Lord Hoffmann stated:
‘The only rights which it reserved were for itself and the council to enter at certain times and for limited purposes.’
In Street v. Mountford, it was held that such an express reservation 'only serves to emphasis the fact that the grantee is entitled to exclusive possession and is a tenant. Thus just because the “Occupation Agreement” states that Joyce must “ shall vacate the apartment, each and every Sunday morning between the hours of 9 am and 11 am” this does not necessary mean that the legal status of the “Occupation Agreement” is one of a license and not a tenancy.
Obligations to repair can be express or implied at common law, a furnished dwelling must be fit for habitation at the start of the lease. It appears from the contents of the “Occupation Agreement” that there are no express covenants to repair placed on Raj to carry out the repairs to the t Lavatory and the central heating. However common law has traditionally implied terms relating to the physical quality of the apartment.
A statutory obligation maybe placed on Raj in regards to the repair of the Lavatory and the central heating in Joyce’s apartment by Landlord and Tenant Act 1985.
The Landlord and Tenant Act 1985, ss. 11-14 also imposes a duty on Raj to keep certain items in order, including the external structure, installations for the supply of water, gas and electricity and for sanitation, and to keep in repair the installations for space and water heating. In British Telecommunications v. Sun Life Assurance it was held that a covenant to keep in repair the property external to the leased premises is breached as soon as a repair is needed and not carried out.
However, in O'Brien v. Robinson it was held if the need to repair the lavatory and the central heating comes within ss. 11-14 LTA 1985, the Raj will not be liable until Joyce has given notice that a repair is needed and Raj has had a reasonable time to carry it out. Here it appears from the facts that Raj has been given ample notice to carry out the repairs. However Joyce must give Raj reasonable time to carry out the repairs to the lavatory and the central heating.
Although ss. 11-14 LTA 1985 provides welcome protection for Joyce of residential property holding on short leases, the protection is not all-embracing. In particular, it must be stressed that, before Joyce has any rights, the property must be in disrepair, in this case it appears from the facts that it clearly is as the is no central heating.
Under section 4(1) of the Defective Premises Act 1972, there is certain imposition of liability placed upon Raj as the landlord in respect of certain repairs impacts also on his liability to all persons who might reasonably be expected to be affected by defects in the property. The landlord is liable to such people in respect of personal injury or damage to their property if he fails in his duty to take reasonable care to see that the premises are reasonably safe from such damage. The duty is owed when the landlord knew, or ought to have known, of the relevant defect or has a right to enter the premises to carry out repairs according to Defective Premises Act 1972, thus the “ Under section 11(6) of the Landlord and Tenant Act 1985, the landlord has a right at reasonable times in the day and, on giving twenty-four hours' notice in writing, to enter Joyce’s apartment for the purpose of viewing their condition and state of repair needed to the lavatory and the central heating.
However in the case of Quick v Taff-Ely Borough Council it was held that the fact that part of the building is inadequate with the result that the living conditions are intolerable will not mean that there is a breach of the covenant to repair.
It has, at least until fairly recently, been a general principle underlying the landlord-tenant relationship in English law that the performance of the parties' respective obligations is not interdependent. Thus according to the case of Hussein v Mehlman for this reason it has not usually been thought wise occasion for the Joyce to withhold payment of rent or service charges on the ground of his landlord's patent failure to discharge a duty to repair the lavatory and the central heating. The tenant must seek to vindicate his rights through the legitimate channels which the law affords.
If there failure by Raj to carry out the repairs to the Lavatory and the central heating amount to a case of serious non-repair by the landlord, the most far-reaching remedy available to the Joyce is the right to elect to treat the lease as terminated on the ground of breach of a fundamental term, according to the principles established in the case of Hussein v Mehlman .
P F Smith state that the doctrine of repudiatory breach will entitle Joyce the aggrieved tenant, at her election, to throw up the lease in its entirety and to sue immediately for damages in respect of the loss caused by Raj’s default in the matter of repairing the lavatory and the central heating.
It appears from the facts instead of paying for and carrying out the necessary repairs to the lavatory and the central heating which Raj should have carried out within a reasonable time once given notice by Joyce, Joyce may cross-claims for damages for breach of Raj’s implied covenant, Joyce will normally entitled to an equitable right of set-off under the Landlord and Tenant Act 1987 s24 (2A).
Under Landlord and Tenant Act 1987 s24(2A) Joyce may set off her unliquidated claim for damages against a liquidated claim by Raj for non-payment of rent. Further, Joyce may also assert his cross-claim by way of set-off so as to restrict the landlord's right to distrain on the her goods for rent arrears. This equitable right of set-off can be contractually excluded only by clear words.18 According to K Gray the remedy of set-off may be even more valuable than the common law right to make deductions from rent, in that it can cover consequential damage flowing from Raj’s breach.
Bibliography
K Gray & S F Gray Elements of Land Law 3rd Edition Butterworths
K Green & Joe Cursley Land Law Fourth Edition Palgrave Law Masters
M P Thompson Modern land Law Oxford Press
P F Smith Termination of Tenancies by Tenants: A Just Cause? The Reform of Property Law 1997
K Green & Joe Cursley Land Law Fourth Edition Palgrave Law Masters
Lord Templeman stated ‘the occupier is a lodger [licensee] if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises ... If on the other hand residential accommodation is granted for a term at a rent with exclusive possession, the landlord providing neither attendance nor services, the grant is a tenancy’.
Smith v. Marrable (1843) 11 M & W 5.
M P Thompson Modern land Law Oxford Press.
Under section 11, there is an implied covenant by the lessor—
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes);
(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water gas and electricity); and
(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water."
K Gray & S F Gray Elements of Land Law 3rd Edition Butterworths
[1992] 2 EGLR 87 Also see Bond v Weeks [1999] 1 Qd R 134
P F Smith Termination of Tenancies by Tenants: A Just Cause? The Reform of Property Law 1997
Landlord and Tenant Act 1987 s24(2)
K Gray & S F Gray Elements of Land Law 3rd Edition Butterworths
