It is trite law that every person in Uganda has a right to own property either as an

individual or in association with others as well provided for under Article 26 (1)1. In
addition, land in Uganda belongs to the citizens of Uganda2. And land in Uganda shall be
owned in accordance with the following land tenure systems-inter alia (d) leasehold3.
Furthermore, all Ugandan citizens owning land under customary tenure may acquire
certificates of ownership in a manner prescribed by parliament4: and any lease which was
granted to a Ugandan citizen out of public land may be converted into freehold in
accordance with law which shall be made by parliament5. And for purposes of clause (5)
of this article, ‘public land’ includes statutory leases to urban authorities.

A Lease is defined as a grant of the exclusive possession of property to last for a term of
years or periodic tenancy, usually with the reservation of rent6. It is essential that a lease
shall specify the period during which the lease is to endure, and the beginning and the
end of the term.7

According to Samantha8, a lease is a personal, contractual agreement between an owner

of land and a tenant, whereby the owner agrees to transfer the right to exclusive
possession in the land to the tenant for a specific and definable period of time- which
must be less than the duration of time for which the owner holds the interest –usually in
return for payment of a nominated rental.

The Leasehold interest is classified as a ‘non-freehold’ interest because of the fact that,
unlike freehold estates, it exists for a defined period of time9.
The party leasing is known as the lessor or a landlord and the other party is the lessee or
tenant. A lease maybe a private residential letting, a [secure] public sector tenancy, an
agricultural tenancy or a commercial letting10. These may be classified into two i.e. fixed
term lease and a periodic lease. A fixed term lease is a lease expressly created to exist
for a defined period of time. The actual length of time for which the lease is to
continue is not important, hence a fixed term lease may exist for one month or 99
years. However, the duration must be defined, certain and express. Hence, at the time
when the parties are entering into the lease contract, the length of time that the lease is to
exist for must be clear; the exact date of cessation must be explicitly set out. On the other
1
Constitution of the Republic of Uganda, (as amended), 1995
2
Article 237 (1), of the constitution of the Republic of Uganda, (as amended), 1995
3
Article 237 (3)(d)
4
Article 237 (3) (a)
5
Article 237 (5)
6
Osborn’s Concise Law Dictionary, 12th Edition, page 252
7
Ibid
8
Samantha, J, Hepburn (2001).
9
E.H Burn, J. Cartwright. (2011).
10
Ibid

1
hand, a periodic lease can be created by either an express agreement or implied from
circumstances. A periodic lease is a lease which exists for a succession of periods. It
may arise expressly wherever a lessee agrees to pay periodic rental , whether it be
weekly, fortnightly or monthly, in return for exclusive possession However, there are
other forms of tenancy which don’t either fall under fixed or periodic types of leases,
these are; tenant at will and tenant at sufferance.

A tenancy at will exists when A has possession of the land of B as a tenant with B’s
consent, on the understanding that either A or B may terminate the tenancy when he
likes.
Littleton wrote;
‘’A tenancy is where lands or tenements are let by one man to
another, to have and to hold to him at the will of the lessor, by force of which lease the
lessee is in possession. In this case the lessee is called tenant at will, because he hath no
certain or sure estate, for the lessor may put him out at what time it pleaseth him’’
But such a tenancy equally arises when possession is held at the will of the lessee, and
indeed it is important to notice that, even though a tenancy is made determinable at the
will of the lessor only, it is also by implication determinable at the will of the lessee. In
other words, every tenancy at will must be at the will of both parties.11
In the words of Lord Simonds12;
‘’ A tenancy at will, though called a tenancy, is unlike any other tenancy
except a tenancy at tenancy at sufferance, to which it is next-of-kin. It has been properly
described as personal relation between the landlord and his tenant; it is determined by
the death of either or by one of a variety of acts, even by an involuntary alienation, which
would not affect the substance of any other tenancy’’.
Therefore, a tenancy at will may be created either expressly13, or by implication, as, for
example, where a tenant with the consent of his landlord, holds over after the expiry of
the lease, or where the purchaser goes into possession under a contract for a lease or
under a void lease or where a purchaser goes into possession prior to completion, or a
prospective tenant goes into possession during negotiations for a lease14.
According to Coke;
‘’ Tenant at sufferance is he that at first comes in by lawful demise and
after his estate ended continueth in possession and wrongfully holdeth over.
For instance, a tenant for a fixed term becomes a tenant at sufferance if he ‘holds over’,
that is remains in possession without the consent of the landlord, after the term has come
to an end15 .

11
Fernie v Scott (1871) LR 7 CP 202
12
Wheeler v Mercer [1957] AC 416, 427
13
Manfield & Sons Ltd v Botchin [1970] 2 QB 612
14
E.H.Burn, J.Cartwrit, 8th Edition, (2011)
15
ibid

2
 Historical Development of Leases

Historically, the lease agreement evolved during the period spinning the 12th to the 16th
centuries. In the 12th century, a ‘villeinage’ represented what is known today as the
modern lease; where a villeinage existed, the ‘villein’ (tenant) was allotted land by the
landlord of the manor (lessor) for an indefinite period of time16. The status of the villein
could loosely be described as a tenant at will although the ‘tenancy’ was not capable of
being legally enforced.
The first form of legal protection for the villeinage did not emerge until the 13th century,
when the common law began to recognize the contractual foundation of the villeinage.
This meant that a villein could sue his landlord for damages for a breach of lease, but it
did not entitle a dispossessed tenant to regain possession. At this point, the lease was not
regarded as a form of real property, although its contractual foundation meant that a lease
contract could properly be regarded as a legally enforceable, person right.

