Landlord and Tenant Tutorial – Oct.

21, 2008

2. L and T orally agreed to allow T to occupy his premises in January

next year…

- This is an oral agreement for a lease: It has all the relevant

components – a start date, the rental amount and how payable –
monthly.
- Because this is an oral agreement, the question of its enforceability
comes into play.

(State T’s position upfront – YES/NO he has a right to the property, then
proceed to explain why or why not.)

Statute of Frauds – Need Memo in Writing

- The Statute of Frauds laid down the rule that all contracts concerning
land should be evidenced by a Memorandum of Writing signed by the
parties to be charged therewith.
- We are not told whether L and T had signed such a memorandum, if
so T could rely on it.
- However, based on the facts as stated, it seems unlikely that there was
a written memorandum signed by both parties.

Doctrine of Part Performance

- T, could however rely on the equitable doctrine of part performance.
- This comes into play where a party to a contract as begun executing
acts pursuant to that contract, and where it would inequitable to allow
the other party to repudiate his obligations under the contract.
- (Address the requirement of whether the actions are referable to the
contract entered into).
- It has been submitted that alterations and improvements effected on
the property of another is sufficient part performance – Rawlinson v
Ames
- Thus, if T had begun painting and refurbishing the premises, he could
successfully argue part performance and thus enforce the oral
contract.
- It appears that T began the refurbishing as the facts state that L went
to the premises and made suggestions to T as to how this refurbishing
should be done.
 - Similar Case on point is Rawlinson v Ames:
- In that case the plaintiff contracted orally to let his flat to the
defendant subject to certain alterations to be effected on the property
by the plaintiff.
- As in the present case – during the time when the alterations were
being done the defendant requested further alterations.
- After all the alterations had been done the defendant repudiated the
contract, as in the present case.
- It was held that an action of specific performance lay against the
defendant as the alterations were effected at the instance of the
defendant and were acts of part performance.

What if T had paid a month’s rent in advance?

- Payment of rent in advance might also constitute an act of part
performance.
- However, there is some debate as to whether such an act, taken by
itself could constitute part performance.
- In Steadman v Steadman the HL held that the payment of money,
together with other actions, had constituted sufficient part
performance.
- Thus, T’s payment of rent in advance, would definitely buttress his
case for part performance.
- It is doubted whether taken alone, that this act would suffice as part
performance and thereby enable him to enforce the oral agreement.

(Unless there is a receipt stating purpose of payment (which is not normally

given) then the payment of money isn’t enough.)

Chaproniere v Lambert
- Held that payment of rent in advance was not enough.
- Payment of rent in advance in respect of a parol agreement for a lease
of premises of which the lessee has not taken possession is not such
part performance as will take the case out of the operation of the
Statute of Frauds.
Landlord and Tenant Tutorial – Oct. 28, 2008

3. Trend, who after much deliberation, decided that the only way to
meet his financial commitments…

Bill seeks advice as to the effect of the agreement.

[1] What kind of agreement is this?

Is this a lease or a license?

- It should be noted that the name given to the agreement by the parties
is not conclusive of its nature.
- Thus, it’s not conclusive that Bill and Trend agreed that it should be
called a license.
- Street v Mountford: The HL held that if an agreement satisfied all the
requirements of a lease , the parties cannot alter the effect of it merely
by calling it a license.
- ‘Manufacture of a five-pronged implement for digging results in a
fork even if the manufacturer wishes to call it a spade.’
- Thus, one needs to assess whether the essential requirements of a
lease were present: (i) Certainty of Duration (ii) Rent (iii) Exclusive
Possession

Certainty of Duration

- Carson: When maximum period is known / stated there is certainty of

duration, thus in question 3 regarding Bill and Trend, this appears to
satisfy certainty of duration since the maximum period was given – 3
years.
- Also duration not uncertain for lack of commencement date – day
person takes possession normally seen as the commencement date.

