The lease arises where a person with a larger interest in land or a freehold interest customarily or at common law or a leasehold, cuts out of his or her larger interest and create an interest which does not exhaust all the interest of the transferor, if all the interest of the transferor, is given away, then it is not a landlord and tenant relationship which is being created but rather a sale and purchase.
So the idea is that the transferor creates something smaller and retains an interest (the reversion). For there to be this relationship there should be some interest in the transferor and a reversion in the transferor.
The essential requirement for a lease in a landlord and tenant relationship are:
Duration permitted for a lease: Two types of lease:
Fixed term: for a certain duration. From the inception of the lease it is clear how long it would last. Where the duration of a lease is not certain. Lace v chandler
Periodic leases tenancies: it moves form period to period. That you will be let in possession, payment of rent is agreed upon and the payment of rent is by reference to periods. Allamedine Bros v. P.Z
Exclusive possession: if exclusive possession is not granted then it is a license. To determine this is, whether or not the transferor retains her right to enter the subject matter at his or her convenience, will make this a license. The mere fact that the transferor retains keys to the premises does not mean that it is not a landlord and tenant relationship. That is why it is said that certain types of occupancies are not landlord and tenant relationship. Eg. Occupancy of a hotel, or hostel or hall of residence.
Another feature which may determine exclusive possession is whether the transferor continues to be responsible for something like cleaning and has access to the room at his or her pleasure to do such things. Street v manford
Another situation is what you have not being a lease is for instance having a family relative to stay with you or allowing a maid to live with you. All these are permissive occupancies. As well as service occupancies like lecturer bungalows etc. It is also possible for an employer who has property and an employee living in as a lease. That can create a landlord and tenant relationship. Lastly we have occupancies by virtue of office. An example is a chief in a chief’s palace a vice chancellor in a vice chancellor’s porch etc. all these will not be leases but licensees for as long as they hold the particular offices.
Reasons for the distinction between a license and a lease is important
⦁ Lease is a proprietary right and so it is alienable. A license is a personal right and so it cannot be transferred
⦁ A lease is an interest in land and so it is binding on purchasers of landlord reversion. A license is not binding except for proprietary estoppel
⦁ Security of tenure legislation and rent control legislation apply to leases but not licenses.
The creation of legal leases
For a legal lease for a period exceeding three years to be created, it must be done in writing. Section 1 of NRCD 175.
A legal lease for a period not exceeding three years need not be in writing and may therefore be evidenced in writing or oral. SECTION 3(1)(f) OF NRCD 175.
It should be noted that periodic tenancies are classified as leases for periods not exceeding three years.
THE CREATION OF EQUITABLE LEASES
In the absence of a written lease and therefore non-compliance in section 1, therefore no legal lease, there can be equitable lease where:
• There is written evidence or memorandum of the contract. Such writing must however contain the essentials of the contract or the agreement for lease. These essentials will include the parties to the transaction; the duration of the lease; the commencement of the lease; and the rent. If any of this is lacking from the written evidence, no equitable lease would have been created. However this is subject to section 3. Sackey v. Ashong, Djan v. Owoo, Sbaiti v. Sharamasighe
• In the absence of written evidence an equitable lease will also arise where there is an oral agreement supported by an act of part performance. Section 3(3). Kotey v. koletey
Part performance includes, any act done by the transferee on the basis of the oral agreement. This will include going into possession, paying money, and building on to the detriment of the transferee.
• Finally, when on the same facts , with two conclusions , viz legal and equitable interest, where law and equity conflicts in that instance, then equity will prevail over law and the transferee would be deemed to hold the more beneficial equitable interest. Walsh v. Lonsdale. Amuzu v oklikah
THE RIGHTS AND OBLIGATIONS OF LANDLORDS AND TENANTS
EXPRESS AND IMPLIED TERMS
The rights and obligations of landlords and tenants may be expressly provided in a lease agreement or may be implied.
