THE GAMBIA LAW SCHOOL

LECTURE NOTES: LEGAL DRAFTING AND CONVEYANCING

LEASES

I. Introduction

A lease is a document creating an interest in land, called a leasehold

interest. The lessor is the owner of the property and the lessee is the
person taking the property. The words leases and tenancies are
interchangeably used; however, a tenancy is usually for a shorter term
than a lease. In a lease the lessor retains the reversionary interest in the
property while merely transferring possession, as opposed to an
assignment in which the owner of the property transfers his/her entire
interest in and titled to the property to the purchaser. A lease is also
different from a licence; in a lease the lessee is given-exclusive
possession, while a licensee has no interest, only a privilege.

II. Modes of creating leases

There are three modes of creating leases, namely, by parol/orally, by mere

writing and by deed.

i) Parol/Oral Lease
An agreement made orally is permissible under the Statute of
Fraud, but to be valid must have the following:

a). Possession must be given to the lessee.

b). The lease must reserve the best rent (not premium or rack-rent).
c). The lease must be for a period not exceeding three years.

The only remedy available for breach of a parol lease is part performance.

ii). Written Lease

Applicable only to leases not exceeding three years; same effect as a

parol lease, but easier to enforce the terms of a written lease.
Remedies available for breach are part performance, specific
performance, failing which damages may be claimed.
 iii). Lease by Deed

A lease by deed (under seal) is mandatory for leases over three years.
A lease which is required to be in writing is void for the purpose of
conveying or creating a legal estate unless made by Deed. Such a
lease could, however, be construed in equity as an agreement to
create a lease and specific performance will lie.

III. Classification and Duration of Leases

i. Lease for a fixed period – granted for any period of certain duration,
however long or short.

ii. Yearly lease – a tenancy from year to year until determined by

proper notice, which is usually of six months.

iii. Periodic lease – a weekly, monthly or quarterly lease.

iv. Tenancy at will – arises where the tenant with the consent of the
owner of the land occupies it as a tenant (not merely as servant or
agent) on terms that either party may determine the tenancy at any
time with notice. The tenant is a tenant at will because the landlord
can ask him/her to leave the land which he/she occupies at the
pleasure of the landlord.

IV. Essentials of Valid Lease

i. Certainty of term – the term granted must be ascertainable; both the

commencement and duration of the term must be stated or capable
of being ascertained. A lease for an indefinite period is invalid; so
also is a lease for a future lease, unless some definite time for its
commencement can be inferred from it. IN LANCE V CHANTLER
(1944) K.B. a lease “for the duration of the war, or until cessation of
hostilities” was held to be uncertain.

ii. Certainty of property – the property must be specifically described

so as to allow no doubt about the subject of the agreement.

iii. Exclusive possession – the lessee must have exclusive possession,

that is, the right to exclude every other person form the demised
premises, including the lessor except where the lease allows the
lessor to inspect the property for the purpose of repairs.
V. Covenants in Lease

i. Usual Covenants – on the part of the landlord

a. Covenant for quiet enjoyment – free from disturbances from
him/her or persons claiming through him/her; both physical
interference and the exercise of adverse right over the
property;

b. Covenant not to derogate from the grant.

- On the Part of the Tenant

a). Covenant to pay rent.

b). Covenant to pay tenant’s rates and taxes
c). Covenant to keep and deliver the premises in good state
of repairs.
d). Covenant to allow the landlord to view the state of repair
if he/she undertakes to carry out repairs.
e). Covenant for re-entry for non payment of rent but not for
breach of other covenants.

ii. Implied Covenants – These are terms implied by law, whether or

not the parties expressly provide for them, and are restricted to
certain matters considered inevitable and fundamental to the
relationship of the parties.

Implied covenants on the part of the landlord are:

a. Quiet enjoyment – This covenant is restricted to the acts of the

landlord and his successors in title. It does not mean that the
premises will be noiseless or free from physical interference.
Remedies for breach of this covenant are action in damages or
action in trespass.

b. Not to derogate from the grant – this covenant binds the landlord
and all those claiming under him/her.