Exclusive Possession
- Exclusive Possession connotes the right to physical occupation
coupled with the power to exclude all persons from the premises –
including the owner.
- Not clear whether Bill would have the right to exclude Trend as it
would appear that Trend could regain control of the premises at any
point in time he so desired – “Trend had every intention of returning
home”.
 - Would have to look at the precise wording in the written agreement to
see how much control Bill exercised over the premises.
- Carson: Nothing in the facts which connotes that there would be
exclusive possession.

Rent
- Is the $6,000 paid into Trend’s bank account each month to cover life
insurance payments rent?
- Yes – consideration was given for the agreement.

[2] What are the effects of the agreement?

- This is a FIXED TERM LEASE.

- Court will more than likely regard it as a lease since the court does not
like licences - they see them as sham agreements.
- Especially since Bill had so many maintenance obligations under the
contract, the court will view it as a lease.

[3] Can Bill presently withdraw from the agreement?

- Had it been deemed a licence Trend could easily withdraw with no

hassle.
- However, since it is a lease he would need to write to Trend telling
him that he wishes to withdraw and be released from it.
- If Trend says no then you advise Bill to: (i) Sublet or (ii) Assign
- Advise subletting so that he can still oversee the tenant – he can go
and inspect and confer these maintenance obligations under the new
sub-tenancy.
- Upon assignment – Privity of contract would still remain – he would
still be under his obligations - thus it is better that he assign.
Landlord and Tenant Tutorial – November 4, 2008

4. Pierre is a University Lecturer in French and under his contract of

employment he is …

Joanne and Mark would wish to know two things:

(i) Whether they are required to pay the rent of the 2 defaulting
student tenants.
(ii) Whether Pierre can validly give them notice to immediately quit –
is Pierre a mere licensee?

(i) Whether they are required to pay the rent of the 2 defaulting tenants:

- If they are held to be Joint tenants then YES they would be liable for
the rent of the two defaulting tenants.
- But the question is whether they are in fact joint tenants
- Did they all sign one document or four separate documents? The
answer to that question would be helpful, though not conclusive.
- Have to look to see whether the 4 unities are present – unities of
possession, interest, time and title.

(ii) Whether Pierre can validly give them notice to immediately quit – is
Pierre a mere licensee?

When employer gives occupation of premises which he owns to his

employee, it is generally viewed as a licence if the occupation of the
premises is of material assistance to the carrying out of the employee’s
duties:

Glasgow Corp v Johnstone – residence must be ancillary to the duties of the

employee in order for it to be regarded as a mere licence.

In this case it appears that a lease and not a licence would be created since
Pierre’s occupation on the premises would not be of material assistance to
his duties as a lecturer:

Hughes v Greenwich London Borough Council

- Headmaster was given occupation of a home in the vicinity of the
school.
 - Held that while it is more convenient for a headmaster to live in the
vicinity of his school, he can perform his duties satisfactorily if he is
within motoring distance of his school.

Since this is a lease he cannot give them notice to quit immediately.

If the property is protected by Rent Restriction legislation they may get

relief thereunder.

Carson: Yes it is a lease, not a licence (remember always that the courts
favour tenancies. Issue was raised as to possible tenancy by estoppel.
Carson: Even if there is a tenancy by estoppel the practical consequences of
that are quite limited – it wouldn’t affect third parties – only the landlord and
tenant.

Landlord and Tenant Tutorial – November 11, 2008

5. Brown and Green are parties to a document under seal which

provides that…

- The issue here is whether a lease or a license has been created.

- Is Green a tenant or a mere licensee?
- The mere fact that they have labeled it a ‘license to occupy’ is not
conclusive on the issue: Street v Mountford.
- One has to look to see whether the 3 essential characteristics of a lease
are present: namely (i) certainty of duration (ii) rent and (iii) exclusive
possession

Certainty of Duration
- Appears to be present since the occupation is to be for 5 years – a
specified time.

