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LEASES

1. INTRODUCTION: HISTORICAL

Definition

History – Chattel Real

Term of years: Contract: Document – changeable with lease

“Demise” – “Demised Premises”

“Tenancy” – Changeable with lease

“Lessor” – landlord – Grants the Lease

“Lessee” – Tenant – To whom the lease is granted

“Assignment” – Transfer of whole period of lease

“Sub-lease; Under Lease or Derivative Lease” – Lessee grants to a 3rd

party a shorter period. Sub-lessor + Sub-lessee

“Reversion” or “Reminder” – The undisposed interest that will revert

to the Owner of land who has leases the property

2. Creation of Leases
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3. Types of Leases

4. Rights and Duties of the Parties under Lease of Tenancy (Cap. 334
& RR Act, 1984)

5. Assignment of Leases

- Privity of Estate
- PE + PC
- P of Estate Assignment
Sub-lease
ST
6. Determination of Tenancies

(1) By Expiry
(2) Notice
(3) Forfeiture

 The law of leases arose in

England with the Development of Capitalism. The Land tenure which
was operative within feudalism composed of perpetual tenures
(Freehold and Copyhold) which were disposable only through the
rigid structures of feudalism. As such exchange of land was very
difficult. The Feudal society was arranged in a hierarchical structure
with each social strata fixed, as it were, by status. Landholding was a
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very important basis of stature in feudal society; consequently

exchange of land, which would mean loss of status in instances, was
not allowed.

 With the coming of

capitalism it was necessary to make land freely alienable for the
enterprising capitalist farmer. Since complete alienation of land was
not allowed a system known as the “TERM OF YEARS” was
initiated. In it, the landholder disposed his land to another party for a
number of years within which he would hold that land as his. After
that period the land reverted back to the Freeholder, or the reversioner.

 The leasehold arose

therefore as a means of making land freely alienable. It was based on
contract and not on status. The Freeholder was only alienating the
Estate and not the land itself, hence the maxim “quicquid plantatue
solo solo cedit”. Whatever fixture the leaseholder attached to the land
belonged to the lessor and he could not claim them since he had only
the estate and not the land itself.

 The leasehold at common

law is categorised as a chattel and thus it is recoverable through a
personal action which gives an option to the injured party to claim
the lease itself or the value thereof.
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 The leaseholder would

ordinarily only hold land through his lord. Thus his possession is
merely personal between him and the lord, and hence the relationship
between Landlord and Tenant. (See Meggary pp. 6-11; 13, 16, 19).

 There are some

terminologies, which have to be understood before one treats the
subject of leases.

(1) LEASE
- Megarry (p. 310)
“A lease, as generally understood today, is a document creating
an interest in land for a fixed period of certain duration, usually
in consideration of the payment of rent.”

- OSBORN
“A conveyance or grant of possession of property to last during
the lifetime of a person, or for a term of years or other fixed
period, and usually with the reservation of rent. It is essential
that a lease shall specify the period, during which the lease is to
endure, and the beginning and end of the term.”

DEMISE

A lease is sometimes referred to as’demise’ and the premises in

question as the “demised premises”.
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TENANCY

This term issued interchangeably with the term lease. However it is

used for relatively short periods while the term lease is used for longer
interests of mere enduring nature.

TERM OF YEARS

This term is also used interchangeably with the term lease.

LESSOR & LESSEE

- OSBORN
“The person who grants the lease is called LESSOR and the person to
whom it is granted the LESSEE. A lease must be for a less estate or
term than the lessor has in the property, for if it comprises his whole
interest it is a CONVEYANCE OR ASSIGNMENT and not a
lease.”

ASSIGNMENT

This is the transfer of the property for the whole period for which it is
held under the lease.

SUB-LEASE, UNDER LEASE, OR DERIVATIVE LEASE

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This happens where a person who is himself a lessee grants a lease of

the same property to another person for a shorter term. The parties to
the sub-lease are known as the SUB-LESSOR and SUB-LESSEE
respectively.

REVERSION

Where the land is granted by the owner for a less estate or interest than
he himself has, his undisposed of interest is termed as the
REVERSION, because the land will REVERT to the owner on the
determination of the particular estate: For example where a tenant in
fee simple grants the land to another person for a Term of years, for
Life, or in Tail. The Estate created by grant is called the particular
estate, and tenure exists between the REVERSIONER (the owner of
the reversion) and the Tenant.

REVERSIONARY INTEREST is then any right in property the

enjoyment of which is deferred; for example a reversion or remainder,
or analogous interests in personal property.

LANDLORD AND TENANT

“The relation between L/T depends upon contract and is created by

the landlord allowing the tenant to occupy the landlord’s house or land
for a consideration termed RENT, which is recoverable, in case of
default, by DISTRESS.
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Exclusive possession of the premises must be granted, for a defined

term.

The contract is embodied in a LEASE or a TENANCY

AGREEMENT for short terms.

In the absence of express agreement the landlord impliedly contracts

with the Tenant to give him possession and guarantee him against
eviction by any person having a title paramount to that of the
Landlord.

The Tenant impliedly contracts with the Landlord to pay rent, not to
commit waste, and to give up possession at the end of the tenancy.

Liability for repair is a matter of expression stipulation or covenant.

The position in Tanzania is further regulated statutorily by:

1. Cap. 334 ss 54-56
2. Acquisition of Buildings Act, 1971
3. National Housing Corporation Act, 1962

The way in which the various statutory enactments vary the general
law of leases can be commented upon while treating the subject itself
generally.

(2) CREATION OF LEASES

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Under the general law of leases since a tenancy is contractual the

normal laws of contract would follow. The lease can thus be created
orally or in writing.

However in England the STATUTE OF FRAUDS OF 1677 required

that every lease should be in writing otherwise it would have been a
tenancy at will. The only exception was for a tenancy not exceeding 3
years. Under the REAL PROPERTY ACT of 1845 all leases were to
be made by DEED (signed, sealed and delivered) except for those
leases, which could be made orally (for less than 3 years). THE LAW
OF PROPERTY ACT, 1925, further qualifies the 2 enactments
providing cases where a deed is necessary and cases where it is not. It
is hard to create a legal Estate in a lease without a deed; even a legal
assignment of a lease cannot be affected without a deed.

Once a legal transfer was affected the lease must have the following
essentials:

(a) The Right to exclusive possession must be given

The tenant must have exclusive possession. No person must

have residual control of the premises e.g. the control an owner
of a guesthouse has on the rooms (It is this argument which
makes the Right of Occupancy different from a lease. The
President’s control is much more than what control a lessor is
allowed in an ordinary lease).
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Apart from the fact that exclusive possession must be given, the
premises must be clearly defined also. Otherwise the tenant
would only have a mere licence and not a tenancy.

This position is also implied our status, for S. 56 (2) Cap. 334
provides:

“There shall be implied in every registered lease a

covenant by the landlord with the tenant that the
tenant, paying the rent reserved by the lease and
observing and performing the covenants and
conditions contained or implied in the lease and on
the part of the tenant to be observed and
performed, shall and may peaceably and quietly
possess and enjoy the land leased during the term
of the lease without any lawful interruption from
or by the landlord or any person rightfully
claiming from or under him.”

(b) The requirements as to duration must be satisfied : i.e.

the time through which the lease is to be run has to be fixed or
generally determinable (this will be dealt under Types of leases
and tenancies, below.

(c) The lease must be created in the proper way:

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If the lease is created in the proper way it becomes a legal lease.

Such a lease has to follow the above-mentioned steps as
modified by the relevant statutes.

In other cases an EQUITABLE LEASE is created. Such a

lease is only assumed to be existing at equity and not at law. It
exists in the following circumstances:

(i) Informal Lease which is void at law:

Where requirements for creating a legal lease were not

followed no legal estate passed. However if a tenant went
into possession, with the landlord’s consent, a tenancy at
will arose. If he further paid rent a periodic tenancy arose
which would either be yearly, monthly or weekly
depending on the mode the rent was paid. (Martin v.
Smith (1874) L.R. 9 Ex. 50 (Meggary p. 314)

The terms for such tenancy would be those which are

consistent with the periodic tenancy.

