Nevis Sixth Form College| CAPE LAW Unit 2 1

Course Notes

Leases and Licences

Definitions
A lease agreement is a legal contract used when a party conveys land to another party
for a specific amount of time in return for payment. Leases create legal interests in land.
They create a contractual relationship between a landlord and tenant, and therefore must
satisfy the principles of contract law. Case law indicates that there should be:

1. An intention to create legal relations;

2. The tenant has exclusive possession of the land;
3. It is for a fixed or periodic term at rent.

Licences, on the other hand, do not confer any legal interests in the land, but are rather
personal rights or privileges. This means that they are permissions granted to a licensee
to use the licensor’s land for an agreed purpose which, without the permission, would be
an act of trespass. This can include the permission to occupy the land. Permission to
occupy, however, is different from exclusive possession. A tenant with exclusive
possession is usually able to exercise all the rights of an owner (subject to
statute/contract) and the landlord often only retains limited rights of access. Occupation
does not offer the same degree of security or control over the land.

Both leases and licences can be created without a written document. However, the
absence of such a document will make it difficult to determine whether the agreement is
in fact a licence or a lease. Generally, when looking at agreements the Court will look at
the substance of the agreement and disregard any labels assigned to them. The key
consideration is exclusive possession, as where there is no exclusive possession the
agreement must always be a licence.

Differences between a lease and a licence.

a) Under license agreements, the legal ownership and the possession of the property
remain with the licensor. Under a lease agreement, the tenant generally has
exclusive possession with respect to the property. In other words, a license does
not create any interest in the premises in favor of the licensee, however a lease
creates an interest in the land which can be transferred to the lessee for the period
of the lease;

b) A licence is not transferable therefore a licensee cannot give the premises on rent
to a third party under any circumstances. On the other hand, a lease is transferable
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therefore a tenant can sub-let the premises to a third party, unless the rental
agreement expressly provides otherwise;

c) A license agreement is easier to terminate than a rent agreement;

d) Usually, a lease requires a written or oral agreement between two parties, the
landlord and the tenant. The lease transfers to the tenant a right to use the land or
property however he would like, pursuant to the conditions of the agreement. A
license does not always require a written agreement. A license can be granted
without the owner and the licensee ever meeting. For example, you buy a ticket to
a football game. The ticket is a license granted by the stadium owner to allow you
to enter the stadium. While you never met the owner or negotiated with him, you
accepted the license when you bought the ticket; and

e) Subject to the terms of the contract, a lease is not revocable by the owner.
However, a license is revocable.

In distinguishing whether a lease or a licence has been created, it was once the rule that,
where exclusive possession was granted, there was a lease (Lynes v Snaith). Later, a more
flexible test was used, viz, that the answer to the question depended on the intention of
the parties, to be inferred from the surrounding circumstances, and the fact that exclusive
possession was granted was not a decisive in favour of a lease (Cobb v Lane). However,
in Street v Mountford,1 appeared to abandon the flexible test in favour of the more rigid
proposition that:

Where the only circumstances are that residential accommodation is

offered and accepted with exclusive possession for a term at a rent, the
result is a tenancy…

In other words, if the three requirements, viz,

(i) exclusive possession,

1 [1985] 2 ALL ER 289, at 289. The in Street v Mountford was designed to prevent landlords from avoiding
the consequence of the Rent Restriction Act by framing what was essentially tenancy agreement as
‘licensces’. The courts are now astute in detecting such ‘sham’ licences, described by Lord Templeman as ‘a
pretense to get around the Rent Acts’.
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(ii) a fix or periodic term, and

(iii) rent

are present there will be the presumption of a tenancy, unless there are exceptional
circumstances that point to a licence.

Under this test it appears that the intention of the parties as to whether a lease or
licence was to be created are irrelevant, and the only intention to be regarded as
relevant is the intention to give exclusive possession of the premises ( Street v
Mountford).

