Analysis of Landlord and Tenant Law in English Law - Essay Example

Landlord and Tenant Law (English Law) Work Count: 2502 words PART Under Section 7 of the above Act, the terms and conditions governing Statutory Tenancy shall be determined by the landlord and the tenant as per the covenant agreed between themselves, or as determined by Court. The terms of the covenant shall also set forth by which party the 'initial repairs' need to be carried out, whether the landlord or the tenant, and it shall also clearly ascribe the nature of repairs to be carried out by the landlord, and also, list out the repairs to be carried out by the tenant. (Ministry of Justice). The law further states that the obligation on the part of the landlord, or the tenant, with respect to the repairs of a dwelling house shall be according to the covenant between the parties or, in its absence with such an agreement, as per Orders of the Court. Under Section 8, (1), where as per the agreement between the landlord or the Tenant, or as decided by the Court, specified repairs need to be carried out, and in cases where the initial repairs need to be carried out by the landlord, due to the inability on the part of the tenant to carry out the said repairs with regard to the tenancy, the landlord, in such cases, shall be privileged to claim: 1. An Amount of cost, reasonably spent by him, reasonably spent by him in determination of the cost of repairs 2. Carrying out of the repairs that has been determined 3. This payment shall be made either in instalments, or in any other method agreed upon by the parties mutually or by the Court. (Ministry of Justice: The U.K. Statute Law Database: Statutory Tenancies arising under Part I : provisions as to repairs during period of statutory tenancy ) As mentioned earlier, the responsibility of the tenant and the landlord with regard to the repairs of the dwelling house, during the period of statutory tenancy shall be as covenanted, or as determined by the Court. The matters that need to be considered would be: 1. The amount to be included as payment of the accused tenant's repairs, and paid off by the landlord for the determination of the costs 2. The estimated costs that have been incurred by the landlord. 3. Whether payment for the accrued tenant's repairs should be made by instalments or through any other mode of payment, and, in the event it is made through instalments, the amount of yearly instalments, the 1st instalments due and the periodicity of instalments. 4. It shall also be made known whether there are any other obligations, with regard to repair of dwelling house during the period of statutory tenancy, other than relating to the payment of initial repairs, and if so , the nature of such obligations. (Ministry of justice, The U.K. Statute Law Database : Statutory tenancies arising under Part 1 : Provisions as to repairs during period of statutory tenancies : Under Section 9, if it is the Court that has to determine what the initial repairs need to be, the sum determined by the Court, shall be done with the permission of the landlord and the tenants, and shall not exceed "what is required to bring the dwelling-house into good repair or the carrying out of any repairs not specified by the landlord in his application as repairs which he is willing to carry out" (Ministry of justice). Further, good repairs has been construed to mean the repairs needed to make good the structure and furnishings, taking into account the useful life, construction and area, in which the premises lies. Further, it has been laid out that Court shall not impose any repair liability on the tenant, without his consent. Further under Section 9 (4), the law does not require that the place needs to be kept in a higher condition of repair, than that what expected to be, post the initial repairs, and in the absence of any agreement, in a better condition than it was when the Court had determined the liability of repair to be imposed. Coming to the aspect of this case study, it is seen that Mr Razor, who is the owner of Focal House has requested Mr. Shabby, the tenant, to install waterproof joints in the basement to prevent flooding in future, dig out all loosened pointing and repoint all areas where the pointing has fallen out or deteriorated, and replace the damp proof course. In this case the focal point of attention is to distinguish between repair and renewals. A repair could be construed to be incurred to maintain the liveability in the premises. Coming to the installation of waterproof joints, it is seen that it was not available when the building was leased to the tenant, Mr Shabby. Hence it does come within the purview of repair, which has been covenanted by him, since the wording of the covenant between the parties, speaks only about repairs and not renewals. In Anderson v. Oppenheimer (1880) 5 Q.B.D. 602 a pipe in an office building in the City of London ruptured water from a cistern installed by the landlord in the roof, and water collected in the premises of the tenant of the ground floor. The Court of Appeal held that, although the flood of water was a result of the maintenance of the cistern and water supply by the landlord, it was not a breach of the covenant for quiet enjoyment. It did not constitute an act or omission by the landlord or anyone lawfully claiming through him after the lease had been granted. (Judgment -London Borough of South ware and Another v. Mills and others (AP) Baxter (AP) v. Mayor etc., of the London Borough of Cadman). In the leading case, Lister v. Lane and Nesham (1893) 2. Q.B. 212, there was a covenant signed by the lessee that they would 'repair, uphold and maintain' demised premises. Before the end o the lease period, the building wall gave way. The plaintiffs brought action, but it was held by the Court that "the defect having been caused by the natural operation of time and the elements upon a house, the original construction of which was faulty, the defendants was not, under the covenant liable to make it good." (Lister v.Lane and Nesham (1893) 2 Q.B. 212). Next, coming to the digging out of all loosened pointings and repoint all areas, it is seen that, even prior to the tenancy, these aspects were present, therefore, the tenant is not legally bound to pay for these repairs. Under Section 9 (2) of the Landlord and Tenancy Act 1958, it has been laid out that the repairs need not be conducted which would put the building in a better condition that it would have been, prior to the initial repairs. Thus, it could be seen that these repairs need not be carried out by Mr. Shabby. However, the repairing of the damp proof course has to be undertaken by Mr Shabby, the tenant, since it is in the ordinary course of repair work and is well within the scope of repair as enunciated by the wordings "to keep the entirety of the demised premises in good repair." Hence, Mr Shabby would be responsible for repair work connected with the damp proof course since it within the ambit of the work repair, as it appears in the covenant, between Mr. Razor, the owner of the demised property and Mr. Shabby. In the leading case, Proud foot v. Hart, Lord Esher observed "The house could not be occupied if the floor were rotten, and the tenant, to comply with his covenant as to tenantable repair, must either make it good by repair or replace it, for otherwise the house would not be tenantable." (Lurcott v. Wakely and Wheeler. 