Due to the inappropriate nature of contractual remedies for tenants unfairly dispossessed,
the common law courts eventually developed an action entitling a ‘villein’ to recover
possession of land over which he or she held a ‘villeinage’. This action was known as the
‘quare ejecit infra terminum’17. This action was, however limited, of limited use, as it
was only available against the landlord or successors in title to the landlord, and not
against any third party unconnected to the agreement, it was not possible to claim
possession of the land.
Eventually, by the late 15th century, villeins acquired a more complete right to claim
possession of the land which came to be referred to as a writ of ejectment or de
erejctione firmae. Under this writ, a tenant who was disseized of land could actually
reclaim the land itself.

Essential features of a Lease

To create a valid and enforceable leasehold- whether under common law or equity-the
relationship must possess certain fundamental characteristics. Under Sec.3 (5) (a)18, the
leasehold may be created either by contract or by operation of law. In addition, (b) the
terms and conditions of which may be regulated by law to the exclusion of any
contractual agreement reached between the parties; The essential features of a lease were
inter alia stated in the case of Street v Mountford19, the facts of this case were; on 7th

16
Samantha, J, Hepburn, (2001)
17
It means a writ of a lease who was permanently ejected when the Ejector was actually in possession but
one claiming under the ejector was
18
Registration of Titles Act, Cap 230, Laws of Uganda.
19
[1985] 2 All ER 289

3
March 1983, Roger Street gave rooms 5and 6 to Mrs. Wendy Mountford for a ‘license
fee’ of £37 a week, terminable on 14bday’s notice. Mrs. Mountford also signed a form
saying she understood the Rent Act, 1977 did not apply to which was deemed fair by and
independent office or tribunal. However, the defender argued that she had a lease. The
question for the court was whether the arrangement expressed in the agreement was
a lease or a license? The terms of the agreement included that Mr. Street could enter the
rooms at any time to inspect, to read the meter, to carryout maintenance and install or
replace furniture, or for any reasonable purpose. No children or pets were allowed. The
licence could be terminated by a 14days written notice. The agreement also stated that the
licence would not and was not intended to give a tenancy and conferred no protection
from the Rent Act.
Court held inter alia that agreement was a lease and not a licence. Per Lord
Templeman, he stated;
‘’My Lords, there is doubt that the traditional distinction between tenancy
and a licence is of land lay in the grant of land for a term at a rent with exclusive
possession…’’
He further identified three essential elements of a lease, i.e. the grant of exclusive
possession, for a period of time (duration) which is certain and the payment of rent.

Exclusive Possession;

Is the most contentious and complex requirement for a lease. It looks to the legal
entitlement rather than what is actually going on in practice. Therefore, for a lessor to
confer a leasehold interest upon a lessee, the lessor must confer exclusive possession of
the leased premises. If the lessee does not have exclusive possession over the land, the
relationship will be more personal in nature and resemble a licence, because all that is
conferred is permission to enter the land. In order to determine whether or not the lease
holds exclusive possession, courts will consider a range of factors including:
(a) Whether the transaction has been defined as a lease- this is relevant but not
conclusive20
(b) The nature and form of the possession conferred and whether or not
‘general control’ of the property been transferred to the lessee21
(c) The intention and expectation of the parties to the agreement22
(d) The nature of the premises and the suitability of exclusive possession23
The archetypal authority on the point is the decision of Radaich v Smith, supra. On the
facts of that case, a deed was executed between the licensors (the Smiths) and the

20
Wik peoples v State of Queensland and others / Thayore People v State of Queensland and others [1996]
141 ALR 129
21
Radaich v Smith (1959) 101 CLR 209
22
ICI Alkali (Aust) Pity ltd (in Voluntary Liquidation) v FC of T [1977] VR 393
23
King v David Allen and Sons [1916] 2 AC 54

4
licensee (Radaich) which purported to give the licensors a license for a term of 5 years
over shop premises at Mosman. The license was expressed to be for the ‘sole and
exclusive privilege of supplying refreshments to the public upon the premises’,
Furthermore, clause 10 of the agreement set out that the ‘license…shall be deemed to be
a lease as defined in the Landlord and Tenant (Amendment) Act NSW (1948-52)’. An
annual sum due in weekly payments, was also required. The primary issue was whether
the express arrangement actually amounted to a lease or merely a license.

From the finding of the Supreme Court, the arrangement amounted to a lease and
therefore the court had jurisdiction to determine a fair rental price. It was held that, in
form and matter, the deed resembled a lease, although it did not use words ‘lessor’, ‘les
see’ and ‘lease’. It was held that this issue alone cannot be determinative, because the
real significance lies in the substance of the transaction. The court noted that the true test
of a supposed lease is whether exclusive possession is conferred upon the potential
lessee.
According to McTiernan J,
’’ This business could only be properly performed if the persons involved
retained exclusive possession of the premises. The agreement contemplates that the
so called ‘licensee’ is to have control of the premises …ultimately held to indicate
an intention to grant exclusive possession, and consequently, a leasehold interest
existed.’’

