REAL PROPERTY II

Landlord and Tenant (Part 1)

Essential Characteristic of a Lease: There are two requirements for a right to occupy land to be capable of taking effect as
a lease:

(a) the right to exclusive possession must be given;

(b) the duration of the lease must be certain.

(1) Exclusive possession: Cheshire and Burn write that a necessary feature of a lease is that the lessee shall be given
the right to exclude all other persons from the land, including the lessor. However, just because a person has
exclusive possession it does not mean that they are a lessee. That person may have obtained a personal privilege
in the shape of a licence which may be revoked according to the express or implied terms of the contract. It is
important to determine whether a transaction creates a lease or a licence, since a lease is enforceable against third
parties as a legal estate or an equitable interest, whereas a licence is not, unless, the circumstances give rise to a
constructive trust or proprietary estoppel.

Distinguish between lease and licence:

(a) A lessee, holding a legal lease, has an interest in land which is binding on the whole world; a licensee has a mere
personal right which at most binds only licensor and licensee;
(b) A lessee, but not a licensee, may maintain an action in trespass against any person who interferes with his right to
possession;
(c) A lessee may assign his lease, whereas a licensee has no proprietary interest capable of assignment;
(d) A lessee, but not a licensee, enjoys the protection of the Rent Restriction Acts.

Street v. Mountford [1985] A.C. 809 By an agreement dated 7 March 1983 S granted M the right to occupy two rooms
for GBP37 per week subject to termination by 14 days' notice and subject to conditions set forth in the agreement,
which was entitled "licence agreement" and which contained a declaration signed by M to the effect that she
understood that the agreement did not give her a tenancy protected under the Rent Acts. M and her husband then
moved into the rooms, of which they had exclusive occupation. In August 1983 S sought an order in the county court
declaring whether the occupancy under the agreement was a licence or a protected tenancy. The recorder held that it
was a tenancy. On appeal by S the Court of Appeal declared that M occupied the rooms under a licence.

On appeal by M:-

Held, allowing the appeal, that where residential accommodation had been granted for a term at a rent with exclusive
possession, the grantor providing neither attendance nor services, the legal consequence was the creation of a tenancy; and
that, accordingly, on its true construction, the agreement between S and M, notwithstanding the use of the word "licence,"
had the effect of creating a tenancy.

Lord Templeman, .. “A tenancy is a term of years absolute. This expression, by section 205(1)(xxvii) of the Law of
Property Act 1925, reproducing the common law, includes a term from week to week in possession at a rent and liable
to determination by notice or re-entry. Originally a term of years was not an estate in land, the lessee having merely a
personal action against his lessor. But a legal estate in leaseholds was created by the Statute of Gloucester 1278 and the
Act of 1529 Hen VIII, c 15. Now by section 1 of the Law of Property Act 1925 a term of years absolute is an estate in
land capable of subsisting as a legal estate. In the present case if the agreement dated 7 March 1983 created a tenancy,
Mrs Mountford having entered into possession and made weekly payments acquired a legal estate in land. If the
agreement is a tenancy, the occupation of Mrs Mountford is protected by the Rent Acts.

A licence in connection with land while entitling the licensee to use the land for the purposes authorised by the licence
does not create an estate in the land. If the agreement dated 7 March 1983 created a licence for Mrs Mountford to
occupy the premises, she did not acquire any estate in the land. If the agreement is a licence then Mrs Mountford's

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right of occupation is not protected by the Rent Acts. Hence the practical importance of distinguishing between a
tenancy and a licence.

… The traditional view that the grant of exclusive possession for a term at a rent creates a tenancy is consistent with
the elevation of a tenancy into an estate in land. The tenant possessing exclusive possession is able to exercise the
rights of an owner of land, which is in the real sense his land albeit temporarily and subject to certain restrictions. A
tenant armed with exclusive possession can keep out strangers and keep out the landlord unless the landlord is
exercising limited rights reserved to him by the tenancy agreement to enter and view and repair. A licensee lacking
exclusive possession can in no sense call the land his own and cannot be said to own any estate in the land. The
licence does not create an estate in the land to which it relates but only makes an act lawful which would otherwise be
unlawful… In Glenwood Lumber Co Ltd v Phillips [1904] AC 405, the Crown in exercise of statutory powers
"licensed" the respondents to hold an area of land for the purpose of cutting and removing timber for the term of 21
years at an annual rent. Delivering the advice of the Judicial Committee of the Privy Council, Lord Davey said, at pp.
408-409:

"The appellants contended that this instrument conferred only a licence to cut timber and carry it away, and did not
give the respondent any right of occupation or interest in the land itself. Having regard to the provisions of the Act
under the powers of which it was executed and to the language of the document itself, their Lordships cannot adopt
this view of the construction or effect of it. In the so-called licence itself it is called indifferently a licence and a
demise, but in the Act it is spoken of as a lease, and the holder of it is described as the lessee. It is not, however, a
question of words but of substance. If the effect of the instrument is to give the holder an exclusive right of occupation
of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in
law a demise of the land itself. By [the Act] it is enacted that the lease shall vest in the lessee the right to take and keep
exclusive possession of the lands described therein subject to the conditions in the Act provided or referred to, and the
lessee is empowered (amongst other things) to bring any actions or suits against any party unlawfully in possession of
any land so leased, and to prosecute all trespassers thereon. The operative part and habendum in the licence is framed
in apt language to carry out the intention so expressed in the Act. And their Lordships have no doubt that the effect of
the so-called licence was to confer a title to the land itself on the respondent."

This was a case in which the court after careful consideration of the purposes of the grant, the terms of the grant and
the surrounding circumstances, came to the conclusion that the grant conferred exclusive possession and was therefore
a tenancy.

A contrary conclusion was reached in Taylor v Caldwell (1863) 3 B & S 826 in which the defendant agreed to let the
plaintiff have the use of the Surrey Gardens and Music Hall on four specified days giving a series of four concerts and
day and night fetes at the gardens and hall on those days, and the plaintiff agreed to take the gardens and the hall and to
pay GBP100 for each day. Blackburn J said, at p. 832:

"The parties inaccurately call this a 'letting,' and the money to be paid a 'rent', but the whole agreement is such as to
show that the defendants were to retain the possession of the hall and gardens so that there was to be no demise of
them, and that the contract was merely to give the plaintiffs the use of them on those days."

That was a case where the court after considering the purpose of the grant, the terms of the grant and the surrounding
circumstances came to the conclusion that the grantee was not entitled to exclusive possession but only to use the land
for limited purposes and was therefore a licensee.

In the case of residential accommodation there is no difficulty in deciding whether the grant confers exclusive
possession. An occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is
a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise
unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his
own. In Allan v Liverpool Overseers (1874) LR 9 QB 180, 191-192 Blackburn J said:

"A lodger in a house, although he has the exclusive use of rooms in the house, in the sense that nobody else is to be
there, and though his goods are stowed there, yet he is not in exclusive occupation in that sense, because the landlord is
there for the purpose of being able, as landlords commonly do in the case of lodgings, to have his own servants to look

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after the house and the furniture, and has retained to himself the occupation, though he has agreed to give the exclusive
enjoyment of the occupation to the lodger."

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; any express reservation to the
landlord of limited rights to enter and view the state of the premises and to repair and maintain the premises
only serves to emphasise that fact that the grantee is entitled to exclusive possession and is a tenant. In the
present case it is conceded that Mrs Mountford is entitled to exclusive possession and is not a lodger. Mr Street
provided neither attendance nor services and only reserved the limited rights of inspection and maintenance and the
like set forth in clause 3 of the agreement. On the traditional view of the matter, Mrs Mountford not being a lodger
must be a tenant.

….My Lords, Mr Street enjoyed freedom to offer Mrs Mountford the right to occupy the rooms comprised in the
agreement on such lawful terms as Mr Street pleased. Mrs Mountford enjoyed freedom to negotiate with Mr Street to
obtain different terms. Both parties enjoyed freedom to contract or not to contract and both parties exercised that
freedom by contracting on the terms set forth in the written agreement and on no other terms. But the consequences in
law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the
agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot
alter the effect of the agreement by insisting that they only created a licence. The manufacture of a five-pronged
implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists
that he intended to make and has made a spade.

… In Errington v Errington and Woods [1952] 1 KB 290 and in the cases cited by Denning LJ at p. 297 there were
exceptional circumstances which negatived the prima facie intention to create a tenancy, notwithstanding that the
occupier enjoyed exclusive occupation. The intention to create a tenancy was negatived if the parties did not intend to
enter into legal relationships at all, or where the relationship between the parties was that of vendor and purchaser,
master and service occupier, or where the owner, a requisitioning authority had no power to grant a tenancy. These
exceptional circumstances are not to be found in the present case where there has been the lawful, independent and
voluntary grant of exclusive possession for a term at a rent. If the observations of Denning LJ are applied to the facts
of the present case it may fairly be said that the circumstances negative any intention to create a mere licence. Words
alone do not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. The circumstances and the
conduct of the parties show that what was intended was that the occupier should be granted exclusive possession at a
rent for a term with a corresponding interest in the land which created a tenancy.