In any event, whichever test is used, it is likely that in the following circumstances, a
licence and not a lease will be created:

a) Where a person is given exclusive possession as an ‘act of friendship or generosity’

or by way of family arrangement (Cobb v Lane);
b) Where services, such as regular cleaning and meals, are provided by the owner of
the property, which require the owner to have unrestricted access to the premises
(Abbeyfield Society Ltd v Woods);
c) Where employee occupies premises belonging to his employer in order that he
may carry out his duties more effectively (called ‘service occupancy’ (Smith v
Seghill Overseers));
d) Where the physical situation of the premises indicates that only a licence was
intended.

Essential Characteristics of leases

There are three requirements for the right to occupy land to be capable of taking a lease:

(a) Right to exclusive possession must be given;

(b) The duration of the lease must be certain; and

(c) Rent or consideration.

These requirements must be considered in turn.

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Exclusive possession
It is a necessary characteristic of a lease or tenancy that the tenant must have exclusive
possession of the premises. This means that the tenant must be given the right to exclude
all other persons from the land, including the landlord. However, the mere fact that the
person has exclusive possession does not make him a tenant; he may only be a licensee,
having merely a personal privilege to occupy and no interest in land.

***See pages 157-158 of Bailey V, CAPELAW – Exclusive Possession ***

Certainty of Duration
The general rule is that a lease must have a certain beginning and a certain ending (Harvey
v Pratt). The requirement of certainty of duration is satisfied where a periodic tenancy
(such as a weekly, monthly or yearly tenancy) is granted, since although, in the absence
of a notice to quit the tenancy continues indefinitely, each period of the tenancy is of
certain duration. Where, however, the Landlord granted to the Tenant a lease of premises
‘for the duration of the war, the lease was held void’, since there was no certainty as to
when the war would end (Lace v Chantler). Where the local authority granted a lease of a
strip of land fronting a public road on terms that ‘the tenancy shall continue until the land
is required by the local authority for the purpose of widening the road’, the lease was held
to be void for uncertainty (Prudential Assurance v London Residuary Body).

Certain other principles have been established, viz:

(a) Commencement date must be satisfied where parties agree upon the occurrence
of uncertain event, as, possession of the premises becoming vacant ( Brilliant v
Michael);

(b) A lease for the life of a person is not void for uncertainty- for example, a term
granted to the Tenant for life, or to the Tenant during the lives of X and Y, is valid
at common law, as also is a lease for a period determinable with a life or lives, for
example, ‘to T for five years if X shall live so long’;
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(c) A lease may be validly granted for a discontinuous period, as in the case of some
timeshare agreements relating to holiday homes- for example, it has been held
that the lease of a house for one week in each year for 80 consecutive years was
valid for discontinuous period of 80 years (Cottage Holiday Associates v Customs
and Excise Commissioners).

***See pages 158-159 of Bailey V, CAPELAW – Certainty ***

Rent or Consideration- There must be some value for possession in money

Formalities of a Lease – St. Kitts and Nevis

A lease can either be legal or equitable.

Section 2 of the Conveyancing & Law and Property Act CAP 10.04 in defining the word
‘conveyance’ includes a lease.

Section 4 (1) of the Conveyancing & Law and Property Act states:

No action may be brought upon any contract for the sale or other disposition of
and or any interest in land, unless the agreement upon which such action is
brought, or some memorandum or note thereof, is in writing, and signed by the
party to be charged or by some other person thereunto by him or her lawfully
authorised.

Section 10 (1) of the Conveyancing & Law and Property Act states that:

All conveyances of land or of any interest therein are void for the purpose of
conveying or creating a legal estate unless made by deed.

However the act continues in Section 10 (2) that the section does not apply to leases or
tenancies not required by law to be made in writing.

Section 56 of the Title by Registration Act CAP 10.19 states:

Leases for three years to be encumbrances.

For the purposes of this Act, and in order that all the rights granted, which to any
important extent affect the land, may appear upon the certificate of title, a lease
for three years and upwards shall be deemed an encumbrance, and shall be
constituted by a noting on the certificate of title in the same manner as an
encumbrance.
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Section 57 of the Title by Registration Act CAP 10.19 continues:

The warrant to authorise the Registrar of Titles to make such a noting of a lease
shall be a memorandum of lease …

In light of the above statute, all agreements concerning land must be made in writing.

