Remedies for Breach of Leasehold Covenants

• Pages: 625-690

REMEDIES FOR BREACH OF

LEASEHOLD COVENANTS

ACTION FOR ARREARS OF RENT

Atenant who has breached his covenant to pay rent can be sued in an

action for payment of arrears of rent. To the extent permitted by statute, a

landlord is entitled to recover by court action all arrears or rent due to him

from his tenant. Thus, a landlord can successfully maintain an action to

recover arrears of rent due to him, if he proceeds within the time limited by

statute.

The period prescribed by statute for the recovery of arrears of rent is in

most cases six years.1It is twelve years in Dominica2and Jamaica,3three

years in Guyana4and four years in Trinidad and To bago.5Aclaim for

arrears of rent should be prosecuted within these periods in the respective

territories after the right to recover the rent has arisen, or after an acknow-

ledgement in writing of the arrears due or part payment of the same.6

Where arrears of rent are not recovered within the limitation period,

they become statute-barred, i.e., no action can be maintained for their

recovery. If, however, after the limitation period there is part payment, the

debt is revived and can be sued upon. Astatute-barred debt is kept alive by

1Limitation Act, 2000, Cap. L60 (Anguilla), s. 16; Limitation Act, No. 8 of 1997 (Antigua),

s. 21; Limitation of Actions Act, No. 11 of 1997, (Barbados) s. 39; Limitation Act, 2000,

Cap.170 (Belize), s. 23; Limitation Act, 1984, No. 54 (Bermuda), s. 21; Limitation Act,

1991, Cap.43 (British Virgin Islands), s. 17; Limitation Law No. 12 of 1991 (Cayman

Islands), s. 25; Limitation of Actions Act, 1990, Cap.173 (Grenada), s. 33; Limitation Act,

1962, Cap.45 (Montserrat), s. 17; Limitation Act, 1961, Cap.45 (St. Kitts and Nevis), s. 17;

Limitation Act, 1990, Cap.90 (St. Vincent and the Grenadines), s. 21.

2Real Property Limitation Act, 1991, Chap.54:07 (Dominica), s. 2.

3Limitation of Actions Act, 1973, Cap.222 (Jamaica), s. 3.

4Title to Land (Prescription and Limitation), 1973, Cap.60:02 (Guyana), s. 14.

5Limitation Act, No. 22 of 1981 (Trinidad and To bago), s. 24.

6Limitation Act, 2000, Cap. L60 (Anguilla), ss. 21(4) and 22(1); Limitation Act, No. 8 of

1997(Antigua), s. 29(5)(a) in conjunction with 30(1); Limitation of Actions Act, No. 11 of

1997 (Barbados) s. 48(5) in conjunction 49; Limitation Act, 1984, No. 54 (Bermuda), ss. 30

and 31; Limitation Act, 2000, Cap.170 (Belize), ss. 29(3) and 30; Limitation Act, 1991,

Cap.43 (British Virgin Islands), s. 22(4) in conjunction 23(1); Limitation Law No. 12 of

1991 (Cayman Islands), s. 34(5)(a) in conjunction s. 35; Real Property Limitation Act,

1991, Chap.54:07 (Dominica), s. 9; Limitation of Actions Act, 1990, Cap.173 (Grenada),

s.30 and 31 (20 years); Title to Land (Prescription and Limitation), 1973, Cap.60:02

(Guyana), s. 14; Limitation of Actions Act, 1973, Cap.222 (Jamaica), s. 16; Limitation Act,

1962, Cap.45 (Montserrat), s. 22(4) in conjunction 23(1); Limitation Act, 1961, Cap.45 (St.

Kitts and Nevis), s. 22(4) in conjunction 23(1); Limitation Act, 1990, Cap.90 (St. Vincent

and the Grenadines), s.29(5)(a) in conjunction with s. 30(1); Limitation Act, No. 22 of

1981 (Trinidad and To bago), s. 30(2) in conjunction with s. 31(a).