…. Exclusive possession is of first importance in considering whether an occupier is a tenant; exclusive possession is
not decisive because an occupier who enjoys exclusive possession is not necessarily a tenant. The occupier may be a
lodger or service occupier or fall within the other exceptional categories mentioned by Denning LJ in Errington v
Errington and Woods…Lord Denning MR in considering whether the transaction was a licence or a tenancy said:
"Broadly speaking, we have to see whether it is a personal privilege given to a person (in which case it is a licence), or
whether it grants an interest in land (in which case it is a tenancy). At one time it used to be thought that exclusive
possession was a decisive factor. But that is not so. It depends on broader considerations altogether. Primarily on
whether it is personal in its nature or not: see Errington v Errington and Woods [1952] 1 KB 290."

A.G. Securities v Vaughan and Antoniades v. Villiers [1988] 3 All .E.R. 1058: Both cases concerned separate flat-
sharing agreements, both were described as ‘licences’, and both denied exclusive possession. In both cases the HL
reversed the Court of Appeal, holding that in the first there was a licence, and in the second a joint tenancy.

A.G. Securities v Vaughan: Four young men signed separate agreements on different dates with different amounts of
payment. The documents were described as licences, denied exclusive possession of any part and required the occupier
to share with not more that three other persons. When there was a change, there was a pecking order for the best
rooms. The HL held that the four occupiers were individual licensees, and not joint tenants. The differences in date and
payment made it impossible for the four unities (of possession, time, title, and interest) of a joint tenancy to exist. Lord
Bridge, of Harwich:“The arrangement seems to have been a sensible and realistic one to provide accommodation for a
shifting population of individuals who were genuinely prepared to share a flat with others introduced from time to time

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who would, at least initially, be strangers to them. There was no artificiality in the contracts concluded to give effect to
this arrangement.”

Antoniades v . Villiers: There were two separate agreements based on the Somma v. Hazelnut precedent. They were
entered into by a man and a woman who wished to live together in a small flat in undisturbed quasi-connubial bliss.
They chose a double rather than single beds. They were to use the flat in common with the owner or other licensees
permitted by him. Unlike AG Securities v Vaughan, “the two agreements were interdependent, not independent of one
another. Both would have signed or neither. The two agreements must therefore be read together.” The sharing term
was “contrary to the provisions of the Rent Acts and, in addition was in the circumstances, a pretence intended only to
get round the Rent Acts.” Lord Templeman, “ the court must consider the surrounding circumstances including any
relationship between the prospective occupiers, the course of negotiations and the nature and extent of the
accommodation and the intended and actual mode of occupation of the accommodation.

Kodilinye writes that the courts of the Commonwealth Caribbean are probably bound to the decision in Issac v. Hotel
de Paris Ltd. where the P.C. used the ‘intention of the parties’ test to reach their decision.

Issac v. Hotel de Paris Ltd.

In that case, the respondent company was the lessee of part of a building in Port of Spain which was used as a hotel. In
December 1955, the company let the appellant into possession of the first floor of the building under an arrangement
that the appellant would operate a night bar for the company. In February 1956, after a dispute between the parties, it
was agreed that the appellant would pay $250 month as ‘rent’ (the amount payable by the company as head rent) and
all expenses incurred in the running of the bar, and in return that the appellant could retain all the profits for himself. In
May 1956, the company gave the appellant seven days’ notice to quit the premises.

It was held by the PC that the circumstances in which the appellant was allowed to occupy the premises showed that
the company never intended to accept him as tenant and that he was fully aware of that fact. A licence had been
created, and notice was sufficient to terminate it. Lord Denning said, “It was submitted by Counsel for the appellant
that there were all the indicia of a monthly tenancy. There was not only exclusive possession but there was also the
payment and acceptance of rent. (Furthermore, the appellant paid the disbursements, and so forth.) Counsel admitted
that these would not be decisive to establish a tenancy in the case of premises within the Rent Restriction Acts such as
Marcroft.

Sylvester v Cyrus (1959) 1 WIR 407: S was in urgent need of accommodation, as the house in which she was living
was to be demolished. As a result of a conversation between S and C, in September 1957 C let S into occupation of a
house of which C was herself a monthly tenant, It was agreed that S would pay a premium of $150 and $12 a month as
rent. C moved out of the house, taking her telephone with her, and had the electricity meter removed. When, in
February 1958, C re-entered the house, S brought an action for trespass. The trial judge held that the relationship
between the parties was one of licensor and licensee; that the licensee had been effectively revoked by C’s re-entry;
and that C was not liable in trespass. On appeal, the Federal Supreme Court held that, from the fact that S was given
exclusive possession of the house, an intention to create a monthly subtenacy was to be inferred, and there were no
special circumstances to negative the inference. C was, accordingly, liable for trespass. Lewis J said: I am unable to
find in the evidence any special circumstances or conduct of the parties which negative the inference normally to be
drawn where a person having a possessory interest in land puts another person into exclusive possession of that land,
namely an intention to create a tenancy. The facts as found by the trial judge all point to that inference as being the
proper one. It is true that in July to September 1956, when S was negotiating with C, she was in urgent need of a
house, but that is not an unusual situation, and the fact that C demanded and received a premium of $150 suggests that
this was a business transaction rather than a personal privilege motivated by charitable or humane considerations. It is
also clear that C wished to be in a position to recover possession of the apartment should she at any time need to do so,
but this she could have done by giving the proper notice to S, who would not, in the circumstances, have been able to
avail herself of the protection of the Rent Restriction Ordinance. I have come to the conclusion, therefore, that the trial
judge erred in holding that the relationship between the parties was that of licensor and licensee. In my judgments, this
was a simple case of subtenancy at a monthly rental.

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Edwards v. Brathwaite (1978) 32 WIR 84: Land was owned by the claimant’s mother who lived on it with his father. In
1939 the claimant was invited by his mother to move his chattel house on to the land; he did so, although the area to be
occupied by him was not defined. Later that year his mother died intestate. His father continued to live on the land; he
never bothered the claimant nor asked for any rent, etc. The claimant planted fruit trees, cultivated a kitchen garden and
erected fences and paling around his house. In 1962 the claimant’s father died. The claimant’s brother was heir to his
father’s estate and in 1966 he purported to convey the land to his sister, the defendant. The claimant, however, continued
to live on the land without paying any rent, taxes, etc. The defendant mortgaged the land to the plaintiff who later
instituted foreclosure proceedings. When advertisements were published seeking any persons with claims to or charges on
the land the claimant made a claim to title to part of the land by prescription. HELD: that the claimant must be regarded as
having gone into occupation under a family arrangement and this arrangement continued after his mother’s death during
the lifetime of his father; in the absence of any evidence of interference with his occupation by the heir after his father’s
death or any indication of an intention to create a relationship of landlord and tenant at that time, it could be inferred that
the claimant was nothing other than a licensee at any time and as such incapable of deriving a title by prescription.

Ramnarace v. Lutchman [2001] 1 WLR 1651(PC): In July 1974 with the consent of her uncle and aunt Angad and
Kushmee Lutchman the appellant entered into occupation of a piece of land which they owned at Orange Field Road,
Carapichaima, in central Trinidad. The land is described in the statement of claim as comprising 2½ lots more or less and
measuring 75 feet on each of its northern and southern boundaries and 200 feet on each of its eastern and western
boundaries and bounded on the north by Orange Field Road, on the south by lands occupied by Abdool, on the east by
lands of Rampersad and on the west by lands of Mr and Mrs Lutchman. It became clear in the course of the trial that the
reference to 2½ lots in the statement of claim is an error: the area so described comprises four lots. The land was
unfenced, but identifiable on the ground. The appellant had been living with her husband and three children rent-free in a
house on another parcel of land a short distance away which belonged to her brother-in-law. He asked the appellant to
leave as he needed the house, and she approached her uncle and aunt in search of somewhere to live. Her uncle told her
that she could live on the land or as much of it as she wanted until she could afford to buy it. The appellant went into
occupation with her family. She built a three-bedroomed wooden house on the highest part of the land, and has lived there
ever since without paying any rent or other sums for her occupation. Her uncle died in 1977, her aunt in 1988. In 1990
she demolished the wooden house and built a concrete house in its place. She also enclosed an area of 2½ lots round the
house ("the disputed land") by erecting a chain link fence around it. The appellant accepts that she had not then been in
possession of the land for sufficiently long to have acquired a possessory title, and that thereafter she ceased to occupy the
1½ lots. She has remained in possession of the disputed land and claims to have acquired a possessory title to it. The
respondent, who is Mr and Mrs Lutchman's son, has periodically challenged the appellant's right to live on the land. In
1978 and again in 1985, on both occasions while his mother was alive, he served what purported to be a notice to quit on
the appellant, though he took no steps to enforce either of them. The Court of Appeal criticised the judge for making no
finding in regard to the service of these notices. Their Lordships consider the criticism to be misplaced. By themselves
the notices were not effective to stop time running in favour of the appellant, and as will appear they were not relevant to
anything which the judge had to decide. The appellant remained in undisturbed possession of the whole of the land until
October 1990, when she erected the chain link fence round the disputed land. The respondent thereupon used a wrecker
to pull down the fence. In September 1991 the respondent cut down the appellant's iron gate with a cutting torch. The
appellant brought the present proceedings in November 1990. Time had not yet run in her favour, and she was unable to
claim a possessory title. By her writ she sought a declaration that she was a tenant of the disputed land, damages for
trespass and injunctive relief. By the time she served her statement of claim on 20th November 1991, however, time had
run in her favour, and she claimed a declaration that the title of the respondent and his predecessors in title to the disputed
land had been extinguished. By his defence and counterclaim served on 24th December 1991 the respondent disputed the
appellant's claim and counterclaimed for a declaration that he was the owner of the disputed land and an order for
possession. By her reply the appellant contended that the respondent's title (if any) to the disputed land had been
extinguished before 24th December 1991. The appellant's claim to a possessory title in the statement of claim may have
been liable to be struck out as a departure from the relief claimed in the writ, but this is of no moment. The respondent
did nothing to stop time running until he served his counterclaim for possession on 24th December 1991. The issue which
falls to be decided thus arises, not in the action, but on the counterclaim. The judge found that the appellant entered into
occupation of the four lots as tenant at will in July 1974; that by virtue of section 8 of the Real Property Limitation
Ordinance 1940 ("the Ordinance") the tenancy determined one year later at the end of July 1975; that she had remained in
exclusive possession without interruption of the four lots until October 1990 and of the disputed land thereafter; and that
by July 1991 the respondent's title to the disputed land was extinguished by the operation of section 3 of the Ordinance.

