Lessor and Lessee The Implied Covanant.

1. Implied Covenants
Of Landlord and
Tenant
Lessor and Lessee

2. Definition Of term
an implied covenant is a legal principle inferred by the
court to exist in a contract, even if not expressly stated.
It serves to fill gaps in agreements and ensure fairness
and equity between parties.

3. Landlord (Lessor) And Tenant (Lessee)
The implied covenant of lessor and lessee refers to an unspoken agreement or
duty that arises from the relationship between a landlord and tenant, as well as
from established legal norms and principles. Even though this covenant is not
expressly outlined in the lease contract, it is nonetheless recognized and enforced
by courts. Essentially, it serves as a means of interpreting the contract, ensuring
that the reasonable expectations of both parties are met and that neither party acts
in a manner contrary to the underlying intent or purpose of the agreement.
This implied covenant acts as a safeguard against potential abuses or breaches
that may occur if the parties were solely bound by the explicit terms of the contract.
It enables courts to intervene in situations where one party's actions, though not
explicitly prohibited by the contract, undermine the fundamental understanding or
spirit of the agreement. By upholding this implied covenant, the legal system aims
to maintain fairness and equity in landlord-tenant relationships, promoting
adherence to the principles of good faith and fair dealing.

4. Covenant for quiet enjoyment
At common law, there is implied in every lease a covenant on the part of the landlord that the tenant shall be
put into possession of the demised premises and that he shall have ‘quiet enjoyment’ of the premises during
the continuance of the lease. The word ‘quiet’ in the covenant does not refer simply to the absence of noise,
but rather to the enjoyment without interference (Southward London Borough Council v Mills). Accordingly,
the tenant is entitled to recover damages from the landlord if the landlord or any other person claiming
through him, substantially disturbs or physically interferes with the tenant’s enjoyment of land (Jones v
Lavington).
Quiet enjoyment may be interfered with where L in order to ‘get rid of’ T, removes doors,
windows, or roof of the building, causes the water or electricity supply to be cut off, or subjects T to
persistent harassment or intimidation (Kenny v Green).

5. Case of Southward London Borough Council v Mills)
Landlord and tenant; whether poor soundproofing amounted to breach of covenant for quiet
enjoyment
Facts
Mills was a tenant in a council flat which was built in 1919 and owned by Southwark LBC. Mills
complained under a provision within the tenancy agreement that the noise insulation between
the flats was wholly inadequate as against normal use of the premises. Mills sought an order
that the ineffective insulation amounted to a breach of covenant for quiet enjoyment, and
therefore, specific works should be conducted to remedy this.

6. Issues
Mills argued any act or omission which amounted to a substantial interference with the quiet enjoyment of the
leasehold premises would amount to a breach of covenant under the rule in Sanderson v Berwick-upon-Tweed
Corporation (1884) 13 QBD 547. The ineffective insulation and the consequent noise prevented Mills from
enjoying the full benefit of possession, and amounted to a breach of covenant. Southwark LBC contended there
is no breach of covenant for quiet enjoyment where the only remedy is to conduct works on the leasehold
premises. To constitute a breach of covenant of quiet enjoyment, there must be a direct and physical
interference with the land and mere annoyance is insufficient.
Decision/Outcome
A covenant for quiet enjoyment is one under which the landlord covenants not to substantially interfere with the
tenant’s lawful possession of the premises. Frequent excessive noise was capable of amounting to such
interference, but the covenant was prospective in nature, and could not apply to conditions which were in place
prior to the grant of the lease. The noise was caused by structural defects which were present at the time of the
grant and must have been in the contemplation of the parties and the council could not, therefore, be held to
have been in breach of covenant.

