Commercial Law: Covenant of Landlords and Tenants - Case Study Example

Commercial Law Name: Tutor: Subject: Date: There are laws governing the conduct of the parties who are in business, or people running the affairs of the city across the world. In South Australia, there are laws governing the conduct of the parties who are involved or who are responsible in managing the affairs the city. In most cases, the city is controlled by the city council or the local council depending on the place. Ellen, who was misled by the local council official, has a right to sue for damages that she encounters because she relied on the promises given by the employee of the local council. Ellen entered into a lease contract of 12 months because she was assured that terrace house near to Oxford St. was a perfect place for her business. The local council employee said, “relax everything will be fine”. Ellen relied on this statement because she knew that the local council is mandated to run the town affairs (Twigg-Flesner, 2013).  Ellen suffered a lot because of the noise from the next door. There was a renovation taking place in the next door and this stress Ellen that she develops a nervous disorder that threatens her career in alternative medicine. Ellen knew that her business needed a calm place and she took a necessary action by visiting the local council offices for clarification. Ellen thought that the local council was responsible, and they would provide her with a reliable status of the environment surrounding terrace house near to Oxford St. (the main street). It was unfortunate for her to be provided with the misleading information that led her business close down. The local council was insensitive when handling a critical situation like this of Ellen. Ellen should sue the local council for compensation. She suffered because of irresponsible official who was working for the local council. Covenant of Landlords and Tenants In Ellen case, the landlord committed no crime nor did he breach any of his obligations. It was the local council who caused Ellen’s problems. Ellen did not discuss with the landlord the issues of noise within the surrounding of the premises because she had been clearly assured by the local council that there will be no disturbances (Manual.an Dam, 2013).  According to South Australian laws, there are duties for landlords and tenants. In the case of Ellen, the landlord had an obligation to perform the following duties. A. The landlord was to ensure that Ellen gets quiet enjoyment of the premises. In this case, it did not happen because of the renovations of the building in the next door. There were disturbances caused by the builders which were working on the next door. B. The landlord had a duty to ensure that the people living next to Ellen are not involving themselves with any issues that might make the tenant uncomfortable. C. According to the South Australian laws, the landlord is expected by law to reveal any material facts that are relevant to the lease contract. However, there was no implied covenant that the premise was not fit for cohabitation. The only existing covenant at that time was that the premise was fit for cohabitation at the time of lease. From the above landlord's obligation, Ellen can sue the local council on the ground that he did not enjoy the above conditions. . Ellen did not enjoy the above conditions because the local council employee provided false information. Vicarious liability In our normal daily normal life, everybody is responsible for his or her wrongful acts. However, there are situations when a person is responsible for wrong doing of another person. According to the South Australian Labor laws, the employer is always responsible for the wrongful acts of his employee provided that the wrongful act was committed during the course of employment. Ellen can sue the local council on the basis of vicarious liability. A similar case that was ruled under the grounds of vicarious liability was the case of: Century Insurance Co. v. N.I. Road Transport Board, (1942). Ellen will successfully sue the local council for the wrongful acts of their employee. The local council employee promised Ellen that they would be no building work in the area that could cause noise. The local council employee promised Ellen that the environment was calmed for her meditation studio. This promise made Ellen enter into a lease contract of 12 months with the landlord. It is evidence that Ellen made her mind enter into this contract because of the promise and the assurance she had received from the local council offices. The local council offices had breached a duty of care. The local council employee breaches his duty of care. He handles Ellen’s case carelessly. He did not think of the consequences of Helen’s business being located in the wrong location. I would, therefore, advise Ellen to go ahead and sue the local council for damages. It is obvious that the local council employee did not take time when responding to Ellen concern. Factors to be considered in ruling Ellen case on grounds of vicarious liability Ellen qualifies to sue the local council for the tort committed by its employee because the following elements are applicable in this case. These elements are: 1. There was a relationship between the local council and the employee 2. The employee gave false information while he was in the course of his duties It is vital to note that it is immaterial whether the employee gave false information to Ellen as a directive of the employer or not. This is a straight forward case, and the court will not face any problem in determining whether the employee/wrongdoer was a servant of the local council or not. Other previous cases that have been ruled on the same ground include: Rose v. Plenty, (1976) Limpus v. London General Omnibus Co., (1862) Rylands v. Fletcher, (1866) Ellen can also sue the local council for damages under South Australian agency laws. Under these laws, the local council will be liable for the torts that are committed by their employees. Ellen will succeed provided the tort was committed while the employee was delivering duties of the agency. Negligence This is among the essential torts in South Australian laws. Judges across the world defined it differently though their meaning arrives at the same conclusion. Judge Alderson, when he was ruling a case of Blyth v. Birmingham Waterworks Co. (1856) defined negligence as the omission to do something that is supposed to be done by an ordinary man or doing something that an ordinary man cannot do without analyzing the consequences (Stone, 2013). The tort committed by the local council employee consisted of the three elements. These elements comprised of the following 1. The employee owes a duty of care to Ellen because that was a public office 2. The employee breached