If the lease is less than three years, there is no need to file a Deed of Conveyance or
Memorandum of Lease.

If the lease is for three years or more, a Deed of conveyance in the case of unregistered
land or a memorandum of lease in the case of registered land must be filed at the Land
Registry.

Failure to comply with the formalities would result in the lease being void. However, the
court may consider that there exists an equitable lease.

In the case of Walsh v Lonsdale, Lonsdale purported to grant to Walsh a seven year lease
with rent payable in advance. The lease was not embodied in a Deed, and when Walsh
went into possession, an annual tenancy with rent payable in arrear was created. Walsh
did not pay in advance, Lonsdale issued an execution against the premises, and Walsh
sought damages.

Held: Equity, as embodied in the maxim ‘equity regards as done what ought to be
done’, required that the lease should take effect on the terms originally intended. ‘He
[Walsh] holds, therefore, under the same terms in equity as if a lease had been granted.
He cannot complain of the exercise by the landlord of the same rights as the landlord
would have had if a lease had been granted.’ This was: ‘a case in which both parties admit
that relief is capable of being given by specific performance.’

***See pages 160-161 of Bailey V, CAPELAW – Non-compliance with formalities

and “An agreement for a lease is as good as a lease” ***

Types of Tenancies
Lease for a fixed period

A lease may be granted for a fixed period, however short or long, provided that there is
a certain beginning and a certain ending within the principles previously described.
Leases for one year, two years, five years, on one hand, and lease for 21, 99 or 999 years,
on the other, are common.
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A lease for a fixed period terminates automatically when the period expires; there is no
need for any notice to quit by the landlord or the tenant.

Another basic characteristic of a fixed term lease is that the landlord cannot terminate the
lease before the end of the period unless the tenant has been in breach of a condition in
the lease, or the lease contains a forfeiture clause and the tenant has committed a breach
of covenant which entitles the landlord to forfeit the lease.

Nor can the tenant terminate the lease before it has run its course; he may only ask the
landlord to accept a surrender of the lease, an offer the landlord may accept or reject as
he pleases.

A lease for a fixed term is a proprietary interest that, on the death of the tenant, passes
under his will or intestacy; similarly, the landlord’s reversion is capable of passing under
his will or intestacy.

Periodic Tenancy

Weekly, monthly, quarterly and yearly tenancies are the commonest examples of periodic
tenancies. Such tenancies continue indefinitely until terminated by a proper notice to quit
by the landlord or the tenant. Subject to agreement to the contrary, the length of notice
required to terminate a period tenancy depends on the form that the tenancy takes, viz:

a. A weekly tenancy can terminate by a week’s notice;

b. A monthly tenancy by a month’s notice;

c. A quarterly tenancy by three month’s notice;

d. An exception to the rule is yearly tenancy, which is terminable by half a year’s

notice.

A periodic tenancy may be created expressly or by implication. It is created expressly

where some words such as ‘yearly tenant’ or ‘monthly tenant’ or ‘tenant from year to year’
are used.
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More often, such a tenancy will arise by implication of law. In such a case periodic tenancy
will be measured according to the frequency of payment of rent. Where a tenant under a
lease for a fixed term ‘holds over’- that is, remains in possession after expiry of the term-
and rent is accepted and paid on a periodic basis, for example, monthly, a periodic
tenancy arises,2 but no such tenancy will be implied where there is evidence that the
landlord wished to evict the tenant, or where he did not know the relevant facts, such as
where the tenant had died, unknown to the landlord, and the landlord had accepted rent
from the tenant’s widow.3

Tenancy at will

If the Landlord permits the Tenant to occupy the Landlord’s land as tenant on the terms
that the tenancy may be terminated by the Landlord or the Tenant at anytime, a tenancy
at will arises.

This type of tenancy was described by de la Bastide JA in Romany v Romany thus:

A tenancy at will exists when a person occupies the land of another on the
understanding that he may go when he like and the owner may terminate
his interest at any time the owner wishes to do so. A tenancy at will has been
properly described as a personal relationship between the landlord and his
tenant and it is important in this case, note that it is determined by the
death of either of them or by one of a variety of acts, even by an involuntary
alienation.

