Furnished dwelling houses must be reasonably fit

Applies only to condition of house when lease begins: No implied covenant that house will continue to be fit for habitation
•    Sarson v Roberts [1895]

Applies only to the premises, not to the furnishings or appliances
•    Pampris v Thanos (1967)

Statutory Inroads:
•    Can only rent ‘dwelling-house’ that is in ‘fair and tenantable repair’ at the date of letting
o    Section 39 Landlord and Tenant (Amendment) Act 1948 (NSW)
•    Landlord has duty to provide and maintain premises that are habitable
    -    Extends to contents supplied by landlord
o    Section 25 Residential Tenancies Act 1987

Use the premises in a tenant-like manner
•    Ie not to commit waste
o    Marsden v Edward Heyes Ltd

“If the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, the tenant is not liable to repair it”
•    Warren v Keen
o    Lord Denning
o    Note: Statutory alteration of covenant

Tenant must not commit voluntary waste
•    Section 32(1) Imperial Acts Application Act 1969
o    Leasehold tenant includes (s32(3))
•    Tenant for a term
•    Tenant under periodical tenancy
•    Tenant holding under s127 Conveyancing Act
•    Tenant at will

Tenant under a ‘residential tenancy agreement’ must not intentionally or negligently damage the premises, and must keep them in a reasonable state of cleanliness, having regard to their condition at the start of the tenancy
•    Section 26 Residential Tenancies Act 1987

Yield up possession to the landlord at the end of tenancy

Landlord may recover damages for loss of rent and legal expenses incurred in evicting a tenant’s sub-tenant who, after the (head) tenancy expires, retains possession against the will of the tenant
•    Henderson v Squire

Landlord may use ‘self-help’ to eject a tenant whose right to possession has come to an end
•    MacIntosh v Lobel (1993)

Self-help allows only force that is reasonably necessary
•    Section 18 Imperial Acts Application Act 1969

For agricultural land, cultivate in a husband like manner

Cultivation according to custom of the country: usage which is prevalent in the neighbourhood where the land lies and which has subsisted for a reasonable length of time
•    Williams v Lewis

Tenant of farm must pay owner fair compensation for any deterioration of the farm during the tenancy owing to the tenant’s failure to cultivate in accordance with good farm management practices
•    Section 13 Agricultural Tenancies Act 1900
o    Conversely, owner must pay tenant fair compensation for general improvement of the farm
    -    Section 8

Covenants under Section 84 of Conveyancing Act
•    Applies to both old and Torrens title land unless contracted away

Tenant has obligation to pay rent, and must pay it on time
•    Section 84(1) Conveyancing Act
o    Rent decreases if premises become unfit for occupation through fire, flood, lightening, storm or tempest
    -    Belfour v Weston

Tenant must keep premises in ‘good and tenable repair’
•    Section 84(1)(b) Conveyancing Act
o    Give premises back in condition they were in at start of lease
o    No obligation to repair damage caused by
    -    Accidents
    -    War damage
    -    Damage from flood, lightening, storm, tempest
    -    Reasonable wear and tear
o    Difficulty in definition of term repair
    -    Does not mean rebuild, but what does it mean?

Tenant and Landlord covenants when lease is assigned
•    Assignment:
o    Transfer of whole of tenant’s interest in the lease
    -    Ie whole of unexpired term of lease
•    Covenants and obligations bind the assignee if they are inherently relevant to the relationship of landlord and tenant
o    Obligations must touch and concern the leased premises
    -    Eg pay rent, repair etc
•    Reasoning: Privity of Estate
o    Exists between parties who stand in relationship of landlord and tenant

When landlord sells reversion
•    Obligations and covenants run to the purchaser, as long as:
o    Covenants relate inherently to the landlord, and tenant
o    Obligations touch and concern the leased premises
•    Section 117 and 118 Conveyancing Act

Covenants when Sub-leased
•    Sub-lease
o    Transfer of less than whole of tenant’s interest in the lease
o    Sub-lease leads to joint tenancy
•    No direct relationship between original landlord and new tenant, therefore obligations of original lease do not bind the sub lessee
•    No privity of estate

Landlord Remedies
•    If Tenant refuses to pay rent
o    Breach of contract
    -    Note: At common law, no obligation to pay rent unless legal lease exists (by deed, or registration for Torrens title)
•    Courts of equity hold it is sufficient if an equitable term is created
•    If no precise amount of rent agreed upon
o    Landlord awarded what the court thinks is a reasonable sum for the tenant’s use and occupation
    -    Mayor of Thetford v Tyler
•    If tenant repudiates lease, (eg through failure to pay rent)
o    Landlord can accept repudiation and terminate the lease
    -    Forefieture means the obligation to pay rent terminates, but the landlord may claim damages including loss of benefit of future rent
•    If tenant breaches the lease but does not repudiate
o    Landlord has right to terminate the lease
o    Question regarding entitlement of landlord to damages
    -    Non-monetary fault
•    Sue for damages
•    Repudiation – terminate the lease
•    Must give notice before terminating the lease (Section 129 Conveyancing Act)
Relief against forfeiture of a lease

•    If tenant remedies breach, and breach was non-monetary, and If lease terminated by landlord
o    Courts of equity grant relief against forfeiture of the lease by reinstating the lease

Waver of Breach
•    If landlord knows about breach and is in position to exercise a remedy:
o    Accepting payment of rent after breach amounts to waiver of the breach (Finley v Russell-Jones)
•    Landlords often try to get around this with clause that acceptance of rent does not amount to a waiver, but court can find that breach was waived despite this
•    Owendale Pty Ltd v Anthony

Right to assign or sublease

Right to assign or sublease is a right incident to every leasehold interest
•    Keeves v Dean

Right attaches itself to leases for a term and periodic tenancies, including short term periodic tenancies such as those from week to week
•    Cth Life Assurance v Anderson

Right to assign or sublease only part of the leased premises
•    GJ Coles v Commissioner of Taxation

Exceptions to right to assign or sublease
•    Tenancy at will arising at common law and tenancy at sufferance may not be subleased
o    Attempt to do so terminates tenants’ interest and confers no interest on the purported assignee or sublessee
    -    Anderson v Toohey’s Ltd
o    Tenancy at will under s127 Conveyancing Act can be assigned or subleased
    -    Because it is not a tenancy at will as in common law, but is essentially a periodic tenancy from month to month terminable by one month’s notice in writing expiring at any time

•    Contract often requires landlord’s consent to assign/sublease
o    Cannot unreasonably withhold consent
    -    Section 133B Conveyancing Act
•    Does not apply to tenancies at will
o    Anderson v Toohey’s Ltd
•    Only applies if true construction of lease contains a covenant not to assign or sublease without landlord’s consent
o    Unreasonable refusal includes
    -     Refusal where object is to gain collateral advantage by forcing tenant into giving up possession before end of lease
•    Lehmann v McArthur
    -    Forcing tenant or assignee into paying more rent that the leae requires
•    Wagner v Phot Engravers
    -    Forcing tenant to re-negotiate on terms more favourable to the landlord
•    Australian Mutual Provident Society v 400 St Kilda Road