Dr Jo Hawkins Law 2270 and 3270 Land Law
2018-2019
LEASEHOLD OBLIGATIONS
Reading
Essential
Habitability
M Bridge, ‘Putting it right? The Law Commission and the condition of tenanted
property’ [1996] Conv. 342
A Dymond ‘Editorial: Grenfell Tower and housing law: action now’ (2017) 20(6)
Journal of Housing Law
A Dymond ‘Editorial:A Bill fit for purpose?’ (2018) 21(3) Journal of Housing Law
(note the Bill has now been amended to reflect the criticisms presented here
relating to common parts)
Security of Tenure
J Luba and J Compton, ‘An end to retaliatory evictions?’ (2015) 19 Landlord &
Tenant Review 113
Additional
Habitability
J Rugg, D Rhodes, ‘The Evolving Private Rented Sector: Its Contribution and Potential’
(University of York (Centre for Housing Policy) 2018) Available at:
http://www.nationwidefoundation.org.uk/wp-content/uploads/2018/09/Private-
Rented-Sector-report.pdf
pp. 93-100 and section 6.3.1, 6.3.2 on retaliatory evictions and tenancy information,
6.3.3, 6.4.5
House of Commons Housing, Communities and Local Government Committee ‘Private
Rented Sector. Fourth Report of Session’ (HC 440 2017–19) Available at:
https://publications.parliament.uk/pa/cm201719/cmselect/cmcomloc/440/440.pdf
Security of Tenure
Joseph Rowntree ‘Poverty, evictions and forced moves’ (3 August 2017) Available at:
https://www.jrf.org.uk/report/poverty-evictions-and-forced-moves
S Pascoe ‘The end of the road for human rights in private landowners' disputes?’
(2017) The Conveyancer and Property Lawyer 269
1
, 1. INTRODUCTION
1.1 The Scope of this Part
Every lease will contain provisions which define the obligations of the landlord and the tenant.
We call these ‘leasehold covenants’. In addition to any such express covenants as are agreed
to, other ones may be implied (e.g. by statute).
In this part we will focus on some of the most common leasehold covenants/obligations, in
the context of private residential and commercial leases. We will look in particular at:
i. covenants to pay rent (Section 2.1);
ii. covenants for quiet enjoyment (Section 2.2);
iii. restrictions on the user of premises (Section 2.3)
iv. the extent (if any) to which the landlord warrants the fitness of the premises
(Section 2.4);
v. repairing obligations (Section 2.5)
Some consideration is then given to proposed reforms in this area (Section 3) and to a tenants
right to remain in their rented accommodation (Section 4).
2. COMMON OBLIGATIONS OF LANDLORD AND TENANT
2.1 Covenant to pay Rent
Most leases will include a rent covenant. For residential leases entered into after the Housing
Act 1988 came into force, there are no major legal restrictions on what can be charged.
Freedom of contract also prevails in the commercial sphere. In longer commercial leases, the
parties usually also agree to review the rent at intervals.
2
, If rent is not paid by midnight on the required day then it is in arrears: Dibble v Bowater (1853)
2 E. & B. 564. The landlord will be able to claim these sums save in very specific circumstances.
One example is a valid ‘set off’: when a tenant who conducts repairs which are the
responsibility of the landlord may recoup the costs of the work out of future rents payable.
Other remedies may also be open to the landlord. Firstly, they may seek to forfeit the lease
(the law on which will not be considered here). In commercial leases, moreover, there is a
remedy of distress (the seizure of goods on the premises in satisfaction of the debt) under the
procedure in Chapter 2 and Schedule 12 of the Tribunals, Courts and Enforcement Act 2007.
2.2 Covenant for Quiet Enjoyment
2.2.1 When breached
Every lease contains a covenant that the tenant shall enjoy quiet enjoyment of the property.
If it is not express then it is implied: Markham v Paget [1908] 1 Ch. 697.
“… the landlord, by letting the premises confers on the tenant the right of possession
during the term and impliedly promises not to interfere with the tenant’s exercise
and use of the right to possession during the term”: Kenny v Preen [1963] 1 Q.B. 499,
511 per Pearson L.J.
The covenant for quiet enjoyment is breached if: (i) the landlord (or someone authorised by
them to act in the way complained of)1 ‘substantially interferes’ with the tenant’s ordinary
and lawful enjoyment of the leased premises; and (ii) the conduct complained of was not
reasonably contemplated by the parties at the time of the letting (Southwark LBC v Mills [2001]
1 A.C. 1).
Examples of a ‘substantial interference’ are removing the doors and windows of the leased
premises (Lavender v Betts [1942] 2 All E.R. 72); cutting the supply of gas and electricity
(Perera v Vandiyar [1953] 1 W.L.R. 672); and excessive noise (Southwark London Borough
Council v Mills [2001] 1 A.C. 1. As regards the requirement that the interference was not
reasonably contemplated at the time of the letting, see:
Lyttelton Times Co Ltd v Warners Ltd [1907] A.C. 476
Southwark London Borough Council v Mills [2001] 1 A.C. 1
1
There is thus no liability for the acts of strangers unless (most rarely) the covenant is worded in such a way as
to include them.