In Cyprus v Gopaul, Edoo JA further emphasized: ‘That the rule is clear. A tenancy at will
can only exist as a result of an agreement between the parties and an intention on the
part of the landlord to create such tenancy.’

A tenancy at will may be created either expressly or by implication. Examples of a tenancy

at will arising by implication include: where the Tenant takes possession under a void

2 Kanhai v Gosine (1988) Court of Appeal, Trinidad and Tobago, Mag App No 125 of 1988 (unreported)
[Carilaw TT 1988 CA 31]
3 Tickner v Buzzacott [1965] Ch 426
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lease or under agreement for lease and has not yet paid rent, and where T is allowed to
occupy a house rent-free for an indefinite period. Unless it is to be agreed that the
occupation is to be rent-free, T must pay L compensation for the ‘use and occupation’ of
the land (Howard v Shaw).

An example of a rent free-tenancy at will is to be found in Deen v Mahabir. Here, M

verbally agreed to allow D, with whom he was on friendly terms, to occupy his house,
rent-free, for three to four months whilst D’s house was under construction. After some
considerable time had elapsed, M repeatedly requested D to leave his house, but D
remained in occupation. An ejectment order was made by the magistrate, an appeal was
made on the grounds that there was no landlord-tenant relationship between the parties-
accordingly the magistrate did not have jurisdiction to determine complaint.

Court of Appeal held, where exclusive possession was given to a new occupant, it was to
be inferred that a tenancy was had been created, unless special circumstances existed to
show that only a licence had been created.

In the present case, the fact that D did not pay rent or that his occupation of the premises
had been as a result of ‘generosity or indulgence’ on the part of M, was a consistent with
the grant of rent-free tenancy at will as it was with the grant of gratuitous licence, and
there was no special circumstance to negative a tenancy.

Tenancy at sufferance

Where T remains in possession of the land after the expiry of his lease without the
Landlord’s assent or dissent,4 a tenancy at sufferance arises. A tenant at sufferance differs
from a tenant at will in that his tenancy exists without the Landlord’s consent. The
Landlord may claim possession at any time, and he is entitled to compensation for the

4 The commencement of ejectment proceedings constitutes dissent by the landlord, and precludes the
implication of a tenancy at sufferance: De Hayney v Ali (1986) Court of Appeal, Trinidad and Tobago, No
!69n of 1984 (unreported)[Carilaw TT 1886 CA 17], per McMillan JA.
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Tenant’s ‘use and occupation’. The relationship may be converted into periodic tenancy
by the payment and acceptance of rent.

The following definition of a tenancy at sufferance from Woodfall was quoted with
approval by in Seetahal v Batchasingh:5

A tenant at sufferance is one who has entered by a lawful demise or title, and, after
that has ceased, wrongfully continues in possession without the assent or dissent
of the next person then entitled; as where a tenant for years holds over after expiry
of his term; or where anyone continues in possession without agreement after a
particular estate is ended…

In Seetahal v Batchasingh, S’s claim that he had become a tenant at sufferance was
rejected since he could not show that he ever owned an estate in land; at most his
occupation had been a licensee.

Tenancy by estoppel

If the Landlord purports to grant a lease of land to the Tenant, but the Landlord does not
have title to the land, the Landlord is estopped from repudiating the tenancy and the
Tenant is also estopped from denying the Landlord’s title and the tenancy’s existence
(Meredith v Gray). In such case there arise a tenancy by estoppel’, although invalid vis-à-
vis third parties, is binding on the Landlord and the Tenant and, as between them, has the
attributes of a true tenancy. As Farwell LJ described it in Bank of England v Cutler:

It is true that a title by estoppel is only good against the person estopped
and imports from its very existence the idea of no real title at all, yet as
against the person estopped it has all the elements of a real title.

Covenants contained in the lease are enforceable by and against the Landlord and
the Tenant and their successors.