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The Court of Appeal allowed the respondent's appeal. It did so on the ground that the appellant had entered into
occupation originally as licensee and not as tenant at will, and that her licence had been determined at the earliest by the
service of notice to quit by the respondent in 1985 and at the latest by the death of her aunt in 1988. She had thus not
been in adverse possession of the land for the period required to extinguish the respondent’s title. In holding the appellant
to have been in occupation as licensee, the Court of Appeal relied on the dictum of Denning LJ in Facchini v Bryson
(1952) 1 TLR 1386 at p. 1389 where he said:
“In all the cases where an occupier has been held to be a licensee there has been something in the
circumstances such as a family arrangement, an act of friendship or generosity, or suchlike, to negative any
intention to create a tenancy.”

This statement was accepted as correct by Scarman LJ in Heslop v Burns (1974) 1 WLR 1241 at p. 1252. The Ordinance
substantially reproduces the provisions of the English Real Property Act, 1833. The limitation period for an action to
recover land is 16 years, and the period starts when the right to bring the action first accrues to the person bringing the
action or someone through whom he claims: section 3 of the Ordinance (corresponding to section 2 of the 1833 Act).
Neither the Ordinance nor the 1833 Act contains any reference to the concept of adverse possession which became
enshrined in the English statute by section 10(1) of the Limitation Act 1939, but this was no more than a statutory
enactment of the case law on the earlier English Limitation Acts (see Moses v Lovegrove [1952] 2 QB 533, 539 per Sir
Raymond Evershed MR). In these circumstances their Lordships do not doubt that the concept is incorporated into the
Ordinance also.

Generally speaking, adverse possession is possession which is inconsistent with and in denial of the title of the true owner.
Possession is not normally adverse if it is enjoyed by a lawful title or with the consent of the true owner. Section 8 of the
Ordinance, however, (reproducing section 7 of the 1833 Act) provides that, where a person is in possession of any land as
tenant at will, the right of the true owner to bring an action to recover the land “shall be deemed to have first accrued” at
the expiration of one year from the commencement of the tenancy, at which time the tenancy “shall be deemed to have
determined”.

It follows that if a tenancy at will is determined during the first year the owner’s right of action accrues immediately;
otherwise it accrues automatically by virtue of section 8 at the end of the first year, and any later determination of the
tenancy is ineffective for limitation purposes unless a new tenancy is created: see Day v Day (1871) LR 3 PC 751. This
decision was unfortunately overlooked in Seesahai v Mangaree (1959) 1 WIR 363 and Chootoo v Joseph (1971) 18 WIR
134, where events after the expiry of the first year (in the former case requests by the owner to the occupier to leave the
land and in the latter the death of the owner) were held to determine the tenancy at will and start time running afresh.
This was contrary to the Ordinance; in each of the cases the tenancy at will had already been determined for limitation
purposes by the operation of section 8 of the Ordinance, and the determination of the tenancy for other purposes (such as a
claim for mesne profits) could not interrupt the running of time. Their Lordships consider that these cases were wrongly
decided.

The effect of sections 3 and 8 of the Ordinance taken together is that if no action is taken by the true owner his title is
extinguished after the expiration of 17 years from the commencement of the tenancy even though the possession of the
occupier is permissive throughout: see Lynes v Snaith [1899] 1 QB 486. It was the deliberate policy of the legislature that
the title of owners who allowed others to remain in possession of their land for many years with their consent but without
paying rent or acknowledging their title should eventually be extinguished.

The law was settled to this effect until well after the end of the Second World War. Thereafter developments took place
in England which had no counterpart in Trinidad and Tobago. Section 7 of the 1833 Act was re-enacted by section 9(1) of
the Limitation Act, 1939. But in the 1960’s and 1970’s, largely under the influence of Lord Denning MR, the courts
began to develop the idea of a non-contractual licence to occupy land. While in some respects such a licence was capable
of providing a valuable means of giving legal effect to informal arrangements for the occupation of land, it was capable of
being exploited by landlords who wished to circumvent the operation of statutory provisions which gave security of tenure
to their tenants. It also undermined the basic policy of the Limitation Acts. Since the licence was consensual the
occupation of the licensee did not constitute adverse possession; and since it was not a tenancy at will it fell outside
section 9(1) of the 1939 Act. Accordingly time did not run in favour of a licensee so long as the licence endured: see
Hughes v Griffin [1969] 1 WLR 23. For many years the operation of the Limitation Acts was further stultified by the
doctrine of implied licence which attributed the presence of a trespasser on vacant land not required by the true owner to a
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licence. In Wallis's Cayton Bay Holiday Camp Ltd. v Shell-Mex and B.P. Ltd. [1975] QB 94 at p. 103 Lord Denning MR
even said that it did not lie in a trespasser's mouth to assert "that he used the land of his own wrong as a trespasser”. This
was entirely contrary to the policy of the statutes, and was later described as "Lord Denning's original heresy": see
Buckinghamshire County Council v Moran [1990] Ch 623, 646 per Nourse LJ.

The difficulty of distinguishing between a tenancy at will and a licence led to a change in the law in England following a
recommendation of the Law Reform Committee (Cmd. 6923) in 1977. The Committee commented that the distinction
between a tenancy at will and a gratuitous licence was “at best tenuous”, and recommended that, whether the land be
occupied under a tenancy at will or a gratuitous licence, time should not begin to run in favour of the occupier until the
tenancy or licence had actually been determined. The Committee’s recommendation was given effect by section 3(1) of
the Limitation Amendment Act 1980, which repealed section 9(1) of the 1939 Act. At the same time the opportunity was
taken to abolish the doctrine of the implied licence.

Not long afterwards orthodoxy was restored by the decision of the House of Lords in Street v Mountford [1985] AC 809.
This reaffirmed the principle that the distinguishing feature of a tenancy is that it grants the tenant exclusive possession.
Lord Templeman expressly approved the reasoning of Windeyer J sitting in the High Court of Australia in Radaich v
Smith (1959) 101 CLR 209, 222 where he said:
“What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an
interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or
purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee
was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was,
he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the
creation of such a right is a demise. To say that a man who has, by agreement with a landlord, a right of exclusive
possession of land for a term is not a tenant is simply to contradict the first proposition by the second.”

A tenancy at will is of indefinite duration, but in all other respects it shares the characteristics of a tenancy. As Lord
Templeman observed at p. 818, there can be no tenancy unless the occupier enjoys exclusive possession; but the converse
is not necessarily true. An occupier who enjoys exclusive possession is not necessarily a tenant. He may be the freehold
owner, a trespasser, a mortgagee in possession, an object of charity or a service occupier. Exclusive possession of land
may be referable to a legal relationship other than a tenancy or to the absence of any legal relationship at all. A purchaser
who is allowed into possession before completion and an occupier who remains in possession pending the exercise of an
option each has in equity an immediate interest in the land to which his possession is ancillary. They are not tenants at
will: see Essex Plan Ltd. v Broadminster (1988) 56 P & CR 353, 356 per Hoffmann J.

A person cannot be a tenant at will where it appears from the surrounding circumstances that there was no intention to
create legal relations. A tenancy is a legal relationship; it cannot be created by a transaction which is not intended to create
legal relations. This provides a principled rationalisation of the statement of Denning LJ in Facchini v Bryson on which
the Court of Appeal relied in the present case. Before an occupier who is in exclusive occupation of land can be treated as
holding under a licence and not a tenancy there must be something in the circumstances such as a family arrangement, an
act of friendship or generosity or suchlike, to negative any intention to create legal relations.

