F106 Property Law

Assignment 2

Andrew Lyle
Student Number 0704774

Word Count 3081

Question 1

Eric is a Landlord of units 1A, 1B and 1C CEM Retail Park, he let unit 1A to
Bill, a year later he let unit 1B to Adam and Eric occupies unit 1C himself.
Adam has made complaints to Eric regarding the:
1. Lack of adequate soundproofing between units 1A and 1B
2. His profits are considerably lower than he expected because Eric
had let Unit1A to Bill whose business is similar to Adams
3. Eric is storing drums of petrol and oil at the rear of 1C, Adam states
that this is a risk to his stock of fireworks.
We are asked to explain to Eric as the landlord any legal liability he has to
Adam in respect of these complaints.
As a rebuttal for the first two complaints, the doctrine of caveat emptor
should be considered. Caveat emptor literally means let the buyer
beware. So, in this instance, an assumption has been made that that Eric
had displayed unit 1B in the open market, and it would be the duty of
Adam (the tenant) to inspect the unit before agreeing to the lease. It
would be Adams duty as the tenant to satisfy himself that the unit was of
the purpose and the fitness for his requirements. Eric in the capacity of
the landlord of the property cannot be held responsible for the tenants
choice of property and purpose behind such a choice.
It has already been stated that Bill was occupying unit 1A twelve months
prior to Adam agreeing to the lease on unit 1B, it would be reasonable to
assume that Adam would have heard the noise coming from unit 1A, and
by him agreeing to the lease implies that he had satisfied himself that the
unit was fit for purpose. Eric as the landlord owes no duty of care to the
tenant in respect of injury or damage resulting from defects in the
property, and in relation to defects which the vendor or landlord has not
positively created, this is still the case Rimmer v Liverpool City Council
(1984).
Following a similar approach, Adam should have made enquires as to what
units 1A & 1C were being used for, at this time it is assumed unit 1C was
vacant as Eric had not occupied it. Adam should have known that Bill was
selling childrens toys from unit 1A, and should have satisfied himself that
the location of unit 1B was suitable for his purposes. Eric would not be
liable for the soundproofing and loss of profit issues.

The lease between Eric and his two tenants is essentially a contract which
creates an interest in land. A covenant contained in the lease is simply an
agreement between parties, some covenants are implied in leases by
common law or statute but most are expressly agreed by the original
parties to the lease. Implied landlord covenants are to afford the tenant,
quiet enjoyment of the leased premises and that they, the landlord will
not derogate from the grant of lease.
The covenant of quiet enjoyment gives the tenant the right of possession
during their tenancy and is a covenant, expressed or implied (in the
absence of an expressed covenant there is a common law obligation for
quiet enjoyment), by the landlord not to interfere with the tenants
exercise and use of the right of possession.
There have been a number of recent cases that have challenged the
traditional meaning of the covenant of quiet enjoyment. A summary of the
current position has been provided in the recent High Court decision in
Shebelle Enterprises v Hampstead Garden Suburb Trust Ltd (2013) the
claim in this case, though unsuccessful, demonstrates that breach of quiet
enjoyment remains a fundamental issue that can be raised when the
benefit of the demised property is impeded.
Landlords have been held to be liable for the acts of their tenants,
however there are limits to a landlords liability, hence in the case
Southwark London Borough Council v Mills (1999), the covenant for quite
enjoyment does not protect a tenant from disturbance by other tenants
arising from the state of the premises as they existed at the start of the
lease. So Eric will not be held liable for the soundproofing between the
units.
The second implied covenant that protects the tenants interest in the
lease is the covenant by the landlord not to derogate from the grant. This
covenant is similar to the covenant for quiet enjoyment. Non-derogation
from the grant is said to be concerned more with a hindrance to the user,
whereas quiet possession is primarily concerned with interference to
enjoyment. Usually a breach of this covenant occurs outside of the
property demised to the tenant. For instance, where a landlord has either
taken positive steps or has granted rights to a third party that render the
property unfit for the purpose for which it was granted, the landlord has
derogated from its grant.
An example of derogation from grant is demonstrated in Chartered Trust
plc v Davies (1997) a landlord let a unit in a "high class" development to a
pawnbroker. The clientele of the pawnbroker caused a nuisance to another