Rent
- The stated sum ‘for use of occupation’ may be seen as rent.
- Escalus Properties v Robinson defines rent as (i) a periodical sum (ii)
paid in return for the occupation of land (iii) issuing out of the land
(iv) for non-payment of which a distress is leviable.
- This sum is definitely for the occupation of the land – not clear
whether it’s a periodic sum or a lump sum.
 - NB. The description of a payment by the parties, e.g. as ‘licence fee’
cannot in law alter the character of payment as rent, if it is actually
paid for the use and exclusive possession of the land – Bostock v
Bryant – Owusu p. 534

Exclusive Possession
- Owusu: exclusive possession connotes the right to physical
occupation coupled with the power to exclude from the demised
premises everyone else – including the owner of the property.
- It appears Green had such exclusive possession since he could bolt the
door from the inside to the exclusion of the owner Brown.
- However, Brown’s retention of a set of keys raises questions as to the
exclusivity of Green’s possession.
- Owusu: The purpose for which the keys are retained by the landlord is
the determining factor.
- If purpose is merely to facilitate inspection, repairs and emergency
access – there is exclusive possession.
- If purpose is to have free access to the premises, or to provide
attendance and services such as cleaning – there is NO exclusive
possession.
- Relevant Case: Family Housing Assoc v Jones – CA concluded that it
was appropriate for the landlord Association to have retained keys in
those circumstances for the purposes of inspection, repairs and
discussion of housing problems with residents. Thus, there was still
exclusive possession.
- Thus, Brown’s reason for keeping the keys would be conclusive on
the matter.

Landlord and Tenant Tutorial – January 13, 2009

7. M, who became the registered proprietor of a dwelling house in 1998,

gave her son…

- Jim appears to be a mere licensee.

- This is because this is a family arrangement with no intention to create
legal relations – merely one family member helping out another in a
time of need.
- Such arrangements have generally been regarded by the courts as a
mere licence rather than a tenancy at will - Cobb v Lane; Romany v
Romany.

- Romany v Romany: T&T Court of Appeal held on similar facts that a

licence was created rather than a tenancy at will – that the main issue
was the intention of the parties – and in this case there was no
evidence of an intention to create a tenancy. The case of Cobb v Lane
was referred to in the judgment.

- Cobb v Lane: there was a family arrangement to allow a brother to

live in a house bought in his sister's name. It was held that the
occupier was a mere licensee and further that the fact of the exclusive
occupation of property for an indefinite period was not inconsistent
with the occupier being a licensee and not a tenant at will. Denning
held that the main question in these cases is one of the intention of the
parties: Did the circumstances and the conduct of the parties show that
all that was intended was that the occupier should have a personal
privilege with no interest in the land? If so – mere license created.

- Jim’s license was revoked in 1989 when M began to urge him to

leave. At that time he became a trespasser. (His license cannot be seen
to be renewed merely by his mother’s inaction to take any further
steps to evict him – See Romany v Romany – it was held that the
mother’s inaction in that case could not be seen as acquiescence but
rather, that the license came to an end as soon as she requested that he
leave in 1989.)

- Therefore between 1989 and 1995 Jim was living there without his
mother’s consent – he was therefore a trespasser for 6 years.

- Susan was by extension also a trespasser since she had been living
there initially only because of Jim’s license, thus when that license
was revoked, she became a trespasser as well. She was living there
without consent for 16 years – 1991 to 2007.

- Section 3 of the Limitation of Actions Act - states that any action for
land or rent becomes statute barred after 12 years of undisturbed
possession. Thus, any action by Marie as the current holder of the
 registered title is statute barred. Thus Susan’s adverse possession
trumps Marie’s registered title.
- Also, it is possible for Jim’s years of adverse possession to be added
to Susan’s years through tacking. See section in Owusu.
- Thus, Susan’s period would start to run from 1989 when the land was
first adverse.
- Marie would have to sue M to recover her money.
- Note by virtue of section 85 of the Registration of Titles Act someone
who has acquired registered land by adverse possession may apply to
be the owner of such land.
- Note also that adverse possession is more of a shield than a sword.
Thus, Susan cannot bring any claim against Marie unless she has
concretized her right as legal owner under section 85 of the
Registration of Titles Act.

