of the breach of covenant restricting user over a long period of time. there will be a breach of covenant if this activity is an arms length business transaction and the guest or lodger does not live as a member of the family see the case of Thorn v. the assignor also continues to be liable for rent unless he is released by the landlord. 2005. Peter Carson March 31st. this covenant is usually strictly interpreted and as such anything which is not expressly stated is considered to be permitted. but. Texaco ***. See for example the tripartite agreement in the lease. Thus. Since an assignment passes the entire estate it does not create a new estate. The release may be expressly granted or it may be implied by a course of conduct. If therefore the tenant purports to sublet the property for a period equal to or more than the unexpired period of his own lease. Of course. Nevertheless. Covenants Against Assigning & Subletting63 This is an important covenant and concern. By assignment is meant. in advising the assignee. you may wish out of courtesy to get the consent of the landlord. this will in fact be an assignment. 05 as it relates to paragraph 2 on page 1 In the absence of a stipulation to the contrary or implied statutory provisions. Landlord & Tenant Law Lecturer: Date: Mr. The important point is that in the Caribbean. A subletting on the other hand takes place where a tenant lets the demised property or a part of it to another person for a period less than the residue of his own term. In looking at the lease dated March 17th. The Formalities of Assignment and Subletting Assignments: In order for an assignment of a lease to be valid. an additional estate is created. the transfer by the tenant to another of his entire interest in the property for the whole of the residue of the term of the lease. See the case of Rampersad v Phagoo And Others (1960) 2 WIR 492. See the case of City Enterprises Ltd v Esso Standard Oil SA Ltd (1982) 33 WIR 5664. The period of the sublease must therefore be at least one day less than the unexpired period of the lease.Colman This has been modified by statute. the landlord may enter into a lease with the assignee thus establishing a new tenancy or the assignee and the landlord. may by agreement vary the terms of the original lease. certain formalities must be satisfied: - 63 64 This is an important concern Very important case from Belize -35- . a periodic tenancy because it is regarded in law as a continuing tenancy until it is actually determined allows a tenant to grant a sublease for a period in excess of his own period without it being treated as an assignment. For example. This is so even where the landlord has consented to the assignment. a tenant may assign or sublet the demised premises freely. the sub-lease will end with the determination of the principal lease as happened in the case of Rory Robinson v. we still have privity of contract and estate. Nevertheless. The assignee become a tenant of the landlord and assumes all burdens benefits and rights of the assignor under the lease including the liability for rent to the landlord. thus the operation of the covenant will depend on its precise wording. 67 This covenant may be used to prevent the creation of a license or a mortgage. Firstly an agreement to assign a lease will not be enforceable unless the agreement is in writing or there is a memorandum or note of it signed by the party to be charged65. the consent of the landlord will be required to an assignment of the premises. For example a covenant may be drafted against assigning or subletting. Lam Kee Ying Sdn Bhd v Lam Shes Tong and another [1974] 3 All ER 13768 . This is an important concern where attorneys enter into a partnership for example after being a sole practitioner. The doctrine of part performance might remedy this defect. in breach of the covenant. See the Real Property Act of 1845 UK which was incorporated into our various property statutes66. the assignment must be by deed if the legal estate is to pass to the assignee. the demised premises. With respect to registered land. Likewise where premises are demised to one person and that person forms a partnership having as its place of business. The result of this principle is that while a periodic tenancy or a tenancy for less than three years can be created orally. all of the company’s shares or voting rights of shareholders are transferred by sale. an assignment of a lease need not be done by deed. 3. but it must satisfy the statutory requirement. If a tenant assigns or sublets. Comacho (1961) 4 WIR 47. the result is that the assignment or subletting will be effective to vest a legal estate in the assignee or sub lessee. But any number of variations on this can be found67. -36- . assignment. Subletting The principles applicable to the creation of a lease are equally applicable to the creation of subleases. Where there is an agreement to assign for value. 2. This provision relates to unregistered land. Secondly. and Marks v Warren [1979] 1 All ER 29. the court will not treat a partnership deed 65 66 Ensure that you have a copy of the statute of frauds and the translation which is needed to understand it. bequest. which is basically that it must at least be in writing. the only except for Barbados which does not require any land transactions to be by deed. Consent will also be required if the partnership is subsequently dissolved and one former partner continues to occupy the premises. the tenant is a company and during the term of the lease. an assignment must be by deed in order to be valid. 