Leasehold Covenants

• Pages: 61-76

DOI: 10.4324/9781003186946-5

The liabilities of lessor and lessee are normally to be found in the express covenants

(that is, obligations) contained in the deed of lease, or in the covenants implied by

statute or by the common law. They may be considered under the following heads.

LANDLORD’S IMPLIED OBLIGATIONS

Covenant for quiet enjoyment

At common law, there is implied in every lease a covenant on the part of the land-

lord that the tenant shall be put into possession1 of the demised premises and that

he/she shall have ‘quiet enjoyment’ of the premises during the continuance of the

lease.2 The word ‘quiet’ in the covenant does not refer simply to absence of noise,

but rather to enjoyment without interference.3 Accordingly, a tenant is entitled to

recover damages from the landlord if the landlord, or any other person claiming

through him/her, substantially disturbs or physically interferes with the tenant’s

enjoyment of the land.4

Examples of breaches of this covenant are where L, having reserved the right to

work minerals under the demised land, conducts mining operations in such a way

as to cause the land to subside;5 or where L, in order to ‘get rid of’ T, removes the

doors, windows or roof of the building,6 causes the electricity or water supply to be

1 Miller v Emcer Products Ltd [1956] 1 All ER 237. In Singh v Szala (1975) Full Court, Guyana, L

granted to T a monthly tenancy of a cottage and a storeroom below. L kept the storeroom

locked and never gave T possession of it up to the time of the present action. Bollers CJ and

Mitchell J held that ‘there was a direct physical interference with the room ... by keeping it

locked’, and ‘impliedly [L] was under an obligation at the commencement of the tenancy to

put [T] into possession of that tenancy ... and to see that he remained quietly in possession of

it. It is our view that if he did not put him in possession of the tenancy to which he was entitled,

[T] has a cause of action in Guyana for breach of the implied covenant for quiet enjoyment’.

Similarly, in Massai Aviation Services v Attorney General (2007) Privy Council Appeal No 58 of

2005, in which the Bahamas government granted to the appellants a 21-

year lease of a site at

the Nassau International Airport but allowed Bahamasair to remain in occupation of some

buildings on the site, it was held that the government, as lessor, was in breach of the covenant

for quiet enjoyment in failing to give the lessee possession of the whole premises let.

2 Markham v Paget [1908] 1 Ch 697.

3 Southwark London Borough Council v Mills [2001] 1 AC 1, at 22, per Lord Millett.

4 Jones v Lavington [1903] 1 KB 253; Ferreira v Mansfield [1947] LRBG 73; Saul v Saul [1963] LRBG

299, High Court, British Guiana; Wells v Bayparl Ltd (1991) Supreme Court, The Bahamas, No

1058 of 1983; Green v Thomas (1977) High Court, Trinidad and Tobago, No 301 of 1972; Narine

v Narine (1973) High Court, Guyana, No 437 of 1972. In Branchett v Beaney [1992] 3 All ER 910,

the English Court of Appeal held that damages for mental distress caused by a breach of the

implied covenant for quiet enjoyment were not recoverable, but in Mackenzie v Ward (2000) High

Court, Trinidad and Tobago, No 1272 of 1996, Tiwari J, following earlier authority, did award

such damages. It is submitted that such damages should be recoverable.

5 Markham v Paget [1908] 1 Ch 697.

6 Lavender v Betts [1942] 2 All ER 72; Ram v Ramkissoon (1968) 13 WIR 332; Lyons v Quamina (1989)

High Court, Trinidad and Tobago, No 97 of 1986.

CHAPTER 5

LEASEHOLD COVENANTS

62 Leasehold covenants

cut o,7 or subjects T to persistent harassment8 or intimidation;9 and the acts of L

and a hired baili in removing the tenant’s goods from the premises without a valid

termination of the lease.10

There are many examples of breaches of the covenant for quiet enjoyment in

the Commonwealth Caribbean. In the Guyanese case of Ali v Enmore Estates Ltd,11 for

instance, the plainti was a yearly tenant of agricultural land owned by the defen-

dants. The defendants wished to extend their sugar cane agriculture and attempted

to persuade the plainti to surrender his tenancy in return for a tenancy of other

land. On the plainti’s refusal to vacate his plot, the defendants moved in with a

bulldozer, dismantled the plainti’s palings and threatened to remove his house.

Gonsalves-

Sabola J held that there had been a flagrant breach of the implied cove-

nant for quiet enjoyment for which the defendants were liable. He said:

The defendants’ self- help, whether inspired by ignorance, bona fides or pressing need,

was executed with a high hand and the court, in stepping forth to the rescue and pro-

tection of the humble tenant of at least 25years’ standing, can perceive the landlord’s

conduct in no other light than as attracting aggravated damages.

In Ram v Ramkissoon,12 the appellant was a statutory tenant of two rooms in a central

portion of a building in which he carried on business as a jeweller. The building was

old and in a bad state of repair, and its two end portions had been unoccupied for

several years. The respondent landlord, who owned the whole building, wished to

obtain vacant possession of the central portion also. While ejectment proceedings

were pending, the respondent removed the galvanised iron sheets from the roof

of both end portions of the building. The appellant complained that, as a direct

consequence of the removal of the roof, rainwater seeped through the rooms he

occupied, causing annoyance, discomfort and physical damage to his property. He

claimed damages for, inter alia, breach of the landlord’s implied covenant for quiet

enjoyment. The Court of Appeal of Trinidad and Tobago held, reversing the trial

judge’s decision, that the damage suered by the appellant was suciently substan-

tial to constitute a breach of the covenant for quiet enjoyment. Wooding CJ said:13

It was agreed that a covenant for quiet enjoyment must be implied from the respon-

dent’s contract of letting. It was also agreed that, to constitute an actionable breach, the

interference with the tenant’s enjoyment of the tenancy must be substantial: see Browne

v Flower.14 But Iam not at all sure that the parties are at one as to what is meant by sub-

7 Tapper v Myrie (1968) 11 JLR 102, Court of Appeal, Jamaica; Perera v Vandiyar [1953] 1 All ER

1109. In McKenzie v Ward (2000) High Court, Trinidad and Tobago, No 1272 of 1996, Tiwari

J held that, in a lease of commercial premises, the landlord was in breach of the covenant for

quiet enjoyment by (a) preventing deliveries from being made to the premises, and (b) falsely

reporting to the electricity company that the tenant and/or his employees had engaged in cur-

rent stealing, such report resulting in disconnection of the electricity supply.

8 Valentine v Rampersad (1970) 17 WIR 12, Court of Appeal, Trinidad and Tobago.

9 Kenny v Preen [1962] 3 All ER 814.

10 John v McNeil (2019) High Court, Trinidad and Tobago, No CV 2018–01115, per Donaldson-

Honeywell J.

11 (1971) High Court, Guyana, No 3619 of 1969. See also Jagroop v Khan (1990) High Court,

Trinidad and Tobago, No 1041 of 1985, in which L unlawfully entered land in the possession

of T and destroyed T’s boundary fences.

12 (1968) 13 WIR 332, Court of Appeal, Trinidad and Tobago. See also Bartholomew v Young (1990)

High Court, Trinidad and Tobago, No 2363 of 1981.

13 (1968) 13 WIR 332, at 334.

14 [1911] 1 Ch 219, at 228.