(ii) The Effect of Contract:

Where the lease was imperfect it could not pass a legal

estate. However a court of equity could take it to be a
contract to grant a lease not a lease. Such a contract one it
is made for value and evidenced in writing, or supported
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by a sufficient act of part performance the court of equity

would treat it as a contract to grant a lease and then on the
doctrine of part performance order a Specific Performance
to grant a legal lease. Then after that the position of the
parties would be as if a legal lease was passed by a deed.
(Paker v. Taswell (1858) 2 DeG. & J. 559 (Meggary p.
315)).

(iii) Walsh v. Lonsdale (1822) 21 Ch. D. 9 (p. 315

Meggary – Facts)

Under an imperfect lease the rights of the parties would be

clear where specific performance was granted and a legal
lease ascertained. But the position was unclear in a case
where no such grant had been given. What were the rights
of the parties before such a legal estate passes.

The Maxim of equity is

“Equity looks on that as done which ought

to be done”

But using simply such a Maxim it was improbable to

override statutory requirements. In 1873 the Judicature
Act provided that where law and equity conflicted equity
should prevail. Accordingly the case of Walsh v.
Lonsdale held that the relationship of the parties under an
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imperfect lease was similar to that of parties under a legal

lease.

Difference between a LEGAL AND EQUITABLE

LEASE. Though the effect of the holding in Walsh v.
Lonsdale is to make both almost similar there are
important differences.

 Specific Performance: this is a discretionary

remedy, complications would definitely arise where
the court would not give the remedy.

 Easements: Certain easements and similar rights

can only be granted if there is a legal estate and they
cannot be created by a mere contract. (England,
Meggary p. 403).

 Third Parties: - The rights which are assumed to

exist at equity by Walsh v. Lonsdale in a contract
to lease are only between the parties and do not go
to 3rd parties.

Thus a 3rd party cannot demand the specific performance

of a contract assigned to him. The Original tenant’s right
to specific performance is not transferable.
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Secondly the rights of a tenant under an agreement for a

lease, being merely equitable, are subject to the same
frailty as all equitable interest, namely, they are void
against a bona fide purchaser for value of a legal estate
without notice of them.

However nowadays the requirement of registration

ensures notice as such may render the agreement to lease
assure as an actual lease. (Meggary p. 317).

The position in Tanzania

(FORMALITY REQUIRED FOR CREATION OF LEASES:

REALM OF CONVEYANCING)

There is a general provision under the Land Ordinance Cap. 113 that
no occupation of land is valid without the consent of the President.

S.4 “Subject to the proviso to subsection (1) of S.3, all

Public lands and all rights over the same are hereby
declared to be under the control and subject to the
disposition of the President and shall be held and
administered for the use and common benefit, direct or
indirect, of the natives of Tanganyika and no title to the
occupation and use of any such lands shall be valid
without the consent of the President.”
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The next question is whether consent is necessary for any transfer of

land. For landlords in Dar es Salaam have they to get consent? In
Tanzania a transfer termed as a disposition is qualified.

S.27 (Cap. 334)

Every Certificate of Occupancy has to be registered. But where
it is for 5 years or less or year-to-year or less it would not be
registered.

S. 41 (Cap. 334)
(i) No DISPOSITION shall be registered unless it has been
affected by a DEED:
(a) In the prescribed form; or

(b) Where no form is prescribed in such form as the

Registrar may approve, and satisfies the requirements
of this ordinance and of any other relevant law.

What is a deed?

S.2(1) Cap. 334

“Deed means an instrument in writing whereby a disposition is

or is intended to be effected.”

[Note: S. 6(2) Land (law of Property and Conveyancing Ord. Cap. 114
provides
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“An instrument which is expressed to be or to operate as

a deed and is signed and delivered shall operate as such
and the sealing of a deed shall not be necessary.”

However for sale and mortgage the requisite forms are provided in
the Cap. (S. 15)]

How is a deed to be executed?

S. 91 (Requirement for execution)

“No deed shall be registered unless executed by all

persons who are parties thereto and attested in
accordance with the provisions of this ordinance.”

S. 92 (Procedure of Execution)

Provides that a deed is executed when it is signed and

delivered by a natural person as sealed with a common seal of a
corporation and delivered.

S. 93 (Procedure of attestation) where it is signed by natural person

either as a party thereto or on behalf of a corporation not having
a Common Seal (where it has a Common Seal by those
authorised by law or Charter or Articles of association), it is
attested by an authorised witness.
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S.93 (2) Provides who are the authorised witnesses who witness the
signature and sign attestation clause in the prescribed firm.
These are provided in the LAND REGISTRATION RULES
1954

r.9, documents to be written legibly in English

r.10, size and quality of paper to be used

r.11, Authorised witnesses

r.12, Attestation clauses (end Sch.)

S.42 The registrar can reject a deed if it is not in proper form.

Consequently if a disposition can only be made by a deed what is a

DISPOSITION?

S. 2(1)

“Disposition” means any act performed inter vivos

whereby the owner of a registered estate or interest
transfers or mortgages the estate or interest or any part
thereof or creates any lesser estates or interests thereout
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or whereby any such estate or interest is varied or

extinguished, other than

(a) a lease expressed to be for a term of 5 years or

less or estates or interest derived from such a
lease unless such a lease contains an option
whereby the tenant can require the landlord to
grant him a further term or terms which, together
with the original term, exceed 5 years, or

(b) a lease from year to year for periods of less than a

year, whether or not the lease includes an initial
fixed term or any estate or interest derived from
such a lease, unless such initial fixed term exceeds
four years.1 [Disposition has to be registered]

Thus a disposition which must be executed by a Deed does not

include a lease of less than 5 years or that of year to year.

S.54(1) No lease is registrable unless it is for more than 5 years –

LR. 8

Such a conveyance which is far a lease of even less than 5 years is not
compulsorily registrable even under Registration of Documents

1
S.41(2) “No disposition unless registered shall be effectual to create, transfer, vary
extinguish any estate or interest in any registered land.”
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Ordinance Cap. 117. For under S. 8(1) of that Ordinance documents

which are compulsorily registrable are outlined. Under S. 8(2) some
documents are excepted which include:

S. 8(2) (h)

“Any document evidencing the grant of a lease, or right

of occupancy, for a term of 5 years or less, or any
document if the only interest in land dealt with thereby is
derived from such a grant, or is an interest in standing
trees or timber or growing crops or grass, where such
trees, timber or growing crops or grass are to be
removed within one year from the date of the document.”

Through S.4 of the Land Ordinance seems to demand a general

consent for land transfer. S.3 (1) of the Land Regulations provides
that no disposition of a R/O shall be operative unless it is in writing
and approved by the President. S. 3(3) of the Regulation defined what
a disposition is.

Consequently from all the above-mentioned sections, it would seem

that a lease created under a Right of Occupancy would effectively be a
disposition. (S. 2(1) Cap. 334). But where it is for less than 5 years no
consent would be necessary, though for more than 5 years it must be
by prescribed form, i.e. a Deed, (S. 41 Cap. 334) and it must be
obtained through Presidential consent (S. 3 Land Regulations). Since
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a deed is a conveyance and S. 3(3) (a) of the Land Regulations would

apply.

The above then would seem to be the necessary perquisites for

forming a lease. It would seem that for leases under 5 years, not only
is consent unnecessary even registration in unnecessary. Most
tenancies in towns seem to be periodic tenancies which do not have
fixed period over 5 years, hence the fact that no consent or registration
binds them.

Thus if an instrument does not follow the procedure laid down in The
Registration of Titles Ordinance, Cap. 334, The Land Ordinance Cap.
113, and The Land Regulations of 1948 then the transfer would not
pass a legal estate. However the courts have held that the document
can be good inter vivos if it is not registered.

SOUZA FIGUEIREDO VS. MOORINGS HOTEL (1960) E.A.

