•
The tenant’s obligation to repair is
subject to limits
, such as having no
obligation to renew or improve the premises, repair an inherent defect or
repair fair wear and tear:
Graham v Markets Hotel
(1943) 67 CLR 567: High
Court decision -
mandating that the - limitations - tenant should be ‘within
reasonable capacity’ - cant be blamed for defects based on wear and tear -
esp major repairs
•
A landlord has a duty to repair
, but it is only enlivened if notice is given by
the tenant (
O’Brien v Robinson
[1973] 1 All ER 583
) or another authority
(
McGreal v Wake
(1984) 269 EG 1254
). Council could demand that landlord
provide certain repairs for e.g.
•
An
absolute covenant against assignment or subletting
prohibits any dealing
with the lease by the tenant:
Marks v Warren
[1979] 1 All ER 29:
tenant may
not sub- let the property to a third party.
•
A covenant that only prohibits assignment, does not prohibit subletting.
However, a covenant that only prohibits subletting will also prohibit
assignment:
•
A
qualified covenant against assignment or subletting
does not prohibit, but
limits any dealing with the lease by the tenant. Typically this would mean that
the assignment or subletting would be permissible with the landlord’s consent
and this cannot be unreasonably refused:
Conveyancing Act, s 133B:
112
Semester One
2019
•
Assignment of a lease::
The situation where the first lesse has given his or her
lease to the second lessee -
the 1sty lessee is no
longer the lessee in
commercial dealings
•
Subletting: Lease is still owned by lessee BUT the lessee has given a portion
or the entire property to the sub-lessee.
-
Enforceability of Covenants
•
Privity of Contract
•
Where privity of contract exists between parties, the express covenants in the
lease are enforceable between them as a matter of contract law. - if you aren’t
privy to a contact -you cant demonstrate your interest,
•
Where privity of estate exists between parties, the covenants in the lease are
enforceable between them if the covenants “touch and concern the land” -
parties proopoetary interest.
•
Where neither privity of contract nor privity of estate exists between parties,
covenants in the lease are not enforceable between them
- no legal right to
enforce a contract.
•
Commercial sense- both parties have an obligation - medieval period - solemn
promise - e.g God and Abraham - god gave land based on his faith - promise from
one party to another party based on their interest in the land.
•
Privity of estate
refers to a covenant only being enforceable where there is:
•
a relationship of landlord and tenant between parties;
•
the covenant touches and concerns the land:
•
Milmo v Carreras [1946] KB 306
•
If privity of contract is a r/ship between promisor and promisee - the
relationship found in the privity of estate can be descived a r/ship
between a landlord and a tenant - legal rights enforced.
