Landlord and Tenant Covenants

UK
Southwark London Borough Council v Mills (1999)
• Landlord and tenant - Covenant - Quiet enjoyment - Tenants complaining of
inadequate sound insulation of flats - Whether covenant concerned only to protect
security of occupation - Whether extending to protection from noise disturbance
The landlord council owned a block of tenanted flats built in 1919 and the agreement with
each tenant contained a covenant for quiet enjoyment, subject to immaterial exceptions. The
agreement also incorporated provisions for arbitration in the event of disputes. On complaints
made by 19 tenants that sound insulation between flats was ineffective against the noise
generated by the normal and ordinary user of the premises, an arbitration tribunal held that
the council was in breach of the covenant for quiet enjoyment and ordered it to carry out
specified works to the flats. On appeal by the council to the High Court, Laddie J held that a
covenant for quiet enjoyment was no longer concerned only with protecting the tenant's
occupation of premises so as to give him security against having his occupation challenged
by adverse claimants, but could extend to disturbance caused by noise, and dismissed the
appeal.
On appeal by the council—
Held, allowing the appeal (Peter Gibson LJ dissenting), that a covenant for quiet enjoyment
did not impose an obligation on the landlord to improve the premises; that, in the
circumstances, the installation of effective sound insulation would amount to an improvement
of the premises; and that, accordingly, the tribunal was wrong to make a finding that the
council had been in breach of the covenant for quiet enjoyment and the order for specified
works of sound insulation would be set aside

Sanderson v Berwick-upon-Tweed Corporation (1884)

Aldin v Latimer Clark, Muirhead & Co. (1894)

• Easement - Access of Air - Grant of Land for Specific Purpose - Derogation from
Grant - Injunction - Parol License - Revocation without Notice - Damages.
Under a grant of land expressed in general terms, and not made for any specific purpose, the
grantee will not acquire a right by way of easement to the access of air, except where such
right is enjoyed through a definite aperture in the nature of a window on the property granted,
or through a definite channel over adjoining property; but the grantor of land to be used for a
particular purpose is under an obligation to abstain from doing anything on adjoining
property belonging to him which would prevent the land granted from being used for the
purpose for which the grant was made.
Where, therefore, a lease was granted in order that the land demised might be used by the
lessee for the purpose of carrying on the business of a timber merchant, and the lessee
covenanted to carry on such business:-
Held, that the assigns of the less or were not entitled to build upon adjoining property
acquired by them from him, so as to interrupt the access of air to sheds upon the demised
property used for drying timber, so as to interfere with the carrying on of the business in
ordinary course.
The lessee, after the date of the lease, with the lessor's permission, but at his own cost,
constructed certain ventilators in the walls of a building demised by the lease. The lessee
gave no consideration for such permission, and no deed was executed giving him the right to
use the ventilators. The ventilators were obstructed by buildings erected upon adjoining
property by assigns of the lessor:-
Held, that the license being revocable, the lessee was not entitled to an injunction; but that, in
the absence of reasonable notice of revocation, he was entitled to an inquiry as to damages in
respect of the ventilators having been obstructed without such notice.

Harmer v Jumbil (Nigeria) Tin Areas Ltd (1921)

