The Law of Landlord and Tenant (Leases) in England and Tanzania: “Fitness and Repair” Covenant

Jaba Shadrack (UDSM, School of Law), jaba@udsm.ac.tz

Fitness and repair: this phrase contains two technical expressions; i.e.

(1) Fitness:

Means that where any dwelling house, flat or room is leased (demised) such house or flat must be fit (suitable) for Habitation (habitable house, building or room) at the commencement of the tenancy.

(2) Repair:

Per Buckley LJ., in LURCOTT V. WAKELY and WHEELER, repair is the restoration by renewal or replacement of subsidiary parts of a whole. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion.

In reference to "repair" Parke B. in WALKER V. HATTON says "...a general covenant to repair must be construed to have reference to the condition of the premises at the time when the covenant begins to operate".

Covenant:

In English law, is an agreement which the law implies from the use of certain words having a known legal operation in the creation of an estate; so that, after they have had their primary operation in creating the estate, the law gives them a secondary force by implying an agreement on the part of the grantor to protect and preserve the estate which by those words has been already created (Williams v Burrell (1845) 1 CB 402 at 429).

A: Common law position as to the fitness and repair covenant

(i) General Rule (at common law) in relation to:

Unfurnished premises (a room or building not supplied with furniture or fittings).

The landlord of unfurnished premises was under no duty to ensure that they were fit for human habitation or in a state of good repair. This rule was based upon three cases in the Court of Exchequer, namely; ARDEN V. PULLEN, SUTTON V. TEMPLE and HART V. WINDSOR decided in the early 1840s.

Three Major Considerations as to the Covenant of Fitness and Repair

The first consideration, the doctrine of precedent: the existence of cases deciding that tenant must pay rent even when the premises were destroyed by such things as fire, flood or tempest. Prof. G. Williams criticise this consideration by saying that the cases relied upon by the Court were clearly capable of being distinguished upon the ground that they dealt with unfitness caused not by the landlord's failure to look after his property but by causes beyond his control. Further that cases like EDWARDS V. ETHERINGTON, SALISBURY V. MARSHAL, COLLINS V. BARROW, COWIE V. GOODWIN and SMITH V. MARRABLE (ante) which held the landlord to be under a duty of fitness were not followed.

NB: Reynolds says "the basis of the common law rule must then be said to be the clear policy ground of the other two considerations."

The second consideration is based on a belief in the social philosophy of caveat emptor. It was intended to avoid unwarranted interference with freedom of contract between the landlord and tenants. Per Baron Parke, "it is much better to leave the parties in every case to protect their interests themselves by proper stipulations." In essence, the judge was referring to the Laissez faire policy.

The third consideration; is a fear of the social consequences of finding such a duty to a landlord (i.e. social reality). The Industrial Revolution changed the English society from dependence upon an agrarian economy to industry. One consequence of this had been the growth of the urban population. Between 1801 and 1841, the populations of London, Birmingham, Leeds and Bristol had doubled whilst those of Manchester and Liverpool had trebled. As a result, speculative builders arose to satisfy the housing needs of the new urban population. Houses were built without drains or privies, inferior materials were used and water was often available for only short periods. It was at this crucial time of urbanisation and slum formation that judges looked to the agrarian lease as providing a justification for their decisions. It was intended to protect landlords from tenants as to the covenant of fitness and repair.

(ii) Exception to the general rule:

Furnished premises (a room or building with furniture and fittings).

In case of a furnished premise the duty to repair and to ensure that the premise is fit for habitation is placed on the landlord. At common law, a furnished dwelling premise must be fit for habitation at the start of the lease. A well-known breach of this implied covenant occurred in SMITH V. MARRABLE , where a house was leased and found to be full of bugs. In common law, if there is nothing expressed in the lease, a periodic tenant with a year's term or less period has to use the premises in "tenant-like manner". Lord Denning, MR in WARREN V. KEEN has shed light on that by giving examples that 'a weekly tenant' must, for example, clean windows and unblock sinks.

In short he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house.....But....if the house falls into disrepair through fair wear and tear or lapse of time or for any reason not caused by him, then the tenant is not liable to repair it.

B: The Position in England: Current Common law

The lease will normally set out exactly what the landlord (and tenant) has agreed to with regards to matters such as repair, insurance, maintenance of common areas, rights of access and renewal. However, certain covenants are implied into the lease by the law, because of the use of certain words which carry a particular meaning.

With regards to the quality of the premises, there is no implied warranty on the part of the landlord as to the condition of the premises demised, or their fitness for the purpose of the letting Southwark LBC v Mills . If the premises are taken for residential purposes, for example, there is no implied covenant that they are fit for human habitation (Southwark LBC v Mills, supra). Such terms may be contained within the lease or tenancy specifically. There is a very narrow exception to this rule which can be found in Smith v Marrable (supra). Where the premises are a furnished dwelling house, there is an implied condition in the letting of the premises that they are reasonably fit for habitation at the commencement of the term. Breach of this would entitle the tenant to quit the letting without notice. This has been confirmed in Wilson v Finch Hatton which related to defective drains, and in Collins v Hopkins concerning a recent occupant who had a contagious disease. There is no obligation for the tenant to give the landlord the opportunity to remedy the problem (Wilson v Finch Hatton, supra).

The rule is very limited in scope - it does not apply to ordinary disrepair which would make habitation unpleasant or inconvenient, rather than impossible (Maclean v Currie, involving cracked plaster). Neither does it apply to unfurnished premises (Hart v Windsor, supra), or to dangerous appliances/furnishings supplied in furnished premises by the landlord (Pampris v. Thanos the case involved the tenant's wife being electrocuted by a faulty fridge). The landlord may be negligent in such instances but the implied condition of fitness for human habitation is not relevant to such a scenario. Note that there may be an implied contractual duty of care for the landlord to maintain certain things - for example, common parts and facilities like lifts. These are not merely 'conveniences provided at discretion: they are essentials of the tenancy without which life in the dwellings, as a tenant, is not possible' (Liverpool CC v Irwin , in which Lord Salmon said "Can a pregnant woman accompanied by a young child be expected to walk up 15 storeys in the pitch dark to reach her home? Unless the law... imposes an obligation on the Council at least to use reasonable care to keep the lifts working properly and the staircase lit, the whole transaction becomes ...futile and absurd). Such a duty of care is again restricted and only extends to the tenant, not their family (Jones v Bartlett. Such an obligation may be excluded by express provision in the tenancy/lease (Liverpool CC v Irwin, supra).

C: The Position in Tanzania

The common law position is to some extent modified by the Land Act. Thus, the Tanzania position is different from that of the Common law; because first, the duty to repair in Tanzania is placed on the landlord to a large extent. Second, there is no such distinction as to furnished or unfurnished premises. Third, the landlord is statutorily bound to ensure that the demised premise is fit for human habitation (habitable premises) save where the exception lays. The only, similarity is that in case of short leases; the tenant is 'excluded from a duty to repair the demised premises [S.89 (2) Land Act]. Refer, Lord Denning, MR in WARREN V. KEEN, supra) for common law position.

REFER

The Land Act of 1999 (RE: 2002)

(a) Fitness and repair covenants on the lessor,

Section 88 (1) (b)(c)(d)(e)(i)-(iii)

(b) Fitness and repair covenants on the lessee,

Section 89 (1)(c)(i)-(iv), (d)(e)(f): In long term leases.

Section 89 (2): In short term leases. (see also, S.80)


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