IMPLIED TERMS
Rights and obligations may be implied by statute, principally in our case conveyancing decree NRCD 175, and also the rent acts, or may be implied at common law, or thirdly by the courts from the circumstances of the relation. Section 22 and 23, 25, 26, 27, 28 of NRCD 175 have a lot of implied terms.
EXPRESS
These are referred to as covenants between the landlord and tenants. Thus the rights and obligations in the lease as agreed upon. A covenant usually would confer rights and impose obligations. The person who assumes obligations or burden, is called a covenantor and the one who derives the benefits is called the covenantee. This can be found repeatedly in sections 22, 23 etc. So for each and every covenant the covenantor and covenantee must be determined.
ENFORCEABILITY OF COVENANTS
In most contractual relationships, it is those who enter into the contract who are bound by the contract. And they would be bound on the basis of Privity of Contract. In the landlord and tenant situation, the only people who are bound under privity of contract will be the original parties to the transaction. However because both have an interest in land which are alienable either by inter vivos or inheritance, there could be a landlord and tenant relationship between people who have not entered into a contract. That being the case, these people may also have rights and obligations under the lease by virtue of privity of interest (estate).
In landlord and tenant relation enforceability of covenant therefore is not only based on privity of contracts but also under privity of interest. The privity of interest and the enforceability of covenant will only arise if the covenant relates to the interest in land or touches and affects land. Purely personal covenant however will only bind the original parties.
Under sections 24 and 25 of the Conveyancing Decree you will find covenants relating to an interest in land; the benefits of covenants. You will find statutory authorities in sections 25-benefit of covenant relating to a land run with the land, 26-burdens of covenants relating to the land run with the land,27- the benefit of covenant relating to the land run with the reversion,28-burden of covenant relating to the land run with the reversion
The rights and obligation of landlords and tenants maybe express or implied may also be either covenant or a condition. A right of obligation is said to be a condition where it is agreed as and framed as an obligation or right that is something which must be done for the continued existence of the lease. At law, the only condition which is implied in a lease is the condition of pay rent. This means that breach of a covenant, does not automatically give the covenantee the right to terminate lease. Breach of a covenant gives the covenantee a right to sue for damages .Breach of a condition gives the covenantee the right to sue to terminate the lease
If there is a breach of any of the covenant they do not automatically enable the covenantee terminate the lease because they do not have a forfeiture clause (Proviso fore-entry). Sackey v ashong, thome v barclays bank
For a condition even without a forfeiture clause the covenantee can sue to terminate the lease.
Sections 21 and part one of third schedule
IMPLIED COVENANTS
OBLIGATION TO PAY RENT
• A tenant as a condition of lease is under an implied obligation to pay rent. In the absence of contrary agreement, rent is to be paid in arrears. Section 23(1) of NRCD 175 lists the obligation and the details are in part one of the 3rd schedule.
With long leases, one can have a rent renewal clause because of our country and inflation. This provision for renewal may be strictly interpreted in accordance with the terms of the lease. If there is no rent renewal clause, then it means that the rent cannot be reviewed
• Assignment /subletting or parting with possession: because the lease is an interest in land, in the absence of a covenant which prohibits an assignment the lease is transferable. Hence the tenant has an alienable interest in the property.
ABSOLUTE PROHIBITION OF ASSIGNMENT /SUBLETTING OR PARTING POSSESION
A lease may contain an express provision prohibiting any assignment. And an absolute covenant in this regard is that the tenant shall not assign, sublet or part possession with the property. What if there has been a breach of the absolute prohibition. At common law, because the lease is by nature, transmissible, where the tenant assigns or sublets, the assignment or subletting or parting in possession is not void or ineffective if the landlord has suffered damage. If the landlord wants to have the right to terminate then the express covenant should be fortified with a forfeiture clause.
A QUALIFIED COVENANT AGAINST ASSIGNMENT
Under the conveyancing decree section 23 there is a qualified covenant against assignment. Part one of the third schedule. –this is implied that the tenant shall not without the prior written consent of the landlord assign , sublet or part in possession of the property provided however that such consent shall not be unreasonably withheld in the case of a respectable person.