926
ALSO
RAWJI V. RAJANSI (1969) E.A. 309

“There is nothing in the Ordinance, which prevents the

document operating as a contract inter-partes.”

Thus absences of registration as under S. 41 (2) Cap. 334 would only

render the document bad as against 3rd parties but not in between the
parties.
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Note: Unless S. 55 a lease does not necessarily begin on the day of

execution it can be made to begin on a future date provided it is not
for more the 21 years. Therefore execution and effect need not
coincide.

Thus the formalities are generally as follows:

(1) The conveyance of a lease under Registered land is regulated by

LAND REGISTRATION ORDINANCE, CAP. 334.

(2) The Registrable land is provided for by S. 27 & S. 54(1) of

Cap. 334.

(3) Under the Ordinance no disposition is effectual unless it is

registered (S. 41(2). For the Registration one has to execute a
deed in the prescribed form. (SS 41(1); 91, 92, 93, LR 8). The
prescribed form is L.R. 8.

(4) Even where a lease is for less than 5 years but includes an
option whereby a Tenant can require the landlord to exceed the
term over 5 years, the lease is registrable (S. 54(1)).

(5) A lease created by a R/O for a term of 5 years or less is not

registrable and no writing is required. The STATUTE OF
FRAUDS, 1677 which required writing does not apply. PIRA
V. MAWJI (1930) 1 TLR 457.
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(See JAMES p. 34). It seems that according to that case the

statute of fraud has not been applied. And according to the
Evidence Act (from Indian Ev. Act) no general requirement for
writing exists.

Where there is a conveyance between the Native and a Non-

Native then writing is necessary. S. 11 Landndhi Civ. App.
No. 68/1962.

A lease of the R/O for agricultural purposes requires consent

(Regulation 6 of 1948 Regulations). Since it requires consent,
it is possible writing is necessary. Absence of consent does not
invalidate the Lease inter-partes. KENNETH LARKE V.
SONDHI CIV. APP. NO. 68/1962.

(6) Leases without formalities:

(a) Under the acquisition of buildings act, S. 7 a tenancy is

automatically created. The act creates 2 tenancies. (1)
Under the Act and not to be affected by RR Act on
Statutory Tenancy. (S. 12) (2) The Second is that of the
former owner who would be effect by RR Act as usual
(S. 7(2)). JAFFER LADAK V. REGISTRAR OF
BUILDINGS, MISC. VI. APPLICATION NO. 2 OF
1973.
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(b) Under Rent Restriction Act S. 3A a tenancy is also

automatically creates. SEE ALSO JESSA V. ZO
RILLA (1973) E.A. 506, CHANG’OMBE
CONSTRUCTION COY V. SHIVJI (1966) E.A. 379
(J & F P. 466).

In case of non compliance (i.e. there is no deed or even if there

is one but it is not registered) then the title deed does not pass.

(7) Stamp Duty is also necessary. WEST END CLOTHING

LIMITED V. THE A.G. CIV. APPEAL NO. 56 OF 1975
(EACA).

(3) TYPES OF LEASES

There are mainly four types of Leases:

(I) Leases for a fixed period

(II) Periodic Tenancies
(III) Tenancies of Will
(IV) Tenancies at Sufferance

(i) Leases for a fixed Period

This kind of a lease is given for a certain period of certain duration no

matter how long or short. The primary principle here is that this period
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must be fixed. Both the commencement and expiration of lease must

be certain before the start. LACE V. CHANTLER (1944) KB 368.

Held: A lease for the “duration of the war” was indefinite and could
not be fixed.

The law may require certainty possibly to distinguish leases from

freehold estates which are uncertain. Or it may be to enable a more
efficient method of exchange of land for when the term is certain even
the approximate value of the lease can be rendered possible. In that
way there may be lesser disputes.

At times a lease provides for an option to renew the lease. Now such
options might bring difficulties in ascertaining the period. Courts
have emphasised that such options have to be very clear.
GARDINER V. BLAXILL (1960) 1 WLR 752.

An elaborative case on this issue is the case of SANDS V. MUTUAL

BENEFITS LTD (1971) E.A. 156 (K).

Facts: The plaintiffs were suing for the possession of a house, rent
and mesne profits. The house had been let to the Defendants for 3
years form 1/10/1965 to 30/9/1968. The dispute between the parties
was that in the lease there was an option to renew which provided that
with proper notice (6 months before expiration) and carrying out all
covenants the plaintiffs would allow the defendants to have another
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lease for 3 years on a rent to be agreed. The issue was whether there
was a binding option to renew the lease.

Held: (i) An agreement for a lease, if its terms are sufficiently certain,
may be specifically enforced like any other contract, but if the parties
fail to express what they mean with reasonable certainty the
agreement is unenforceable and will be held to be void. It must be
certain when the term is to begin and how long it is to continue as well
as the rent to be paid. (ii) Thus following the above rule, if an
essential term, like the price of commodity or service or the rent of a
house, is left uncertain and the agreement does not provide any means
of ascertaining it, in the event of disagreement between the parties,
that agreement is not a contract.”

Thus the option to renew has to be certain on rent, period and terms of
occupation. HABIB YUSUFALI V. ABDULSATTAR
RIAZIDDIN, CIV. APPL. NO. 53 OF 1972 (EACA)

There was a covenant in a sublease of 3½ years, to allow the tenant to

remain in occupation so long as the main lease was in force and rent
was paid. An advocate (Mr. Lakha) had contended that the effect of
the covenant was to make the sublease uncertain.

Held: (law, J). The sublease was for a term certain i.e. 3½ years. The
effect of the covenant may have been to turn the sub-tenancy into a
tenancy-at-will after effluxion the time of the term certain. But it did
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not have the effect of making the sub-lease other than for a term
certain.

REVERSIONARY LEASE:

This kind of lease is synonymous with what can be termed as a future

lease.

A landlord would usually make a reversionary lease where someone is

in possession and would vacate land sometimes in the future, and
either the landlord or the tenant might not be around to execute the
lease.

However by S. 55 Cap. 334

“A lease of registered land may be made for a term to

begin on a future date, not being later than twenty-one
years form the date on which the lease is executed.”

The time of execution and commencement of the lease should not

exceed 21 years.

(Note: In Kenya under REGISTERED LANDS ACT, CAP. 300, S. 51

provides that such a lease would not be effective unless registered.
The common law position is that it must be documented WEG
MOTORS V. HALES (1921) 1 CH. 49 and from 1925 it should not
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exceed 21 years. RE STRAND AND SAVOY PROPERTIES LTD

(1960) 1 CH. 582).

INTERESSE TERMINI

This meant an interest in the term. Where a Reversioner grants a

Reversionary lease to a tenant the tenant does not acquire a legal
estate for that can only be acquired by actual possession. Now since
actual possession can only be effected in future the Tenant cannot
have a legal estate to pass, he cannot even create a sub-lease for the
future. If he does so he cannot even claim rent through distress since
such a right only goes to a reversioner of a legal estate. His interest is
a mere interesse termini. LEWIS V. BAKER (1905) CH. D. 46

“In case of default by the sub-lessee the lessee will not

get the remedy of distress since when he gave the sub-
lease he had no reversionary interest.”

LANDLORD (L) REVERSIONARY Tenant

LEASE

SUB-LETS
(in future)

Sub-lessee
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 When the sub-lessee deflates the

Tenant cannot destrain since when he
gave the sub-lease he had no
Reversionary interest.

In Tanzania for land converted by the Freehold Conversion Act of

1963, Cap.523, the doctrine of interessee termini was abolished by 4 th
Sch. Part 2 of the Act, a lease takes effect from the 1 st day of the term
irrespective of actual entry.

In 1969 the Conversion Act was disapplied by the R/O conversion

Act, one is left to wonder whether the Doctrine revives?

(Note: James, at p.36 seems to imply that the doctrine was abolished
in Tanzania by the conversion Act; but this would seem to be
erroneous since all land is not solely regulated by that Act. What of
land under Rights of Occupancy?)