Similarly, in the Ugandan case of City Council of Kampala v Mukibi24, where the
council had entered a tenancy agreement with the defender in terms of which the
defender was to be lased premises at an annual rent on a year to year basis, but terminable
by either by giving one months’ notice in writing. The premises were let subject to
certain covenants which provided inter alia that tenant should use the premises, only for
hairdressing business and that he should not assign or sublet or part with the possession
of the premises, with the right to the pursuer in the event of breach of the covenants. It
was alleged by the pursuer that the defender had sublet the premises and the pursuer sued
for vacant possession of the premises and for mesne profits25. In the case, the defender
retained possession of the key of the premises which he opened in the mornings and
locked at night. On passing judgment, it was held inter alia that the tenancy agreement,
although not in statutory form and bearing no endorsement with a certificate of
registration was enforceable against the defender as an agreement to grant a lease. The
persons working on the premises were licensees, not tenants, and were not in exclusive
possession of the premises, and was not in breach of the covenants. The pursuer having
refused to accept rent tendered to it, should not have its costs, and order for vacant
24
[1967] E.A 368
25
Mesne profits are profits of land taken by a tenant in wrongful possession from the time the that the
Wrongful possession commenced to the time of trial of an action of ejectment brought against him.

5
possession refused, judgment for the pursuer for mesne profits. In his judgment, Sir Udo
Udoma C.J, stated that;
‘’the hair dressers were mere licensees. That they were not in proper
sense of the terms. That they were not exclusive possession of the premises and his
practice of holding the premises’ key and open in the morning and close the
premises after collecting his dues’’.
Whilst the nature of the possession conferred remains the foremost test for the
determination of exclusive possession of a lease in some jurisdictions such as Australia,
courts will sometimes consider the general circumstances of the agreement. In this
reverence, the character of the leased premises may be substantial. For instance, if the
lessor doesn’t hold a freehold estate or a leasehold interest in the premises, he or she will
not be able to confer exclusive possession. In addition, where the transaction is for
advertising purposes, it is often suggested that the agreement should constitute a licence,
because the transaction does not really contemplate an ‘exclusive possession.’ Similarly,
in Claude Neon Ltd v Melbourne and Metropolitan Board of Works26, the High
Court held that an agreement to confer exclusive advertising space over parts of a roof
and exterior wall did constitute a lease because the lease held ‘general control’ over those
areas, and this was enough to establish a form of exclusive possession.

Duration;
Duration is another essential feature of a lease and duration of time for which
the lease is to exist be specific and identifiable. The expressed period of time for which
the lease is to operate must be clearly set out, and the events must be bound to happen.
This feature does not apply to periodic leases because they are not fixed in time. Duration
is therefore of essence and each lease must have certain or ascertainable beginning and
ending before it takes effect. Leases may commence from the date when the lease
agreement is executed, they may be backdated or specified to take effect in future. The
applicability of this rule was espoused in the case of Lace v Chantler27, in which the
pursuer sub-let a house to the defender for the duration of the war during the Second
World War. It was held inter alia that the lease was void for uncertainty of duration
because at the time the purported lease agreement took effect it was neither certain or
ascertainable when the war would end.
Therefore, a lease which is specified to take effect in the future is known as a
‘reversionary lease’ because the conferral of exclusive possession is deferred until a
future date. Where no commencement date is set out, courts will generally assume that
the lease is to commence upon the date on which it is either executed or orally agreed
to28. And if the period of the lease is noted by reference to an exact time or event, the
lease may be presumed to be periodic in nature.
26
(1969) 43 ALJR 69
27
[1944] 1 All ER 305
28
Sandill v Franklin (1975) LR 10 CP 377

6
 Creation of a lease by operation of law and contract;

Under Section 3 (5) (a)29, a lease can either be created by contract or by operation of the
law, and for a contract of a lease to be valid, there must be a final agreement on the terms
of the lease agreement, that is to say on the parties, the property, the consideration or rent,
the commencement and the period of the lease and any other special terms30.
Under section 10131, it is to the effect that,
“The appropriator of any freehold or Mailo land under the operation of this Act may,
subject to any law or agreement for the time being in force, lease that land for any term
exceeding 3 years by signing a lease for it in the form in the 8th schedule of this Act….”
Similarly, section 54 of the same Act supra, provides for registration of any lease granted.
A case in point was illustrated in the case of Souza Figueredo and Co. Ltd v Mooreing
Hotel Co. Ltd32, the facts of this case were; the respondent was the sub-lessee of the suit
property. By a written agreement, it sub-subleased the property to the appellant for a
period in excess of 3 years. The registrar refused to register the transaction because it was
his office practice not to register a sub-sublease. In any case the document was not in a
register able form. Nonetheless, the appellant entered into possession and remained there
for two years. Thereafter, the appellant abandoned the premises without paying rent for
the period that it was in possession. The high court ordered the appellant to pay
outstanding rent to the respondent. On appeal, the appellant argued that since the sub-
sublease was not registered as required by the Registration of Titles Act, there was no
lease created under the agreement and therefore it had no obligation to pay rent.

Creation of a lease by estoppel;

The connection amid a landlord and a tenant may be formed for the reason that
there is a deep-rooted common law principle that, “where a person enters onto land as a
tenant of another both parties are estopped from denying that a lease exists” as it was
discussed in the case of Pardhan Jivraj v Dudley-Whelpadale33. Similarly, the same
code was exposed in the East African case of Khanjee Naranjee Ltd v Tulsedas
Dharamsh Ghadialy34, where the issue before the trial judge was whether there was
evidence which showed that the respondent acknowledged that the appellant
company was his landlord before May 1st 1958. The trial judge held that there was no
such evidence, that there was no evidence of either agency or an assignment…. However,
on appeal, the substantial issue before the court was whether the respondent was by his
29
Land Act CAP 227 (as amended), Laws of Uganda.
30
The Law of Real Property
31
Registration of Titles Act CAP 230
32
[1960] EA 96
33
(1920-29) 3 ULR 193
34
[1965] EA 77

7
conduct estopped form denying that the appellant company had become his
landlord since 1955 when it was incorporated and took over management of the suit
property from Khanjee Naranjee? However, court held inter alia that, the part
payment of the amount claimed as rent by the appellants for a period prior to May 1st
1958 and the promise to pay the balance due, constituted an acknowledgement of the
tenancy for the entire period for which the rent was claimed by the appellants. Therefore,
a lease can be created by tenancy by estoppel.