5 Landlord and Tenant, 228th edn, 1978, London, Sweet & Maxwell, p 8.
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Leasehold Covenants
The liabilities of the lessor and the lessee are normally to be found in the express
covenants (obligations) contained in the lease, or in the covenants implied by statute or
by the law. They may be considered under the following heads.

Landlord‘s Implied Obligation

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 possession6 of the demised premises and that he shall have
‘quiet enjoyment’ of the premises during the continuance of the lease.7 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 the Landlord in order to ‘get rid of’
the Tenant, removes doors, windows or the roof of the building,8 causes the water or
electricity supply to be cut off,9 or subjects T to persistent harassment or intimidation
(Kenny v Green).

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, 10
although it may be actionable as a nuisance or constitute a derogation from the lessor’s

6 In Singh v Szala (1975) Full Court, Guyana (unreported), L granted to T a monthly tenancy of a cottage
and a storeroom below. L kept the storeroom locked and never gave T possession of it up to the time of
the present action. Bollers CJ and Mitchell J held that ‘there was a direct physical interference with the
room… by keeping it locked’, and impliedly [L] was under an obligation at the commencement of the
tenancy to put [T] into possession of that tenancy… and to see that he remained quietly in possession if it.
7 Markham v Paget [1908] 1 Ch 697
8 Lavender v Betts [1942] 2 All ER 72
9 Tapper v Myrie (1968) 11 JLR 102, Court of Appeal, Jamaica
10 Jenkins v Jackson (1888) 40 Ch D 71, in which the lessor was held not liable for an invasion by rats, where

he had done nothing to attract them to the demised premises, nor let them loose there.
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grant if the latter has participated in it.11 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.12

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’.13 For instance, there was a breach of the covenant where the
Landlord, having let land to the Tenant 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 the Landlord lets to
the Tenant 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.14

To constitute a breach of the covenant, the Landlord 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 the Landlord, having let premises to the Tenant for use in
a particular trade, later lets adjoining premises to a rival trader, because the premises let
to the Tenant will still be fit for the purpose for which they were let, albeit that Tenant’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 the Landlord operates machinery
on the adjoining land that causes structural damage to the house to let to the Tenant; or
where excessive dust or fumes emitted from neighboring land seriously interfere with the
Tenant’s enjoyment of his premises.

11 Belridge Property Trust Ltd v Milton (1934) 78 SJ 489,

12 Manchester, Sheffield and Lincolnshire Rly Co v Anderson [1898] 2 Ch D 295, at 313.
13 Birmingham, Dudley and District Banking Co v Rose (1888) 38 Ch D 295, at 313.
14 Newman v Real Estate Debenture Corp Ltd [1940] 1 All ER 131
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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. 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,
staircases and other common facilities, such as lighting and garbage chute, for the benefit
of all of the tenants in the building.

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, 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). 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
Robinson15.

15 [1973] 1 All ER 583

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In 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.

Tenant’s Covenants
Tenant’s Express 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.

Covenant to pay rent

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).

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’. It has been held that an option to renew a lease is void for uncertainty
if the rent is ‘to be agreed’16 or subject to ‘re-negotiation’,17 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

16 Adam v Besseling (1987) High Court, Trinidad and Tobago, No 2504 of 1987 (unreported), Mustapha
Ibrahim J pointed out that, where there was an option to renew a lease at a rent to be agreed, the agreement
could be cured and the agreement rendered valid if the parties agreed on the rent before the time of the
exercise of the option had arrived.
17 Hemmings v Attorney General (2004) Supreme Court, Jamaica, No E 315 of 1998 (unreported)
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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.18

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’,19 ‘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).