Determination

The general rule is that a tenancy or lease for a term certain

determines with the effluxion of time. There is no requirement of
notice by either the Tenant or the Lessor. Notice is only required in
periodic tenancies.

.
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This provision does not apply to Buildings which are affected by the
Acquisition of Buildings Act of 1971. S. 12 excludes the operation of
such provisions which confer statutory tenancy to apply on premises
occupied by the Registrar of Buildings.

(II) PERIODIC TENANCIES

These are divided between

(a) Yearly tenancies

(b) Month, weekly and other Periodic tenancies (e.g. quarter

to quarter etc).

However the rules which govern the yearly tenancies are the same for
all periodic tenancies. Therefore we should treat only the year to year
tenancy.

Creation
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The tenancy can either be created expressly or impliedly. It is created

expressly where there is an express grant to a tenant “from year to
year” or as a “yearly tenant.”

A yearly tenancy is created by implication where a person occupies

land with the owners consent and pays rent which is accepted and
such rent is paid in reference to a year. Thus; Firstly, a year-to-year
tenancy may arise through the mode of payment of rent. If the rent is
paid and accepted yearly then there is yearly tenancy. LADIES
HOSIERY AND UNDERWEAR LTD V.PARKER (1930) 1 CH.
304.

And secondly, a yearly tenancy may arise by implication when a

tenant under leasehold for a term certain holds over. I.e. when he
goes on staying after the term certain. In such cases if rent is paid on
a yearly basis then the tenant has a yearly tenancy. In such a case the
tenant would hold over under such terms of the expired lease as are
not inconsistent with a yearly holding. DOUGAL V.MACARTHY
(1893) 1 QB 736.

e.g. if the term requires a 2 year notice for determination of a yearly

tenancy, such a term would be inconsistent with a yearly tenancy.

Even where rent is paid more often a yearly tenancy would still arise
by implication if the period of reference to which the parties
calculated the rent was a year. E.g. Shs. 4,000 per annum payable
weekly.”
573236754.doc - 30 -

Determination

A yearly tenancy is characterised by continuity. Different from a

tenancy for a fixed period it goes on until proper steps are taken to
determine it. If it is a year to year tenancy a six month notice is
required. If it is a tenancy for lesser period, a notice equal to the
length of the period.

The parties can agree to have notice on a longer period or shorter. But
a term that they would dispense with notice is repugnant in any
periodic tenancy. CENTRAPLOY LTD V. MATOLODGE LTD
(1974) CH. 1

The position for other periodic tenancies is similar to yearly tenancy

except that while with yearly tenancy notice is implied to be half
yearly, for other tenancies of less than a year notice is for the full
period, subject to agreement.

(iii) TENANCY AT WILL

573236754.doc - 31 -

This type of tenancy exists whenever a Tenant with the consent of the
Landlord occupies land on terms that either party can determine the
tenancy at any time.

However where a tenancy-at-will has been created without agreement

on rent and then somehow rent is later paid on a periodic basis and
accepted a periodic tenancy is created.

A tenancy-at-will is determined:

(i) When one of the periods does not act which is incompatible with
the tenancy (e.g. committing voluntary waste. COUNTESS OF
SHREWSBURY’S CASE (1600) 5 CO. REP. 13b.

(ii) Where either party given notice for the determination of the
Tenancy

(iii) Where either part dies or assigns his interest in the land

(IV) TENANCY AT SUFFERANCE

This kind of tenancy arises where the Tenant having entered upon land
under a valid tenancy, holds over without the Landlords assent or
dissent.
573236754.doc - 32 -

Such a tenant differs from a Trespasser in that his original entry was
lawful, and from a Tenant at will in that his tenancy exists without the
landlords assents.

No rent is payable as such, but the tenant is liable to pay compensable

for his use and occupation of land. LEIGH V. DICKESON (1884)
15 QBD 60.

The tenancy may be determined at any time, and may be converted

into a yearly or other periodic tenancy in the usual way e.g. if rent is
paid and accepted with reference to a year (Meggary pp. 321-323).

(V) SERVICE TENANCY (S.T)

Occurs whenever an employee occupies living quarter provided by his

employer. The Government Quarters: Staff Circular No. 2 of 1973 for
the Parastatals: SCOPO Directive NO. 12 of 1973. At common law
S.T. is determinable at the will of the L.L.
(Dobson v. Jones (1843) 5M & G. 112)
(Thompson’s (Funeral Furnisher) Ltd vs. Phillip (1945) 2 All E.R.
49).
See: N.M. Msemembo v. Marco M. Ndawa 1974 LRT n. 29.

(VI) LICENCES

OBSON
573236754.doc - 33 -

“An authority to do something which would otherwise be

inoperative, wrongful, or illegal; e.g. to enter on land
which would otherwise be a trespass. A licence passes
no interest, and a mere licence is always revocable. A
licence coupled with an interest which is in the nature of
a grant; e.g. of sporting rights, is revocable until the
benefit granted has been enjoyed or reserved. A
contractual licence, whether or not coupled with an
interest, may be irrevocable, depending on the
construction of the terms of the contract between the
parties. If the time of enjoyment is not limited, the giving
of reasonable notice of revocation will be necessary.

Thus in land law there are times when one might have a mere
permission to enjoy certain rights on land. That permission s it cares
no interest in land and confers no right to the exclusive possession of
the land concerned it is termed as a LICENCE. E.g. to become a
lodger in a house.

- Permission to erect and use an advertisement hording or

electric sigh. WALTON HARVEY LTD V. WALKER &
HOMFRAYS LTD (1931) 1 CH. 274.

- Permission to view a cinema performance etc (Meggary p.

351).

There are 4 categories of licence:-

573236754.doc - 34 -

(i) BARE LICENCES

- is granted otherwise than for valuable consideration e.g. to

enter a field to view it. It can be revoked at any time
without being liable for damages.

- It cannot be assigned.

(ii) LICENCE COUPLED WITH AN INTEREST: i.e. a licence

coupled with an interest in land or chattels thereon. E.g.
Permission to enter land, hunt and take the animals killed or cut
trees and take them away. There is a double right, the licence to
enter and secondly the right to take away something.

At common law such a right was both irrevocable and

assignable until that interest has been enjoyed. However the
interest had to be a legal interest. ERRINGTON V.
ERRINGTON (1952) 1 ALL ER 155 (J & F P. 630)

(iii) LICENCE FOR VALUE:

This lies midway the above 2. It resembles a bare licence since

it is not assignable. Furthermore it can be revoked at any time
even if it is given for a fixed period.
573236754.doc - 35 -

However the licensee can get damages if it s unduly revoked

e.g. where a member of cinema audience, is prematurely and
forcibly ejected from the land, he can obtain not merely the
return of the price of his ticket but damages for assault.
HURST V. PICTURES THEATRES LTD (1915) 1 K.B. 1

(IV) LICENCE BY ESTOPPEL

An irrevocable licence to occupy or use land may be acquired

through the operation of an equitable doctrine known as
“proprietary estoppel.” This arises where a landowner stands
by and allows a person to spend money improving his own or
the landowner’s land in expectation that some covenant will not
be revoked. RAMSDEN V. DYSON (1866) LR 1 HL 129
(SEE P. 551 J & F). For E.A. Authority see: RUANDA
COFFEE ESTATE LTD V. SINGH (1966) E.A. 564 (.A.) – J
& F P. 625

The different types of licences have different procedures as

regards revocation. It would depend on the nature of the licence
whether it is revocable or irrevocable. If it is revocable, in
general, no period of notice need be given before revoking it
though the licensee must be given a reasonable time in which to
leave the premises.

(4) RIGHTS AND DUTIES OF THE PARTIES UNDER A

LEASE TENANCY
573236754.doc - 36 -

Meggary treats this topic in 5 mains headings. (i) The Position of the
Parties in the in the Absence of Express provisions; (ii) Where parties
agree to be bound by “usual covenants”’ (iii) Where parties add other
matters to the “usual covenants”; (iv) Where statute regulate a number
of matters in a lease; (v) The subject of fixtures. We have to
emphasise more on the first heading, and the 4 th where Cap. 334 and
the RR Act regulate certain matters. Others would be dealt with in
passing. (For proper analysis see Meggary p. 336).