1911). The facts of the case are that Mr Shabby wishes to incur the least amount as repair expenses. After the arguments as above, it is seen that he need not pay for renewals of the said property and can therefore, only concern himself with the covenanted repairs. Repairs relate to the expenses to be made for maintaining the premises in occupiable condition, and therefore, he needs to expend only for the damp proof course expenses, since it is in the nature of expenses and not renewal. Moreover, it may not be construed to be an expense that would place the building in a better condition than what it would have been, had the initial expenses, not been taken up. End of Part 1 PART 2: This Tenancy Agreement, between Mr. Flybynight, Landlord and Mr. Lasagne, tenant, has not been contracted out of the provisions of Part II of the Landlord & Tenancy Act 1958 relating to security of tenure for business, professional and other tenants. Hence, the provisions of this Act could be enforced on this tenancy agreement. Under Section 25 of this Act, the landlord may terminate a tenancy to which this Act applies, by giving notice in the prescribed Form to the tenant, mentioning therein, the date on which the tenancy is formally declared terminated. It shall be effective only if it is given for a period ranging between 6 - 12 months. (Ministry of justice). For the purpose of this section, the date of termination would be the earliest date on which the landlord could have brought the tenancy to end and the date shall be taken to be the date on which the notice is being served to the tenant by the landlord for vacation of premises or as contractually agreed upon by both parties. Under Section 25(3)(a) of this Act, the date of termination shall not be a period earlier to, the earliest date by which the tenancy could have been ended by giving notice to the tenant by the landlord. Again under Section 25 (3)(b), where a longer notice period is required to bring the tenancy to the end, the words 12 months would be substituted for 6 months under Section 25(2). In other words, the notice period would be deemed to be 1 year instead of normal 6 months. (Ministry of justice). In the case of any other tenancy, a notice under this section shall not delineate the date of termination of the tenancy earlier than the date set apart by this Part of the Act, should the tenancy be one that is deemed to expire, by the passage of time. Again under the provisions of Section 25 (5), the notice under this section shall be said to have become effective, unless it requires the tenant, to notify in writing to the landlord, within 2 months of receipt of the notice, that he would be in a position to surrender the tenancy upon expiry of the notice period. (Ministry of justice). Further, under Section 25(6) of the Act, the notice period would be ineffective, if, in case the landlord wishes to oppose an application of the fresh Application for tenancy from the tenant and he should also have to give the basis for opposition for fresh application for tenancy by the same tenant. There have, however, been new amendments in the Landlord and Tenants Act 1958, effective from February 7, 2007. The provisions of Section 25 state that the landlord should serve either Form 1 or Form 2 to the tenant; Form 1 would be applicable in case the landlord is opposed to the new tenancy, and Form 2 , when there is no such opposition on the part of the landlord. Regarding termination of the tenancy agreement, it could be said that the landlord may seek resource to the provisions of Section 30 for termination of tenancy according to law. The new laws imply that the landlord need not have to wait for the tenant to apply for fresh tenancy and then oppose it. The Notice period being immediately mobilized, the landlord could apply to the Court for He no longer needs to wait for the tenant to apply for a new tenancy and then oppose it, in order to establish termination. Furthermore the notice takes on immediate effect.. On service of the notice to the tenant, the landlord may then make an immediate application to the court to terminate the tenancy. (Amendment to Part 11 of the Landlord and Tenant Act 1954. 2006). Thus it is seen that the action for termination of the lease agreement with Mr Lasange and vacant possession by its leasehold owner, Mr. Flybynight is a maintainable one, under the terms of the lease agreement which categorically maintains that in the event of need for demolishment or reconstruction of the said building or for carrying out significant reconstruction in the area that would eventuate the giving of 6 months notice to the lessee, the lease agreement would be terminated at the end of 6 months. However, it is necessary both for the lessor, as well as the lessee, to abide by the provisions of various related Sections of the Landlord and Tenant Act 1958, and also abide by the laws and amendments that may be relevant in such a situation. As has been laid down by law, the covenant signed by the parties shall determine the scope and applicability of various aspects governing the lease agreements, and in the absence of , or in the event of dispute between the parties regarding the interpretation of law and their respective roles and liabilities under the terms of the covenant, it is for the Courts to decide what the final decision would be, considering the totality of the situation and the arguments put forth by both the defendants and the plaintiffs. The Court decision would be the final authority, in the event of the absence of consensus between the respective parties and the resolution of disputes, if any. However, in this case it may be concluded, that by the application of the governing covenant and the application of law, Mr. Flybynight be able to bring the lease of Spaghetti House to an end and obtain vacant possession. End of Part 2 Works Cited Ministry of Justice. The U.K. Statute Law Database. Statutory Tenancies arising under Part I. settlement of terms of statutory tenancy. 29 Dec. 2007 . Judgment -London Borough of Southware and Another v. Mills and others (AP) Baxter (AP) v. Mayor etc., of the London Borough of camdan. Business. House of Lords. 1999. 26 Dec. 2007 . Lister v.Lane and Nesham (1893) 2 Q.B. 212. Legal Database. 26 Dec. 2007 . Lurcott v. Wakely and Wheeler. Legal Database. 1911. 26 Dec. 2007 . Amendment to Part 11 of the Landlord and Tenant Act 1954. Termination and Renewal. Lee & Priestley. 2006. 26 Dec. 2007 . Read More