tenant in the development. The landlord was held to have derogated from
its grant.
The landlord must not give with one hand and take away with the other.
Where he has let the premises for a particular purpose, he cannot obstruct
that purpose. Hence in Aldin v Latimer Clarke, Muirhead (1894) where the
landlord let the premises for the express purpose of drying timber, the
Court held that he could not erect a structure which would interfere with
the ventilation.
The landlord is not held to have breached the covenant where the
tenants use is unusually sensitive and the landlord was unaware. This
was the case in Robinson v Kilvert (1889) where the tenant was storing
brown paper which was damaged by the landlords construction at a
neighbouring site.
It is not a breach of the covenant where the landlord rents the
neighbouring premises to the tenant's competitors. Although it may cause
economic hardship to the tenant, it does not render the premises unfit for
use: Port v Griffith (1938)
Eric was aware when the lease was agreed of Adams intension to sell
fireworks from unit 1B. With Eric storing drums of petrol at the rear of unit
1C, it may be seen as obstructing the use of the unit for the particular
purpose it was let.
To summarise Erics legal liabilities:
1. Lack of adequate soundproofing between units 1A and 1B.
a. No liability, caveat emptor applies Adams duty as the tenant is
to satisfy himself that the unit was of the purpose and the
fitness for his requirements.
b. No breach of the covenant of quite enjoyment. The covenant
for quite enjoyment does not protect a tenant from
disturbance by other tenants arising from the state of the
premises as they existed at the start of the lease.
2. His profits are considerably lower than he expected because Eric
had let Unit1A to Bill whose business is similar to Adams.
a. No liability, caveat emptor applies Adams duty as the tenant is
to satisfy himself that the unit was of the purpose and the
fitness for his requirements. Eric in the capacity of the
landlord of the property cannot be held responsible for the
tenants choice of property and purpose behind such a choice.
3. Eric is storing drums of petrol and oil at the rear of 1C, Adam states
that this is a risk to his stock of fireworks.

a. Liable for the derogation from grant, Eric was aware when the
lease was agreed of Adams intension to sell fireworks from
unit 1B.
To mitigate the legal liability from derogation from grant, Eric should
demonstrate that he stores his petrol in accordance to the guidelines set
out in the Dangerous Substances and Explosive Atmospheres Regulations
2002 (DSEAR) and ACOP L138 Dangerous substances and explosive
atmospheres, which significantly reduces the risk of fire and explosion.

Question 2

This question asks us to advise Paul and Flora on their legal liabilities in
respect of the matters raised by Flora. Paul is the landlord and Flora is the
tenant.
The premise is a freehold house which is divided into two flats, Flora is
leasing the upper floor and the ground floor is vacant. Floras tenancy is a
monthly tenancy at market rent.
There is a legal duty under the law of contract for all parties to perform or
comply with the terms agreed to by them. The lease, which is a form of
contract imposes that each party to the lease has a legal right to require
that the other shall fulfil the obligation which the contract imposes on him.
A covenant contained in the lease is simply an agreement between
parties, some covenants are implied in leases by common law or statute
but most are expressly agreed by the original parties to the lease.
There are implied repairing covenants given to the landlord and the tenant
by common law or statute such as the Landlord and Tenant Act 1985.
If there is a covenant expressed in a lease imposing the tenant to repair
the premises, then he is legally bound to repair in accordance with the
terms of the covenant, however any attempt to exclude or modify s.11 of
the Landlord and Tenant Act 1985 will render the expressed covenant
void, unless the parties jointly apply to the court and receive judicial
approval.
Obligations implied on the landlord includes a covenant imposed into
leases for less than seven years by s.11 of the Landlord and Tenant Act
1985 to keep in repair the structure and exterior of the dwelling house
(including drains gutters and external pipes); and to keep in repair and
proper working order the installations in the dwelling house, for the supply
of water, gas and electricity; for space heating and water; for sanitation
(including basins, sinks, baths and sanitary conveniences); but (except for
these) not fixtures, fittings and appliances for making use of the supply of
water, gas or electricity.
Section 11(1) has now been amended by s.116 Housing Act 1988, which
adds two new subsections (1A and 1B) to s.11(1). Where there is a lease
of the dwellinghouse which is part only of a building to which the section
applies, the landlord will be liable to maintain the common parts of the
building, and any installations used in common, which affect the tenants
enjoyment of the dwellinghouse.