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

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

9. Cont’d
To constitute a breach of the covenant, L must do some act that renders the demised premises
‘substantially less fit for the purpose for which they were let’. Thus, there will be no breach where L,
having let premises to T for use in a particular trade, later lets adjoining premises to a rival trader,
because the premises let to T will still be fit for the purpose for which they were let, albeit that T’s profit
may be reduced (Port v Griffith).
Many acts that constitute a breach of this covenant may also constitute a breach of the
covenant for quiet enjoyment: for instance, where L operates machinery on the adjoining land that
causes structural damage to the house to let to T; or where excessive dust or fumes emitted from
neighbouring land seriously interfere with T’s enjoyment of his premises.

10. Covenant as to fitness for habitation
At common law, there is no implied covenant by a landlord that the premises are or will be fit for human
habitation, nor is there any implied covenant that the landlord will do any repairs whatever. However, there are
the following exceptions.
Furnished lettings
Where residential premises are let furnished, there is an implied condition that they are fit for habitation at the
commencement of the tenancy (Collins v Hopkins). However, the landlord has no obligation to keep the
premises habitable, so if they subsequently become unfit, the tenant is liable (Sarson v Roberts).
High-rise apartment buildings
It was held in Liverpool CC v Irwin, that a landlord of a residential apartment in a high-rise building is under an
implied duty to keep in a reasonable state of repair the lifts, staircase, and other common facilities, such as

11. Covenant to repair
Repairing covenants, other than covenant as to fitness for habitation,
are normally expressly inserted in a lease. At common law, there is no
implied obligation on the part of the landlord to do repairs.
Where a landlord has covenanted or is subject to statutory obligation to repair
and, having been notified by the tenant of the need for certain repairs,[1] fails to
carry them out, the tenant is entitled to arrange to have the work done and to
deduct the cost from future payment of rent (Lee-Parker v Izzett).
I

12. Cont'd
Milo Butler and Sons Investment Co Ltd v Monarch Investment Ltd, in which the landlord had
covenant ‘to keep and maintain the main structure and all exterior parts… including the roof…
in ‘good and tenable repair’. The tenant informed the landlord in writing that the roof was in
urgent need of repairs and to deduct cost from future rent payments.
Allen J, in the Supreme Court of the Bahamas, held that the tenant was not liable for failure to
pay rent equivalent to the cost of carrying out the necessary repairs.
[1] A landlord’s liability does not arise until he has been notified of the need for repair, or otherwise acquires
knowledge of such need: O’Brian v Robinson [1973] 1 All ER 583

13. Implied Covenants Of Tenant
The Covenant Not to Commit Waste
● A tenant has an implied obligation to use the property in a tenant-like manner
and a duty not to commit waste.
● Waste is any conduct or omission that causes lasting damage to the land or alters
the nature of the land to the detriment of the “reversion” (the Landlord’s right to the
property after the lease expires) due to damage, destruction, addition, improvement, or
neglect. A breach of this covenant may not only result in termination of the lease, but the
Landlord can also bring an action against you to pay damages.

14. Cont’d
A tenant for a fixed term is liable for both voluntary waste (that is, positive acts of injury to the property,
such as altering or destroying it) and permissive waste (that is, allowing the property to become
dilapidated through omission to repair) and, therefore, in the absence of an express stipulation to the
contrary, he must keep the premises in proper repair (Yellowly v Gower).
A yearly tenant is certainly liable for voluntary waste, but it is unsettled as to his liability for permissive
waste.
The tenant is required to use his premises in a tenant like manner (Warren v Keen). In the said case Lord
Denning noted thus:
The tenant must take care of the place… he must clean the chimneys, when necessary, and also the
windows. He must mend the electric light when it fuses. He must unblock the sink when it is blocked by
his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In
addition, he must, of course, not damage the house, wilfully or negligently; and he must see that his family
or guests do not damage it: and if they do, he must repair it. But, apart from such things, if the house falls
into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the
tenant is not liable to repair it.