Creation of a lease by registration requirement;

Under section 109 of the Registration of Titles Act, it is to the effect that a lessee
may sub-let subject to any provisions in his or her lease…by signing a sub-lease in the
form in the 10th schedule to the Act. This implies that a lease may be created by a
registration in Uganda. For instance, in the case of Popatlal Hirji v L.H. Lakhai & Co
(EA) Ltd35, it was held that a sub-lease for 1 year which was renewable annually at the
option of the tenant was a lease in excess of 3 years and therefore subject to the statutory
form. Similarly, under section 51 of the same Act provides for a memorial to be entered
on duplicate instrument and that certificate shall be received in all courts as conclusive
evidence that the instrument has been dully registered.

Unregistered leases;

At common law, a purported lease that does not comply with formalities merely
operates as a contract where by the proposed lesser promises to lease and the proposed
lessee to take the land subject to the terms of their agreement as the case was in Walsh v
Lonsdale36, therefore any failure by either party to comply with the agreement could
result in an action for damages as it was rewarded in that case. Moreover, where a
purported lessee enters into possession under the agreement, he/she becomes a common
law tenant at will as t was decided in Souza Figueiredo case supra, and upon payment of
rent, a tenant at will becomes a yearly tenancy as it was in the Walsh case.
On the other hand in equity, failure to trail legal procedures to craft a lease does not
certainly render a lease void because equity treats as done as what ought to be done
therefore, an agreement for a lease capable of enforcement by specific performance
creates a lease. Such a lease is variously referred to as an “equitable/ informal lease”.
This principle was laid down in the famous case of Walsh v Lonsdale.

Rights and obligations of a landlord and a tenant.

35
[1960] EA 437
36
(1882) 21 Ch.D 9

8
 The rights and duties of a landlord and tenant are commonly fixed by the
expressed covenants that, having been settled by the parties are incorporated in the lease
or the contract under which the premises are held37. The terms of a lease may be
expressed as; conditions and covenants.

According to the Osborn’s Concise Law Dictionary38, a condition is defined as a

provision which makes the existence of a right dependent on the happening of an event;
the right is then conditional, as opposed to an absolute. It further states that, a condition
in a contract is a stipulation going to the root of the contract, the breach of which gives
rise to a right to treat the contract as repudiated39.
On the other hand, a covenant is defined as a promise made by deed. It may be positive,
stipulating the performance of some act or the payment of money, or negative or
restrictive, forbidding the commission some act. A breach of a condition in a lease
agreement entitles the other party to void the contract as it was stated in the case of
Lugogo Coffee Co. (U) Ltd v Singo Combined coffee growers Ltd40, the facts of this
case were as follows. The plaintiff company brought this suit against the defendant
company for possession and general damages for trespass on a piece of land. The plaintiff
company claimed to have purchased the land in dispute from Mrs. Byatisi Namiro on or
about 8th June 1972. Before that, Mrs. Namiiro had leased the land to the defendant
company for 49 years starting on 1st January. In April 1972, Mrs. Namiiro re-entered on
the land, applied to the Registrar of Titles to make an entry of the re-entry in the Register
Book under section 113 of the Registration of Titles Act on the grounds that the
defendant company had never paid rent agreed upon and thus it was in breach of the
covenant of the lease. The Registrar declined to make the re-entry and instead advised the
dispute to be resolved by court action. Namiro did not file any action but instead sold the
land to the Plaintiff Company. Counsel for the plaintiff urged that the power of the
Registrar of Titles under the Section 113 of the Registration of Titles Act to make entry
of the Re-entry by the lessor in the Register Book is not mandatory and hence if he
refuses to make such entry because of a mistaken view of the law, the lease nevertheless
determine because a lease is a contract and a breach of its covenants entitles the lessor to
avoid the contract. Counsel for the defendant contended that although a lease is a
contract, it is governed by a statute and can be determined only in accordance with the
provisions of Section 113. The defendant company prayed for a relief against forfeiture
for non-payment of rent.
The court held inter alia that the defendant was entitled to relief against forfeiture for
non-payment of rent.

37
E.H.Burn, J.Cartwrit (2011)
38
12th Edition on page 103
39
Page 104
40
[1976] HCB 92

9
 Covenants are classified into; Express and implied Covenants.

Express terms are those which are stipulated in writing or orally in the agreement41. Thus,
parties to a lease are free to incorporate any terms in the lease provided that the terms are
not contrary to any rule of law42. Ninth Schedule of the Registration of Titles Act, cap
230, Laws of Uganda sets out certain terms that can inserted in a formal lease
agreement43.
Similarly, section 104 0f the same Act stipulates that where shorter form of words is used
in the lease agreement, it is implied that the parties intended the detailed meaning
ascribed to that to the term in the schedule. In the absence of any express agreement of
the parties, the common law implies certain covenants against the landlord. The
covenants implied against the landlord include the following as discussed;