For the second qualification the consent of the landlord is not to be unreasonably withheld in the case of a responsible or respectable. What the common law is saying is for instance that if you lease your property to Mr. A, then it is a commercial transaction which creates an interest in land that if madam B is also a respectable and reasonable person can pay the rent, or fulfill all the obligation, it will not be right for the land lord to prevent Mr. A from subletting to madam. The key criteria is there anything which shows that the assignee or sub lessee cannot discharge the obligation?
The tenant is under obligation to ask. The consent must be in writing. Whether the landlord is withholding his consent unreasonably is a question of fact for the count. The consent must be in writing. Section 34-landlord shall not exact payment for giving his consent. Section 33-the consent given shall apply only to transactions in which consent was sought and received.
Before a landlord can go to court to bring an action for re-entry he must comply with section 29 of the conveyancing decree. Under section 29 a right for re-entry would not be enforced unless
⦁ Tenant is served with notice of breach
⦁ an opportunity to remedy breach
⦁ except when the breach is nonpayment of rent to pay compensation of the breach
Even when the covenant is fortified with a forfeiture clause the tenant can apply for relief under section 30. The court may grant or refuse relief if it thinks fit having regard to the proceedings and conduct of the parties. Relief may be granted upon certain terms. The right to relief is available to the tenant until the very last moment when the landlord takes actual possession of the property. Where the breach is denial of title the right to relief is not available to the tenant.
In section 22 of the rent act, no person in the case of a monthly or short tenancy shall sublet without written consent of landlord-osekere v Saah, Dhalomal v Puulampa. Every person subletting his premises shall inform the landlord of such in writing within fourteen days after he has sublet.
A statutory tenant cannot sublet, assign or part possession. This is because the tenant has no proprietary interest in the property- George grant v tikobo sawmills. A statutory tenant is one who remains in possession after the expiration of his contractual tenancy and cannot be deprived of possession-section 36 of the rent act-UTC v Karam
However where the subject matter of the lease is premises, and the lease is therefore regulated by the Rents Act, termination at common law will not by itself result in the ejectment or eviction of the tenant if the tenant refuses to leave. In that case, the tenant is referred to as a statutory tenant. For the landlord to eject this tenant, the landlord will have to satisfy one of the provisions in section 17(1) of the Rents Act.
Thus the rents Act does not apply to all leases but leases on premises. Premises is defined in section 36 of the Act- it must be a building, residential, commercial etc so that Act 220 does not apply to leases of bare lands.
RE-ENTRY OF FORFEITURE
A landlord may have the right to re-enter or forfeit the lease in certain circumstances.
⦁ non-payment of rent
⦁ breach of a covenant supported by forfeiture clause or a proviso for re-entry upon breach
⦁ denial of the landlord’s title by the tenant.
What acts will amount to the re-taking of possession is a question of facts for the courts depending on the circumstances of the case. The courts have held that the re-taking need not involve physical possession but rather legal possession.
Rent act only applies to premises
EXPRESS COVENANTS
⦁ Restrictive covenants-all these covenants are construed by the courts to discover the intention of the parties involved.
⦁ Option to renew– With a lease for a fixed term, the tenant has no option to renew unless the lease expressly so provides. Because the option to renew is a contractual right, its proper exercise must conform with the terms of the provisions. Savage v GIHOC, monta v peterson simons
⦁ Maintenance and repair– First, the landlord is under no obligation to repair unless this is expressly provided. Second, the landlord does not warrant the habitability or the fitness for purpose of the subject matter of the lease-caveat emptor. There is no implied covenant that the landlord to maintain and repair premises. Thirdly, a tenant on the other hand is under an obligation to use the property in a tenant-like manner. A tenant like manner would generally be things like, if the washer in the tap is gone bad, and the tap is leaking, you must fix. Same as the WC if it is choked. So you must carry out such little maintenance. The tenant is also under an obligation not to commit waste. Permissive waste-neglect which injures reversion, negligent or omission waste of the tenant. Voluntary waste- actual act by tenant which causes damage. Thome v Barclays bank
IMPLIED OBLIGATIONS OF THE LANDLORD
There are four implied obligations under section 22 and part one of the second schedule of the landlord. These are:
The covenants of
• Quiet enjoyment
• Right to convey
• Freedom from encumbrances
RIGHT TO CONVEY
The landlord covenants that he has the right to give out the property. At the time the transaction is entered into, and at the time it takes effect, the landlord impliedly covenants that he has the capacity to give out or convey the property if not it will be a breach of the covenant and the tenant can apply for damages.