(A) Right of Landlord and Tenant in the Absence of

Express Provisions

(i) The obligations of the Landlord:

(A) An implied obligation for quiet enjoyment (or

implied covenant. For differences between an obligation
and covenant see SHEIKHA BASHIR V. COMM. OF
LANDS (1959) E.A. 1018.

Meggary – The covenant is not one for “quiet” enjoyment in the

acoustic sense; the lessor undertakes not that the tenant will be
free form the nuisance of noise, but that he will be free from
disturbance by adverse claimants to the property.
573236754.doc - 37 -

Not only adverse claimants he must not allow any activity

which would destroy the Tenants enjoyment of the premises.
MARKHAM V. PAGET (1908) CH. 677.

Her landlord causes subsidence of the land by his mining

activities. Held: Interfered with the Tenant rights.

The Tenant (T) can claim damages if there is a breach. This

covenant is implied in the T & L relationship irrespective of the
form of the lease be it oral or written. This is discussed in 2
cases.
BAXNE & CO. V. LLOYD (1895) 2 QB 610. BUDD-
SCOTS V. DANIEL (1902) 2 KB 351.

This common law rule is reproduced in Tanzania by S. 56 (2) of

Cap. 334.

“There shall be implied in every registered lease a

covenant by the landlord with the Tenant that the
Tenant, paying rent reserved by the lease and
observing and performing the covenants and
condition contained or implied in the lease and on
the part of the tenant to be observed and
performed, shall and may peaceably and quietly
possess and enjoy the land leased during the
term of the lease without any lawful interruption
573236754.doc - 38 -

from or by the landlord or any person rightfully

claiming from or under him.”

An interruption which breaks the spirit of S. 56 (2) of Cap 334

is made an offence under the RR Act S. 32.

The scope of the covenant is limited to the Acts of the Lessor

himself. In other words the T. has no remedy against people
with a title paramount to that of the lessor.
JONES V. LAVINGTON (1903) 1 KB 253.

Unless where there is an express provision that the interference

of other people with title paramount would make the lessor
liable.

(b) Obligation not to derogate from his grant

This is known as the general principle of “Non derogation from

grant” (See 1974, 80 LQR, 244 by D.W. ELLIOTT) i.e. where
a lessor grants a Tenant a lease for specific purposes he must
not do acts which are inconsistent with that lease.
HERZ V. UNION BANK OF LONDON 2 Giff 686.

“The tenant was a jeweller who required a high standard of

light. The landlord made an obstruction to light it was HELD:
that it was a contravention of a covenant in the lease.”
573236754.doc - 39 -

But in ROBINSON V. KILVERT (1889) 41 CH.

“The Tenant was a manufacturer of Brown Paper which

required low temperature and the Landlord caused a source of
heat and the paper was destroyed. Held: The landlord was not
liable for breaking the covenant for “non-derogation from
grant.” Sine the Landlord never knew of tht the paper needed
low temperatures. The tenant should have expressed clearly the
purpose of the lease otherwise the landlord will not be liable as
in the present case.”

Furthermore WOODFALL in his Landlord & Tenant Vol. 1

para 37 writes that “The implied covenant not to derogate is
only relevant where the landlord lets part of the land and retains
part; and the retained part is used in a way unfit with the
purpose of the let part in the lease.
C.F GROSVENOR HOTEL V. HAMILTION (1894)
2 QB 836.

The covenant is not reproduced in Tanzania.

(c) Implied condition for fitness of habitation

Where premises are let in certain cases (Meggary p. 338 – 339)

there is an implied condition that they are fit for habitation and
would be kept in repair – e.g. if they are let furnished.
SMITH V. MARRABLE (1843) 11 M & W. 5
573236754.doc - 40 -

If the premises when let they are fit, the landlord is supposed to
do no more, he has no obligation to keep the premises in that
state.
SARSON V. ROBERTS (1895) 2 QB 395

This obligation is however statutory provided for in Tanzania.

The Rent Restriction Act, Cap. 479 S. 29 – an obligation to
keep (35) the premises in structure repair.

S.37 (1) – The landlord cannot contract out of his liability to

repair. Consequently since under the RR Act the landlord is
under an obligation to the tenant for the maintenance or repair
of the premises he owes to all person who might reasonably be
expected to be affected by defects in the state of the premises a
duty to take reasonable care to see that they and their property
are reasonably safe from injury or damage.

Remedies of the Tenant in case of the landlord’s breach of

covenant
(i) The Tenant may sue in the contract for breach of
covenants (express) even where they are implied
terms.
573236754.doc - 41 -

(ii) The case of SMITH V. MARRABLE is an authority

to the fact that in case of breach of the covenant of
fitness the Tenant can terminate the Tenancy or
Resist a claim for Rent. Whether he can do so for
other covenants it is not clear.
C.F A. SAVY V. JENNY SADRUDIN
THARANI (1960) E.A. 211 and also
MEDHAVAJI V. KERSHARJI (1930) 1 TLR
643.

(iii) The obligations of the Tenant:

(a) An obligation not to commit waste

- Waste consists of any act which alters the nature of land,

whether for the better or for the worse. There are 4 types of
waste:

- Permissive waste: This is caused by omission. It consists

of the failure to do that which ought to be done e.g. allowing
a house to fall for want of necessary repairs.

- Voluntary waste: This is one of commission e.g. pulling

down a house, converting arable land into pasture, opening
new mines or quarries etc.
573236754.doc - 42 -

- Ameliorating waste: It is that which a prudent man would

not do in the management of his own property. Technically
it should be similar to voluntary waste but this is more
serious e.g. Acts of wanton destruction e.g. pulling down
houses etc.

Thus there is a general obligation on the Tenant not to commit any

kind of waste. For example for a Tenant who occupies a house he
is supposed not to make any structural alternations on the house.
MARSDEN V. HAYES (1927) 2 KB 1.

And by Cap. 334, S. 56(1) (b) the Tanzanian statute provides

56(1) There shall be implied in every registered lease

covenants by the Tenant with the landlord,
binding the tenant;

(B) not to cut down, injure or destroy any

living tree being upon the land leased and
to keep and yield up the land leased, in the
case of agricultural, land in good heart,
and in the case of buildings, in good and
substantial repair and condition.

The above provision is reflected in RR Act S. 29 (1).

573236754.doc - 43 -

Thus in Tanzania the obligation not to commit waste is statutory.

Under common law some provisions are given depending on the
Nature of Tenancy. E.g. A tenant for a fixed term of years is liable for
both Voluntary and permissive waste, and he must therefore keep the
demised property in proper repair.
YELLOWY V. GOWER (1855) 11 Exch. 274.

(For other condition of common law see Meggary at p. 340-341)

(b) The obligation to pay RENT

In Tanzania this position is also provided for by statute: Cap. 334 S.

56 (1) (a)

56(1) There shall be implied in every registered lease

covenants by the tenant with the landlord, binding
the tenants:-

(a) To pay the rent reserved by the lease at the

times therein mentioned and all rates and
taxes which may be payable in respect of
the land leased during the continuance of
the lease, the same are or shall be payable
exclusively by the landlord under any law.

The landlord can enforce the payment of rent, directly by an action

for money or distress; or indirectly by a threat of forfeiture if the
573236754.doc - 44 -

lease contains a forfeiture clause. In Tanzania the forfeiture clause as

regards rent is implied in every registered lease.

S.56(3)
“There shall be an implied provision in every
registered lease that the landlord may re-enter upon
and take possession of the eland leased if at any time
the rent or any part thereof is in arrear for one
month, whether or not any legal or formal demand
has been made for payment thereof.”