(a) Quiet enjoyment

A covenant that the tenant shall have quiet enjoyment of the premises is implied
in every lease that does not expressly deal with the matter. The meaning of this is
that the tenant shall be put into possession and that he shall be entitled to recover
damages from the landlord if his enjoyment is substantially disturbed by acts
either of the landlord or somebody claiming under the landlord44. The basis of this
covenant is that by letting the premises, the landlord agrees to give the tenant the
right of possession and thereby guarantees not to interfere with the tenants’
exercise of the right and use of the premises45. It’s thus a covenant for freedom
from disturbance by adverse claimants to the property. For instance, the covenant
of quiet enjoyment was watermarked in the case of Markham v Paget46, in which
parties had entered an agreement with a draft lease attached to lease a coal seam.
If the company anticipated damage, the lease allowed the company to leave
sections unmined as support. The final lease allowed the minors to let down the
surface, but never asked the miners consent before leaving any coal unmined. The
surface was then also let to the plaintiff on a yearly tenancy. The miners sought
consent as agreed, but the consent was withheld and they proceeded. The surface
property was damaged and the tenant sought damages.
It was thus held that there was an implied covenant for quiet enjoyment in the
lease of the house, but the owner of the house who was liable under that covenant
could not seek an indemnity from the miner without joining in the trustees who
had actually executed the lease.

41
Principles of Land Law in Uganda , Mugambwa
42
ibid
43
Principles of Land law in Uganda
44
E.H.Burn, J.Cartwrit (2011)
45
John T. Mugambwa, (2002),
46
[1908] 98 LT 605

10
 In addition, it was vividly decided in the case of Kenny v Preen47 that a landlord’s
threats to evict the tenant accompanied by repeated shouting and knocking her
door, was held to be breach of covenant for quiet enjoyment. The court explained
that the word ‘enjoy’ used in connection is a translation of the Latin word ‘Fruor’,
and refers to the exercise and use of the right and having full benefit of it, rather
than to deriving pleasure from it.

(b) Non-Derogation from grant;

This is closely related to the covenant of quiet enjoyment, and is the landlord’s
implied covenant that he shall not derogate from his grant. He must not frustrate
the use of the land for the purpose for which it was let48. In the words Bowen LJ,
he stressed that
‘’a grantor having given a thing with one hand is not to take away
the means of enjoying it with the other’’49
Similarly, Wood V-C said’
‘’ If a landowner conveys one of two closes to another, he cannot
afterwards do anything to derogate from his grant: and if the conveyance is made for the
express purpose of having buildings erected upon the land so granted, a contract is
implied on the part of the grantor to do anything to prevent the land from being used for
the purpose for which the knowledge of the grantor the conveyance is made’’50. The
subject matter in the discussion is vividly illustrated in the case of Aldin v Latimer
Clark, Muirhead & Co51, in which land was leased to a tenant for the purpose of
carrying on the business of a timber merchant, and the landlord proceeded to erect
buildings on adjoining land in such a way as to interrupt the free flow of air to the
tenant’s drying sheds, Court held that damages were recoverable against the landlord’s
assigns for breach of the implied covenant.

(c) Fitness for Habitation

In general, there is no implied undertaking by the landlord that the premises are or will be
fit for habitation; and no covenant is implied that he will do any repairs, that is to say;
Caveat Lessee52: The Common law doctrine that stated that it was the tenant’s
responsibility to research leased premises before agreeing to a lease and that the
landlord was not responsible for the defective condition of the leased premises : this
doctrine has been changed in many ways by modern rules OR is the equivalent of
caveat Emptor, a Latin term meaning ‘’buyer be aware’’, which is applied in the
context of a person leasing rather than buying something. It typically applies in the
47
[1963] 1 QB 499
48
Modern Law of Real Property
49
Birmingham, Dudley and District Banking Co v Ross (1888) 38 Ch. D 259, at 313
50
North Eastern Railway Co. v Elliot (1860) 1 John & H 145, at 153
51
[1894] 2 Ch. 437
52
Southwark LBC v Tanner [2001] AC 1, at 12 ( Lord Hoffman)

11
setting of a commercial lease of real property, where the lessee (renter) isn’t protected by
the same warranty of habitability that applies to the residential tenant. However, there are
certain exceptions to this rule, that is;53

(1) Furnished Houses; upon the letting of a furnished house, there is at common law
an implied warranty, in the nature of a condition, that the premises shall be
reasonably fit for habitation at the fixed date of commencement of the tenancy.54
In the case of Collins v Hopkins55, McCardie J said,
‘’ What is the meaning of ‘fit for habitation’? The meaning of the phrase
must vary with the circumstances to which it is applied. In the case of
unclean furniture or defective drains or nuisance by vermin the matter is
not, as a rule one of difficulty. The eye of the nostrils can detect the fault
and measure its extent. But in the case of a house lately occupied by a
person suffering from an infectious disease, the eye and other senses are
of no avail. , …’’
Thus, if the house is infested with bugs as the case was in Smith v Marrable56, if its
drainage is defective57, or it has been ,lately occupied by a person suffering from
tuberculosis, the tenant is entitled to repudiate the tenancy and recover damages58. But
provided that the house is fit for habitation at the beginning of the tenancy, the fact that it
later becomes uninhabitable imposes no liability upon the landlord59

(2) Premises in multiple occupation :

A landlord who retains control of the means of access to demised premises in a high
block of flats such as lifts and staircases and other common facilities such as rubbish
chutes or lighting, is under an implied duty to keep them in repair60. The duty , implied
into the lease at common law, is not absolute, but only a duty to take reasonable care to
maintain them in a state of reasonable repair and usability61. Among others.

