The landlord retains a right to possession under the LTA 1954 Part II. By actually entering the property to make it safe, the property owner has enforced the right to possession, provided that he, the landlord, has not entered forcibly.
If the tenant has absconded and deserted the premises and has not paid rent for more than 6 months, and has not responded to any reasonable means of correspondence for 6 months, then the landlord can apply to the County Court for an order to terminate the tenancy (Distress for Rent Act, 1737).
iii) a shop let for 5 years and the tenant has gone bankrupt
Again, this is a fixed term tenancy that terminates when the term for which it was granted comes to an end, in this case after 5 years. Security of tenancy is again afforded by the LTA 1954. In this case, the tenant has gone bankrupt and will therefore almost certainly be unable to meet the rent for the property. The surrender of the property whereby the tenant voluntarily gives up his term of tenancy leads to an extinguishment of the lease. The surrender in this instance is expressed as opposed to implied whereby both parties expressly agree to the surrender of the lease. The handover of the lease back to the landlord ranks as a conveyance and because of this, the surrender must be made by deed as stated in LPA s.52.
In this instance, because the tenant has become bankrupt and probably has had all the assets seized by a court, a trustee appointed on behalf of the tenant under the Insolvency Act 1986 can issue a disclaimer to surrender and end the rights and liabilities of the bankrupt tenant under the lease.
iv) an office let for 10 years and the tenant has acquired the freehold
Where the tenant acquires an interest immediately superior to his own, the greater and the lesser estate in the same property or land become vested or owned by that tenant. In this instance, the lease is the ‘lesser stake’ and the acquisition of the freehold is the ‘greater stake’. In this way, the lesser estate is ‘merged’ in the greater and so is ‘extinguished’.
The special name given to this type of merger is ‘enfranchisement’. It is important that there is no intervening third party between the leaseholder and the freeholder and that the acquisition of the freehold has been negotiated voluntarily between the tenant and landlord, in accordance with LPA s.185.
v) a shop let for 5 years where road works will have a long term impact on business during term of lease
The shop in this case has a lease that is a fairly short one of 3 years. If any external influences, such as roadworks, are going to extend for more than year, then the term of the lease will be severely reduced. Such mitigating influences can force a terminancy of a lease because it is a frustrating event. This kind of event could not have been foreseen by the landlord or the tenant so it was outside the influence of either party. But it renders ineffective the fundamental basis of the contract that the premises may be used as a shop for which one would expect free and easy access for customers.
The crucial test case is ‘National carriers v Palapina (1981)’ where the House of Lords held that the frustration was an acceptable form of determination where the lease became impossible to administer due to outside interferences. In the case considered, a road closure of 10 months was not considered to be restrictive or unjust because the property affected had a 10 year lease. In this instance though, the factors that the House of Lords felt would be detrimental do apply, namely, a short term of lease and the inability of the shop to operate as a commercial enterprise.
PART 2
The facts are that the landlord owns 2 adjoining properties. One of the properties is vacant (no.1) and the other (no. 2) has been converted into 2 flats which are both occupied on monthly tenancies.
The evidence suggests that the primary use of the dwellings is to provide living accommodation. There is no detail on the terms of the lease and whether any express covenant on the liability for repair is contained therein.
There are many statutes that impose liability for repair, such as the LTA 1985 and their general effect is to impose liability on the landlord, especially where, as in this case, the lease is short.
It is important to remember that any Court, when authorising repairs, will take into account the age of the building and the purpose for which it was designed. A repair will therefore not necessarily be a renewal or an improvement over the original, unless warranted.
- works to no.1 are causing disruption to the tenant in no.2 and affecting his personal possessions.
Noise is a statutory nuisance and the tenant can report this matter to the local authority. It is then the duty of the local authority to carry out an inspection of the property within prescribed timescales and to the precise definition of the Environmental Protection Act 1990 to ascertain whether the noise does constitute a statutory nuisance. If the works do need to be carried out, then the landlord will have to carry out noisy operations only at set times as agreed by the tenant and the local authority. Any breach of conditions can lead to a criminal offence that is also covered by the EPA 1990.