In the present case the appellant was allowed into occupation of the land as part of a family arrangement and at least in
part as an act of generosity. But not wholly so, for the appellant testified that the intention of the parties was that she
would buy the land when she could afford to do so, and the judge accepted her evidence. Her uncle was generous in that
he allowed her to remain indefinitely and rent-free pending her purchase, and in that he did not press her to negotiate. But
a tenancy at will commonly arises where a person is allowed into possession while the parties negotiate the terms of a
lease or purchase. He has no interest in the land to which his possession can be referred, and if in exclusive and rent-free
possession is a tenant at will. In Hagee (London) Ltd. v A.B. Erikson and Larson [1976] QB 209 at 217 Scarman LJ
described this as one of the "classic circumstances" in which a tenancy at will arose.

Whether the parties intended to create legal relations, and whether there was any genuine intention on their part to
negotiate a sale of the land when the appellant could afford to buy it, were questions of fact for the judge. Although he
made no express findings in this regard, there was evidence which he accepted from which he could properly conclude
that the appellant entered into possession as tenant at will.

7
Their Lordships consider that, in reversing the judge’s conclusion, the Court of Appeal gave insufficient weight to the
facts that the appellant was throughout in exclusive possession and that her occupation was attributable, not merely to her
uncle’s generosity, but to the parties’ intention that she should purchase the land in due course. On the appellant’s
evidence, which the judge accepted, she must be taken to have entered into possession of the disputed land in July 1974 as
an intending purchaser and as a tenant at will. Her tenancy automatically came to an end for limitation purposes one year
later in July 1975. Service of the notices to quit by the respondent thereafter without more was insufficient to stop time
running in favour of the appellant, and accordingly the respondent’s title was extinguished after a further 16 years in July
1991, that is to say before the respondent brought his action (by counterclaim) to recover the land.

The appeal will be allowed and the judgment of the judge restored. The respondent must pay the appellant’s costs before
the Board and below.

Does this decision bring the law in the Commonwealth Caribbean in line with Street v. Mountford?

(2) Certainty: A lease may be limited to endure for any specified number of years, however many, it cannot be
limited in perpetuity. It may be limited to certain hours of the day. The term must be for a definite period in the
sense that it must have a certain beginning and a certain ending.

Lace v. Chantler [1944] KB 368 (synopsis in Prudential Assurance Co v. London)

Prudential Assurance Co. v. London Residuary Body [1992] 3 All ER: In 1930 the owner of a strip of land fronting a
highway sold the land to the council, which contemporaneously leased it back to him upon terms set out in a
memorandum of agreement providing that "the tenancy shall continue until the . . . land is required by the council for
the purposes of the widening of" the highway. The council later abandoned its plans to widen the highway and the
reversion passed to the first defendants, who were not a highway authority. The tenancy was assigned to the plaintiffs.
The first defendants issued a common law notice to quit, and thereafter sold the land to the second to fourth
defendants. The plaintiffs sought a declaration that the tenancy could only be determined upon the land being required
for road widening. The judge dismissed the action but the Court of Appeal allowed the plaintiffs' appeal and granted
the declaration sought. On appeal by the second to fourth defendants: - Held, allowing the appeal, that it was a
requirement of all leases and tenancy agreements that the term created was of certain duration; that the lease
purportedly created under the memorandum of agreement, being for an uncertain period, was void and the land was
held on a yearly tenancy created by virtue of the tenant's possession and payment of yearly rent, on such terms of the
memorandum of agreement as were consistent with a yearly tenancy; and that, accordingly, since the term preventing
the landlord from determining the tenancy until the land was required for road widening purposes was inconsistent
with the right of either party under a yearly tenancy to determine it on six months' notice, the plaintiffs' tenancy had
been lawfully determined. Lord Templeman: “A demise for years is a contract for the exclusive possession and profit
of land for some determinate period. Such an estate is called a "term." Thus Coke upon Littleton, 19th ed. (1832), vol.
I, para. 45b said that: "['Terminus'] in the understanding of the law does not only signify the limits and limitation of
time, but also the estate and interest that passes for that time."Blackstone's Commentaries, 1st ed. (1766), Book II, said,
at p. 143: "Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for
years. And therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded,
limited and determined: for every such estate must have a certain beginning, and certain end." In Say v Smith (1563) 1
Plowd. 269 a lease for a certain term purported to add a term which was uncertain; the lease was held valid only as to
the certain term. Anthony Brown J. is reported to have said, at p. 272: "every contract sufficient to make a lease for
years ought to have certainty in three limitations, viz. in the commencement of the term, in the continuance of it, and in
the end of it; so that all these ought to be known at the commencement of the lease, and words in a lease, which don't
make this appear, are but babble . . . And these three are in effect but one matter, showing the certainty of the time for
which the lessee shall have the land, and if any of these fail, it is not a good lease, for then there wants certainty."

… Lace v Chantler [1944] KB 368. A dwelling house was let at the rent of 16s. 5d. per week. Lord Greene M.R. (no
less) said, at pp. 370-371:

"Normally there could be no question that this was an ordinary weekly tenancy, duly determinable by a week's notice,
but the parties in the rent-book agreed to a term which appears there expressed by the words 'furnished for duration,'
which must mean the duration of the war. The question immediately arises whether a tenancy for the duration of the

8
war creates a good leasehold interest. In my opinion, it does not. A term created by a leasehold tenancy agreement
must be expressed either with certainty and specifically or by reference to something which can, at the time when the
lease takes effect, be looked to as a certain ascertainment of what the term is meant to be. In the present case, when this
tenancy agreement took effect, the term was completely uncertain. It was impossible to say how long the tenancy
would last. Mr. Sturge in his argument has maintained that such a lease would be valid, and that, even if the term is
uncertain at its beginning when the lease takes effect, the fact that at some future time it will be rendered certain is
sufficient to make it a good lease. In my opinion, that argument is not to be sustained. I do not propose to go into the
authorities on the matter, but in Foa's Landlord and Tenant, 6th ed. (1924), p. 115, the law is stated in this way, and, in
my view, correctly: 'The habendum in a lease must point out the period during which the enjoyment of the premises is
to be had; so that the duration, as well as the commencement of the term, must be stated. The certainty of a lease as to
its continuance must be ascertainable either by the express limitation of the parties at the time the lease is made, or by
reference to some collateral act which may, with equal certainty, measure the continuance of it, otherwise it is void.'"
… When the agreement in the present case was made, it failed to grant an estate in the land. The tenant however
entered into possession and paid the yearly rent of GBP30 reserved by the agreement. The tenant entering under a void
lease became by virtue of possession and the payment of a yearly rent, a yearly tenant holding on the terms of the
agreement so far as those terms were consistent with the yearly tenancy. A yearly tenancy is determinable by the
landlord or the tenant at the end of the first or any subsequent year of the tenancy by six months' notice unless the
agreement between the parties provides otherwise. Thus in Doe d. Rigge v Bell (1793) 5 Durn. & E. 471 a parol
agreement for a seven-year lease did not comply with the Statute of Frauds 1677 but the tenant entered and paid a
yearly rent and it was held that he was tenant from year to year on the terms of the agreement. Lord Kenyon C.J. said,
at p. 472: "Though the agreement be void by the Statute of Frauds as to the duration of the lease, it must regulate the
terms on which the tenancy subsists in other respects, as to the rent, the time of year when the tenant is to quit, etc. . . .
Now, in this case, it was agreed, that the defendant should quit at Candlemas; and though the agreement is void as to
the number of years for which the defendant was to hold, if the lessor chooses to determine the tenancy before the
expiration of the seven years, he can only put an end to it at Candlemas."

Formalities for creation of leases

In most jurisdictions, leases for more than 3 years must be created by deed. Leases for 3 years or less may be created by
simple writing or orally. (Belize and Guyana); In Barbados, leases for more than 1 year must be made in writing, leases
for 1 year or less may be made orally.

Effect of non-compliance with formalities

If a lease does not comply with formalities it is void at law, but it may take effect in equity as an ‘agreement for a lease’
(or equitable lease’) under the principles in

Walsh v. Lonsdale (1882) 21 Ch. 9. The Defendant on the 29th of May, 1879, agreed to grant and the Plaintiff to
accept a lease of a mill for seven years at the rent of 30s a year for each loom run, the Plaintiff not to run less than 540
looms. The lease to contain such stipulations as were inserted in a certain lease of the 1st of May, which was a lease at
a fixed rent made payable in advance, and contained a stipulation that there should at all times be payable in advance
on demand one whole year's rent in addition to the proportion, if any, of the yearly rent due and unpaid for the period
previous to such demand. The Plaintiff was let into possession and paid rent quarterly, not in advance, down to the 1st
of January, 1882, inclusive, having run in 1881 560 looms. In March, 1882, the Defendant demanded payment of
GBP1005 14s (GBP840 as one whole year's rent for 560 looms at 30s, and GBP165 14s as the proportionate part of the
rent from the 1st of January last), and put in a distress. The Plaintiff thereupon commenced his action for damages for
illegal distress, for an injunction, and for specific performance, and moved for an injunction. Fry, J, granted the
injunction on the terms of the Plaintiff paying the GBP1005 14s into Court The Plaintiff appealed. Held, that since the
Judicature Acts the rule no longer holds that a person occupying under an executory agreement for a lease is only made
tenant from year to year at law by the payment of rent, but that he is to be treated in every Court as holding on the
terms of the agreement:— Held, therefore, that the Plaintiff holding under the agreement was subject to the same right
of distress as if a lease had been granted, and that if under the forms of the lease a year's rent would have been payable
in advance on demand a distress for that was lawful. Jessel MR: “There is an agreement for a lease under which
possession has been given. Now since the Judicature Act the possession is held under the agreement. There are not two
estates as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and

9
an estate in equity under the agreement. There is only one Court, and the equity rules prevail in it. The tenant holds
under an agreement for a lease. He holds, therefore, under the same terms in equity as if a lease had been granted, it
being a case in which both parties admit that relief is capable of being given by specific performance. That being so,
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. On the other hand, he is protected in the same way as if a lease had been granted; he cannot be turned
out by six months' notice as a tenant from year to year. He has a right to say, “I have a lease in equity, and you can
only re-enter if I have committed such a breach of covenant as would if a lease had been granted have entitled you to
re-enter according to the terms of a proper proviso for re-entry.” That being so, it appears to me that being a lessee in
equity he cannot complain of the exercise of the right of distress merely because the actual parchment has not been
signed and sealed.