(I) STANDARD RENT (RR Act – S. 26 ((32))

(II) SCOPE DIRECTIVE NO. 12 – HOUSE RENTS H/O:

(c) Landlord’s right to view

The Landlord has no right, as a general rule, to enter the premises as

the tenancy endures.
STOCKER V. PLANET BUILDINGS SOCIETY (1879) 27
WR. 877

However his right to enter can arise if it is so provided by statute or

the terms of the tenancy allows him to do so, especially if he is liable
for repairs.

In Tanzania the statures provide for this right. Cap. 344, S. 56 (1) (c)
573236754.doc - 45 -

S.56(1) There shall be implied in every registered lease

covenants by the tenant with the landlord,
binding the tenant:-

(C) to permit the landlord or his agent at

all convenient times and after reasonable
notice to enter on the land leased and examine
the state and condition thereof, and to repair
or otherwise make good any defeat or breach
of covenant of which notice shall be given
within, if practicable, three months after the
giving of such notice.

(d) Restraints on alienation:

Kenya: Registered Land Act Cap. 300

S.54 (H) – permission must be given by landlord

cf: KENNETH THOMAS CLARKE V. SONDHI Civ. Appeal

No. 68 of 1962 (EACA).

This covenant against assigning, under letting or parting with

possession, cannot be implied in the lease. It has to be agreed upon for
if it is not the Tenant is allowed to alienate his interest at any time.
However at common law it is further provided that a landlord should
not withhold consent unreasonably. The onus is on the Tenant to
show that the withholding of consent was unreasonable.
573236754.doc - 46 -

SHANLY V. WARD (1913) 29 T.L.R. 714.

However RR Act S. 25
S.19 (1) (g) Landlord can get order to evict the tenant if he
transfers without consent.

(B) Where parties agree for “Usual covenants”

This may sometimes be implied and they are generally the following:

(a) On part of landlord – quiet enjoyment

(b) On part of Tenant

- Paying of rent
- Paying of rates and taxes except those required by statute to
be paid by landlord (S.16 (1) RRAct Taxes & Rates can be
added to STDT Rent)
- Keep premises in repair and deliver them in this condition
- Permit the landlord to enter and view the state of repair, if
he is liable to repair
- A condition of re-entry for non-payment of rent, but not for
breach of any other covenant.

Some of these are statutorily implied as shown above. Some other can
usually be implied through custom and usage. Such implications are
questions of fact before a court e.g. Trade usage.
573236754.doc - 47 -

(C) POSITION OF CERTAIN USUALLY FOUND IN LEASES

- Covenant to pay rent

- Covenant against assigning, underletting or parting with
possession
- Covenant to repair
- Covenant to insure (Meggary pp. 343-346).

(D) STATUTORY PROTECTION FOR TENANTS

RR Act
- Standard Rent – S.4 (Duty of Landlord S. 13)
- Premium Money – S. 21
- Rent in advance – S. 15
- Statutory Tenant – S. 16
- Restriction of landlord to possess – S. 19

(E) FIXTURES

This evolves around the word “Land” And the general rule is
“quicquid plantatur solo, solo cedit”. The word Fixtures is the name
given to anything which has become so attached to land as to form in
law part of it.
573236754.doc - 48 -

Whether a thing is a fixture or not depends on

(a) Degree of annexation

(b) Purpose of annexation

One a thing is held to be a fixture it cannot be removed by the Tenant

when the term ends it becomes a landlord fixture. However some
rules provide for what are known as TENANT FIXTURES and these
are removable:
(a) Trade Fixtures – Removable during the term and not after it.

(b) Ornamental and domestic fixtures. These should be removable

only if they do not cause extensive damage.

(c) Agricultural fixtures: By Agric. Holdings act 1948 – not

applicable to fit.

(5) ASSIGNMENT OF LEASES

To assign is to transfer property. A person to whom property is

assigned is known as the ASSIGNEE. And a person who assigns or
transfers property is known as the ASSIGNOR. In the case of Leases
the transfer can be represented diagrammatically as follows:

Landlord Lease Tenant Assigns Assignee

A T A
573236754.doc - 49 -

ST

In case of assignment the assignee (A) is subject, as a general rule, to

the burdens and benefits of the lease. This position is provided for by
Cap. 334, S. 49(1) which asserts that the Assignee must observe
covenant and conditions of the main lease.

49(1) In every transfer of a registered lease, there shall

be implied a covenant by the transferee with the
transferor to pay, perform and observe the rent,
covenants and conditions by and in the lease reserved,
contained and implied and on the part of the tenant to be
paid, performed and observed, and to keep the transferor
indemnified against all suits, expenses and claims on
account of the non-payment of the said rent or any part
thereof, or the breach of the said covenants and
condition, or any of them.

The general rule under English law is that any covenant i.e. a promise
under seal contained in a deed, is enforceable as a contractual term.
However, this rule is subject to the following rules in Land law:

(i) If there is privity of contract, all covenants are enforceable.

For as between parties to a contract any term agreed upon
can be enforced both at law by an action for damages, and in
equity, by an injunction or specific performance. Thus
573236754.doc - 50 -

L Leases T

Assigns
A
There is privity of contract Between L and T.

(ii) If there is merely privity of estate, only covenants which

touch and concern the land are enforceable. Privity of Estate
is that which exists between Lessor and Lessee, lessor and
assignee (but not lessor and a sub-lessee). In such a case all
covenants which concern and touch the land e.g. covenants
to repair, pay rent, not to assign lease without consent, not
to build on certain parts of land etc are enforceable both at
law and in equity. But those which do not related to land
e.g. to pay annually some money to a 3rd party, not to
employ certain people etc are not enforceable under privity
of Estate. Therefore

LEASE
PRIVITY OF CONTRACT
&
PRIVITY OF ESTATE
573236754.doc - 51 -

SUB-
LEASE
PRIVITY OF ESTATE A ST

BUT NO PRIVITY OF ESTATE WITH SUBTENANT

HABIB YUSUFALI V. ABDULSATTAL
RIAZIDDIN, Civ. App. No. 53 of 1992 (Discuss how
the AB Act, could not effect sub-Tenants)

(iii) If there is privity neither of contract nor of estate, then with

two exceptions, no covenants are enforceable the Lessor (L) and
sub-Tenant (ST) there is neither Privity of Estate nor Privity of
Contract. Therefore the sub-tenant cannot be a party to any of
covenants and the landlord has no remedy against him.

L LEASE T ASSIGN A
PRIVITY OF PRIVITY OF
SUB-
CONTRACT ESTATE (L + A)
LEASE

PRIVITY OF ESTATE

NO PRIVITY OF
CONTRACT NOR ST
PRIVITY OF ESTATE
573236754.doc - 52 -

(EXCEPT IN 2 CIRCUMSTANCES)

Thus when there is a Transfer on an assignment problems begin to

arise of the question of what covenants are enforceable and what are
the rights and liabilities of the parties.

[Note: Ask Fimbo! Whether our law requires a deed for all
transfers even if it is under 5 years. Apparently so since
the lease is transferred as a whole term].

Thus where there is privity of contract there is no since all covenants

are enforceable. Where there is Privity of Estate and no Privity of
Estate or contract problems occur, these topics should treated hereby.

(A) PRIVITY OF ESTATE: COVENANTS IN LEASES

In a lease between L and T there is privity of contract. Therefore T

would become liable to L even if he assigns the property. Even L
would be liable to T an assignment of the reversion not withstanding.

The rights and liabilities of the assignees, on either a lease or a

reversion, depend on whether or not a covenant in question touches
and concerns the land or not. Any covenant which affects the landlord
qua landlord or the Tenant qua Tenant may be said to touch and
concern the land.
573236754.doc - 53 -

HORSEY ESTATE LTD V. STEIGER (1899) 2 QB 79.

cf: Breams Property Investment Co. Ltd. v. Stroulger
(1948) 2 K.b. 1.

(Examples of such covenants are given by Meggary p. 357).