In 1911 the tenant for life of settled freehold estate in Cornwall granted a lease to the plaintiff
of a small piece of land for twenty-one years at a rent of 7l. for the express purpose of an
explosives magazine, and he entered into a covenant with the tenant for quiet enjoyment, but
no other express covenant. The lessor knew that the purpose for which the grant was made
would involve the imposition of some restrictions. The lessee was aware of the nature of the
restrictions imposed by a licence for the magazine under the Explosives Act, 1875, and that if
buildings were erected upon adjoining land of the lessor's within certain distances of the
magazine the licence would be withdrawn. And both knew that there had been extensive
working in the past of minerals in the immediate neighbourhood. In 1919 the defendants
obtained a lease from the freeholder of the same estate of adjoining land for the purpose of
working the minerals, but in such a manner as not to interfere with the explosives magazine
of the plaintiff's or the rights of others, and, subject thereto, to erect buildings for the purpose
of working the minerals. The defendants reopened two shafts and erected three buildings or
sheds within distances prohibited by the plaintiff's licence under the Explosives Act.
In an action by the plaintiff to restrain the defendants from allowing these buildings and
works to remain, on the ground that the acts of the defendants constituted a derogation of the
lessor's grant:-
Held (reversing the decision of Eve J.), that under the circumstances in which the lease of
1911 was granted there must be implied on the part of the lessor an obligation not to do
anything which would violate the conditions under which the licence was held by the plaintiff
and thereby cause, ipso facto, a forfeiture of the licence under the Explosives Act, 1875; that
the acts done by the defendants would, if done by the lessor, have been in derogation of his
grant; and that inasmuch as the defendants were for this purpose in the same position of the
lessor, the acts must be regarded as done by him.
Held, therefore, that the plaintiff was entitled to the injunction he claimed, but that its
operation must be confined to the existing licence and would not extend to any future licence.
Doctrine of derogation from grant considered and explained by Younger L.J.

Port v Griffith (1938)

• Landlord and Tenant – Restrictive covenant – Restriction to particular trade – Right
of landlord to let adjoining property for same or similar trade.
The defendants let a shop for a term of 21 years to the plaintiff, the latter covenanting to use
and occupy the premises and to permit the same to be used and occupied as a shop for the
retail business for the sale of wool and general trimmings, and for no other purpose without
the consent in writing of the defendants. Some 6 years later, the defendants let the adjoining
shop subject to a similar covenant, the business stated being for the sale of tailor and
dressmaking trimmings and cloths. The plaintiff contended that this was a derogation from
the grant of the lessor, as frustrating the purpose for which, in the contemplation of both
parties, the premises were let to the plaintiff:—
Held – it was not within the reasonable contemplation of the parties that the defendants were
putting themselves under an obligation not to let their adjoining property to a trade rival of
the plaintiff's.

Browne v Flower (1911)

• Injunction - Landlord and Tenant - Light - Easement - Quiet Enjoyment - Derogation
from Grant - Staircase overlooking Bedroom - Privacy - Comfort.
In September, 1905, a flat consisting of twelve rooms on the ground, first, and second floors
of F. mansions was let to Mrs. L. In November, 1907, a flat on the ground floor of the
mansions was let to the plaintiffs. Both flats had windows overlooking a garden belonging to
the lessors. Mrs. L.'s agreement contained a clause prohibiting the use of her flat otherwise
than as a dwelling-house, and the plaintiffs' agreement comprised a covenant for quiet
enjoyment and a stipulation that they should not use their flat otherwise than as a private
residence. Each agreement contained a stipulation that the tenants would not do anything on
the demised premises which might be a nuisance to the lessors or to the occupiers of
adjoining premises or which might tend to lessen the value thereof. In 1909 Mrs. L.
subdivided her flat and, with the consent of the lessors, erected an open-work iron staircase
from the garden to an entrance to her fiat on the first floor; and in 1910 let it and the part of
her flat to which it gave access to K. The staircase was situated between the windows of two
of the bedrooms in the plaintiffs' flat, and the fact that it was used as the only access to K.'s
flat seriously affected the plaintiffs' privacy, for persons using the staircase could see directly
into the rooms. The plaintiffs brought this action claiming to have the staircase removed, an
injunction, or compensation:-
Held, that Mrs. L. had done nothing on her premises in breach of her covenant; that the flats
were not the subject of any general building scheme; that the only interference with the
plaintiffs' premises was interference with their comfort and privacy; that that was not a
sufficient interference to bring the case within the principle that a derogation from a grant
was a breach of a covenant for quiet enjoyment; and that the claim failed.