The doctrine in Walsh v Lonsdale: Prior to the Judicature Acts 1873, because of the divergence of the
common law and equity, an unsealed lease and a contract for a lease resulted in the creation of two entirely different
interests, based on whether the common law or the equitable doctrine was invoked. At common law the tenant
acquired the interest of a tenant from year to year if he paid rent and entered into possession: in equity he was entitled
to call for the execution of a legal lease and to have inserted therein all the provisions of the void lease or of the
contract. The Judicature Acts materially affected the position and provides in effect that, whenever an action is brought
in any court, the P. may set up equitable claims and the D. may raise equitable defences, and that: “Where there is any
conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the
rules of equity shall prevail.” (The Supreme Court of Judicature Act, 1873). In Walsh v. Lonsdale it was decided that
a tenant who holds under a contract for a lease of which specific performance will be decreed occupies the same
position vis a vis the landlord, as regards both rights and liabilities, as he would occupy if a formal lease under seal had
been executed.

If a lease by deed had been executed in this case on the lines of the contract, the defendant would have been
entitled to distrain for rent not paid in advance, and the mere fact that the formal lease had not been actually made was
not to prejudice his rights. The doctrine in Walsh v. Lonsdale is one example of the principle that equity regards as
already done what the parties to a transaction have agreed to do – a principle that is by no means confined to a contract
for a lease, for it applies to any contract to convey or create a legal estate of which equity will order specific
performance, as for instance a contract for sale of land, or the grant of a mortgage etc.

Metcalf v and Eddy Ltd. v. Edghill (1963) 5 W.I.R. 417 – In pursuance of an oral agreement for a lease for a fixed
period exceeding three years the tenant on July 16, 1960, entered into possession of the landlords premises at Maraval.
Thereafter the tenant paid and the landlord accepted rent measured by reference to a month. On August 25, 1960, the
oral agreement was reduced into writing by the landlord and signed by the tenant on Sept. 2, 1960. The tenant
subsequently gave one month’s notice to quit and on its expiry on November 30, 1960, vacated the premises. The
landlord disputed the validity of the notice and sued for specific performance of the agreement. The tenant contended
that the agreement sought to be specifically enforced created a monthly tenancy and no more and this question was by
consent ordered to be determined as a point of law before trial of the action. The learned judge held that the tenancy
was not for a fixed term, nor a monthly tenancy, but one from year to year. On appeal, HELD: the agreement sought to
be specifically enforced was effective as an agreement to execute a lease for the fixed term stated therein; Walsh v.
Lonsdale applied. Wooding C.J.: “It is manifest from the letter that the parties contemplated a tenancy for a fixed term
expiring July 31, 1963…It is clear also that the tenancy was effective from July 16, 1960, so that in contemplation of
the parties it was to enure for a term upwards of three years…Notwithstanding the fixed expiry date, however, the
tenant maintains that the tenancy created by the agreement contained in the letter was a monthly tenancy. It founds this
contention on s.3 of the Landlord and Tenant Ordinance, Cap. 27, No. 16, which reads as follows: ‘No lease for a term
exceeding three years or surrender of any land shall be valid as a lease or surrender, unless the same shall be made by
deed duly registered; but any agreement in writing to let or surrender any land shall be valid and take effect as an
agreement to execute a lease or surrender, and the person who shall be in the possession of the land in pursuance of
any agreement to let may, from payment of rent or other circumstances, be construed to be a tenant from year to
year.”..I interpret these provisions to mean that (a) there can be no carving out of a legal estate for a term exceeding
three years unless it is effected by deed of lease duly registered; (b) an agreement in writing to let any land shall
nevertheless take effect as an agreement to execute a lease and, accordingly, may be enforced as such in court of
equity; and (c) a person in possession of land in pursuance of an agreement to let, not must, but may, in appropriate
circumstances be construed to be a tenant from year to year. The last part of the section as I have stated it above is,

10
effect, an affirmation of the common law on the subject. Mere entry in to possession of premises in pursuance of an
agreement to let, whether parol or in writing, gave rise at common law to the implication of a tenancy at will, but if in
addition to entering possession the tenant paid rent for the premises, he was held to be a periodic tenant from year to
year, from month to month or from week to week, according to the manner in which his rent was rated. Thus, if his
rent was expressed as so much a year, even though it might be payable by instalments at intervals representing an
aliquot part of a year, the tenancy was presumed to be a yearly tenancy; but since it is of the essence of a yearly
tenancy that the rent should be expressed as being at a yearly rate, there can be no such presumption otherwise.
Accordingly, since the agreement in the instant case reserves rent at a monthly and not a yearly rate, the conclusion
reached by Camacho J. is quite untenable…The tenant further contends that an agreement for a lease ceases to be such
once entry has been made thereunder; that thereafter there is a lease the validity of which will depend upon the first
part of the section as I have stated and interpreted it hereinbefore; and that there is then no room for any application of
the principle in Walsh v. Lonsdale; since in Walsh’s case it had been expressly agreed that a formal lease would be
drawn up at a later date and it was that agreement which was therein specifically enforced. In my judgment, this
contention ignores the second part of the section which is that “any agreement in writing to let…any land shall be valid
and take effect as an agreement to execute a lease.” The requirement that the agreement should be in writing was, I
think, designed to satisfy s. 4(1) of the CLP Ordinance, just the same as sub. s. (2) thereof was intended to preserve the
equitable remedy arising from the fact of part performance. Accordingly, the agreement set forth in the letter date
August, 1960, takes effect as an agreement to execute a lease upon the terms and conditions stated therein, including
the term that the period of the letting “shall expire on July 31, 1963”. It is for the specific performance of that
agreement that these proceedings were instituted. …the agreement contained in the letter dated August 1960 did not
create a monthly tenancy, and no more, of the premises described as Flat B at No. 7 Maraval; on the contrary, the same
is effective as an agreement to execute a lease for a fixed term commencing July 16, 1960 and expiring July 31, 1963.

Periodic Tenancies

These are weekly, monthly, quarterly and yearly tenancies are extremely common. Such tenancies continue indefinitely
until terminated by proper notice to quit by L or T. Periodic tenancy may be created expressly or by implication.

Tenancy at Will

Arises where L permits T to occupy L’s land as tenant, on terms that the tenancy may be terminated by L or T at any time.

Romany v. Romany (1972) 21 WIR: be la Bastide JA: “A tenancy at will exists when a person occupies the land of another
on the understanding that he may go when he likes and that the owner may terminate his interset 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, to 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, which would not affect the subsistence of any other tenancy.:

Cyrus v Gopaul, Edoo JA: ‘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 a tenancy.’

Deen v Mahabir (1970) 17 WIR 21: The sole question before the Court of Appeal was whether the appellant was a tenant
at will of the respondent or whether he was a licensee. The magistrate had held on the facts that the A was a tenant at will
and therefore amenable to the provisions of the Rent Restriction and Summary Ejectment Ordinances with respect to the
summary recovery of premises. R is the owner of 10 acres of land upon which stands the dwelling-house in respect of
which possession was claimed. The parties were friends and the magistrate believed the R’s account of the relationship of
landlord and tenant which arose when the appellant was allowed to live rent free in the dwelling-house for a period of
three or four months while his own house was in the course of construction. On appeal it was submitted that the
magistrate had no jurisdiction to determine the complaint because the relationship of landlord and tenant did not subsist.
Held: (1) that where a person is let into exclusive possession of premises, prima facie he becomes a tenant unless the
circumstances manifest a different intention. (ii) that where exclusive possession is given to a new occupant, it is almost
decisive of the creation of a tenancy so that special circumstances or conduct must be shown in order to negative a
tenancy in favour of a licence – (iii) that the A failed to show any special circumstances or conduct.

11
Ramnarace v. Lutchman [2001] 1 WLR 1651 (See above)

Tenancy at Sufferance

Arises where T remains in possession of L’s land after the expiry of his lease, without L’s assent or dissent. L may claim
possession at any time and is entitled to claim compensation for T’s use of and occupation.