Obligations of a tenant:

Under Section 102 (a) and (b)62 the lessee is obliged to pay rent reserved by the lease at
the times mentioned in the lease and is obliged to keep and yield up the leased property in
a good and tenantable repair respectively. And section 103 (a) of the same Act, supra,
53
Modern Law of Real Property
54
ibid
55
[1923] 2 KB 617, 620-1
56
(1843) 11 M&W 5
57
Wilson v Finch Hatton (1877) 2 Ex D 336
58
E.H.Burn, J.Cartwrit (2011)
59
Sarson v Roberts [1895]2 QB 395
60
Modern Law of Real Property
61
Liverpool City Council v Irwin [1977] A C 239
62
Registration of Titles Act, Cap 230, Laws of Uganda

12
empowers the lessor to enter the leased premises at all reasonable times for specific
purposes, such as inspection of the premises, and repair the property.

Tenants’ liability to waste:

Tenants are also subject to the doctrine of waste, though in varying degrees63
Waste generally means such damage to houses or land as tends to be permanent and
lasting loss of the person entitled to the inheritance. Waste is categorically groped into
two, that is to say: permissive waste and voluntary waste.
Permissive waste arises from a mere act of omission, not of a commission, and it is
generally, the result of allowing the buildings on an estate to fall into state of decay64.
On the other hand, voluntary waste is a wrong of commission consisting of a positive act
of injury to the inheritance. This can include pulling down or altering houses, opening
pits or mines, changing the course of the husbandry and cutting timber, among others.

Distinguishing between leases and licenses

The major difference is in the issue of exclusive possession. In licenses, the licensee does
not have exclusive possession because of the fact that the licensor chooses not to avail
him of such.65 At common law, this is hard to demonstrate as courts usually look at
intention of the parties66, however in Uganda this was made clear in th section 3(5) (c) of
the Land Act67 wherein Parliament intended that where a person grants another person
namely, a tenant or lessee exclusive possession of the suit property thus a manifestation
of the intention of including exclusive possession a major feature of leases.

Sublease and assignment

A sublease is where a person with a leasehold interest transfers his interest to another
person and creates a lease that is less than the time that he has. In this case the lease is
known as the head lease and the latter is a sublease and thus also gains exclusive
possession of the estate.68
According to Black’s Law Dictionary, an assignment is the transfer or settling over of
property or of some right or interest therein from one person to another where in it has
the same effect as a transfer of a legal estate in land. This means that it encompasses the
transfer of rights held by one party known as the assignor to the other party the assignee.
It also transfers a benefit; wherein according to the rules of Equity is an equitable interest.
It is trite law that these rights maybe vested or contingent whereby they are dependant on

63
Modern Law of Real Property
64
Ibid/
65
Nicola Jackson(2008)
66
Errington v Errington
67
Cap 227 As Amended
68
John Tamukedde Mugambwa

13
terms of the lease whereby details of the terms of the lease determine some additional
rights and obligations.
In contrast, the distinction of a sublease and assignment was made by Lord Greene MR in
Milmo v Carreras69 wherein he stated that in a sublease, the lessee transfers all his rights
in the property or estate over to the sub-lessee and thus becomes a stranger to the landlord
adhering to the principle of privity of estate and that subletting must be shorter than the
original lease.

At common law, the power to sub-lease or assign is capable of being performed in all
types of leases and this was illustrated in the case of City Council of Kampala v
Mukiibi70. However the land lord’s prior consent is a prerequisite to the effect. This
exclusion may be absolute or qualified by a requirement of the agreement71. The facts of
this case are that the plaintiff council had entered into a tenancy agreement with the
defendant in terms of which the defendant was to be leased premises at an annual rental
on a year to year basis, but terminable by either party giving one month’s notice in
writing. The premises were let subject to certain covenants which provided inter alia that
the tenant should use the premises only for the business of hairdressing, and that he
should not assign or sublet or part with possession of the premises, with a right of re-
entry to the plaintiff in the event of breach of any of the covenants. It was alleged by the
plaintiff that the defendant had sublet the premises and the plaintiff sued for vacant
possession of the premises and for mesne profits.
It was held inter alia that a lease was practically prohibitive in form. There is no
provision that the consent of the lessor may be given, if sought by the lessee. However,
such consent not to be unreasonably withheld to either sublet or assign the premises to a
third party. Therefore it must be very strictly construed as against the plaintiff, and the
background that to the knowledge of the plaintiff the defendant was not a hairdresser or
barber by trade at the time when the premises were demised to him.

Enforcement of a covenant

It is trite law that where one seeks to enforce such covenants in courts of law, the court
has to first establish whether there is an existence of privity of contract or privity of estate
between the parties, whereby the terms of the agreement that they consented to are what
court will uphold72. Whereby privity of estate is a mutual or successive relationship to
the same right in property, as between grantor and grantee or landlord and tenant. This is
to the effect where the party not at fault has no remedy in contract they can institute a
relief under privity of estate.

Therefore in an assignment, where a person transfers their leasehold, there is no privity of

contract as the parties have no contractual relationship. However, since in transaction is
of an estate, there exists privity of estate and this being the case; the parties can enforce
their rights by way of covenants.

69
[1947] KB
70
[1967] EA 368
71
S.109 Land Act Cap 227 (As Amended 2009)
72
Megary and Wade, The Law of Real Property pg.740

14
Registration of transfer
In the Ugandan context, upon registration of a transfer of a lease, a covenant is implied
between the transferor and transferee that the latter shall pay rent reserved in the original
lease and be bound by all covenants expressed there in or implied by law against the
lease. S.113 of the Registration of Titles Act73 is to the effect that all the implied
covenants specified binding on all leases, shall be implied in every sub-lease including
the executors and administrators inter alia for the terms granted by the sublease.