Robinson v Kilvert (1889)

• Nuisance - Landlord and Tenant - Implied Agreement for quiet Enjoyment -
Derogation from Grant.
If a person carries on upon his property some process which is in itself noxious, a neighbour
may be entitled to restrain him from carrying it on so as to cause damage to him; but if the
process is not in itself noxious, it cannot be complained of as a nuisance unless it interferes
with the ordinary enjoyment of life or the ordinary use of property.
A landlord who lets part of his property for the purpose of a particular trade, is not to be taken
as having entered into an implied contract precluding him from a reasonable and ordinary use
of the remainder, on the ground that such use injures a particular class of his tenant's goods, it
not having been known to him at the letting and not being a matter of common knowledge
that that particular class of goods was liable to be so injured, nor is such user by the landlord
a breach of his covenant for quiet enjoyment.
A landlord let a floor to a tenant for a paper warehouse, retaining the cellar immediately
below. He afterwards commenced in the cellar a manufacture which required the air to be hot
and dry, and employed a heating apparatus. This raised the temperature on the floor of the
tenant's room to about 80º, but the general air of the room was never nearly so high, and it did
not appear that the workpeople were inconvenienced. The tenant sued to restrain the landlord
from heating the cellar, on the ground that the heat dried his brown paper and made it less
valuable, though it was not such a heat as would injure paper generally. The landlord did not
know at the time of the letting that the tenant was going to store any particular kind of paper
which was liable to be deteriorated by a heat which would not hurt paper generally:-
Held, that the landlord was not liable either on the ground of nuisance or of implied
agreement for quiet enjoyment.

Lane v Cox (1897)

• Landlord and Tenant - Dangerous Condition of Demised Premises - Landlord under
no Covenant to Repair - Injury to Person using Premises - Liability of Landlord -
Negligence.
A landlord who lets an unfurnished house in a dangerous condition, he being under no
liability to keep it in repair, is not liable to his tenant, or to a person using the premises, for
personal injuries happening during the term, and due to the defective state of the house.
APPEAL from a judgment of nonsuit.
The defendant was owner of a house which he let unfurnished to a weekly tenant. There were
no covenants to repair on the part of either the landlord or the tenant. The plaintiff was a
workman, who came upon the premises at the request of the tenant for the purpose of moving
some furniture. While so employed the plaintiff was injured owing to the defective state of
the staircase in the house. There was evidence that at the time the house was let the staircase
was in an unsafe condition. The plaintiff brought this action to recover damages for the
injuries he had sustained, and it was tried before the Lord Chief Justice, who entered a
nonsuit.
The plaintiff appealed.
1896. Dec. 19. LORD ESHER M.R. In this case the plaintiff, a workman, brought an action
against the owner of a house for injuries sustained by reason of a defect in the staircase of the
house. The Chief Justice nonsuited, and against that there is an appeal.
There was evidence that the defendant was owner of the house, but that it was let at the time
of the accident to a tenant who was in possession of it. There was evidence that at the time
the house was let it was in an unsafe condition. The plaintiff was in the house to remove
furniture of the tenant's, and he sustained an injury owing to the defect in the staircase. The
question is raised whether the defendant under these circumstances is liable to the plaintiff.
There was no contractual relation between the plaintiff and the defendant, and it was not like
the case of a person who keeps a shop to which he intends people to come. It is said,
however, that the defendant was guilty of negligence which led to the accident because he let
the house in a defective condition. It has been often pointed out that a person cannot be held
liable for negligence unless he owed some duty to the plaintiff and that duty was neglected.
There are many circumstances that give rise to such a duty, as, for instance, in the case of two
persons using a highway, where proximity imposes a duty on each to take reasonable care not
to interfere with the other. So if a person has a house near a highway, a duty is imposed on
him towards persons using the highway; and similarly there is a duty to an adjoining owner or
occupier; and, if by the negligent management of his house he causes injury, in either of these
cases he is liable. In this case the negligence alleged is the letting the house in an unsafe
condition. It has been held that there is no duty imposed on a landlord, by his relation to his
tenant, not to let an unfurnished house in a dilapidated condition, because the condition of the
house is the subject of contract between them. If there is no duty in such a case to the tenant,
there cannot be a duty to a stranger. There was, therefore, no duty on the part of the defendant
to the plaintiff, and there could be no liability for negligence, and the nonsuit was right.
LOPES L.J. I am of the same opinion. What is complained of in this case is a defect in the
staircase of a house let by the defendant to a tenant. It is said that the lessor is liable for an
injury sustained by a workman employed by the tenant. There is no liability either on the
landlord or the tenant to put or to keep the demised premises in repair, unless such liability is
created between them by contract. No contractual relation in this respect is implied on the
letting of an unfurnished house. A landlord who lets a house in a dangerous or unsafe state
incurs no liability to his tenant, or to the customers or guests of the tenant, for any accident
which may happen to them during the term, unless he has contracted to keep the house in
repair. That disposes of this case so far as any liability of the landlord arising out of contract
is concerned. But then it is said that the claim of the plaintiff may be grounded on the
negligence of the defendant. There cannot be a liability for negligence unless there is a breach
of some duty; and no duty exists in this case to the tenant, and none can be alleged to
strangers. The case differs entirely from those in which property is in a dangerous state by
reason of which an injury happens to one of the public on a highway, or to the occupier of an
adjoining house. I think the appeal should be dismissed.