68 Important case 69 The Registration of Titles Act in Jamaica implies a covenant for forfeiture and re-entry. However. trust or other disposition so as to result in a change in the control of the company. A covenant against assigning will be breached if for example. Qualified Covenants Against Assigning or Subletting The most usual form in which this covenant is found is that the tenant covenants not to assign sublet or part with possession of the demised premises or any part thereof without the prior written consent of the landlord such consent not to be unreasonably withheld. this may pass an equitable interest to the assignee. See the case of Lake v. See for example the case of Cook v. Shoesmith [1951] 1 KB 752. The courts tend to construe such covenants against the landlord under the contra preferentem rule. but not both. but the landlord will have the right to damages or forfeiture and re-entry if there is a proviso to that effect in the lease69.Colman 1. A tenant has no power to create a legal assignment or sub-tenancy if the lease is subject to an absolute prohibition.Colman per se as an assignment. the possible depreciation to other parts of his estate. such agreement operates as a total waiver of the covenant for all times. This can have harsh consequences for a tenant. Where there is already a restriction on the user of the premises. Westcott (1879) L. what he has is a legal right of occupation which cannot be assigned or transferred see Gayadeen v Glasgow And Another (1963) 6 WIR 477. he is entitled to take into account. How to Apply for a Waiver 1. 12 Ch. Absolute Covenants Against Assigning or Subletting An absolute covenant prohibits all voluntary legal assignments. But. or 3. A landlord cannot refuse his consent with a view to gaining some advantage to himself personally and which is not incidental to his status as reversioner. The term is assigned by one joint tenant to another. he should consider the character and reputation of the proposed assignee or sublessee. 2. The Landlord & Tenant Act in the UK of 1927 which makes express provision for consent not to be unreasonably withheld. The onus will be on the tenant to show that the assignment is reasonable. there are such express statutory provisions. you must apply to the landlord for his consent. some statutes permit subletting with the consent of the landlord. over a long period. but there is 70 [1965] 1 WLR 412 -37- . D. Secondly. However.R. The term is used as security for a loan for example a mortgage or 4. Waiver of Covenant Where a landlord agrees to an assignment or subletting without restriction. you can apply to the court for a declaration permitting the assignment or sub-letting. 461. See the case of Corporation of Bristol v. For example the tenant shall not assign sub-let or otherwise part with possession of the demised premises or any part thereof. but not in Jamaica. A license id granted provided the tenant is not entirely ousted from the legal possession or the covenant does not include a prohibition against occupation by another person. it has been assumed that the landlord cannot unreasonably withhold consent. if he withholds consent. and the intended use of the premises. It is a good practice therefore for a landlord in giving his consent to state that it is given for that request only and does not apply to future assignments or sub-letting. So that before the tenant applies to the court. It is to be noted that a statutory tenant cannot assign property as he does not hold an estate in the property. The term is being administered by executors or a trustee in bankruptcy or is the subject of a bequest or is compulsorily acquired by a public body or. In contrast in the other jurisdictions. 2. although there does not appear to be any express statutory provision to that effect. This has been copied in other jurisdictions. see Gian Singh & Co v Devraj Nahar and Others [1965] 1 All ER 76870. Firstly. In Jamaica in practice. The covenant is not broken however where: 1. this may not arise. 2005. Of course. damage from aircraft damage. Most mortgages do require that mortgaged properties be insured. there is some concern as to whether the insurance covers the mortgaged amount or the full value of the property. there is sometimes an additional provision in the lease permitting him to recover the premium from the tenant as additional rent. it is not usual to insure. The rising cost of insurance is an important concern where a covenant to insure is included in a lease particularly on the part of the tenant. the covenant will be breached. but over the years. If the covenant to insure with a named company and the tenant enters into a usual policy with certain risks excluded. However. Landlord & Tenant Lecturer: Date: Mr. If the covenant is to insure with a named company. See the case of Viscount Tredegar v. if the landlord waives the covenant.Colman no legal compulsion that can be placed on a landlord to grant his consent. there is no statutory requirement with respect to the insuring of real property. Covenant To