As it regards locality, it is clear that a house situated in an exclusive residential suburb

would demand a higher standard of repair than one situated in a run-down urban or
inner-city area. As it regards character, it is equally clear, that the standard of repair
applicable to a mansion house would be much higher than that applicable to an
agricultural worker’s cottage.20 An important principle is that the character of the
premises and locality at the beginning of the tenancy that must be considered. Thus, if,
at the commencement of a long lease, the house is a desirable one situated in an
expensive and fashionable locality, but after several years the neighborhood and the
property becomes run-down, the covenantor must put the property back into its original

18 Beer v Bowden [1981] 1 WLR 522

19 ‘Good and tenable repair’ has been held to mean ‘such repair as, having regard to the age, character and
locality of the house, would make it reasonably fit for the occupation of a reasonably minded of the class
who would be likely to take it’: Proudfoot v Hart (1890) 25 QBD 42, 52 per Lord Escher MR
20 Ibid.
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state: he cannot argue that his obligation is to be measured by the current low standards
of locality (Anstruther-Goug-Calthorpe v McOscar).

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.21 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’,22 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.’

Fair wear and tear

Tenants frequently covenant to keep premises in repair, ‘fair wear and tear excepted’. The
effect of the phrase is to absolve the tenant from liability for:

(a) Damage due to ordinary operation of natural causes, such as wind and rain; and

21 Ibid
22 Megarry and Wade, fn 35, p 27
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(b) Disrepair resulting from the reasonable use of the premises.

However, although the tenant is not liable for original damage or deterioration
constituting wear and tear, he is liable for any consequential damage resulting from his
failure to rectify the original damage, where it should be obvious that a reasonable person
that, if not rectified, further and lasting damage would ensue (Haskell v Marlow).

Covenant not to assign, sublet or part with possession of the demised premises.

In the absence of any express stipulation to the contrary, a tenant is free to assign, sublet
or part with possession of the demised premises to a third party. However, in order to
ensure that the premises do not fall into the hands of an irresponsible person, it is usual
for a lease to contain an express covenant either that the tenant will not assign or sublet
the premises (an ‘absolute covenant’) or, more commonly, that the tenant will not assign
or sublet without the consent of the landlord (a ‘qualified covenant’). The qualified
covenant may be subject to an express proviso that the landlord will not unreasonably
refuse his consent to an assignment or subletting.

Tenant’s implied obligations

Obligation not to commit waste

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:
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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, willfully 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.

The consequences of a breach of covenant by:

o the landlord;
o the tenant.

***See pages 176-177 of Bailey V, CAPELAW – Consequences of Breach of

Covenants ***

Termination of Lease
A lease may be terminated by:

(a) Forfeiture;

(b) Surrender;

(c) Merger;

(d) Effluxion of time;

(e) Notice to quit; or

(f) Frustration.

Forfeiture
At common law, a distinction is drawn between breaches of a condition23 and breaches
of a covenant.24 Where a condition in a lease is broken, the landlord is entitled to resume

23 Where a lease is granted, for instance, ‘on the condition that’ or ‘provided always that’ certain things are
done or not done. In such a case, the continuance of the lease is made conditional on the performance of
those obligations.
24 For example, ‘the tenant hereby covenants with the landlord as follows.’
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possession by re-entry upon the premises and the lease will be terminated, as the
continuance of the lease had been made conditional on the tenant’s carrying out his
obligations. Where on the other hand, a covenant is broken, the landlord is entitled to re-
enter only if the lease contains an express forfeiture clause. Whether a stipulation in a
lease amounts to a condition or covenant depends on the intention of the parties 25.

It is the usual practice of the for a lease to contain a forfeiture clause, 26 reserving
to the landlord the right of re-entry if the tenant is in breach of one or more of the
covenants in the lease, and upon re-entry the lease shall be forfeited. If there is a breach
of a covenant the lease becomes voidable, in the sense that the landlord has the option
whether to terminate it or not. It is only when the landlord does some unequivocal act
that shows that he intends to terminate it that the lease will be avoided. Such an act may
be:

(a) Actual re-entry by the landlord; or

(b) Granting of a new lease to a third party; or

(c) The commencement of ejectment proceeding, in which the landlord seeks a

possession order from the court

An action for ejectment is the most usual method of forfeiting a lease in modern times;
this is because if force is used in re-entry, the landlord may be liable for forcible re-entry.