Liverpool CC v Irwin (1976)

• Landlord and Tenant - Repairs - Covenant, implied - Multi-storey council dwellings -
Landlords retaining control over common parts - Recurring damage by vandalism -
Whether necessary to imply obligation on landlords to keep common parts in repair
• Housing - Repair - Implied covenant - Internal defects in demised premises -
Installation for sanitation - Water closet cistern over-flowing each time closet used -
Defective design or unsuitability in situation - Whether in "proper working order" -
Housing Act 1961 (9 & 10 Eliz. 2, c. 65), s. 32 (1) (b) (i) 1
The tenants of a council maisonette on the ninth and tenth floors of a 15 storey tower block
withheld their rent as a protest against conditions in the building and in their maisonette. In
an action by the council for possession the tenants counterclaimed nominal damages,
alleging, inter alia that the council were in breach of their duty to repair and
Housing Act 1961, s. 32: "(1) In any lease of a dwelling-house, being a lease to which this section
applies, there shall be implied a covenant by the lessor - (a) to keep in repair the structure and exterior
of the dwelling-house…; and (b) to keep in repair and proper working order the installations in the
dwelling-house - (i)… for sanitation (including… sanitary conveniences…),…"

maintain the common parts of the building of which they retained control, including lifts,
staircases, rubbish chutes and passages, and were also, in relation to the demised maisonette,
in breach of their covenant for quiet enjoyment and of the implied covenant under section 32
(1) of the Housing Act 1961 to keep in repair and proper working order the structure and
specified installations. The council denied the existence of the duty alleged and denied breach
of covenant. There was no formal demise of the maisonette but merely a document described
as "conditions of tenancy" with a form attached signed only by the tenants stating that they
accepted the tenancy on those conditions which related to obligations only on the part of the
tenants and not on the part of the council. The county court judge viewed the premises and
found that lifts were out of action, staircases unlit and the general conditions appalling as a
result of, inter alia, recurring acts of vandalism, despite the council's efforts, at considerable
expense to deal with the problem. The conditions in the demised premises of which the
tenants complained included a water closet cistern which overflowed each time the closet was
used and flooded the floor, due probably either to defective design or to the unsuitability of
the installation for a high rise block. The judge held in favour of the tenants that the council
were under an implied duty not only to keep the structure in repair but also to keep the
common parts in repair and properly lit and that they were in breach of that duty, and that
they were also in breach of the obligations imposed by section 32 of the Act of 1961 in
relation to defects in the maisonette itself. He awarded the tenants the £10 nominal damages
which they claimed. The Court of Appeal (Lord Denning M.R. dissenting in part) allowed an
appeal by the council.
On appeal by the tenants: -
Held, allowing the appeal in part, (1) that, since the contract of letting between the council
and the tenants as represented by the "conditions of tenancy" which the tenants had signed
was incomplete in that its terms were of a unilateral nature, it had to be established what the
complete contract was; that so far as the common parts were concerned there had to be
implied an easement for the tenants and their licensees to use the stairs, a right in the nature
of an easement to use the lifts and an easement to use the rubbish chutes; that the obligation
to be read into the contract on the part of the council was such as the nature of the contract
itself implicitly required; that where an essential means of access to units in a building in
multiple occupation was retained in the landlord's occupation then, unless the obligation to
maintain that means of access was placed in a defined manner on the tenants individually or
collectively, the nature of the contract and the circumstances required that it be placed on the
landlord; that the standard of obligation was what was necessary having regard to the
circumstances, viz., an obligation to take reasonable care to keep the means of access in
reasonable repair and usability with the recognition that the tenants themselves had their
responsibilities according to what a reasonable set of tenants would do for themselves; that
the obligation applied to local authority lettings as well as to private lettings and also applied