Seetahal v. Batchasingh (1987), H.C. T & T) Deyalsingh J: “ 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 assent or dissent of the person next
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…An undertenant who is in possession at the determination of the original
lease, and is suffered by the reversioner to hold over, is only a tenant at sufferance. Where a tenancy at will is determined
by the landlord exercising acts of ownership, and the tenant remains in possession, he becomes a tenant on sufferance
only: but slight evidence would be sufficient to show a new creation of a tenancy at will, or he may by payment of rent, or
other acknowledgement of tenancy, become tenant form year to year.”

Tenancy by estoppel

If L purports to grant a lease of land to T, but L has no title to the land, a tenancy by estoppel arises. It is binding on L and
T but is invalid vis-à-vis third parties.

12
RIGHTS AND OBLIGATIONS OF LANDLORD AND TENANT

A. Landlord’s Implied Obligations

1. Covenant for Quiet Enjoyment

L impliedly covenants that T shall be free from physical disturbance of his possession. At common law, there is 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 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 the land. There are many Caribbean examples of breach of this covenant.

Tapper v. Myrie (1968) 11 JLR 102: The Res. Had been a tenant of certain premises for six years for the last two of which
the A was his landlord. He paid L2 15s. per month by way of rent and, in addition, the sum of 5s. monthly for electricity.
The A disconnected the supply of electricity to the demised premises because, as he said, he wanted to get the res. out.
The resident magistrate found that this act by the A was a breach of the appellants covenant for quiet enjoyment since it
had cause physical interference with the demised premises. On appeal it was contended that the agreement between the R
and the A as to the supply of electricity was a separate agreement from that which created the relationship of landlord and
tenant and that a breach of the former could not be said to be a breach of the covenant of quiet enjoyment. Held: that the
agreement as to the supply of electricity was part and parcel of the tenancy agreement and the covenant for quiet
enjoyment was implied by reason of the relationship of landlord and tenant; the resident magistrate was, therefore, right in
holding that the A’s act in disconnecting the electricity supply to which the R was entitled was in breach of the covenant.
Waddington, P: ..It appears to me that the agreement to pay 5s. for the lights supplied was not an agreement which could
be said to be independent of the agreement to rent the premises. It was entered into at the same time as the agreement to
rent the premises was entered into, and in my view it forms part of that agreement and was in no way independent of it. In
other words, it was part and parcel, …of the same agreement. If the transactions had been embodied in a written
agreement for the rental of the premises and the rent and so on, that in addition to the payment of the rent the tenant
agreed to pay a further amount of 5s. a month for the supply of electricity as part of his enjoyment of the premises.
Normally, such an agreement would contain an express covenant by the tenant of the supply of electricity, that would
clearly be a breach of the covenant for quiet enjoyment. In the instant case, the covenant for quiet enjoyment was implied
by reason of the relationship of landlord and tenant but, nonetheless, it is just as effective as if it had been expressed in a
written agreement. It is my view that the judgment of the learned magistrate was correct and should not be disturbed.

Ali v. Enmore Estates Limited (1971) (H.C. Guy): The P’s claim against the D’s was for a declaration of tenancy, damages
for trespass, and an injunction. He pleaded a contractual tenancy from year to year of land which was admittedly
agricultural land, and that although the tenancy was not terminated, the D’s had wrongfully trespassed on the land and had
done damage to growing crops and fruit trees. The D’s case was that there was a valid determination of the tenancy
agreement by mutual agreement to vacate or by notice to quit. HELD: (i) the parties did not agree that the P would
surrender his tenement in exchange for another site made available by the D’s; (ii) the notice to quit was not a valid notice
because it expired during the currency of the yearly contract, and in any event was of shorter than six month’s duration.
(iii) the loss claimed was grossly exaggerated. The defendants’ counterclaim was dismissed and the P was entitled to the
declaration and injunction sought and damages assessed in the sum of $2,060.00.
Gonsalves-Sabola, J.: “The crux if this case is whether there was a determination of tenancy at any time before incursion
of the defendants into the land occupied by the plaintiff. How I answer that question of law will depend on the finding of
fact I make on the evidence adduced by the defendants directed to proving that the tenancy was determined by mutual
consent prior to December, 1969. I have been urged to hold if I find that there was such mutual consent, that the plaintiff
remained on the land as a trespasser or at best a tenant on sufferance who could not therefore enforce any legal right of
possession against the landlord.”(GS rejected the evidence of the P. that there was an arrangement to swap
land).“Rejecting as I do the evidence of agreement led by the P, there disappears completely the foundation on which the
D's could argue that the yearly tenant had declined in status to trespasser or even tenant on sufferance...Ex. D. (Notice to
quit served by the D's) must be dismissed from consideration as a valid notice to quit because according to trite law it
expires during the currency of the contacted year, and in any event is of shorter than six months' duration...I held that the
contractual tenancy was never brought to an end either by surrender or by a regular notice to quit, or in any other legal

13
way and so still subsists. It therefore follows ineluctably that trespass was committed on the P's tenement by his landlord
when they invaded in December 1969.

2. Non-derogation from Grant

L may not grant a lease for a particular use and then use his adjacent land in such a way as to render that purpose
impossible or difficult. 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’. In the context of a lease, the landlord ‘must not frustrate the use of the land for the purposes
for which it was let.’ To constitute a breach of covenant, L must do some act which renders the demised premises
substantially less fit for the purposes for which they were let. Well-known examples are:-

Newman v Real Estate Debenture Corporation [1940] 1 ALL E.R.: The P's leased from the first D, the fourth and fifth
floors of what was then, with the exception of the ground floor, a block of residential flats. The lease contained certain
covenants by the lessee restricting the user of the flat to residential purposes only, and in fact, all the then -existing leases
of the other flats contained the same covenants as to user, the restrictions being clearly intended to be for the benefit of the
flats and their tenants, and making up a body of local law imposed upon the tenants. On August 12, 1938, the first D
leased the whole building to the second D, with the benefit of the lease granted to the P. Alterations to the building were
then carried out in accordance with the local authority's requirements for business purposes, the main alterations being the
changing of doors on every floor, the substitution of clear glass for stained glass on the stairs, and the insertion of a lift
which started in the basement and came up through the first, second and third floors. The work continued and became an
annoyance to the P. On completion of the work the company (2nd D) commenced its business, the first floor being used as
a showroom and for offices, the second for a workroom, and the third for the accounts department and a stockroom. The P
contended that there existed a scheme for the benefit of the tenants of the flats in the building, under which the building
could be used only for residential purposes, and that there was, therefore, an implied covenant with the plaintiff binding
the corporation (1st D) not to let the flats for any other purpose. It was contended that as the flat was let for the purpose of
the P and his wife using it as a residence, they were confined to that user, and there was therefore an implied obligation
upon the First D not to derogate from its grant by rendering the flat materially less fit for that purpose. The evidence
showed that the company (Second D), its agents and advisers had inspected the building and knew of the essential facts
raising the presumption that there was or might be a scheme for using the flats for residential purposes only: HELD: (i)
The P had established that there was a scheme which imposed, inter alia, an obligation on the corporation not to let any of
the flats other than the ground floor for the other than residential purposes, not to permit any tenant of any other flat to do
anything which might cause annoyance to the P. (ii) the corporation could not derogate from its grant, and the letting of
the flats for business purposes was such a derogation. (iii) the company's advisers should have made inquiries as to the
existence of a scheme applicable to the flats which would have satisfied them that the company was doing something
inconsistent with the scheme. The company, therefore, took with notice of the restrictive covenants and were bound by
them. (iv) the corporation and the company had both broken the obligation not to derogate from the grant to the plaintiff,
the corporation by the nuisance during the alterations, and the company by the nuisance created by the way the business
was conducted. (v) an injunction would be granted against the company restraining if from breaking the covenant as to
user, and damages against both D's in respect of breaches of the covenant as to user and the covenant not derogate from
grant. Atkinson, J.: “The Substance of the P's claim is that, when he took his lease, the building was being used solely for
residential purposes, and that the corporation were under an obligation to maintain that user throughout the term of his
lease, but that, instead of so doing, they let the whole of the rest of the building to the company for business purposes,
thereby changing the whole character of the building, and that the business has been carried on by the company so as to be
a nuisance to the plaintiff, and so as to render his flat materially less fit for residential purposes. The P must, of course,
establish a legal basis for the alleged restrictive obligations resting upon the corporation, his lessor. For that purpose , it is
said first that there existed a scheme under which every tenant was bound, for the benefit of the tenants of the other flats
in the building, to refrain from using his flat otherwise than as a residence, and that, therefore, an implied covenant with
the plaintiff binding the corporation not to let the other flats in the building otherwise than as residential premises. It is
also said that, at any rate, the flat was let for the purposes of the P and his wife living in it as a residence, and they were
confined to that user, and that there was, therefore, an implied obligation upon the lessors not to derogate from their grant
– that is, not to do anything which would render the flat materially less fit for that purpose. If it is established that these
obligations rest upon the corporation, the question arises as to how far the company are bound by them. The covenants are
both restrictive in their nature, and would, prima facie, bind the company if they took this lease with actual or constructive
notice of them, or, rather, with notice of the facts and circumstances from which they are to be implied...What is necessary