Waiver of forfeiture

Where the landlord (a) knows of a breach of a covenant that makes the lease liable to
forfeiture, and (b) does some unequivocal act of recognizing the continued existence of
the lease, he is said to lose the right to terminate the lease. A merely passive attitude on

25 Doe d Henniker v Watt (1828) 8 B & C 308.

26 For example, ‘If any part of the said rent shall be in arrears for 21 days, whether lawfully demanded or
not, the lessor or his assigns may re-enter upon the said premises, and immediately there upon the said
term shall be absolutely determined’. See Davidson v Ward (2009) High Court, Trinidad and Tobago, No
1397 of 2000 (unreported), per Rampersad J.
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the part of the landlord does not amount to waiver,27 nor where the landlord refrains from
taking action because he believes he will not be able to prove a suspected breach of the
covenant.28 On the other hand, it is well established that there is a waiver if the landlord,
with knowledge of the breach, demands, sues, or accepts rent falling due after the breach.
Note the following principles:

1. Waiver of a breach of covenant extends only to the particular breach in question;

it does not extend to future breaches. The landlord therefore retains the right to
sue if the breach continues in the future.

2. Once the landlord has shown his final decision to treat the lease as forfeited by
commencing an ejectment action, a subsequent demand or acceptance of rent will
not amount to a waiver.29

Forfeiture for non-payment of rent

The procedure for the forfeiture for non-payment of rent differs from the procedure for
forfeiture for breaches of other covenants. At common law, unless exempted by the terms
of the lease, a landlord who intends to assert his right of re-entry is required before doing
so to make a ‘formal demand’ for rent due. A formal demand is made by the landlord, or
his agent, demanding on the demised premises the exact sum due between sunrise and
sunset on the day when it is payable.30

Relief against Forfeiture

A tenant whose lease is being forfeit for non-payment of rent may apply for relief. The
court’s jurisdiction to grant relief may be explained as thus:31

27 Perry v Davies (1858) 140 ER 945.

28 Chrisdell Ltd v Ticker [1987] 2 EGLR 123
29 Grimwood v Moss (1872) LR 7 CP & CR 405.
30 Duppa v Mayo (1668) 1 Wms Sound 282, 287
31 Gill v Lewis [1956] 1 All ER 844, at 853, per Jenkins LJ.
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The function of the court in exercising this equitable jurisdiction is to grant relief
when all that is due has been paid up, and (in general) to disregard any other causes of
complaint that the landlord may have against the tenant. The question is whether,
provided all has been paid up, the landlord would not have been fully compensated; and
the view taken by the court is that if he gets the whole of his rent and costs, then he has
gotten all that he is entitled to so far as rent is concerned, and extraneous matters of the
breach of the covenant, and so forth, are, generally speaking, irrelevant. Given the nature
of the relief sought (equitable), the conduct of the complainant would be relevant in
determining whether or not same would be granted.

Where a lease is forfeited, any sublease is automatically destroyed, but the sublessee has
the right to apply for relief against forfeiture as the tenant under the head lease.

Relief against forfeiture

As soon as the landlord has served the statutory notice, the tenant may apply to the court
for relief against forfeiture. The court may grant or refuse relief as, having regard to the
conduct of the parties and other circumstances as it thinks fit. The discretion given to the
court is wide and there are no firm rules upon which relief may be granted or refused, 32
although it has been held that where involves immoral user, relief will be granted only in
rear cases. Where relief is granted, the effect is as though the lease had never been
forfeited. If the court grants relief on terms, for example, where the tenant is order to carry
out repairs within a certain period of time, and those terms are not observed, the order
for the relief is nullified, unless the court gives the tenant extra time to satisfy those
terms.33

Section 70 Conveyancing & Law of Property Act CAP 10.04

32 Hyman v Rose [1912] AC 623, at 631, per Lord Eldon LC.

33 Cheshire and Burn, fn 13, p 440.
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Surrender
Where a tenant surrenders his lease to his immediate landlord, the lease is extinguished,
although the landlord will be bound by any sublease previously granted by the tenant. 34
Surrender releases both landlord and tenant from all future obligations under the lease,
but they remain liable for obligations already incurred.

Surrender may be expressed or implied by law. Express surrender requires writing, even
where the lease or tenancy was created orally.