to the lighting of the common parts of the building; but that in the present case it had not been
shown that there had been any breach of the obligation

Warren v Keen (1954)

• Landlord and Tenant - Repairs - Weekly tenancy - Duty of tenant - Keeping premises
"wind and water tight" - Duty "to use premises in a tenantlike manner" - Permissive
waste - Tenant from year to year.
A weekly tenant is not under a general covenant to put and keep the premises in repair. His
only duty is to use the premises in a husbandlike or tenantlike manner. If the house falls into
disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, he
is not liable to repair it.
Per Somervell L.J.: Whether there is an additional obligation on a tenant from year to year to
keep the buildings wind and water tight, as stated by Swinfen Eady L.J. in Wedd
v. Porter [1916] 2 K.B. 91, 100, remains at any rate in a state of some doubt.
Per Denning L.J.: It was suggested in argument that an action lies against a weekly tenant for
permissive waste. I do not think that that is so.
Premises which were subject to the control of the Rent Restriction Acts had been let by the
plaintiff landlord to the tenant on a weekly tenancy. Various repairs had been carried out at
times by the landlord. When she was served by the Heston and Isleworth local authority with
a notice to remedy certain defects, which rendered the premises unfit for habitation by reason
of their not being wind and water tight, she carried out the necessary repairs and in the
present action claimed to recover from the tenant the cost of those repairs which amounted to
£23 5s. By the particulars of claim the landlord contended that it was an implied term of the
tenancy that the defendant would use the premises in a tenantlike manner, would keep them
wind and water tight, and would make fair and tenantable repairs thereto. The tenant denied
liability for repairs.
The county court judge, according to his written notes, held that there was an implied
covenant that the tenant would keep the premises in a good and tenantable condition and do
such repairs as were necessary to that end. He therefore gave judgment for the landlord.
The tenant appealed.
DENNING L.J. 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. That is how it was put by Sir Vicary Gibbs C.J.
in Horsefall v. Mather3 and by Scrutton L.J. and Atkin L.J. in Marsden v. Edward Heyes
Ld.4 Rut 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.
The landlord sought to put upon the tenant a higher obligation. She said that the duty of the
tenant was to keep the premises wind and water tight and to make fair and tenantable repairs
thereto. That seems to be based on Hill and Redman on Landlord and Tenant, 11th ed., p.
186. I do not think that is a correct statement of the obligation.
Take the first branch, "to keep the premises wind and water tight." Lord Tenterden, in one or
two cases at Nisi Prius, used that expression and it was followed by the Court of Appeal
in Wedd v. Porter,5 but it is very difficult to know what "wind and water tight" means. I
asked counsel whether there was any case to be found in the books where a tenant had been
held liable for breach of that obligation. I wanted to see what sort of thing it had been held to
cover. But there was no such case to be found. In the absence of it, I think that the expression
"wind and water tight" is of doubtful value and should be avoided. It is better to keep to the
simple obligation "to use the premises in a tenantlike manner."
Take the second branch, "to make fair and tenantable repairs." Lord Kenyon used the
expression in Ferguson v. Anon.,6 which is only reported by Espinasse,7 who was
notoriously defective. It is said that he only heard half of what went on and reported the other
half. If you read the whole sentence used by Lord Kenyon, however, it is clear that he was
only referring to cases where a tenant does damage himself, such as breaking the windows or
the doors. Then, of course, he must repair them. The sentence, used by Lord Kenyon, was
explained by Bankes L.J. in Marsden v. Heyes8 by saying that if a tenant commits waste -
that is, if he commits voluntary waste by doing damage himself - he must do such repairs to
the premises as will enable them to exclude wind and water. So explained, it does not support
the proposition stated in Redman.
It was suggested by Mr. Willis that an action lies against a weekly tenant for permissive
waste. I do not think that that is so. It has been held not to lie against a tenant at will, see
the Countess of Shrewsbury's case,9 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. That does not cover the dampness and other defects alleged in the particulars of
claim. The appeal should be allowed accordingly.