Landlord and Tenant Tutorial – Jan. 20, 2009

8. In August 2007, V purchased premises which had been occupied for

several years…

Issues:

1) Whether the notice to quit was valid?

- Whether security deposit valid – see Rent Restriction Act
- Whether rent in arrears validly paid?
- Was cheque suitable means of payment?
- Was Oct. 16th a suitable day?
- Was V’s wife a suitable person to receive payment?
- Is notice to quit valid under Rent Restriction Act?
- Were reasons given suitable?

2) Whether V breached covenant for quiet enjoyment when he:

- (i) deposited cement in the carport
- (ii) removed the water heater from the premises

1) Whether notice to quit was validly given.

- V gave MB notice to quit for ‘non-payment of rent and deposit’.

 - Section 31(1) of the Rent Restriction Act states that a notice to quit is
not valid unless the reason for such notice is given.
- The reason was given – question is whether or not those reasons are
such that are validly recognized by the Rent Restriction Act.

Security Deposit

- The security deposit stipulated in the agreement is illegal and thus it is

not a valid ground for notice to quit:
- Section 24(1) of the Rent Restriction Act: A person shall not, as a
condition of the grant, renewal or continuance of a tenancy of any
controlled premises… require the payment of any fine, premium or
other like sum.. and where such payment is made the value thereof
shall be recoverable.

Rent

- Rent in arrears is a valid reason for notice to quit – Section 25(1)(a) of

the Rent Restriction Act: “No order for ejectment for a notice to quit
shall be made unless – (a) some rent lawfully due from the tenant has
not been paid for at least 30 days after it became due.”
- However, Section 31(2) of the Rent Restriction Act states that where
unpaid rent is the reason given in any notice to quit, the notice shall, if
the rent is paid before the date of expiry of the notice, cease to have
effect on the date of the payment.
- The notice to quit was given on October 16, 2007, it expired in one
month – on November 16, 2007.
- MB paid her rent in arrears on October 16, 2007; thus if this payment
was validly made the notice to quit would cease to have effect. The
question is whether MB’s payment of the rent was valid.

Whether MB’s payment of the Rent was valid

(i) Was cheque suitable means of payment?

- The rent was normally paid in cash, however, this time it was paid
through a cheque.

(ii) Was Oct. 16th a suitable day?

 - Rent is generally payable in arrears and not in advance.
- Rent was due at the end of the month but this rent was paid in advance
– not on Oct. 30 but on Oct. 16.
- Note that rent paid before the due date is not satisfactory of the
obligation to pay rent – but may be a defence in equity to any action
by the landlord for rent after such rent was paid in advance.
- (James v Venezula)

(iii) Was V’s wife a suitable person to receive payment?

- Rent should be paid to the landlord or his authorised agent.

- Carson: Can’t assume his wife was a suitable agent. Thus, she has not
paid the rent.
- Based on the foregoing MB has not effectively paid the rent.

Is the notice to quit valid?

Carson: No it is not. Notice to quit must expire at the anniversary of the

tenancy; thus a valid notice to quit must have expired on the 30 th of the
month, not on November 16th, which was when his notice was expired.
Thus, the notice to quit given by V was invalid as if he gives notice on
October 16 it could only have effectively expired on November 30 – the end
of the next term.

Advice to MB: the notice to quit is invalid. However, you still need to pay
the rent owing since you have not effectively done so as V may effectively
serve you with another valid notice to quit. If V refuses to accept the rent
from you, you may pay it into the court.

Carson: What if the Rent Restriction Act doesn’t apply (these facts were
given on last year’s exam and at the end of the question it said assume the
Rent Restriction legislation does not apply)?