Implied covenants on the part of the tenant are:

a. To pay rents
b. Not to commit waste
c. To keep and deliver the premises in tenantable condition.
 d. Where the landlord covenants to repair, to allow a right to view
the premises.

iii. Express Covenants – These are terms the parties have agreed to
as binding on them. They can be positive – compelling the
performance of all obligation or negative – requiring a party to
abstain or refrain from doing certain acts.

iv. Specific Express Covenant Clauses

a. Covenant to pay rent – unless otherwise provided, rent is

payable in arrears. It must be ascertained or ascertainable at
the time of payment. Sometimes an agreement may stipulate
the current rent for a duration and future rents to be agreed on
by the parties. In such a case there must be a formula in the
agreement for determining the future rents, failing which the
court will decide on what would have been the reasonable
agreed rent by the parties.

- Rent Reviews – In this period of rapid inflation and

escalation of rents due to population and commercial
pressures, it has become increasingly common in lettings for
terms of more than five years to provide for periodic rent
reviews providing that the rent payable for successive
periods shall be either that paid during the previous period,
or the market rent which the premises could command at the
date of the review, whichever is the higher. An adequate
rent review clause must contain both the timing of the review
and the date on which the new rent is payable; the
machinery for initiating the review; the method of calculating
the new rent and resolution of disputes.

Acting for a landlord, it may be necessary to advise him/her

of the dangers of freezing a rent for too long a period.

b. Covenant to pay rates and outgoings – you should take

specific instructions from your client as to who pays rates and
other outgoings. Specific provision should be made in the lease
or agreement for this, but a landlord will not be expected to pay
for electricity, etc. consumed by the tenant. Levies on the usage
of the property (water and electricity are borne by the tenant).

Where the tenant covenants to pay rates and other outgoings,

he/she is only bound to pay such levies as are in existence at
 the time of execution of the lease and levies that are successors
to the levies in existence. The clause may read –

“To pay all taxes rates assessments and outgoings payable in

respect of the demised premises during the tenancy except such
as the landlord is by law bound to pay notwithstanding any
agreement to the contrary.

c. User Covenant – The general rule is that the premises can be

used for any purpose as long as it is legal, even if different from
the original purpose. Regard must be had, however, to sections
23 to 27, PART V of the State Lands Regulations, Cap 57:02
Vol. 8 of the Laws of The Gambia, 2009 Edition.

A user covenant it usually inserted where the landlord wishes to

restrict the use of which the property is put, possibly to ensure
the use is in accordance with a head lease or to protect the
aesthetic value of the property and avoid its quick depreciation.

d. Covenant to Repair – This is a clause that causes frequent

disputes between the parties. Thus, you need to be specific and
precise in drafting this clause, making sure that whatever may
be excluded from the tenant’s covenants is included in a
corresponding covenant by the landlord. In the absence of
express covenant as to repairs, the obligation is imposed on the
tenant. However, in practice there is a general obligation on the
landlord to carry out structural repairs, while the tenant effects
minor repairs including internal decoration e.g painting.

The general rule as to a reasonable division of liability for repairs

is that the shorter the term, the less the liability on the tenant. In
a monthly letting an agreement by the tenant “to keep the
premises in as good a state of internal decorative repair as the
same are now in” perhaps excluding fair wear and tear, would
be reasonable; in a letting of seven years or more, a full
repairing covenant might be appropriate.

The full form of covenant includes both a covenant by the tenant

to carry out whatever may be his agreed share of the repairs,
and a covenant to permit the landlord to inspect periodically, and
then to carry out any repairs of which the landlord gives notice to
the tenant and which the tenant then fails to execute. Make
sure that such a covenant provides that the tenant is only to do
repairs “for which he may be liable under his hereinbefore
 contained covenants “or some such words; otherwise this
second covenant may unintentionally impose a wider liability
than this. Ensure also that the period provided for doing the
repairs is adequate, when acting for a tenant, and a reasonable
provision in the lease will provide that the repairs shall be
commenced within a specified period and thereafter proceed
with diligently.