Saner v Bilton (1876)

• Landlord and Tenant - Waste - Reasonable Use of Demised Premises - Covenant by
Landlord to keep in Repair - Construction - Implied License to enter - Proviso for
Cesser or Abatement of Rent - "Inevitable Accident."
Semble, that an injury to or the destruction of demised premises, resulting from the use of
them by the tenant in a reasonable and proper manner, having regard to the class of tenement
to which they belong, is not waste.
In a lease of a newly constructed grain warehouse there was a covenant by the lessor that he
would during the term "keep the main walls and main timbers of the warehouse in good
repair and condition." The lessee entered under the lease and stored grain in it, in (as the
Court held upon the evidence) a reasonable and proper way. After a short time a beam which
supported one of the floors broke, and ultimately the external walls sank and bulged
outwards, and the lessor spent a large sum in repairing the premises. In an action by the lessor
to recover from the lessee what he had thus expended:-
Held, that the lessee had not been guilty of waste:
Held, also, that the lessor was bound under his covenant to put the walls and main timbers in
good repair, having regard to the class of buildings to which the warehouse belonged, and not
merely to the condition of the particular building:
Held, also, that the covenant implied a license by the tenant to the landlord to enter upon the
premises for a reasonable time for the purpose of executing the necessary repairs.
The lease contained a proviso that, in case the warehouse, or any part thereof, should at any
time during the term "be destroyed or damaged by fire, flood, storm, tempest, or other
inevitable accident," the rent, or a just proportion thereof, should cease or abate so long as the
premises should continue wholly or partly untenantable pr unfit for use or occupation in
consequence of such destruction or damage. During the period in which the lessor was
executing the repairs the lessee was excluded from the use and occupation of the whole or a
part of the premises, and he claimed an abatement of rent under the proviso:-
Held, that the words "inevitable accident" imported something ejusdem generis with what
had been previously mentioned, and did not apply to that which, though not avoidable so far
as the lessee was concerned, was not in its nature inevitable, but resulted from the default of
the lessor, and that the lessee was not entitled to an abatement of rent.
Ravenseft Properties Ltd v Davstone (Holdings) Ltd (1979)
• Landlord and Tenant - Repairs - Covenant - Inherent defect in building causing
damage to building - Work of reparation including remedying inherent defect -
Liability of tenant under covenant
Under the terms of an underlease, the tenants covenanted to be liable for the repairs of the
demised building. The building had been constructed in concrete with an external cladding of
stone. No expansion joints had been included when the building was being constructed
because it had not been realised that the different co-efficients in expansion of stone and
concrete made it necessary to include such joints. The stones had not been tied in properly to
the building so, instead of cracking as a result of pressure as the building expanded, they
bowed away from the concrete frame and there was a danger of stones falling. The landlords
required the tenants to carry out the necessary work but the tenants denied that they were
liable under the covenant to repair the damage caused by the inherent defect in the building of
the exclusion of expansion joints. The landlords carried out the necessary work of taking
down the cladding stones, retying the stones and inserting expansion joints.
On the landlords' claim to recover from the tenants the cost of the work of reparation: -
Held, giving judgment for the landlords, (1) that it was a question of degree whether work
carried out on a building was a repair or work that so changed the character of the building as
to involve giving back to the landlord a wholly different building to that demised; that, in
rendering the building safe the inclusion of expansion joints was such a trivial part of the
whole building that their insertion could not amount to an improvement which changed the
nature of the building so as to take all the work of reparation out of the ambit of the covenant
to repair (post, pp. 19D-E, 21B-C, H - 22A).
(2) That it was again a question of degree whether the remedying of an inherent defect was
work of repair; that, since no competent professional engineer would permit the re-erecting of
the cladding to be undertaken without the inclusion of expansion joints, it was the only way
in which the building could be repaired and, therefore, the tenants could not exclude from the
costs of the repair the costs of inserting the expansion joints (post, p 22A, C-E, E-F).