The method of measuring any damages is to restore the tenant to the position he would have been if there had been no breach. The relevant case law is Calabar Properties v Stitcher (1983) where damp caused ill health and discomfort to the tenant. As a result, the following damages can be claimed:
1.reasonable cost of alternative accommodation while the works to the adjacent property are being carried out
2. loss of value or inconvenience that may not necessarily be on the basis of rent
3. discomfort, loss of enjoyment and ill-health caused by noise, dust and general distress
4. any cost of repairs to internal decorations carried out by the tenant
5. damage to personal possessions
- the occupant of no2. is complaining of defects in the flat
There are 3 items causing distress to the tenant. Regarding the roof that is leaking, the tenant is not a surveyor and therefore cannot accurately say that the leak is caused by missing slates – it may be a leaking pipe in the loft, or simply condensation dripping down.
As stated earlier, no evidence of an express repairing covenant is available, but there still exists an implied covenant which is that the tenant must use the premises in a proper manner and return it to the landlord in the same condition when the lease started, fair wear and tear excepted. The principle is clearly set out in ‘Warren v Keen 1953’ where it was held that defects due to fair wear and tear were not the responsibility of the tenant where leases were of a short nature. It would therefore be onerous on the landlord to repair any leaking roof or attend to any windows which could not open and were inoperable. Similarly, blocked sinks due to blocked main drains would be outside the tenant’s responsibilities. However, in his summing up of the Warren et al case, Lord Denning said that the tenant must do ‘ the little jobs about the place that any reasonable tenant would do’.
So if the condensation is being caused because the tenant will not open the window to let out the steam after having had a bath, and if the sink is blocked and all it needs is the unplugging of the waste trap, and if the dripping ceiling is caused by burst pipes when the tenant forgot to turn the water tank during cold weather, then the liability for rectifying the defects lies with the tenant.
The landlord can be made responsible for the repairs if the property is deemed to be unfit as a result of the defects. At common law, it is the responsibility of the tenant to satisfy themselves that the property is fit before taking up tenancy – Smith v Marrable (1843). After taking up residency, the landlord is under no implied obligation to common law to keep the property fit, as confirmed by Sarson v Roberts (1895) where the property became unfit after one of the residents contracted a contagious fever.
The remedial action that the tenant can take is to report the landlord under the Housing Act 1985 to the local authority for failing to maintain the property in a condition fit for human habitation. There are 9 items that can render a property unfit, including repair (leaking roofs, broken skylights), ventilation (skylights that fail to open), freedom from damp (condensation) drainage and disposal of waste water (blocked drains).
It is then the duty of the local authority to carry out an inspection of the property within prescribed timescales and to the precise definition of the Environmental Protection Act 1990 to ascertain whether the repairs constitute a statutory nuisance, including unfit premises.
- both tenants are complaining that an outside path is dangerous
An outside path to the property is used jointly by both tenants and although it may not form part of their individual leases to their respective flats, the path nevertheless is part of the property and belongs to the landlord. There is a statutory liability in tort and the landlord therefore owes a common duty of care, not only to the tenants who use the path, but also to other people who may use the path – such as visitors, even the postman, who may lawfully use the path (under the Occupiers’ Liability Act 1957).
The duties of the landlord were tested under Liverpool CC v Irwin (1976) where the local authority was told to keep common areas of a high rise flat in a state of reasonable repair and efficiency, e.g. rubbish chutes, external lighting, lifts. It was conferred that although there was no absolute obligation on the landlord but to show that all reasonable steps had been taken to mitigate and attend to defects.
Conclusion
The tenants have the ‘right of set-off’ in that they can deduct from rent a bona fide claim for damages and repairs. Both Lee Parker v Izzett (1972) and British Anzani v International Marine (1980) make recommendations on this method of redress. However, it is important that the tenants take advice on whether or not the landlord is in breach and that the costs are recoverable.
In the event of continual failure of the landlord to attend to his duties, a Court order can be applied for to appoint a receiver after a repair notice has been served under the LTA 1987.