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part payment only if the part payment is made under circumstances which

evince a promise to pay the remainder of the debt. As Parke B. said:

In order to take a case out of the Statute of Limitations by a part payment,

it must appear, in the first place, that the payment was made on account of

a debt; secondly, it must appear that the payment was made on account

of the debt for which the action is brought. But the case must go further,for

it is necessary, in the third place, to show that the payment was made as

part payment of a greater debt, because the principle upon which a part

payment takes a case out of the statute is, that it admits a greater debt to be

due at the time of the part payment. Unless it amounts to an admission that

more is due, it cannot operate as an admission of any still existing debt.7

NO DUTY TO MITIGATE LOSS OF RENT

Remedial rights in the landlord and tenant relationship are governed by

property law, which does not recognise the principle of mitigation of

damages under the law of contract.8Where a tenant wrongly repudiates

a lease and vacates the premises without giving the requisite notice, the

tenant remains liable for rent accruing due during the term, although

the premises remain vacant. The landlord is not obliged by law to re-let the

property with the view to mitigating the loss to the tenant.

In Maridakis v. Kouvaris9the defendant tenant moved from Sydney to

Darwin, where he intended to establish a panel beater and spray painter

business in the premises let to him by the plaintiff landlord. Certain alter-

ations and improvements were effected. The tenant went into occupation

and paid for two weeks’ rent or $200, and in May 1972 sought to with-

draw from the lease. The plaintiff landlord did not permit the withdrawal.

The defendant tenant loaded his truck with the intention of returning to

Sydney, and handed the keys of the premises to the plaintiff.

It was not until 4 August 1973, that the plaintiff succeeded in getting

a new tenant, John Douglas Haig. There was some desultory use of the

premises or part of them by the plaintiff and one person or another before

the premises were re-let to Haig. The handing over of the key and its

acceptance by the plaintiff, the desultory use of the premises, and his

attempts at re-letting were not found by the court to amount to a

surrender by operation of law or to acceptance of the landlord of a sur-

render by the tenant. The defendant tenant’s contention that the plaintiff

failed to “mitigate his damages” by re-letting the premises much earlier

7Ann Waiman v. Kynman (1847) 154 E.R.49.

8But cf. the liability of the tenant.

9(1975) 5 A.L.R. 197.

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was rejected by the court, which was of the view that the plaintiff landlord

was not under any duty to do anything at all in “mitigation of damages”.10

DISTRESS

Distress is an ancient common law remedy which can be used to coerce a

tenant into payment of rent. It is not a remedy which can be employed to

enforce any covenants other than covenants for payment of rent. Distress

is a self-help remedy which, unlike forfeiture, enables the landlord to get

back his money and not an empty property. Any landlord and tenant

relationship11 automatically12 vests the landlord with a right to distrain for

arrears of rent, except where the landlord has expressly contracted not to

avail himself of this remedy.13 The remedy of distress does not exist in

Bermuda and Jamaica, where it was abolished by the Landlord and Tenant

Act, 1974, No. 52, s. 28, and Law Reform (Landlords and Te nants) Act, 1979,

s. 3, respectively. In St. Vincent and the Grenadines the right to distrain

does not arise automatically under a landlord and tenant relationship; it

exists only where it has been expressly reserved by deed.14

This empowers a landlord to enter upon the demised property and

levy distress, i.e., seize and take away goods available on the premises

and impound them as a pledge for the payment of any arrears of rent due

to him from the tenant. The landlord is entitled to appropriate enough of

such goods on the premises as would provide adequate security for the

arrears of rent and the expenses.

Restriction on distress

Distress and forfeiture are mutually exclusive. This is explained by the fact

that forfeiture signals the end of the tenancy, while distress is based on

a legal assumption that the relationship subsists. In Re Lussier et al. and

Dennison,15 where the the landlord, by changing the locks on the premises,

effected a forfeiture of the lease and, at the same time, purported to seize

all tools and equipment of the tenant, the County Court judge observed:

10 But cf. text to fn.113.

11 It is not available against a tenant at sufferance: Williams v. Stiven (1846) 9 Q.B. 14; but it

can be enforced against a tenant at will: Turner v. Barnes (1862) 2 B. & S. 435.

12 See 14, post.

13 Homes (T & E) Ltd. v. Robinson [1979] 2 All E.R. 522, 527, per Templeman L.J.

14 Rent Recovery Act, 1990, Cap.94 (St. Vincent), s. 3.

15 [1972] 29 D.L.R. (3d) 160.

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