, otherwise tenant may argue that it does not form part of the contract (a) Express covenant to pay rent on due date Charmway Development Ltd Unless expressly provided, tenant’s obligation to pay rent is independent of landlord’s performance of his covenants & obligations (including implied covenants) Chan Wing v Chow Lee Wah Where landlord promises to accept reduced rent & takes no action to recover shortfall until later, he is estopped from claiming arrears Certainty of rent <Walsh v Lonsdale> Where payments of rent are agreed on, the sum must be certain / capable of being rendered certain to be recoverable Uncertain Rent payable based on hours of service as landlord requires from time to time <Barnes v Barratt> Sufficiently certain Rent linked to index of retail price <>Bluementhal v Gallery Five> Rent being 10% of turnover of a business <Smith v Cardiff> Rent to be ascertained in due course under a rent review clause <CH Bailey> (b) Express covenant to pay deposit Wong Kam Kong Tenant usually covenants to pay deposit of 2 months’ rental which can be forfeited upon breach of certain covenants Forfeiture Where forfeiture is absolute Provided deposit can be forfeited ‘absolutely’ as liquidated damages without prejudice to landlord’s right to claim damages from tenant, landlord can forfeit without giving tenant credit < Orient Bright > Where forfeiture is not absolute When deposit is used to settle rent arrears, credit must be given < Master Yield > (c) Express covenant NOT to assign/sublet without landlord’s consent Landlord’s consent Under the covenant, landlord is not forced to give consent no matter how unreasonable it is unless expressly argued landlord will not withhold consent unreasonably Assignment / sub-letting A lease granted/assigned in breach of express covenant is valid <Parker v Jones> Landlord cannot sue subtenant trespass until re-entry / damages for period prior to re-entry <Zenuna Ltd> Construction Against landlord <Montross Associated Investments> A covenant prohibiting assignment does not cover subletting Where there is a covenant against assignment/subletting of any part of the premises (i.e. whole) an assignment/subletting of only a part is no breach <Wilson v Rosenthal> (d) Express covenant NOT to permit something to be done on the premises Meaning of ‘permit’ <Realty Harvest Ltd> To give leave for an act which without the leave could not be done legally To abstain from taking reasonable steps to prevent the act which is within a man’s power to do so 2. Implied Covenants (a) Implied covenant to pay rent on due date L&TCO ss 117(3) & 126 There is an implied covenant to pay rent on due date and a condition for forfeiture for non- payment within 15 days of due date in domestic lettings <s 117(3)> & in business lettings <s 126> (b) Implied covenant to pay rates and taxes (unless expressly agreed) 3
(c) Implied covenant not to commit waste All tenants should not commit Equitable waste <Vane v Lord Barnard> I.e. Wanton (wilful & malicious) destruction of property
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- Fall '18
- Alice Lee
- Test, Leasehold estate