Assignment of a reversion

At common law, apart from covenants that are inherent in the landlord-tenant
relationship, neither the benefit nor the burden of the covenant runs with the reversion.74
This creates a challenge to the effect that the land lord has no way in instituting a case
against the assignee. However the solution to this problem is that the landlord can enter
into a fresh contract with the sub-leasee on the assignment of the reversion so that the
privity of the contract is established, or is for the headlease to assign his rights (including
the right to sue) and obligations to the landlord with the express or implied consent of the
sub-lease.

Remedies under leases

a) Tenant remedies

In cases where either party is in breach of the terms that were agreed upon at the
conclusion of the lease agreement, the general rule is that the party not at fault can sue the
party at fault in the law of contract or tort. A case in point is Opinya v Mukasa, where
the tenant successfully sued the landlord for breach of the covenant of quiet enjoyment
and prayed for damages and an injunction to prevent future breach. Furthermore, the
tenant may also terminate the lease where the agreement expressly provides such power
wherein he may exercise it on discovery of the breach. However this is subject to
circumstances where;

Remedies for breach of covenant to provide quiet enjoyment

A landlord may be in breach of the covenant of enjoyment of quiet possession. This was
defined in Southwark LBC v Mills75 by Lord Millet as a situation where the landlord or
someone claiming under him does anything that substantially interferes with the tenant’s
title to or possession of the demised premises76. Lord Denning MR further espoused it as
“any acts calculated to interfere with the peace or comfort of the tenant or his family”77.
In this case therefore, a tenant may seek an injunction restraining the landlord from any
further actions in breach of the covenant. This remedy was seen in the case of Harmer v
73
Cap 230
74
Megarry and Wade, The Law of Real Property pg.152
75
1998
76
[1999] All ER 448
77
Mc Call v Abeles [1976] QB 585

15
Jumbil (Nigeria) Tin Areas Ltd78 where the landlord had granted the tenant a lease of
misused mine for use as an explosives’ magazine. He subsequently granted a lease of
adjoining land to other tenants, which permitted the working of minerals and opening of
the mine shafts. The presence of mine working in such close proximity to the magazine
would have the effect of invalidating his tenants operating license. He was held to have
breached his covenant not to derogate from the grant and an injunction was issued.

b) Landlord’s remedies

At law when the tenant is in breach of a covenant, the law provides remedies to the
landlord for which he can exercise when the circumstances arise. The law avails five
potential remedies;

Forfeiture of the lease

This may also be referred to as re-entry and accordingly, it is the termination of a lease by
the leasor before the term expires. This may happen in three circumstances;

In Clarke v Dupre Ltd79 it was established that where a landlord enjoys an implied right
to forfeit if the tenant disclaims his title. Which is also established in Section 105 of the
Registration of Titles Act80 which binds the lessee to the implied rights enjoyed by the
landlord. However, it is trite law that this remedy may be waive by the failure of re-entry
where the landlord has notice of the breach. Therefore in summary, if knowing of the
breach, he does distrain, or does receive the rent, then by law he waives the breach and
non of his protests will avail him anything81.

The second circumstance is where a landlord will enjoy a right to forfeit if an obligation
of the lease is formulated as a condition.

The third finally, is where the lease entitled the landlord an express clause for forfeiture
where a lease is registered under S.103(b) of the Registration of Titles Act,82 which is to
the effect that the lessor has power of re-entry, after breach of any covenant expressed in
the lease for continued 30 days. However at common law when the right to re-entry
occurs, the landlord has a right of re-entry effected by physically entering the premises
with the intention of determining the tenancy, however reasonable force may be used to
eject the tenant

Distress
According to Nicola Jackson83, distress is an ancient common law remedy available to the
landlord where his tenant is arrears of rent. In essence the landlord in so doing , seizes
78
[1921] 1 Ch 200
79
[1992] Ch 297
80
Cap 230
81
Diwan Singh Kalsi V The Commissioner of Lands
82
Cap 230 as amended
83
Nicola Jackson(2008)

16
and sells goods found on the leased premises to recover the outstanding arrears. It is
important to note that a landlord does not require a court order to distress.
This remedy is only available to the landlord where the tenant has failed to pay rent and
not for breach of other covenants. In the case of Walsh v Lonsdale84,it was argued that
where rent is not due, the distress will be unlawful. However, the landlord cannot break
down an outer door or enter via a closed window but, may enter by means of an unlocked
door and there in is entitled to seize any goods physically present on the land.85

Damages for breach of covenant

The general rule is that the landlord will be entitled to recover damages whenever the
tenant is in breach of his covenant. The only exception is where the breach is that of a
covenant to pay rent86. In National and Grindley’s Bank (K) Ltd v P.T Punater87, the
tenant breached to deliver up the premises in good order and condition. On termination of
the lease, it was held that the landlord was entitled to damages equal to the monetary
amount which the premises had been depreciated by the breach.

Mesne Profit
In Kamanyire v Standard Bank Ltd88 it was established that where the lease is determined
and the tenant remains in possession contrary to the landlord’s wishes, the landlord may
claim damages for loss of Mesne profits. It is important to note that this is peculiar to the
law of trespass and it lies to recover damages suffered by the landlord for being kept out
of possession. Mesne profit at law starts at the date when the tenant was expected to
deliver vacant possession to when it was actually given when the premises became
inhabitable again.

Specific performance of repairing obligations

According to John Stevens89 it was generally accepted that repairing covenants could not
be specifically enforced, irrespective of whether the obligation to repair fell on the
landlord or the tenant. In Rainbow Estates Ltd v Tokenhold Ltd90, Lawrence Collins QC
held that there was no reason in principle why a landlord should not be able to obtain an
order for specific performance against the tenant who was in breach of his repairing
covenants. He stressed that it was important to ensure that tenants were not subject to
Injustice or oppression especially that unscrupulous landlords are prevented from
purchasing the reversion of a lease with the intention of misusing a scheduled
dilapidations to pressure the tenant.