15. Register Land
Section 95(b) of the Registration of Titles Act of Jamaica provides that, in every lease
made under the provisions of the Act, there is to be a covenant that the lessee ‘will
keep and yield up the leased property in good and tenable repair, accidents, and
damages from storm and tempest, or other acts of God and the Queen’s enemies, and
reasonable wear and tear excepted’.[1]
[1] See Frater v Wedderburn (2010) Court of Appeal, Jamaica, Civ App No 23 of 2009
(unreported) [Carilaw JM 2010 CA 95]

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

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

18. The amount to be paid as rent must be sufficiently certain. It need not be certain at the date of
the lease, but it must be ‘calculated with certainty at the time when payment comes to be made’.[1] It
has been held that a option to renew a lease is void for uncertainty if the rent is ‘to be agreed’[2] or
subject to ‘re-negotiation’,[3] but a term in a rent book to the effect that rent ‘was subject to be increased
or decreased on notice being given’ was held valid, as also rent to be fixed at a price to be determined,
having regard to the market value of the premises, and it is also sufficient if the parties provide that the
rent shall be fixed by a third party.
The court will attempt to interpret provision as to rent to achieve certainty. Thus, where rent is fixed for
the first five years, and thereafter to be agreed, it was held that a reasonable rent, to be assessed at the
end of the first period, was payable for the second period.[4]

19. ● If the Lease Agreement is not drafted well and does not outline when rent is
to be paid, it is payable at the end of each period for a periodic tenancy – for
example, at the end of the month for a monthly tenancy and at the end of a
year for a term of years. Generally, a fixed term lease for a term of years will
outline a yearly rent that is payable in monthly instalments.

20. Covenant To Repair
The obligation to repair the demised premises may rest on the landlord, or on the tenant, or partly on the landlord
and partly on the tenant. The matter is entirely one for negotiation between the parties, and the extent of the
obligation depends on the wording of the covenant. Expressions often used are ‘good tenable repair’,[1] ‘sufficient
repair’, ‘good and substantial repair’, If there is no express provision for repair in the lease, the tenant may be held
liable for them under the doctrine of waste.
At common law the standard of repair required is that in which, after making due allowance for the
locality, character, and age of the premises at the date of the lease, a reasonably minded owner would keep them
(Lurcott v Wakely).

21. ● In most short-term leases, the Landlord is responsible for general repair of the premises such as the
roof, walls, floors, and fixtures whilst in long-term leases, it is the tenant. Lease Agreements for
apartments or offices in larger buildings will usually require the Tenant to be responsible for the
interior and the Landlord for the exterior.
● In a case where there is a covenant for the Tenant to repair, it will typically require you to keep the
premises in good order and condition, fair wear and tear excepted. And there may also be a
requirement to permit the Landlord or his agents at all reasonable times to enter upon and inspect the
premises and the state and condition it is in and carry out necessary repairs. A Tenant may, however,
not be required to make the repairs if the repairs will, (i) affect the whole or substantially the whole of
the building (ii) make the building different in character from what was originally let (iii) if the repairs
are for a significant portion of the existing building.

22. With regard to the age of the property, the covenantor is under an obligation to keep it in a reasonably good condition
for a building of that age.[1] If, to keep property in such a condition, it becomes necessary to renew or replace parts of
the building, such as a defective wall or roof, the covenantor must do all the renewal or replacement. However, the
covenantor is not bound to reconstruct the building. Example, the tenant would not be bound to replace a defective
foundation with an entirely different character’, because that would in effect amount to reconstruction. The obligation to
do repair does not normally require the rebuilding of premises that ‘through inherent defects’ have passed beyond
repair, or doing work which cannot fairly be called repairing the premises as they stood when demised’,[2] and ‘it is
always a question of degree, whether that which the tenant is being asked to do can properly be described as repair or
whether, on the contrary, it would involve giving back to the landlord a wholly different thing from that which he
demised.’
In Ravenseft Properties Ltd v Davstone, in which it was held that where an inherent defect has caused damage, the
tenant may be under an obligation to rectify not only the damage but also the cause of the damage, if it is the proper
practice to do so, or it is necessary to do so in order to do ‘the job properly once and for all.