Surrender by operation of law occurs where the conduct of the parties shows an intention
that the lease shall be yielded up, in circumstances in which it would be inequitable for
either party to rely on the lack of an express surrender by deed or writing. Examples are:

(a) Where the tenant gives up possession of the premises by delivery of the key, and
the landlord accepts it(White v Brown);

(b) Where it is agreed that the tenant will remain in possession rent-free, not as a
tenant but as a licensee (Foster v Robinson)

(c) Where the tenant has been absent from the premises for a long time and owes
substantial arrears of rent- although mere abandonment will not constitute
surrender, for the landlord may wish the lease to continue ( Preston Borough
Council v Fairclough (1982)).

(d) Where the tenant accepts a fresh lease from the landlord, even though the new
lease is for a shorter term.

Section 72 Conveyancing & Law of Property Act CAP 10.04

Merger
A lease and a reversion cannot be held by the same person at the same time. Accordingly
if they both became vested in the same person- for example, where the landlord coveys

34 Schwab v McCarthy (1976) 31 P & CR 196

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his fee simple to the tenant- the lease is said to be ‘merged’ into the fee simple and is
destroyed.

Effluxion of time
On expiry of the agreed period in the lease for a fixed term, the lease terminates
automatically ‘by Effluxion of time.’ There is thus no need for notice to quit to be given
by either party.

Notice to Quit
***See pages 167-199 of Bailey V, CAPELAW – Notice to Quit ***

Section 16 Rent Restriction Act CAP 18.29

Frustration
The orthodox view was that frustration could never apply to a lease because a lease
is not merely a contract but it creates an interest in land which, once vested in the
lessee, cannot be divested except according to the principles of landlord and
tenant law.

However, in National Carriers Ltd v Panalpina Northern Ltd, the House of

Lords accepted the doctrine could apply to a lease on the same basis as frustration
of a contract, although the occasion on which it would be applicable is extremely
rare. A majority of their Lordships took the view that a lease might be frustrated
not only by physical catastrophe, such as where ‘some vast convulsion of nature
swallowed up the property altogether, or buried it in the depths of the sea’, 35 but
also by supervening events so far beyond the contemplation of the parties that it
would be unjust to enforce the lease. On the facts of the said case, in which in there
was 10-years lease of a warehouse. It was held there was no frustration and rent
remained payable by the tenant when the local authority closed the only access
road to the warehouse, rendering it unusable for 10 months, though a longer
interruption might have frustrated the lease.

***See pages 169 of Bailey V, CAPELAW – Frustration ***

35 Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd [1945] AC 221, at 229,
per Lord Simon.
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Distress
***See pages 169-172 of Bailey V, CAPELAW – Distress ***

Licences
The grant of licences
A licence may be express or implied. For instance, an everyday-life example of an implied
licence arises when a shopkeeper invites customers to enter the premises to do business.

Express licences govern specific situations where permission has been expressly granted
to a particular individual, for example, where a property owner invites guests to dinner or
to stay in a room on their property. The licence governs only the specified period of the
stay, and any re-entry after that period without further permission may constitute
trespass.

An individual cannot grant a licence to themselves, nor to themselves jointly with another.
It can only be granted by a property owner who is different from the licensee.

The effect of a licence

A licence gives minimal rights to the licensee. Therefore, they usually have no interest in
the land and the licence does not create an interest in the land – it simply prevents the
licensee from being a trespasser in law. However, the law is still evolving and the courts
are moving towards accepting that in some cases, a license does create an interest in land.

Where the licence is contractual (ie. granted under a contract), the licence may specify
certain rights given to the licensee.

Revocation of licences

In general, the licences could be revoked through giving notice of revocation to the
licensee allowing them a reasonable time to leave the property. The concept of
reasonable time is flexible; however, the period specified should not be seen as
oppressive.

Types of Licences
***See pages 177-179 of Bailey V, CAPELAW – Types of Licences ***

Reference

 G. Kodilinye, Commonwealth Caribbean Property Law (3rd edn, 2010) (London:

o Routledge/Cavendish)