- Note that security deposit is legal at common law.

- She would still have to pay the rent owing, the notice would still be
invalid.
- If V decides he wants her out she would have to leave at the
expiration of the next term.
- He wouldn’t have to give reasons for notice to quit and she would not
be afforded the protection of the Rent Restriction Act.
2) Whether V breached covenant for quiet enjoyment.

- Section 4 of the RR Act states that the landlord and tenant shall be
deemed to have inserted the covenants set out in the First Schedule.
- First Schedule speaks to the landlord being bound by a covenant for
quiet enjoyment of the premises [Part 1 – subsection (b)].
- Throwing cement on carport and turning off water heater were clearly
breaches of this covenant.
- Note also that by virtue of sec. 27(1) and (2) of the RR Act - a breach
of covenant for quiet enjoyment is also an offence by virtue of sec
27(2) punishable by a maximum imprisonment of 12 months.

Landlord and Tenant Tutorial – January 27, 2009

9. Mr. Walter Rodrigo has come to see you. He tells you that in 2007, he
became…

- Carson:
- Section 5 Rent Restriction Act: Shared accommodation can be seen as
a dwelling house under the Act, thus there is no issue in the fact that
the premises were shared with other tenants.

- Cyrene wants to terminate their tenancies at the end of the following

month:
- This is a fixed term tenancy – in order to terminate a fixed term
tenancy one would have to ascertain: (i) is there a break clause or (ii)
has there been a material breach?

- Re the utilities:
- See section 24(3), (4) and (5)
- Section 24(5) – he can pay the utilities and then deduct that sum from
the rent owing to the landlord
- (Rodrigo could also sue the original landlord for sums paid to him for
utilities.)
- Carson: Could also take her to court under Public Health Act for
breach of covenant for quiet enjoyment.

- Re 20% increase in rent:

 - The law provides for a maximum of 7.5% per annum.
- Any increase above that the landlord would have to apply for it.

Landlord and Tenant Tutorial – February 2, 2009

10. ‘A’ leased Townhouse No. 3 in a block of nine belonging to ‘B’ for
one year…

Issues:

Whether the following are breaches of the covenant of quiet enjoyment:

(1) Water seeping into A’s bedroom from Townhouse 2 due to

faulty construction
(2) Disturbance from loud music in the gambling house next door
(3) The invasion of rats from an old house on grounds adjacent to
the Townhouses

Southwark LBC v Mills

- HL decision which defines covenant for quiet enjoyment as ‘any
substantial or physical interference with the tenant’s ordinary and
lawful enjoyment of the property.’
- Millet, LJ: ‘the covenant for quiet enjoyment is broken if the landlord
or someone claiming under him does anything that substantially
interferes with the tenant’s title to possession of the demised premises
or with his ordinary and lawful enjoyment thereof. The interference
need not be direct or physical.’

(1) Water seeping into A’s bedroom from Townhouse 2

- Question is: was this a substantial interference with the comfort of

tenant and his enjoyment of the premises?
- Southwark LBC v Mills: It is a question of fact and degree in each case
to determine whether the interference is substantial.
- Sanderson v Berrick-upon-Tweed Corporation - Per Fry L.J. “it
appears to us to be in every case a question of fact whether the quiet
enjoyment of the land has or has not been interrupted;”
 - The interference in this case seems to be substantial based on the use
of the word ‘continually’ and in light of the fact that the water was
seeping into his bedroom.
- In Ram v Ramkisson: T&T Court of Appeal held that the seepage of
water from the rain unto the demised premises was held to be a breach
of the covenant for quiet enjoyment. The Court held that the damage
was sufficiently substantial, if only because of its frequency. Thus the
court placed some emphasis on the frequency of the seepage and in
this case it is ‘continually’ thus – it’s very likely that this would be
regarded as a breach.
- (However, note that Ram v Ramkisson may be distinguished on the
ground that the seepage was due to the landlord’s direct action of
removing some sheets of iron from the roof.)