Insure Except with respect to condominiums or strata complexes. In long leases. but in practice. or the tenant. In the UK there is legislation which requires insurance with respect to fire. Where it is the landlords responsibility to insure. or other company approved by the landlord the landlord can refuse to approve any company other than that named without giving any reason. If the policy is for hurricanes. This is one of the most disputed areas because -38- . it may include damage from a tropical storm. we do not have similar provisions. some policies do not cover fences. See the average clause notice which was in the newspapers. As with many other covenants the wording of this covenant will determine its operation. and if the premises are uninsured at any time. Where the obligation is placed on the tenant. It should be noted that condominiums and strata titles premises are in breach of this requirement. the amount of the insurance was never increased and as a result the average clause applies. then the tenant can proceed. A landlord who wishes to protect his interests will insure even without a covenant to insure. awnings. the insurance is effected by the landlord at his own expense. One needs to examine the damage which is covered by the insurance policy. so for example: 1. However such an approach is likely to be contrary to Rent Restriction Legislation as it would be treated as additional rent. Harwood [1929] AC 72 2. Peter Carson April 4th. it is normal practice for the liability for insurance to be placed usually on the tenant. the tenant is not liable if there is a loss within one of the exceptions. What often happens is that the property is insured at the beginning of the mortgage. but will not include damage cause by a windstorm so every likely risk should be specifically insured. he must arrange for insurance and pay the premium. each additional risk that is covered includes an additional cost for it. A covenant to insure either on the part of the landlord. This is very important. In short leases. There may be a difficulty where there are two policies in effect and both policies have a clause which states that it ceases to have effect if another policy is in force. in accordance with his covenant and the landlord has also insured. the loss will be apportioned by the insurers between the two policies. but requires that the tenant pays the premium there is no implied term that the premium will be reasonable. If the tenant insures.Colman 3. 71 72 This will depend on the state of the economy so as costs go up the replacement costs may go up. the landlord is liable to apply the policy money on reinstatement because the insurance covenant is intended to benefit both the landlord and the tenant. Additional risks have to be covered by supplemental perils endorsement to cover. The application of disclosure for instance is not fully understood by most persons. See the case of Bandar Holdings Ltd. earthquake and malicious damage. 3. Durwen [1968] 2 All ER 305 Reinstatement If the demised premises suffer damage. 5. See the case of Mumford Hotels Ltd. -39- . at the tenants expense. There is a possibility that the policy which is earlier in time will have effect. The parties should therefore be advised that they should have an appraisal done at the outset of the lease and at reasonable intervals71 thereafter. lightning. depending on the provisions of the policies. However. The tenant should be advised that they should insure the contents of the premises if the contents belong to them because the landlords insurance on the premises does not cover their contents72. 2. Where the landlord covenants to insure. v. Where there is an express term providing for re-instatement. lawyers and certainly the man in the street don’t understand the laws governing insurance contracts. and so acceptance of rent by the landlord only operates as a waiver up to the time of the receipt of the rent. but there is no provision to reinstate. neither is liable to spend the insurance money on the reinstatement of the premises. windstorm. Hitchins [1918] 2 KB 48. So even where the landlord accepts the rent knowing the tenant is in breach of the covenant to insure. This is an important concern especially as it relates to the right to forfeit. riot. This is an important concern for clients who are tenants. Wheeler [1963] 2 All ER 250 4. Where a landlord covenants to insure. If the landlord or tenant takes out a policy without being obliged to do so. as is usually the case the money must be applied in accordance with that term. it is submitted that the landlord would be bound to apply the proceeds of the policy in reinstatement because the obligation is intended to enure to the benefit of both parties. A breach of a covenant to insure is a continuing breach. for which it has been insured. the position is as follows: 1. Where the landlord is obliged to insure at his own expense. this will not prevent the application of the right to forfeit for the succeeding period. When tenant is furnishing demised premises they must have their own content insurance. v. it may be that only one policy will be affected. The most basic insurances policy is against fire. See the case of Upjohn v. Such coverage should be for the full replacement value as this is the only way to avoid the average clause. If the option does not state the terms of renewal. Lopez (1974) 21 WIR 462 Option to Purchase These are not as common as an option to renew. 