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in order to create what is called a scheme?...Sir H.H. Cozens-Hardy M.R., summarised the law, as concisely as it can be
done, “What are some of the essentials of a building scheme? In my opinion there must be a defined area within which the
scheme is operative. Reciprocity is the foundation of the idea of a scheme. A purchaser of one parcel cannot subject to an
implied obligation to purchasers of an undefined and unknown area. He must know both the extent of his burden and the
extent of his benefit. Not only must the area be defined, but the obligations to be imposed within that area must be
defined. Those obligations need not be identical. For example, there may be houses of a certain value in one part and
houses of a different value another part. A building scheme is not created by the mere fact that the owner of an estate sells
it in lots and takes varying covenants from various purchasers. There must be notice to the various purchasers of what I
may venture to call the local law imposed by the vendors upon a definite area.” I think that that is a most helpful sentence,
and in my judgment...it absolutely applies to this case. There one has a block of flats where the area is clearly defined.
One knows exactly the premises to which these various covenants are to refer, and in my opinion, the covenants in this
lease are obviously intended to be for the benefit of the other tenants, and do make up a body of local law imposed upon
the occupants of these different flats...To my mind, it is obvious on the face of this lease that these restrictions are
imposed for the benefit of the other lessees, since I find as a fact that the P believed that other lessees would be on the
same footing. I am satisfied that the P has established that there was a scheme, which imposed, inter alia, an obligation on
the corporation not to let the other flats for purposes other than residential, not to permit any tenant of any other flat to do
anything which might cause annoyance to the P. I am also satisfied that there was an obligation upon the corporation not
to derogate from the grant, and not to do anything which would render the demised premises materially less fit for use as
private dwelling-rooms. The demise contained a covenant for quiet enjoyment, but I doubt whether it is much relevance in
this case…there come the question whether or not they are liable on the implied covenant not to derogate from the grant to
the P…I accept of course, the test suggested by Parker J., that the acts complained of must make the demised premises
materially less fit for the particular purpose. The surrounding circumstances must be looked at, and, on the whole, I am
satisfied that the company broke it by the nuisance for which they were responsible from towards the end of November,
1939 until September 1939…

3. Fitness for Habitation

At common law, there is no general implied covenant by L that premises let are fit for human habitation, except in the
case of furnished lettings. But Statutes in most jurisdictions impose duties as to fitness for habitation. Cap. 236, s.157(d)
Barbados

Hamblin v. Samuel (1966) 11 WIR 48: In 1944 the appellant erected a one storeyed building on her land which sloped
downwards at the back so that the pillars were 3 feet high in the front and 7 feet in the rear. In 1954 all new buildings as
defined in the Rent Restriction (Exclusion of Premises) Order 1954 and completed on or after Feb. 12, 1954, were
excluded from the operation of the Rent Restriction Ordinance which provides for the assessment of premises. In 1962 the
appellant excavated under her house, inserted taller pillars, and built two basement apartments which were let as separate
dwellings to the respondents who applied to the Port-of-Spain Rent Assessment Board to determine the standard rent of
each apartment. The A appealed against the assessment by the Board on the ground that the two apartments were a new
building within the meaning of the Order and consequently were excluded from the operation of the Rent Restriction
Ordinance and therefore not assessable. HELD: (i) that the two basement apartments were an integral part of a single
building which included the main building as originally constructed; and although each might be a dwelling house as
defined by the Ordinance, neither of them was a building in itself. (ii) whether premises are fit or unfit for human
habitation is essentially a matter of fact, bearing in mind the nature and degree of any incident of unfitness which may be
found to exist. Wooding C.J. As we have indicated, in each case it must be a matter of fact and of degree. No precise rules
can be prescribed, but the yardstick which we have endeavoured to provide may justly be applied. Manifestly, no dust
bowl or sweat box should qualify as fit for human habitation.

High Rise Apartments:

In Liverpool CC v Irwin it was held that a landlord of residential apartments 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
chutes, for the benefit of all tenants in the building.

Statutory provisions:

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The common law position had been modified or altered by statute in some Commonwealth Caribbean jurisdictions. For
instance, s 157 (d) of the Property Act, Cap 236 (Barbados) provides that, ‘in the case of a lease of a dwelling house, or
part thereof, there is an implied covenant ‘that the house or part thereof is fit for human habitation at the commencement
of the tenancy’; and s 6 of the Landlord and Tenant Act, Cap 153 (Belize), s 44(1) etc. provide that “…in any contract for
letting any house for human habitation there shall, notwithstanding any stipulation to the contrary, be implied a condition
that the house is, at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord
during the tenancy, in repair and in all respects reasonably fir for human habitation.’

4. Repairing Obligations

Where L fails to carry out repairs after being notified of the need for it, T may do the repairs and deduct cost from future
rent. L may also be liable in tort for injury caused by failure to repair.

Milo Butler v. Monarch (1998) Bahamas S.C.: Where the landlord had covenanted ‘to keep and maintain the main
structure and all exterior parts…including roof…in good and tenantable repair.’ The tenant informed the landlord in
writing that the roof was in urgent need of repair and, after the landlords failure to respond, the tenant gave notice of his
intention to effect the repairs and to deduct the cost from the future rent payments. Allen J, in the Supreme 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.

B. Tenant’s Implied Obligation

The only implied obligation of T is not to commit waste. Note different standards applicable for (a) tenants for years, (b)
yearly tenants and (c) monthly or weekly tenants.

Warren v. Keen [1953] 2 All E.R. 1118 at 1121 Lord Denning: “Apart from express contract, a tenant owes no duty to the
landlord to keep the premises in repair. The only duty of the tenant is to use the premises in a husbandlike, or what is the
same thing, a tenantlike, manner…But what does it mean “to use the premises in a tenantlike manner”? It can, I think best
be shown by some illustrations. The tenant must take proper care of the premises. 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 windows; he
must mend the electric light when necessary, and also the windows; 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 place which a reasonable
tenant would do. In addition, he must not, of course, damage the house willfully or negligently; and he must see that his
family and guests do not damage it – 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 of for any reason not caused by him, the tenant is not liable to repair
it…It was suggested by counsel for the landlord that an action lies against a weekly tenant for permissive waster. I do not
think that is so. It has been held not to lie against a tenant at will, and in my opinion, it does not lie against a weekly
tenant. In my judgment the only obligation on a weekly tenant is to use the premises in a tenantlike manner.

C. Express Covenants

There is an infinite variety of covenants which may be expressly inserted in a lease. Among the most common are:-

1. Covenant to Pay Rent

Amount to be paid by T 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. A contract for a lease may be held to be void for
uncertainty if the rent is “to be agreed’. A lease may contain a ‘rent review clause’ enabling rent to be raised at regular
intervals as a reflection of the changing market value of the demised premises.

Greater London Council v. Connolly [1970] 1 All ER 870: In June 1968, the Greater London Council gave written notice
to tenants of their houses that following the report of the Prices and Incomes Board, rent increases of ‘2d in the shilling’
would take effect from 30 September 1968. The amount of the increase complied with s 10 of the Prices and Incomes Act
1968 but the notice did not satisfy s 12 of the Act a. The contractual conditions of tenancy, which were brought to the

16
attention of tenants and were printed on the back of rent books, included condition 2, that ‘The weekly net rent and other
sums as shown on the front cover of the rent card are liable to be increased or decreased on notice being given’. The
length of notice was not specified nor the amount of increase. Some of the tenants refused to pay the increased rent, and in
July 1969 the chairman of the Greater London Council’s housing committee, in response to a report by the director of
housing, who was the person authorised to take proceedings to evict tenants, gave instructions that notices to quit would
be issued against the defaulting tenants if the arrears of rent were not cleared within three weeks. In consequence, the
director of housing on 19 August 1969, served on the defaulting tenants notices to quit in proper form which were signed
by himself and stated to be duly authorised by the Greater London Council. The tenants refused to quit and orders for
possession were made against them. On appeal by the tenants. Held – (i) The rent increases had been validly made under
condition 2 which was not void for uncertainty, because (a) it was possible to imply into the condition that reasonable
notice of increase was required, and reasonable notice was given by the notice of June 1968(see p 874 e and g, p 876 g,
and p 878 j, post); (b) rent was sufficiently certain where it could be calculated with certainty at the time when it became
payable, even though the increase was dependent on the whim of the landlord, and here the notice of June 1968 enabled
the rent to be calculated with certainty as at 30 September 1968 and (c) the power to increase rent given to local
authorities by s 12b of the Prices and Incomes Act 1968 did not invalidate any contractual provision and accordingly
condition 2 was not invalidated by s 12 (ii) The notices to quit were duly authorised because the presumption of due
authority arising under s 287B (2)c of the Local Government Act 1933 had not been rebutted, and it was not shown that
there was anything unauthorised in the instructions given by the chairman of the housing committee(iii) Accordingly, the
appeal would be dismissed and the orders for possession would stand.