Carson:

(1) Bursting of Pipes / Overflow of Water

See Woodfall on this point – Volume 1 and 2 of Woodfall – a very thorough

practioner’s text.

Woodfall: No breach where there is faulty construction which is not the fault
of the landlord.

See also Anderson v Oppenheim: If the landlord is negligent in maintaining

the premises then the covenant may be broken.

Thus it may depend on whether the landlord was negligent in omitting to fix
the construction or hiring incompetent workmen.

See Blake v Wolf (1898) 2 QB 426

Thus further questions would need to be asked regarding the faulty

construction.

It is also important whether the tenant had knowledge of the defect.

(2) Disturbance from loud music in the gambling house next door
 - Southwark LBC: HL laid down that excessive noise may constitute a
breach of the covenant for quiet enjoyment.
- HL Held: That interference need not be direct or physical, and a
regular excessive noise could constitute such substantial interference.
- Further, the liability of the landlord extends to the rightful acts of
persons who derive title from him – this includes his other tenants.
- However, it has also been established that unlawful activity of third
parties exonerates the landlord from liability: Baxter v Camden LBC:
It was held that the landlord is not liable for any “improper use” by his
tenants – such use being defined as a use not authorised by the
landlord.
- The operation of a gambling house appears to be an unlawful activity
which would not have been authorised by the landlord.
- Thus, the landlord would not be liable for this. A’s proper recourse
would be an action in nuisance against the occupants of Townhouse
No. 4.

- Is the gambling house legal or illegal? Did they get a license from the
Betting, Gaming and Lotteries Commission?
- What are the zoning requirements of the neighborhood? Is it zoned
“residential” or “commercial”
- The loud music throughout the night may be seen to be a breach of the
noise abatement act – but this wouldn’t apply to the music in the day
time.
- If the noise is so excessive that it is unlawful you would have to seek
remedy elsewhere – it wouldn’t be a breach of quiet enjoyment.

(3) The invasion of rats from an old house on grounds adjacent to the
Townhouses

- This does not appear to be any act of the landlord or those claiming
under him.
- However, it could be argued that it is an omission on the part of the
landlord to prevent rats from so infesting the Townhouse.
- Boothe v Thomas 1926 Ch. Div 397 highlights the principle that an
omission to act may amount to a breach but only where there is a duty
to act.
 - Doesn’t appear that there was any legal duty on the part of the
landlord to prevent rats from coming onto the premises – this is
something out of his control.

Hill and Redman

- Page 974: Lessor not liable for invasion of vermins where he has done
nothing to attract them or let them loose on the property.
- (Belbridge Property Trust Ltd. v Milton (1934) 78 Solicitor’s Journal
489)
- Long v Southwark BC TLR April 12, 2002 164:
- A local authority landlord that failed to deal adequately with disposal
of refuse was held to be liable when rubbish overflowed and maggots
infested the garbage disposal.
- Held to be breach of covenant for quiet enjoyment.

Conclusion:

- Scenario 1 is a breach of covenant for quiet enjoyment for which you

can get remedies (damages) from the landlord. If property under Rent
Restriction Act the breach is also an offence [sec. 27(2)].
- Scenario 2 is not a breach of covenant for quiet enjoyment. However,
A may sue his neighbours for nuisance.
- Scenario 3 is not a breach of covenant. A appears to have no legal
remedy in that situation.

[These conclusions, and everything in black font in this question, are subject
to Carson’s comments in Red].

Landlord and Tenant Tutorial

11. In October 2007, Luke leased a three-storey building to Titus for

three years…

Notes from Carson:

(Read Rory Robinson, it’s an important case: even though you have a
periodic tenancy you can enter into a fixed term tenancy.)
Titus’ liability under the covenant with Saul:

- This covenant is an unqualified covenant for quiet enjoyment since it

says landlord or ‘any other person’.

