Archive for the ‘waste’ Category

Implied obligation to use property in a tenantlike manner

October 1, 2012

In Warren v Keen ([1954] 1 Q.B. 15, CA (Eng)) a landlord had to spend money to repair defective internal and external walls where the disrepair was the result of fair wear and tear. The landlord sought to recover the cost from a weekly tenant on the basis that periodic tenants are under a duty to keep property wind and watertight. The landlord failed both because it was denied that weekly tenants were under any such duty and because, anyway, even such a duty could not cover the damage in this case.

Denning L.J. said:

‘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 “to use the premises in a tenantlike manner” mean? It can, I think, best be shown by some illustrations. The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary, and also the 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, of course, not damage the house, wilfully or negligently; and he must see that his family and guests do not damage it: and if they do, he must repair it. But apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the tenant is not liable to repair it.’ (20)

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Implied licence for landlord to enter property to perform repairing covenant

April 9, 2012

A tenant who uses property in a reasonable way for a reasonably contemplated use does not commit waste. A covenant to ‘keep’ property in repair implies that, if need be, it will first be put in repair. A landlord who has covenanted to keep demised premises in repair has an implied licence to enter the property for a reasonable time in order to perform the covenant.

In Saner v Bilton ((1877 – 78) L.R. 7 Ch.D. 815) L owned a newly constructed warehouse for the storage of grain. He granted a lease of it to T. L covenanted to ‘keep the main walls and main timbers of the warehouse in good repair and condition.’ T used the property in a reasonable way (L alleged that this was not so but failed to make out this allegation). Nevertheless, a beam supporting one of the floors broke. Two of the external walls bulged and very extensive repair works were needed.

Fry J. held that T had not committed waste. He had not used the property unreasonably. A tenant who uses property in a reasonable way for a reasonably contemplated use does not commit waste. The fact that the cause of the problems arose from the original construction of the building did not take the work outside the scope of the landlord’s repairing covenant. A covenant to ‘keep’ property in repair implies that, if need be, it will first be put in repair. Put another way, a covenant to ‘keep’ in repair does not water down the scope of the repairing covenant. T was not entitled to damages in respect of the time he was kept out of possession by the landlord’s presence for the purpose of the repair works. A landlord who has covenanted to keep demised premises in repair has an implied licence to enter the property for a reasonable time in order to perform the covenant. This implied licence is not inconsistent with the covenant for quiet enjoyment:

“I think the covenant for quiet enjoyment must be read as subject to the license which I have held to be implied in the covenant to repair.’ (per Fry J at 824).

Failure to make good damage caused by removal of tenant’s fixtures is waste.

January 22, 2011

Where a tenant removes tenant’s fixtures at the end of the term a failure to make good damage caused to the fabric of the building is waste. A director of a corporate tenant who ordered the removal is personally liable in the tort of waste.

In Mancetter Developments Ltd v Garmanson ([1986] QB 212, CA (Eng)) a landlord leased industrial premises to a chemical manufacturing company. The tenant made holes in the walls of the building to accommodate pipes and an extractor fan. The lease was assigned to another company. When the lease came to an end, the assignee removed the pipes and fan but did not fill in the holes in the wall. It was held by a majority of the English Court of Appeal that the director of the assignee who had ordered the removal was personally liable in the tort of waste. It was doubted whether a party could be liable both for breach of covenant and in waste (but the director had given no covenant so this was not an issue here).