2. Covenant to Repair

Express obligation to repair may rest on either L or T, or both. At common law the standard of repair is governed by
locality, character and age of the premises. Note Cap. 236. s.159 (1) Barbados which provides that repair means ‘the state
of repair in which a prudent owner might reasonably be expected to keep his property, due allowance being made for the
age, character and location of the premises at the commencement of the lease. If there is no express provision for repairs
in the lease, the tenant may be held liable for them under the doctrine of waste. S 157 (c) of Cap 236 Barbados implies a
covenant by the landlord “to keep in repair the roof, main walls and main drains and, where part only of a building is
leased, the common passage and common installations’; and s 158 (c) imposes an obligation upon the tenant ‘to keep the
interior of the leased premises in good repair, reasonable wear and tear excepted’. Both implied covenants are subject to
any express provision to the contrary in the lease.

Ravenseft v Davstone [1979] 1 All ER 929: A building was constructed of a reinforced concrete frame with stone
claddings. Expansions joints were omitted from the structure because it was not standard practice to include them in such
a structure. By 1966 the tenant took an underlease of the building. The underlease contained covenants by the tenant ‘to
repair’ the building including the walls, and to repay to the landlord the cost incurred in executing works to remedy, inter
alia, want of reparation. In 1973 part of the stone cladding became loose and in danger of falling because of bowing of the
stones caused principally by a defect in design of lack of expansion joints, but also because defective workmanship in
failing properly to tie in the stones. In view of the urgency of securing the stones the landlord executed the necessary
remedial works removing the cladding and reinstalling it with expansion joints (which by 1973 it was standard to insert)
and the proper ties. The cost of the work was L55,000 of which L5,000 was the cost of inserting the joints. The landlord
brought an action against the tenant claiming repayment of the payment of the whole of the cost of the works carried out,
under the covenants to repair and to repay the cost of repairs executed by the landlord. The Def. denied liability for the
cost of inserting the joints on the ground that it was caused by an inherent defect in the demised premises and repairs
resulting from an inherent defect could not fall within the ambit of a covenant to repair; alternatively he contended that the
tenant was not bound to pay for that part of the repairs which remedied an inherent defect. HELD: There was no doctrine
that want of repair due to an inherent defect in the demised premises could not fall within the ambit of a covenant to
repair. It was a question of degree whether that which the tenant was asked to do, or pay for, could properly be described
as repair so as to fall within a covenant to repair, or whether it involved giving back to the landlord a wholly different
thing from that demised in which case the work would not fall within a covenant to repair or pay for repairs. The insertion
of the joints did not amount to changing the character of the building so as to take that work out of the ambit of the
covenant to repair of the covenant to pay for repairs, for the joints formed a trivial part only of the whole building, and the
cost of inserting them was trivial compared to the value of the building. It followed that the landlord was entitled to
repayment of the whole of the cost of the works executed.

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“Fair wear and tear”: Tenants frequently covenant to keep the 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 the ordinary operation of natural causes
such as wind and rain; and (b) disrepair resulting from the reasonable use of the premises.

Haskell v. Marlow [1928] 2 KB 45 – A testator devised a dwelling house to his wife for her life, she insuring the same
against loss by fire, “and also keeping the same in good repair and condition (reasonable wear and tear expected),” and
after her death he directed that the same should fall into his residuary estate, which was to be divided among his children
in equal shares. The testator’s widow occupied the devised premises until her death, a period of 42 years. She did nothing
actively to injure the premises, but did nothing substantially to counteract the natural process of decay. The P, the trustees
of the will, alleged that she had neglected to keep the premises in good repair and condition in conformity with the terms
of the will, and claimed from the defendants, her executors, the cost of the necessary repairs:- HELD, that the testator’s
widow, having accepted and occupied the premises, was bound by the terms of the devise, that the words of the exception
were not to be treated as mere surplusage, and that a reasonable meaning must be given to them, but that having regard to
the length of time during which no substantial repairs had been done to the premises, and to the extent of the damage
thereby caused, the widow, as tenant for life, was not protected by the words of the exception, and that her executors were
liable for the damage arising from the natural process of decay. Talbot J. Reasonable wear and tear means the reasonable
use of the house by the tenant and the ordinary operation of natural forces. The exception of want of repair due to wear
and tear must be construed as limited to what is directly due to wear and tear, reasonable conduct on the part of the tenant
being assumed. It does not mean that if there is a defect originally proceeding from reasonable wear and tear the tenant is
released from his obligation to keep in good repair and condition everything which it may be possible to trace ultimately
to that defect. He is bound to so such repairs as may be required to prevent the consequences flowing originally from wear
and tear from producing others which wear and tear from producing others which wear and tear would not directly
produce. For example, if a tile falls off the roof the tenant is not liable for the immediate consequence; but, if he does
nothing and in the result more and more water gets in, the roof and walls decay and ultimately the top floor, or the whole
house, becomes uninhabitable, he cannot say that it is due to reasonable wear and tear, and that therefore he is not liable
under obligation to keep the house in good repair and condition. In such a case the want of repair is not in truth caused by
wear and tear….On the other hand, take the gradual wearing away of a stone floor or staircase by ordinary use. This may
in time produce a considerable defect in condition, but the whole of the defect is caused by reasonable wear and tear, and
the tenant is not liable in respect of it. Talbot J: The tenant is bound to do such repairs as may be required to prevent the
consequences flowing originally from wear and tear from producing others which wear and tear would not directly
produce. For example, if s tile falls off the roof, the tenant is not liable for the immediate consequences; but if he does
nothing and in the result more and more water gets in, the roof and walls decay and ultimately the top floor, or the whole
house, becomes uninhabitable, he cannot say that it is due to reasonable wear and tear…On the other hand, take the
gradual wearing away of a stone floor or staircase by ordinary use. This may in time produce a considerable wear and tear,
and the tenant is not liable in respect of it.

3. Covenant not to Assign or Sublet

In the absence of any express stipulation to the contrary, a tenant is free to assign, sublet or part with the possession of the
demised premises to a third party. To avoid the lease from falling into the hands of an irresponsible person, it is usual for
the 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. The courts construe covenants against, assigning, subletting or parting with
possession strictly against the landlord.

Reasonableness of refusal of consent: Usually a question of fact: Instances where consent may be reasonable are:

(a) where the reason for refusal must be connected with the personality of the assignee, or with the user or occupation of
the premises; Bickel v. Duke of Westminster [1976] 3 All ER: A body of trustees were the lessees of several houses on a
large estate. The leases, which had been granted in 1947, were long leases at low rents within the Leasehold Reform Act
1967, but the lessees held them only as investments and did not occupy any of the houses. Accordingly they were not
entitled to acquire the freeholds under the provisions of the 1967 Act. The lessees had sublet the houses to sublessees who
occupied them, but the rents under the sub-tenancies were not low rents within the 1967 Act. Each lease contained a

18
covenant that the lessees would not assign the premises ‘without the previous written licence of the [lessors] provided that
such licence shall not be unreasonably withheld’. The lessees applied to the lessors for permission to assign one of the
leases to the sublessee for the seven years’ unexpired term of the lease. If the lease were assigned, the sublessee would be
entitled, after the lapse of five years, to acquire the freehold under the 1967 Act. The lessors refused to give their consent
to the assignment because they wanted to keep the estate in their hands in order to manage and develop it in the best
possible way; if they were compelled to sell the freeholds under the 1967 Act they would suffer financial loss. The lessors
were willing to pay to the lessees for the surrender of the lease a sum equivalent to that offered by the sublessee to the
lessees for the assignment. The lessees applied for a declaration that the lessors had unreasonably withheld their consent
to the proposed assignment. Held – The declaration would be refused for the following reasons— (i) (per Lord Denning
MR) In determining whether a refusal of consent was unreasonable the court had to consider all the circumstances of the
particular case; since such circumstances were infinitely various it was impossible to formulate strict rules as to how a
landlord should exercise his power of withholding consent. In the circumstances the lessors were not acting unreasonably
since (a) their plans to develop the estate in the best possible way would be impeded if one house after another were
bought by sitting tenants and they would suffer financial loss if compelled to sell the freehold under the 1967 Act; (b) it
was a matter of indifference to the lessees whether they surrendered the lease to the lessors or assigned it to the sublessee;
and (c) the sublessee would be in no worse position in consequence of the lessors’ refusal of consent than she had been
when she took the sublease (see p 804 h and p 805 a to g, post). (ii) (per Orr and Waller LJJ) The withholding of consent
was reasonable (a) because it related to an attribute of the personality of the proposed assignee in that she would in due
course be eligible to acquire the freehold under the 1967 Act, and to the effect of the proposed assignment on the user and
occupation of the premises and to the relationship of landlord and tenant in regard to the subject-matter of the demise, and
(b) because, on the evidence, the object of the refusal was based on views which a reasonable man could well entertain as
to the proper management of the lessors’

(c) where the proposed assignee intends to use the demised premises for a purpose that will be injurious to the property or
to other property owned by the landlord; Bridwell Hospital Governors v Fawkner (1892) 8 TLR

Effect of Breach

(a) an assignment or subletting made in breach of an absolute of qualified covenant is nevertheless valid, but the
breach may give rise to forfeiture of the lease and/ or a claim for damages;

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