Noise from Workshop

- Was noise substantial enough to amount to interference with quiet
enjoyment?
- Was machine shop lawful? Was it operating in area zoned
commercial?
- (It seems like a commercial area based on the other activities
conducted in the building).
- If so, Saul cant really complain about it
- The complaints would be looked at in the context of it being a
commercial area.

Noise by Agnes’ Customers

- Same principles would apply

Persons peering in:

- Browne v Flower: Where loss of privacy occurs – no breach of quiet
enjoyment.

Also note that workmen were conducting repairs on the building –

thus they were doing what the landlord is covenanted to do – maintain
the building. Thus the chances of successfully complaining about this
are slim.

However, if construction goes on too long, it may be seen to be

unreasonable and a disturbance. However, this was only 2 weeks -
not unreasonable.

Loss of Water
- Covenant says ‘any other person’ so disconnection by the workers is
still likely to amount to a breach of the covenant for quiet enjoyment.

Titus’ Remedies Against Luke

1) Noise from Repair shop

 - Commercial area, Titus wants to sleep during the day
- Question to ask Titus: Did Luke say anything to Titus about the shop
not being a disturbance?
- Did you indicate to the landlord your special circumstances? Did the
landlord acknowledge that it would have been ok?
- Whenever there’s an issue of special use, one needs to know whether
there was an agreement about it between the landlord and tenant.
- If there’s no agreement then Titus can’t now complain about it.

2) Workmen on the Premises

Doesn’t seem Luke would be in breach for disturbance by workmen, esp

since this is not an unqualified covenant as the one above between Saul and
Titus.

3) Absence of Water

This would be a breach – See considerations regarding Saul above.

Landlord and Tenant Tutorial – April 14, 2009

Question 14(ii)

Issues:

(i) Is there a breach of covenant for quiet enjoyment by L?

(ii) Option to Renew
(iii) Parking Issue

(i) Breach of covenant for QE

- The actions are by T, L’s tenant.

- L only liable for the lawful acts of his other tenants; acts which he
would have authorised (Sanderson v Berwick)
- His actions in question are that his daily round of entertaining visitors
make life impossible for the other tenants and they are unable to find a
place to park.
 - These actions, if they amount to nuisance, would be unlawful and thus
not authorised by L and therefore L would not be liable for them.
- If T’s actions amounted to a nuisance and are unlawful, the tenants
would have to sue T (Smith v Scott).

(ii) Option to Renew

- This option rests with T, and therefore L has no discretion to refuse T

this option.
- Once T wishes to exercise the option there is nothing L can do about
it.

Silvia Eloise and Valrie Co v Burley Buch 1983 20 JLR 99

- Carey JA “the exercise of an option to renew involves nothing to
be done by the landlord only by the tenant”.

- What L should have given was a right of first refusal. This is the
right the tenant has to be offered first a renewed lease in the event
that the landlord intends to renew the lease. (Wong v Calneck)
- Another issue is whether the clause creates a perpetual lease – that
is, if it doesn’t have ‘save and except this clause for renewal’.
(Parkus v Greenwood)
- Also, if the clause is subject to T having fulfilled all his duties and
not breaching any covenant, L may refuse renewal on the basis that
a covenant was breached.
- Thus, if there is a covenant against nuisance and this is seen to be
breached by T’s actions, then T would be prevented from
exercising the option.
- See (West County Cleaners Falmouth Ltd. v. Saly)

(iii) Parking
- Only have a right to complain about parking if there was an
agreement to that effect guaranteeing a parking space, otherwise
you can’t complain about it if the parking is simply on a first come
first serve basis.
- It says ‘common parking area’ this doesn’t suggest designated
parking where each person has a space assigned.
- Main question: whether or not the parking is part of the demise or
not.
CARSON:
- The entertaining of the visitors is a different issue than the parking;
they are two separate issues.