Termination of leases other than forfeiture

Defluxion of time
84
(1882) Ch.D.9
85
Nicola Jackson, (2008)
86
ibid
87
[1965] EA 648
88
HCB (1972) 82
89
Nicola Jackson,(2008)
90
[1998] 2 All ER

17
This is to the effect that a lease with a fixed term automatically terminates when the
period expires. The defluxion of time suggests that there is no requirement for either
party to serve notice of termination unless their lease agreement expressly states so.
However where the tenant after expiration remains in the possession of the premises with
the consent of the land owner, a tenancy at will is implied unless another interest on land
is created. A tenancy at will and at sufferance become periodic tenancies once the tenant
pays rent and it is accepted, depending on the nature or mode of payment that may be
weekly, monthly or yearly.

Notice to quit.
According to Clifton Securities V Huntley91, a lease for a fixed period cannot be
terminated by notice by either party unless the right to terminate is expressly reserved in
the lease or in the event of breach of a term, which entitles either party to terminate the
lease. On the other hand, periodic tenancies are by nature terminable by either party
giving an appropriate notice92. The notice terminating a lease should be reasonably clear
to the person to whom it is given that the lease is terminated. If the notice is ambiguous, it
is not effective as was shown in the case of Rajan Nanji V Jadowji Dewji, where the
notice to a tenant read that if the tenant did not vacate the premises by a certain date his
rent might be increased. It was held that the notice was not effective to terminate the
lease.

Surrender.
A surrender is a voluntary act of the parties whereby, with the landlord’s consent, the
tenant surrenders his lease to the landlord so that the lease merges with the reversion and
thus is brought to an end93. This is however to be distinguished from a merger whereby
the tenant acquires the landlords reversion with the result that the two interests merge,
having one owner. According to Bweya Steel Works ltd V National Insurance
Corporation once the lessor accepts possession the lease merges with the reversion and
is thereby terminated. Surrender may be by express agreement of the parties, operation of
law or statutory provision. A lease is surrendered by operation of law if the lessor grants,
and the lessee accepts, a fresh lease commencing before the current lease expires94. It is
also surrendered by operation of law where the tenant abandons the premises and the
landlord re-enters.
The form which a surrender takes on is paramount. This is to the effect that every
express surrender is void unless made by deed or in writing with the consent of the
registered proprietor95.

Determination by surrender can occur by way of operation of the law. This is provided
for under S.108(1) of the Registration of Titles Act96. This is demonstrated by the
delivery of possession by the tenant to the landlord who then accepts and then effects the
surrender by way of operation of law. There is a delivery of possession where the tenant
91
[1948] 2 ALL ER 283
92
John T. Mugambwa, Principles of Land Law, Pg 111
93
Halsbusry’s Laws, (1981).
94
Kalani V Kaur CA No.22 of 1995
95
The Registrations of Titles Act Cap 230 s 108(4)
96
Cap 230

18
returns the keys of the premises and the landlord accepts them with the intention of
change of possession97. Thus the change of possession is essential.

Merger.
According to Osborn’s Concise Dictionary That operation of law which extinguishes a right
by reason of its coinciding with another and greater right in the same person for example a life
estate is merged in or swallowed by the reversion when the two interests come into the hands of
the same person., the term is merged in the reversion. The merger is completed by
appropriate re-entry in the register book98 by the landlord. Hence the term and the
reversion are concurrent estates and cannot exist together implying that a person cannot
be reversioner to himself.
Legal and equitable leases can be terminated because of the following reasons; In case of
breach of any of the covenants such as breach of quiet possession, no derogation from
grant, fitness for human habitation and also breach of payment of rent.

97
Halsburys Laws, (1981).
98
John T. Mugambwa Principles of Land Law Pg 113

19
Bibliography
Legislation;

The Constitution of the Republic of Uganda, 1995.

The Land Act Cap 227(As Amended 2009)

The Registration of Titles Act Cap 230

Case law.

Textbooks;

Nicola Jackson, John Steven & Robert Pearce, 4th Edition(2008), Law Land, London:
Sweet
& Maxwell.

John Stevens, Robert P, 5th Edition(2013), Law Land, London; Sweet & Maxwell.

John T. Mugambwa, (2002), Principles of Land Law, Kampala; Fountain Publishers.

Lord Hailsham of St. Marylebone, (1981), Halsbury’s Laws of England, London;

Butterworth & Co Publishers Ltd.

Samantha, J, Hepburn, 2nd Edition (2001), Principles of Property Law, London,

Cavendish Publishing.

E.H.Burn, J.Cartwrit, 8th Edition, (2011), Modern Law of Real Property, New York, Oxford
University Press

20
 LEASES
Definition of a lease
 Differences between leases and licenses and tenancies

Essential features of a lease

 Duration
 Exclusive possession

Creation of a lease
 By contract
 By estoppels
 By registration
 Un registered lease

Rights and obligations

 Landlord rights and obligations
 Tenant rights and obligations
 Conditions
 Covenants

Sub-leases and assignments

 Assignments
 Sub-leases
 Registration of transfer
 Assignment of a reversion

Remedies for breach

 Landlord’s remedies
 Tenant’s remedies

Termination of a lease
 Effluxion of time
 Notice to quit

21
 Re-entry
 Landlord’s rights to fixtures

22