Therefore when one considers the rights and liabilities of assignees it

is important to ask whether the covenant passes with the assignment
or not. Here one has to ask further whether the Benefit of certain
covenants (i.e. the right to sue on the covenant) passed or not. Or
whether the Burden of a covenant (i.e. liability to be sued on it)
passed. A benefit which goes with land normally passed, but those
which were burdens did not pass they only affected the personal
covenanter alone. (Meggary pp 355-356)

(a) Where the lessee assigns his lease

L T ASSIGNS A

The common law rule was lad in SPENCERS CASE (1583) 5 Co.
Rep. 1b a (Meggary p. 358). That A is entitled to the benefit, and
subject to the benefit, and subject to the burden, of all covenants and
conditions touching and concerning the land, for there is privity of
Estate.
573236754.doc - 54 -

So that the above rule maybe effective the following rules have to be
considered.

(i) The lease has to be in proper form. (e.g. England it must be

by deed, here the above mentioned rules on registration on
registered leases, and consent provisions may apply).

(ii) There must be a legal assignment of the whole term. If it is

even one day shorter than the full term it is a sublease and
the sub lessee cannot take any benefit or burden.
WEST V. DOBB (1869) R. 4 QB 634.

(iii) At common law if a lessee covenanted to do something

which was completely new e.g. to build a house, the burden
of the covenant ran with the land only if the lessee expressly
covenanted for himself and for his assigns that the contract
would be performed. (Here the common law makes a
distinction between this in Esse (in existence) and things in
posse (not in existence). See Meggary p. 359).

(iv) The liability of the assignee only arises when the lease is
vested in him. Therefore he is not liable for any breaches
made before the lease was transferred to him, nor for
breaches after he assigns the property. Thus though the
original lessee is liable continuously to the original lesser,
for even future breaches is not liable once he assigns land,
573236754.doc - 55 -

for his, is only a privity of estate and only goes with the
land.

(v) Indemnities by Assignees: If a covenant is broken the

Lessor is entitled to sue either the lessee or the assignee. He
can sue either or both but has no right to recover from both.
The primary liability is with the assignee; if he sues the
lessee then the lessee has an implied right to claim
indemnity from the assignee. (S. 49(1) Cap. 334) puts in a
statutory provision for indemnity).

Thus where you have

B C D E
Sub-lease
F

In the above diagram in case of sub lessee F. breaks a covenant

relating to the lease A can sue either or both B and E. B under
Privity of Contract and E under privity of estate. Where A sues
B, B has a right to claim an indemnity from E. alternatively if
there was a covenant of indemnity when B assigned to C he an
claim from C and C from D and D from E, provided in each
case the covenant for indemnity was assigned. Unless F’s
breach was a covenant in the sub-lease he is liable to one.
573236754.doc - 56 -

However in certain occasions there can be more than one

assignee.

L T Lessee

Assigns

Assignees
A1 A2

As long as T assigns to 2 assignees each is liable for the full

amount of damages for breach, and not a proportional share.
There is a joint and several liability i.e. the Assignor (T) can
choose to sue A1 or A2 or Both.

Cap. 334, S. 44 provides

“When in any deed a covenant is made or implied

by or on the part of two or more persons, such
covenant shall, unless the deed otherwise
provides, be construed to bind such persons
jointly and severally.”
573236754.doc - 57 -

(b) Where the Lessor Assigns his Reversion

LEASE 40 YRS
L T
ASSIGNS
REVERSION
X

Strictly at common law the Reversioner, X, to whom the

landlord (L) had assigned his interest could not get the benefit
or be burdened by the lease. However by the Grantees of
Reversions Act 1540:32 Hen. 8 c. 34. The assignee of the
Reversion (X) can enforce all covenants which touch and
concern land. The Conveyancing Act 1881 re-enacts those
provisions (SS 10 & 11).

As far as liabilities are concerned T is given an option, he can

sue either X or L in case of breach. If he chooses X. then L
becomes no longer liable. Here certain problems occur.

Where L had a right to sue for damages or forfeit the lease and
he does not so and instead he assigns his Reversioner. His
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rights to sue for damages or forfeit the lease do not go with the
assignment.
FLIGHT v. BENTLEY (1835) 7 Sim 149. HUNG v.
REMMANT (1954) 9 Exch. 635. (Meggary p. 363).

However the assignee can sue for a continuing breach, the

remedies of which are provided for in S. 56 (3) Cap.334.

[Note: the Law of England as it stands allows a reversioner to

sue the Tenant for rent or breaches of covenant made before the
reversion was vested to him. P. 363 Meggary, Law of
Property Act 1925 S. 141.]

The position replaces that which was provided for in S. 2 of the

Conveyancing Act 1911 –

[Note: Privity of Estate Not essential: Covenants run with the

reversion by statute and not by privity of Estate. Hence if an
original tenant assigns the lease and subsequently the landlord
assigns the reversion, the assignee of the reversion can sue the
original tenant even though there has never been privity of
estate between them.

L1 T1 T2

NO PRIVITY OF ESTATE
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L2
(He can still sue T1 since though T1 has no
the land, therefore no Privity of Estate,
neither has he privity of contract with L2, he
can nevertheless be sued by L2 since the
obligation of T1 is statutory). See Meggary
p. 364.

What if the Lessor given an option to T to buy the Reversion

after giving notice. In case T assigns the Lease to A can A
exercise the Option?

Lease with
L T
Option to
Purchase Assigns

A
Can the option to assigned?

The covenant to sell the reversion does not touch and concern
the land at common law. So it would not run automatically with
the assignment.
WOODALL v. CLIFTON (1905) 2 CH. 257
573236754.doc - 60 -

What the T an do so that A can exercise the option, he can

particularly assign the option to buy to A for generally any
contractual benefit is assignable. However the word “assign”
does not include sub-leases.
BYRANT v. NAHCOCK (1899) A.C. 442

In case L assigns his Reversion to X can T still claim the option

against X.
Lease
L T
Reversion option to
Assigned purchase

X Can T claim it from X?

The burden of the option is generally placed on the covenanter.

In this case it would be L. However this would be taken as an
ENCUMBRANCE (i.e. a charge, liability or burden on land e.g.
Mortgage). In this case the question would be whether at the
time of the assignment of the reversion to X, X had notice
impliedly or expressly. If he had notice then he would be
bound by the covenant, if the hadn’t then he will not be bond by
that covenant.

(6) DETERMINATION OF TENANCIES

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1. By Expiry
2. By Notice
3. By Forfeiture
4. By Surrender
4. By Merger
5. Becoming a satisfied term
6. Enlargement
7. Disclaimer

(I) EXPIRY

This of course is a logical determination of tenancies for a fixed

term. Those which are periodic there are particular rules to
them as regards notice etc.

One thing to note is that in Tanzania under the RR Act

statutory tenancy is created where contractual tenancy ends.
Expiry of the tenancy would be then in accordance with that
Act.

(II) NOTICE
As a general rule this is the case for periodic tenancies, or
those which are for fixed term but they have an option to renew
and it is agreed upon that notice would be necessary.
573236754.doc - 62 -

However even here there are statutory modifications. In case of

Breach there is no need of notice S. 56(3) Cap.334 provides the
general rule. And under the Provisions of RRAct a statutory
tenancy is created after the contractual period.

(III) FORFEITURE

This is the deprivation of a lessee of his lease as a penalty for

some act or omission expressed or implied in a lease as
amounting to a breach of the lease. Thus it amounts to a
premature determination of the lease.

The circumstances which give the landlord a right to forfeit are

said to be

(a) Provided for, where a lease contains a forfeiture clause

which lists covenants when broken would entail
forfeiture.

(b) Where the lease though it does not contain a forfeiture

clause, is made depending of certain conditions. Breach
of the conditions would entail forfeiture.

(c) Where the Tenant Denies the Landlord’s title, e.g. by

asserting that he or some 3rd party is the true owner. The
landlord is entitled to forfeit the lease.
573236754.doc - 63 -

(d) There are statutory provisions which necessarily imply

forfeiture in certain condition. For the Registered Lease
– S. 56(30 Cap. 334 or also under RRAct S. 11A (1) (b).
No eviction without court order S. 19(1) conditions under
which the court can grant an eviction order. For this point
see JAFFER LADAK v. Registrar of Buildings, Civ.
Application No. 2 of 1973.

