Head 17:4

Question 1

Where the landlord’s hypothec applies, the tenant is bound to…

Answer 1

Plenish or stock the subjects.

Question 2

The landlord’s hypothec only applies in…

So the duty to plenish or stock the subjects…

Answer 2

Commercial leases

Probably only applies in commercial leases.

Question 3

Co-operative Insurance Society Ltd v Halfords 1998

Answer 3

If a tenant does displenish the stock then the landlord can obtain interdict to prevent this

Question 4

What is the tenant’s obligation in relation to rent?

Answer 4

The tenant is obliged to pay the rent when it falls due.

Question 5

While most leases state the date rent is due,

Answer 5

If there is no payment date specified, the tenant will be obliged to pay at a legal term date (this depends on the types of lease in question) - there are “horrible” rules on this.

Question 6

What is the landlord’s main obligation at the outset of the tenancy?

Answer 6

The landlord is obliged to provide subjects reasonably fit for the purposes of the let.

Question 7

N B Storage Co v Steele’s Trustees 1920

Answer 7

It was held that while a drainage system could have been upgraded to a higher standard, this was not actually required since it was reasonably fit for the purposes of the let.

[This demonstrates that the standard of the landlord’s obligation at the outset is not perfection - it is only what is reasonably fit.]

Question 8

[Landlord obligation to provide subjects reasonably fit for purposes of the let]

In relation to urban subjects (e.g. buildings) what is one of the landlord’s obligations?

Answer 8

Urban subjects must be wind and watertight.

Wolfson v Forrester 1910

Question 9

Wolfson v Forrester 1910

Answer 9

There was water from a choked down pipe which leaked through a hole into the premises causing flooding. The hole in the wall of the premises was to allow a gas pipe to enter. The court held the premises were wind and watertight - the hole in the wall would only cause problems in extraordinary circumstances whereas wind and watertight means under ordinary conditions. Furthermore, one of the judges added that the tenant could see the hole when he moved in anyway so if he wasn’t happy he should have raised the issue at that point.

Question 10

*Glebe Sugar Refining Co v Paterson (1900)

Answer 10

Held that the landlord only required to provide a building of sufficient strength for weight that would be put on it by ordinary trade use. The tenant was obliged not to overload it and he did, therefore he was liable.

[Demonstrates that the landlord’s obligation to provide subjects reasonably fit for the purposes of the let assumes reasonable use by the tenant.]

Question 11

What can the tenant use the property for?

Answer 11

Only for the purposes of the let.

Question 12

In commercial leases what is a typical clause in relation to the purposes of the let?

What is a breach of such a clause often known as?

Answer 12

In commercial leases there will typically be a “(permitted) use clause.

“inverting the possession”

Question 13

Mercer v Esk Valley Railway Co (1867

Answer 13

The subjects were let for use as a paper mill. However the tenant brought a railway onto the subjects. This was held to have inverted the possession.

Question 14

British Linen Bank v Purdie (1905)

Answer 14

Tenant affixed displays to the outside wall of the shop which he wasn’t permitted to do and this was held to constitute inversion of the lease.

[So unauthorised alteration may also constitute inversion of the lease]

Question 15

What is the landlord’s obligation as to the state of the subject during the lease?

Answer 15

The landlord is obliged to carry out repairs. In urban leases the landlord must maintain the subject in a tenantable or habitable condition during the term of the lease, making such repairs as are necessary to keep this obligation. This includes (but is not restricted to) keeping the property wind and watertight.

Question 16

Gunn v NCB 1982

Answer 16

The landlord failed to deal with rising damp and was held to be in breach of his obligation.

Question 17

The landlord is not required to effect repairs in respect of damage caused by:

Answer 17

i) damnum fatale (acts of god)
ii) the action of a third party
iii) the negligence of the tenant (damage by the tenant would constitute a breach by the tenant of the corresponding duty to take reasonable care of the property.

Question 18

*Wolfson v Forrester 1910

Answer 18

Court held that even if the premises were no longer wind and watertight because of the hole, the landlord’s obligation was only breached if the tenant drew the matter to the landlord’s attention and they failed to do anything about it.

This means the landlord’s obligation is not a warranty - there is no obligation to keep the subjects in a habitable condition permanently - the obligation is, if the tenant draws things to your attention to the effect that the obligation has not been met then the landlord must rectify it, it not then this is a breach. So if premises cease to be in a tenantable position and the tenant suffers a loss as a result, the tenant cannot successfully sue the landlord for breach unless they have previously drawn it to the attention of the landlord.

If the tenant does bring it to the landlord’s attention then the landlord must repair within a reasonable time.

Question 19

During the lease the tenant is required to…

Answer 19

Take reasonable care of the property

Question 20

Mickel v McCoard

Answer 20

Tenant left the property vacant for around 2 weeks in the winter and didn’t turn the water off. The pipes burst and the tenant was held liable for damage.