Always inquire (especially when acting for a tenant) as to the

present state of the property, as to whether this is to be put into
a good and tenantable state of repair, and if so, whose
responsibility that is to be. If the point has not been considered
by the parties, point out to a prospective tenant that a covenant
to keep in good repair “and so to deliver up the premises at the
end of the term “ may involve his putting them into better
condition that they are now in.

e. Covenant against Assignment and Sub-letting – All

tenancies and leases should contain some limitations upon or
prohibition of assignment or sub-letting. In the case of a short
(monthly, quarterly, or even sometimes longer) tenancy an
absolute prohibition is not unreasonable or unusual; under a
lease the most common provision is that a tenant may not
assign without the landlord’s licence (consent), but provision is
usually made that this shall not be refused in the case of a
respectable and responsible person, and if it is not already in the
clause, there is always implied a proviso that such licence shall
not be unreasonable withheld. However, an absolute covenant
against assignment strictly prohibits assignment.

f. Covenant not to make alterations or improvements – The

tenant may by covenant be allowed to alter the structures of the
house. In such a case, at the expiration of the term granted
under the lease, the tenant shall at his/her own expense restore
and put in good condition any alterations or additions permitted
by the landlord.

The landlord may decide not to permit the tenant to carry out
any form of alteration to the demised premises. This is an
absolute bar; however, if consent is given based on the
satisfaction of some conditions, it is a conditional bar.

g. Covenant to insure - This may be an undertaking by either the

landlord or the tenant. The landlord may want to protect his/her
 reversionary interest in the property in case of a mishap, and the
tenant may by insuring ensure his/her interest in the property is
recognised, especially in cases of compensation. An insurance
clause should stipulate the following:

i) Who is to insure
ii) The risk to be insured against
iii) The amount of cover
iv) The application of the insurance money

h. Covenant or Option to renew – A tenant may be given an

option to renew the tenancy for a further term and when the
tenant exercises the option, it becomes an absolute right.

The clause must contain the following:

i). The time within which tenant must exercise the option,
usually within three to six months before the expiration of
the current term;

ii). The manner of exercising it, usually in writing;

iii). Conditions precedent to the grant of the option, for

example that the tenants must have paid rent and
observed all other covenant in the lease, such conditions
being strictly construed by the court against the tenant;

iv). The terms of the new lease, which must be clearly stated.
An option to renew for a period ‘to be agreed by the
parties’ was held in AYINKE V. OSUNSEDO (1973)
GE.C.H.C.J P.S. to be void for uncertainty.

Care must be taken to avoid creating a perpetually renewable lease

– see RE HOPKINS (1972) 1WLR 372 and the option must actually
be exercised failing which it is a mere interest in land capable of
assignment. An option must not be varied; variation terminates the
option. In the case of INTERNATIONAL INSTITUTION OF
TROPICAL AGRICULTURE V KHAWAM (1975) 1 WSCA 158 a
tenant exercised an option to renew at the right time but varied the
rent, which the landlord refused. In an action by the landlord
claiming arrears of rent on the grounds that the tenant had
exercised the option to renew, the court held that the tenant’s letter
exercising the option was not an exercise of the option but an offer
because the option had lapsed.
v. Proviso for Forfeiture and Re-entry for Non Payment of Rent:
This is a proviso for forfeiture or re-entry on the breach of the
covenant to pay rent by the tenant. This must be expressly
provided for in the lease agreement, and there must be a prior
formal demand for payment of rent and continuous default by the
tenant.

To avoid the technicalities of a formal demand, a clause may be

inserted stating that once the rent is in arrears for a stated period
whether formally demand or not, the lease is forfeited. Such a
clause may read thus:

PROVIDED that the landlord may re-enter the demised premises or

any part thereof if the whole or part of the rent hereby reserved is in
arrears for 21 days after becoming due whether formally demanded
or not, but without prejudice to the right of the landlord as regards
previous breaches of other covenants.

The landlord may, however, waive his/her right of forfeiture.

vi. Notice the Quit – A lease can be terminated by the landlord or

tenant serving notice on the other party.

Section 19 (2) and (3) of the Rent Act, Cap 53:01, provide that –

“(2) A notice ... shall not have effect unless –

a. In the case of a weekly tenancy, the notice is given not

less than one week;
b. In the case of a monthly tenancy, the notice is given not
less than one month; and
c. In the case of a yearly tenancy, the notice is given not
less than three months,

before the date of termination specified in the notice.

(3) Where a tenancy is for a period exceeding one year and the
rent is payable as a lump sum or in parts whether quarterly,
annually or otherwise, it shall be construed as a yearly
tenancy and the period of notice prescribed in subsection (2)
(c) shall apply”