However sometimes the Landlord can waive his right to forfeiture.

The Landlord can give a waiver of breach impliedly or expressly. He
can do this impliedly where

(a) He is aware of the act or omissions of the T which make the

lease liable for forfeiture.

(b) He does some equivocal act recognising that existence

(continuous) of the lease e.g. acceptance of rent or agreeing to
give a tenant an assurance of continuing or opening up another
tenancy.

The 2 conditions must go together. Here the breach is impliedly

waived and L cannot depend upon it for the purpose of forfeiture.

EASTERN RADIO SERVICE V. PATEL (1962) E.A. 818

PREMVAJI v. INCHARAM 23 (2) KLR 32
cf: DAVEMPORT v. R (1877) 3 AC 115
cf: SEGAL SECURITIES v. THORSBY (1963) 1 QB 88
573236754.doc - 64 -

The method of forfeiture vary in 2 broad cases,

(a) in the case of non-payment of Rent, and
(b) for other covenants.

(a) Forfeiture for non-payment of Rent

Under the common law where the landlord had a right to forfeit
the lease in case rent was not paid, it was necessary to make a
formal demand after which forfeiture could be effected.
However there was statutory modification which did away with
the procedure of formal demand (Common Law Procedure Act
1852, ss. 210 – 212) and this has been incorporated in S. 56(3)
of Cap. 334 which says in case of non-payment of rent the
landlord can re-enter at “any time” if the “rent or any part
thereof is an arrear for one month, whether or not any legal or
formal demand has been made for payment thereof …”

The above can be the position for a Registered lease. For others
it seems the Common Law Procedure Act 1882 which
dispenses with a formal demand in any action for forfeiture if:-

(i) half a years rent is in arrear or

(ii) no sufficient distress can be found upon the premises
to satisfy all the arrears due
this statute seems to be a statute of General Application (SGA)
since the Draftsmen of the Freehold (Conversion to
Government Leases) Act of 1963, S. 29 provided that the
573236754.doc - 65 -

tribunal established by the Act would be guided by SS 211-212

of Common Law Procedure Act 1852.

The Tenant has relief against this kind of forfeiture. At Equity

courts of law regarded the right to forfeiture just as a Security
for rent. Therefore if the tenant

(i) paid rent due, and

(ii) paid any expenses which L had incurred; and
(iii) it was just and equitable to grant relief

then the Tenant would be restored to his position the forfeiture

notwithstanding. The Tenant is only barred from claiming
relief under the general principle that equity would give no
assistance to stale claims. (Therefore the law of limitation is
applicable here. Though also the Common Law Procedure
Act provides where a L has a Court Order for possession the T
is limited to 6 month in getting relief. It seems where there is
no order the Act does not apply.)

Another important thing to note is that where a lease is

forfeituted, any subleases created out of it are automatically
brought to an end.
Great Western Railways v. Smith (1876) 2 Ch.D 235.

Thus the forfeiture of the head lease determines the sub-lease.

Under the Common Law Procedure Act 1852, S.212 The
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subtenant an sue. This can be so even where the head-lessee

cannot claim relief. On the effect of this situation which is
reproduced in Kenya under the Transfer of Property Act, Cap.
281 S.115 (3) on sub-leases
see CANINI v. SULEMANI & ANOR (1964) E.A. 619.

(b) Forfeiture for Breach of Other Covenants or Conditions

The general rule is that for the breach of these the landlord has
to serve notice in statutory form.

In Tanzania there seems to be no local statute which provides

for such notice. However in England the Conveyancing and
Law of Property at, 1881 provides for such notice. The Act has
been held to apply in Tanzania.
Director of Land and Mines v. Sohan Singh (1952) 1
TLR 631.
Premchand Nathus & Co. Ltd v. The Land Officer
(1960) E.A. 941 (P.C.)

S. 14(1) of the act provides:

“A right of re-entry or forfeiture under any

proviso or stipulation in a lese, for breach of any
covenant or condition in the lease shall not be
enforceable, by action or otherwise, unless and
573236754.doc - 67 -

until the lessor serves on the lessee a notice

specifying the particular breach complained of
and, if the breach is capable of remedy, requiring
the lessee to remedy the breach, and, in any case
requiring the lessee to make compensation in
money for the breach, and the lessee fails, within a
reasonable time thereafter, to remedy the breach,
if it is capable of remedy, and to make reasonable
compensation in money, to the satisfaction of the
lessor for the breach.”

This position is further elaborated by ss. 2 & 4 of the

Conveyancing Act 1892.

Both statutes would seem to apply to Tanzania. However S. 29

of Freehold Conversion Act of 1963 provides that both acts
have to apply to the Tribunal created under the Act. This brings
up the question whether the draftsmen considered the Acts as
S.G.A. However the reference may have been made either

(a) The draftsmen thought the statutes were not S.G.A. as

such they had to be provided for expressly, or

(b) They were S.G.A. but because of the rule of

interpretation that another statute does not bind the
Crown (herein the Government) unless the Crown is
573236754.doc - 68 -

expressly referred to (per Director of Land & Mines v.

Sohan Singh).

Thus generally outlines S. 14 of the Conveyancing Act

demands that the notice must:

(a) Specify the breach

(b) Require a remedy of possible. If it can’t be remedied the

landlord can’t require a remedy.

Cf: Ruby School (Governor) v. Tannahil (1935)

1 KB 89
Cf: Norton v. Romney Estates (1950) I All ER
798
Cf: Glass v. Kenlacke (1965) 2 WLR

(c) It must required the T to make compensation in money if

the L requires it.

The notice has to be served by the L to the T. S.67,

Conveyancing Act 1881 if notice is proper, the L should give
the T a reasonable time (normally 3 months – p 331 Meggary)
to comply with the notice even where the breach is incapable of
being remedied. If after a reasonable time the breach has not
been remedied the L can proceed with the forfeiture.
573236754.doc - 69 -

What is the T’s relief against forfeiture under this heading.

The Tenant can apply to court for Relief. S.14(2)

Conveyancing Act 1881. However this section has been
interpreted to mean the application must be filed before the L’s
actual entry.
Rogers v. Rice (1895) 2 Ch. 120

If relief is granted the lease is continuous as if it has not been

determined by forfeiture. The court has however a discretion of
granting relief or not.
KIWANUKA MUSISI v. SEGGANE (1973) E.A.

No relief would be given to a Tenant who has broken a

covenant against sub-letting or parting with possession.
S. 16(6) Conveyancing Act 1881.

The sub-Tenant can apply for relief where the head lease has
been forfeitured.
S. 4 Conveyancing Act, 1897.

This is possible even where the head-lessee cannot apply for

relief.

In Kenya this section is reproduced by S. 115(3) of TPAct Cap.

281 and the fact that the sub-Tenant an sue for relief even
where the T cant was confirmed in the case of
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CANINI v. SULEIMANI & ANOR (1964) E.A. 619.

For others

(4) Surrender
This is where a T. surrenders the lease to his immediate
L.

(5) By Merger
Similar to surrender in that the T. merges his lease with
the Landlords reversion. On some 3 rd party buys both the
lease and reversion.
Cf: WEST END CLOTHING LTD v. THE A.G.
(1975) Civ. App. No. 16 of 1975 (EACA) from
Kenya

(6) Becoming Satisfied Term

If the lease was for security for payment of money, it
becomes satisfied after payment of debt.

(7) By enlargement
e.g. by expanding a lease to a fee simple.

(8) By Disclaimer:
The doctrine of frustration is not normally applicable to
leases. However in England there has been a statutory
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interference which during War has allowed a disclaimer

over leases, which amounts to a discharge.

[Read Meggary pp 333 – 335]

Also look at RRAct S. 19 where certain circumstances

would justify a Court Order for eviction.

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