that duty of care by giving wrong information to client (Ellen) 3. As a result of responding to Ellen in a careless manner, Ellen suffered because of noises. This stressed Ellen to extend of developing a nervous disorder that threatens her career in alternative medicine. These three elements are enough for the court to use it in making their decision. The court must compel the local council to compensate Ellen for damages. The damages awarded aims at restoring Ellen to her previous financial situation before the occurrence of the incident. Proof of Negligence According to Chandler, 2013, it is necessary for a plaintiff to prove that the defendant owed a duty of care and that duty was breached. In this case, Ellen must prove in court that the local council owed her a duty of care and that the local council officials breached that duty. Furthermore, Ellen must prove to the court that she had suffered damages in consequences. However, there are situations when Ellen’s burden of proof is relieved. This is done under a doctrine of ‘res ipsa loquitur’ provided the doctrine is applicable (Deakin at al , 2012) Res ipsa loquitur, according to Australian laws, means facts are speaking for themselves. In most cases, the doctrine is used in circumstances where the act could not be committed under the normal situation. I can say, confidently, that the local council officer, in the normal circumstances could not give a false statement concerning the situation of the city. I cannot imagine a situation whereby someone is looking for critical information concerning the city and be given misleading information by the town bosses. Res ipsa loquitur is not a rule of law but it is just a rule of evidence. Ellen can use this rule of evidence to show that the act of the local council officer ought not to be done in the normal circumstance. This is a proof of negligence that was exercised in the offices of the local council. However, Ellen must satisfy the following conditions before the case is ruled. A. The information “relax everything will be fine” that was given by an employee of the local council was under his control. B. The local council official gave this message “relax everything will be fine” because he acted negligently. C. There was no reasonable explanation as to why the local council employee misled Ms Ellen Ellen would be compensated for the loss she has suffered because of negligence on the part of the local council. The compensation seeks to restore Ellen to her previous status before the occurrence of the loss. Ellen could also want to know why the local council office decided to provide her with misleading information (Lunney, 2012). Private Nuisance Ellen can also consider suing the construction company for wrongfully disturbing her private rights. Ellen has a right to enjoy the peaceful environment. The status of her requires calm environment, free from any form of noise. There are many cases that have been ruled under this doctrine of private nuisance. An example of such cases was that of: Hollywood Silver Foxes v. Emmet, (1936). Besides, the South Australian laws recognize and cover the rights of an individual. However, Ellen would succeed suing construction company upon satisfaction of the following facts; 1. She needs to prove that the builders are really affecting her business 2. She is also required to establish and prove that the renovation is going to last for a long time 3. The time in which the renovation is taking place, whether it is business hours 4. Finally, whether the noises from next door can be considered a nuisance by layman person These are the elements that are always considered when a case in the ground of private nuisance is presented. Personally, I cannot advise Ellen to take this option because it would be hard for her to stop the renovation of the building in the next door. It is better for her to seek compensation and change the site for her business. Misrepresentation Act 1972 (South Australia) Ellen can also sue the local council on the ground of misrepresentation. Misrepresentation Act of Australia regulates English contract law. According to this law, the local council must compensate Ellen for the loss she has suffered because the misrepresentation had become a term of the contract she entered with the owner of the premises. If Ellen had been provided with the truthful information concerning the environment surrounding the inner city suburb of Paddington, she would not have signed a lease agreement with the owner of the premises. This is the reason why the misrepresentation is considered to be part of the terms of the lease agreement (V Swaminathan, 2013). In summary, Ellen can only succeed in suing the local council on the ground of misrepresentation after confirming the following as elements of the signing of the lease agreement. 1. Ellen must satisfy the fact that she accepts to enter into a lease agreement relying on the misrepresentation 2. Ellen must convince the court that the statement that was provided by the local council official was a statement of facts 3. She must also prove that the statement was positive. The above elements are necessary in the courts as a proof of the misrepresentation. Without these facts, it will be hard for Ellen to sue his local council on the ground of misrepresentation. It is vital for Ellen to know that the courts require facts and they operate on those facts but not sympathy. Conclusion In conclusion, Ellen suffered because of the wrong information she receives from the offices of the local council. In fact, she has developed a nervous disorder that threatens her career in alternative medicine. This act clearly shows that the official of the local council acted unprofessionally, he was negligent when handling such an essential issue. It was too bad for the employee to give wrong information knowing that the business needed calm environment. Ellen should look for legal proceedings so that she would be compensated for the damages she encounters due to misrepresentation. The local council on the other hand needs to train their employees on the issues of customers care so that they will be able to handle customers in a professional manner. References Chandler, A., & Brown, I. (2013). Q & A Revision Guide Law of Contract 2013 and 2014. Oxford University Press. Twigg-Flesner, C. (2013). The Europeanisation of Contract Law: Current Controversies in Law. Routledge. Stone, R. (2013). Q&A Contract Law 2013-2014. Routledge. V Swaminathan, S. (2013). Law of Torts & Consumer Protection: BA. LLB. 2012 Section A Co Deakin, S., Johnston, A., & Markesinis, B. (2012). Markesinis & Deakin's Tort Law.urse Manual.an Dam, C. (2013). European tort law. Oxford University Press. Lunney, M. (2012). Legal Emigres and the Development of Australian Tort Law.Melbourne ULR, 36, 494-743. Read More