2005. An option to renew 2. See the case of Parkus v. An option to purchase. Saly [1966] 3 All ER 21073. Options There are three types of options that can be contained in a lease. “Save this option” can therefore be a very important term as it relates to options to renew. v. for example on three or five years etc. If the option to renew does not exclude the option itself. Peter Carson April 7th. In a properly drafted lease an Option to Renew is usually made expressly dependent upon the tenant complying with all the covenants in the lease so that if there is a breach. Option to Renew It is not uncommon in fixed term tenancies to include an option to renew and particularly so where the period fixed is a fairly short one. then one will have a perpetually renewable lease. The possibility exists for the landlord to buy the option to renew back from the tenant. If this is not done. An option to purchase is a term which gives the tenant the opportunity to buy the landlords interest in the demised premises. there can be an option to determine before at the occurrence of a predetermined event. lesser or the same period as before. We already know that there can be an option to determine where in the case of a fixed term lease. See the case of Brown v. Usually the option to renew will state at what time or within what time period the option shall be exercised. The Option to Renew is a Tenant’s option normally such an option will be worded so that the new lease excludes the option itself. Calneck (1960) 2 WIR 137 which determined that there is a distinction to be made between an option to renew which is a tenants option and a right to first refusal which is a landlords option. This usually takes the form of a covenant by the landlord that if the tenant within a specified period gives to the landlord notice in writing of his desire to purchase the landlords interest in the 73 74 [1966] [1971] 2 All ER 1505 -40- . 5374 and also Caribbean Asbestos v. of any covenant the tenant will be unable to exercise the option. Gould [1972] Ch. See for example West County Cleaners Falmouth Ltd. however minor. Such an option gives the tenant the right to continue the lease for a further term which may be for a greater. and will require that it be given by written notice. These are: 1. the lease may be perpetually renewable.Colman Landlord & Tenant Lecturer: Date: Mr. Greenwood [1950] Ch 644. This may prove to be quite costly and therefore one needs to be careful in drafting an option to renew. See Wong v. There is no rule in law which says that where you have affixed term that you must have an option to renew. An option to determine and 3. the new lease will be for the same period and on the same terms as the original lease. and not a part of the relationship of landlord and tenant. Any matters.Colman premises. By virtue of the various property statutes. Covenants That Run With The Land Most of the covenants that have been considered so far are covenants that are implied at common law or by statute. The notice must be given within the specified time or the purchase price paid in the manner prescribed. but even if it is not so stated. Registered Land Act. it is implied since the resulting contract is be binding on both parties. which by the terms of the option. A covenant runs with the reversion when it is enforceable by or against the person for the time being entitled to the reversion. 4. are made conditions precedent to its exercise must be strictly observed. and the benefit of every covenant and provisions therein having reference to the subject matter of the lease to be observed by the tenant. However. 3. Further.) rent reserved by a lease. or regarded as the usual covenants to be found in written leases. See the case of Griffith v. 205. Provision should be made with respect to the sending of the notice. if there is no specific provision. quiet enjoyment 2. and ever y condition of re-entry and other conditions therein are annexed to and incident to the reversion or the -41- . then the general provision in the lease with respect to notices will apply. strict compliance with the terms of the option may be waived. 5. With respect to the land lord they are: 1. 2. Pelton [1958] 1 Ch. An Option to Purchase do not run with the land. but there are covenants which are considered to be personal and therefore only bind the parties to the contract. to repair 3. But. the following covenants have been said to touch and concern the land. An option to purchase is in the nature of an irrevocable offer to sell and upon the exercise of the option. see the case of Robertson v. the option does not constitute a contract because until it is exercised. Such an option is collateral to. the landlord shall on payment of the specified purchase price and of any arrears of rent convey or transfer his interest to the tenant. A covenant runs with the land when it is enforceable by or against the person for the time being in possession and by virtue of his possession. Rent Restriction Act. The terms of the option usually require that it is exercised in writing. to renew the lease With respect to the tenant 1. To pay rent to repair not to assign without consent to insure to use the premises for the specified purpose There are other covenants which the courts have determined from time to time touch and concern the land. neither party is obliged to purchase or sell. Surbiton Property Development Ltd. These are covenants which touch and concern the land and therefore run with the land. (1982) 19 JLR 90. At common law. (Conveyancing Act . independent of. a binding contract for sale arises and the relationship of vendor and purchaser is created. Peter Carson Termination of Tenancy Methods of Termination 1. 