Flexman v Corbett (1930)

• Landlord and Tenant – Lease – Sale – Usual covenants – Onerous covenants.
By an agreement in writing in 1928 the defendant agreed to purchase and the plaintiff agreed
to sell a leasehold house for the residue of a term of ninety-four years comprised in a lease of
1849. The defendant was aware that part of the house was let at 60 pounds a year. The date
for completion was 25 March 1929. The lease of 1849 contained a covenant, among others,
not to do anything that might be to the annoyance, damage or inconvenience of the occupiers
of neighbouring premises. There was a proviso for re-entry for non-performance of any of the
covenants. The abstract of title was sent to the defendant's solicitors in January 1929, the
defendant meanwhile negotiating for the purchase of the freehold as the plaintiff knew. The
defendant's solicitors wrote in March to the plaintiff's solicitors that their client would not
buy unless the tenant of the part of the house, who was in arrears with her rent, was bought
out, and said there was no binding contract, alleging, inter alia, that the lease of 1849
contained covenants which were of an unusual and onerous character of which the defendant
had had no notice. The plaintiff sued for specific performance.
Held: (i) the question whether particular covenants in a lease were usual covenants was a
question of fact which the court must decide on the evidence given in relation to them; (ii)
while the covenant not to do anything that might be to the annoyance, damage or
inconvenience of the occupiers of neighbouring premises might be usual in leases of houses
on large estates, in a lease of one house, as in the present case, it was unusual and onerous;
(iii) the proviso for re-entry for non-performance of any of the covenants contained in the
lease was, on the evidence, unusual and onerous; (iv) in the circumstances of the case, the
defendant had not waived her right to object to the lease as containing unusual and onerous
covenants.

Spencer’s case (1583)

In Spencer’s Case (77 E.R. 72) a lease contained a covenant that the tenant would build
a wall. The lease was assigned twice. It was held that the burden of lease covenants that
touch and concern passes to assignees of the lease.
Haskell v Marlow (1928)
• Will - Devise of Dwelling-house to Tenant for Life - Direction to keep "in good repair
and condition (reasonable wear and tear excepted)" - Failure by Tenant for Life to
repair - Damage arising from natural Decay - Liability.
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
excepted)," 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 forty-two years. She did nothing actively to
injure the premises, but did nothing substantially to counteract the natural process of decay.
The plaintiffs, 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.