3
2018-2019
LEASEHOLD OBLIGATIONS
Reading
Essential
Habitability
M Bridge, ‘Putting it right? The Law Commission and the condition of tenanted
property’ [1996] Conv. 342
A Dymond ‘Editorial: Grenfell Tower and housing law: action now’ (2017) 20(6)
Journal of Housing Law
A Dymond ‘Editorial:A Bill fit for purpose?’ (2018) 21(3) Journal of Housing Law
(note the Bill has now been amended to reflect the criticisms presented here
relating to common parts)
Security of Tenure
J Luba and J Compton, ‘An end to retaliatory evictions?’ (2015) 19 Landlord &
Tenant Review 113
Additional
Habitability
J Rugg, D Rhodes, ‘The Evolving Private Rented Sector: Its Contribution and Potential’
(University of York (Centre for Housing Policy) 2018) Available at:
http://www.nationwidefoundation.org.uk/wp-content/uploads/2018/09/Private-
Rented-Sector-report.pdf
pp. 93-100 and section 6.3.1, 6.3.2 on retaliatory evictions and tenancy information,
6.3.3, 6.4.5
House of Commons Housing, Communities and Local Government Committee ‘Private
Rented Sector. Fourth Report of Session’ (HC 440 2017–19) Available at:
https://publications.parliament.uk/pa/cm201719/cmselect/cmcomloc/440/440.pdf
Security of Tenure
Joseph Rowntree ‘Poverty, evictions and forced moves’ (3 August 2017) Available at:
https://www.jrf.org.uk/report/poverty-evictions-and-forced-moves
S Pascoe ‘The end of the road for human rights in private landowners' disputes?’
(2017) The Conveyancer and Property Lawyer 269
1
, 1. INTRODUCTION
1.1 The Scope of this Part
Every lease will contain provisions which define the obligations of the landlord and the tenant.
We call these ‘leasehold covenants’. In addition to any such express covenants as are agreed
to, other ones may be implied (e.g. by statute).
In this part we will focus on some of the most common leasehold covenants/obligations, in
the context of private residential and commercial leases. We will look in particular at:
i. covenants to pay rent (Section 2.1);
ii. covenants for quiet enjoyment (Section 2.2);
iii. restrictions on the user of premises (Section 2.3)
iv. the extent (if any) to which the landlord warrants the fitness of the premises
(Section 2.4);
v. repairing obligations (Section 2.5)
Some consideration is then given to proposed reforms in this area (Section 3) and to a tenants
right to remain in their rented accommodation (Section 4).
2. COMMON OBLIGATIONS OF LANDLORD AND TENANT
2.1 Covenant to pay Rent
Most leases will include a rent covenant. For residential leases entered into after the Housing
Act 1988 came into force, there are no major legal restrictions on what can be charged.
Freedom of contract also prevails in the commercial sphere. In longer commercial leases, the
parties usually also agree to review the rent at intervals.
2
, If rent is not paid by midnight on the required day then it is in arrears: Dibble v Bowater (1853)
2 E. & B. 564. The landlord will be able to claim these sums save in very specific circumstances.
One example is a valid ‘set off’: when a tenant who conducts repairs which are the
responsibility of the landlord may recoup the costs of the work out of future rents payable.
Other remedies may also be open to the landlord. Firstly, they may seek to forfeit the lease
(the law on which will not be considered here). In commercial leases, moreover, there is a
remedy of distress (the seizure of goods on the premises in satisfaction of the debt) under the
procedure in Chapter 2 and Schedule 12 of the Tribunals, Courts and Enforcement Act 2007.
2.2 Covenant for Quiet Enjoyment
2.2.1 When breached
Every lease contains a covenant that the tenant shall enjoy quiet enjoyment of the property.
If it is not express then it is implied: Markham v Paget [1908] 1 Ch. 697.
“… the landlord, by letting the premises confers on the tenant the right of possession
during the term and impliedly promises not to interfere with the tenant’s exercise
and use of the right to possession during the term”: Kenny v Preen [1963] 1 Q.B. 499,
511 per Pearson L.J.
The covenant for quiet enjoyment is breached if: (i) the landlord (or someone authorised by
them to act in the way complained of)1 ‘substantially interferes’ with the tenant’s ordinary
and lawful enjoyment of the leased premises; and (ii) the conduct complained of was not
reasonably contemplated by the parties at the time of the letting (Southwark LBC v Mills [2001]
1 A.C. 1).
Examples of a ‘substantial interference’ are removing the doors and windows of the leased
premises (Lavender v Betts [1942] 2 All E.R. 72); cutting the supply of gas and electricity
(Perera v Vandiyar [1953] 1 W.L.R. 672); and excessive noise (Southwark London Borough
Council v Mills [2001] 1 A.C. 1. As regards the requirement that the interference was not
reasonably contemplated at the time of the letting, see:
Lyttelton Times Co Ltd v Warners Ltd [1907] A.C. 476
Southwark London Borough Council v Mills [2001] 1 A.C. 1
1
There is thus no liability for the acts of strangers unless (most rarely) the covenant is worded in such a way as
to include them.
3