2005. -42- . The court said in Panalpina that it is possible and lay down possible guidelines. The important concern is the importance of equity in forfeiture. By the exercise of an option to determine 3.See the handout on forfeiture and know the provisions of the cases that relate to forcible entry 1381. The successors in title enjoy the same benefits of the original party See the case of Re King [1963] 1 All ER 78175. By the operation of a condition subsequent (for example highway changes its position) 4. By disclaimer: . Arlesford Trading Co ltd v. Pusey [1927] Clarks Report 258 which held that an option to purchase by the tenant was binding on the landlords assigns. In Jamaica the RM enjoys equitable jurisdiction and thus enjoys equitable powers. By frustration 77 11. the obligation of a covenant entered into by a landlord and having reference to the subject matter of the lease. By effluxion of time 2.Colman several parts thereof if severed so that the covenants can be enforced by the person for the time being entitled to the whole or any part of the land leased unless there was a waiver or release. by virtue of the various property statutes. Notice to quit Notice To Quit 75 76 [1963] Ch. shall as far as he has power to bind the reversionary estate immediately expectant on the term be incident and annexed to that reversionary estate or the several parts if severed and that the obligation may be taken advantage of and enforced against any person for the time being entitled. The court of equity is important where a landlord wants forfeiture and re-entry. Notice to quit 9. Landlord & Tenant Date: Lecturer: April 11th. 76 8.not unilateral.By a trustee in bankruptcy or liquidator 7. By forfeiture: .1623. however there have been no cases which have shown the tenancy as frustrated. both parties must agree to surrender 6. The court of equity will override the legal provisions to prevent this. 77 The concern of whether or not the contract of landlord and tenant can be frustrated. Compulsory purchase. By merger 5.by statutory right 10. Mr. Conversely. 459 See the scenario where the tenant is in an accident and in a coma and the rent is owing and the landlord seeks forfeiture and re-entry. See also Alexander v. Servansingh [1971] 3 All ER 113. See the case of Stoute v Bhagan And Bhagan (1972) 20 WIR 463. By surrender. THIS AREA SEEMS TO BE EXAMINABLE. Colman A periodic tenancy can be determined by the service of a notice to quit. Weekly one weeks notice Where the period of the tenancy is of unusual duration such as 11 months.26 of the Rent Restriction Act governs the extent of the period of notice with respect to business lettings where S. The courts have construed the end of the period of the tenancy to include the anniversary of the commencement of the tenancy. 20 of the Agricultural Small Holdings Act. St. S. So that if a yearly tenancy began on January 1. the notice to quit must not only satisfy the requirements relating to the period of the notice. It is not open to either party to deprive himself permanently of his right to serve a notice to quit. -43- . See also the Agricultural Small Holdings Act. See small tenements act. it is wise to set the notice period. it is open to either party to limit his right to serve a notice to quit. S. But. A quarterly tenancy. and these must be complied with. Where there is a fixed tenancy this may also be determined by notice this should usually be included in the lease agreement. . the notice will be bad/invalid. or December 31. In the absence of an express term in the lease.4 of the Law Reform Landlord & Tenant Act: -covers the situation where there are growing crops and a similar provision is contained in S. A monthly tenancy. It is sometimes difficult to ascertain the precise date on which a tenancy began. Where the parties have not made an express agreement.71 : Makes provision with respect to the notice to be given. Kitts Nevis Special provisions with respect to notice to quit for small tenements exist. Carson’s discussion. The words are:“…or at the end of the period [year] of the tenancy which will expire next after the end of one half year from the date of the service of this notice.one quarters notice 3. a notice to quit would be effective if it took effect either on January 1.” 