A landlord may also be held liable in tort for injury caused by disrepair of
part of the premises not included in the structure under s.4(4) Defective
Premises Act 1972 as in Mc Auley v Bristol City Council (1992) the landlord
was held liable to a tenant who broke her ankle on a loose step in the
garden.
Obligations implied on behalf of the tenant for the repair and mainenance
of premises are minimal, they include an obligation not to commit waste;
an obligation to use the premises in a tennant like manner and and
obligation to allow the landlord to enter and view the state of repair of the
premises.
The implied covenant that the tenant must use the premises in a tenant
like manner and return it to the landlord in the same state as let, except
fair wear and tear is clearly set out in the case of Warren v Keen (1953),
which Lord Denning explained as follows; the tenant must take proper
care of the place. He must if he is going away for the winter, turn off the
water and empty the boiler. He must clean the chimneys when necessary.
And also the window. He must mend the electric light when it fuses. He
must unstop the sink when it is blocked by his waste. In short, he must do
the little jobs about the placewhich a reasonable tenant would do. In
addition he must not damage the house, wilfully or negligently; and he
must see that his family and gusets do not damage it; and it they do, he
must repair it.
Section 11(5) of the Landlord and Tenant Act 1985 implies an obligation on
the tenants part to allow a landlord or his authorised agent to enter and
view the state of repair of the premises at reasonable times during the
day upon receiving twent four hours written notice from the landlord.
The advise that would be given to Paul as the landlord would be that
under s.11 of the Landlord and Tenant Act 1985 the implied covenant to
keep in repair the structure and exterior of the dwelling house and to keep
in repair and proper working order the installations in the dwelling house
would take precedence over Floras tenancy agreement.
He would be liable for the issue relating to the electrical wiring being in a
bad state of repair, the covenant is to keep the installations in repair and
proper working order as in O'Connor and Others v Old Etonians Housing
Association Ltd (2002), this however will only relate to the circuits,
switches and socket outlets of the system and and any applicances that
he had supplied, he would not be liable for any of Floras appliances. To
mitiage this Paul would have to produce a valid electrical safety
certificate.

The outside staircase is described as leading to her flat, from this

statement it is assumed that this is the primary route into her flat. Paul
would be liable under s.11 of the Landlord and Tenant Act 1985 as in
Brown v Liverpool Corporation (1969) case, where the exterior of the
premises was held to include a flight of stone steps from the street to the
front door which were demised with the house. Paul would also be liable
under s4(4) Defective Premises Act 1972, where in the Mc Auley v Bristol
City Council (1992) case, the landlord was held liable to a tenant who
broke her ankle on a loose step in the garden.
Paul would not be liable for the issue with the sink not draining as in the
case of Warren v Keen (1953), which Lord Denning explained; the tenant
must take proper care of the place. He must unstop the sink when it is
blocked by his waste. In short, he must do the little jobs about the
placewhich a reasonable tenant would do. Flora has contraviened her
implied covenant; that the tenant must use the premises in a tenant like
manner.
Pauls liability in relation to the ant infestation in the kitchen would depend
if the infestation was there at the time Flora moved in, if it was it would
probably be Pauls liability, however Paul could argue that by keeping stale
food in the kitchen for the last month, Flora has contraviened her implied
covenant; that the tenant must use the premises in a tenant like manner.
Paul will also be liable for the supply of hot water under Section 11(1),
(1A), (1B) Where there is a lease of the dwelling house which is part only
of a building to which the section applies, the landlord will be liable to
maintain the common parts of the building, and any installations used in
common, which affect the tenants enjoyment of the dwelling house as in
Campden Hill Towers Ltd V Gardiner and Another (1977) and in O'Connor
and Others v Old Etonians Housing Association Ltd (2002) the landlord
was held liable for a faulty design of a water pipe installation, leaving the
installation not in a proper working order.
The advise that would be given to Flora as the tenant would be that under
s.11 of the Landlord and Tenant Act 1985, the implied covenant on the
landlord to keep in repair the structure and exterior of the dwelling house
and to keep in repair and proper working order the installations in the
dwelling house would take precedence over her tenancy agreement.
Paul, the landlord would be liable under s.11 of the Landlord and Tenant
Act 1985 for the electrical wiring, repairs to the steps and repairs to the
hot water boiler, he would also have a liability under s4(4) Defective
Premises Act 1972 for the defective steps.

Flora has an inplied covenant that; the tenant must use the premises in a
tenant like manner, and by pouring greasy water down the sink and
leaving stale food in the kitchen for a month could be argued that this is
not an action of a reasonable man and she has not behaved in a tenant
like manner. As in the case of Warren v Keen (1953), which Lord Denning
explained; the tenant must take proper care of the place. He must
unstop the sink when it is blocked by his waste. In short, he must do the
little jobs about the placewhich a reasonable tenant would do. Flora has
contraviened her implied covenant; that the tenant must use the premises
in a tenant like manner.

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