78 Not dictated. or statutory provisions. and thus difficult to know when the notice to quit should take effect. .one months notice 4. the period of notice required is determined by the rules at common law. A yearly tenancy. To avoid the danger of an error as to the correct date invalidating the notice to quit.78 Statutory Provisions JAMAICA The Conveyancing Act of Jamaica S. The notice may be served by either the landlord or the tenant. which are tenancies of an agricultural nature EASTERN CARIBBEAN In the Eastern Caribbean Antigua.25 does not apply. but it must also expire at the end of a period of the tenancy. If this requirement is not satisfied. . the period of notice required to determine a periodic tenancy are as follows: 1. my note from Mr. it is the practice in drafting such a notice to include general words after specifying the date on which it is believed the tenancy expires. Expiration of Notice To Quit At common law. BELIZE Land reform Security of Tenure Act with respect to milpa tenancies.6 months notice 2. it must be shown that it came to the attention of the tenant in time. by registered post or as prescribed by the lease. or the authorised agent of either. The notice which only covers a portion of the demised premises will be invalid. but this has never materialised. It may be given orally although this is unadvisable because of the evidential difficulties that this causes. notice to. The corporation and the proprietor are the only ones with rights and obligations under the act. There was once consideration for the creation of a Town Houses Act. 79 This is very important particularly where a portion of the premises will be rented. but it has not yet been modified. In Jamaica. These complexes are mushrooming to maximise the use of land. In the case of joint tenants. Jamaica has the Registration (Strata) Titles Act. THE NOTICE MUST BE FOR THE ENTIRE DEMISED PREMISES. the Strata Titles Act does not make provision for tenants. It may be given by ordinary post. Service of Notice The notice to quit must be given by the landlord to his immediate tenant. A great deal of thought has to be given to a lease which relates to strata properties. The management and maintenance of strata complexes take a great deal of skill. or by personal service. In Jamaica one has an additional problem where one is dealing with town houses which are converted into a multi-owned building where the upper owner has to enter from outside. This will be an invalid notice. This is done with one unit in the town house so they can have the protection of the strata legislation. It may be served on a spouse or employee provided it is made clear to the recipient that the notice is to be delivered. This has been under review. Landlord & Tenant Lecturer: Date: Mr. If it is left on the premises. though it need not be in any specific from unless required by the terms of the tenancy or statutory provisions. and are a fiction allowing person to have title to a property which does not “sit on the ground”. there is the practice of creating a limited company which owns the complex and each home “owner” is a shareholder in the company.Colman Form of Notice The notice must be clear and unambiguous. In Jamaica. Torrens = English = Strata Condominiums Both of these are the same. 2005. -44- . If for example a portion is commercial and a portion is residential and notice is given only for the commercial portion. A notice must show a clear intention to terminate. One is not able to determine whether or not a property is under the strata titles act unless one had information about what the ownership of the properties were. or by any one of them binds all of them. Peter Carson April 14th. It must not be conditional and it must relate to the whole of the premises79. or by the tenant to his immediate landlord. e. recreational facilities. club houses etc. some of these are implied by statute. Where there are bylaws for a strata titles complex. See “Apartment Inspection Checklist”. See the By-laws (3). i. or a multi storied building designed for that purpose. where a lease does not set out the relevant easements. Thus a number of easements will be created. How these will be treated in the lease will depend on the type of facilities which exist in the complex. “aging” etc.12. fixtures and fittings and other common facilities i. these rights should be expressly granted so that their adequacy can be established. These bylaws can be varied to create terms which the parties prefer. Try to anticipate the likely changes which will take place with a complex. they represent a unit which forms only part of a building. In addition provision should be made for access. but whichever term you uses. parking. but they CANNOT be DELETED. though not always self contained and on a single level. are implied by statutes. and if there are none. Which. The conflict with this is arises where the bylaws are changed at a later date. Because an apartment forms only part of a building. Similarly the apartment will need to be subject to rights in favour of others which should also be clearly expressed. re-development.Colman The words apartment or flat in common use represent the more formal legal terms of condominiums or strata. The building may be a large house converted for the purpose. is usually. The question will be how are changes in the by-laws to be dealt with. one needs to anticipate that there will be bylaws at a later date and seek to ensure that potential conflicts are eliminated wherever possible. one needs to include the bylaws in the lease. However. its satisfactory enjoyment demands the use of ancillary rights over other property. new tenants. laundry.e. Jamaica S. Ideally. -45- . It should be noted that some bylaws which govern the strata titles complex. storage.