QUIET ENJOYMENT
During the duration of the lease the landlord or his successors or assignees will not do anything that will interfere with the tenant’s enjoyment and possession of the property. Karam v ashkar
FREEDOM FROM ENCUMBERANCES
The landlord impliedly covenants that the lease is free from any encumbrances, licenses, mortgages except those that have been expressly named in the covenant
IMPLIED OBLIGATIONS OF TENANT-SECTION 23
⦁ Repair to adjoining premises
⦁ Alterations and additions- The conveyancing decree stipulates that a tenant shall not without the prior written consent of the landlord make addition or alteration to the subject matter of the lease.-23(1) and part 1 of the third Schedule
⦁ Not to injure walls
⦁ Not to assign or sublet
⦁ Illegal and immoral user- Section 23(1) and part one of the third schedule-the tenant shall not use or cause to use the subject matter of the lease for any illegal or immoral terms.
⦁ Nuisance or annoyance
TERMINATION OF LEASES
There are six ways a lease can be terminated at common law:
• Expiration: This mode of termination applies only to fixed tenancies. Thus periodic tenants cannot expire as they go on from period to period. Thus the lease travels its course and expires. Expiration of a lease is not enough for the landlord to re-enter. He must satisfy one of the conditions under section 17(1)-bassil v starijiani
• Surrender– This is where a tenant returns the unexpired portion of the lease to his immediate landlord thereby terminating the landlord and tenant relationship. Since surrender amounts to a conveyance of the property from the tenant to the landlord, for it to be properly done it must comply with sections 1, 2 and 3 of the Conveyancing Decree in the manner as seen already. Eg. If it is over a period of three years, it must be in writing. Surrender may be express or by operation of law. Karam v ashkar
• Merger -This is the opposite of surrender. This is where the tenant buys the reversionary interest from the landlord and hence terminating the landlord tenant relationship
• Notice to quit-Fixed term leases: a fixed term lease cannot be terminated by notice unless this is expressly provided. This must also comply with strict provisions of a lease (in terms of the length….) eg. If you can terminate by giving six months’ notice you can’t do that by three months’ notice. Period leases: There is an implied right to give a notice to terminate a periodic tenant. The period of notice to be given depends on the type of periodic tenancy. If it is a periodic monthly tenancy, then you need to give one month notice. Allamedine BROS V. PZ. –a calendar months’ notice will suffice. For a periodic yearly tenancy the notice requires six months’ notice. Gihoc v savage
• Frustration– Before panalpina, the common law position was that as a matter of law in principle a lease cannot be frustrated. In Panalpina v national carriers, the common law position changed that in principle it is possible for a lease to be frustrated but this is rare. This is because the lease is an interest in land. In the case, the court held that although a lease can be frustrated but on the facts of the case there was no frustration.
• re –entry or forfeiture– a lease may be terminated in this case where a landlord exercises his rights to forfeiture. Sackey v ashong
WAIVER
If a tenant breaches a condition or a fortified covenant, the landlord has a right to re-enter. However if this is not done it is possible that the landlord has waived this breach. He must be aware of the breach and must have done an unequivocal act which indicates that he does not intend to terminate the lease. Section 32 of conveyancing decree. Waiver relates to acts that occur at the time of the waiver-nukpa v Hunter . bassil v said raad
THE EJECTION AND EVICTION OF TENANTS
Section 17(1)-…no order against a tenant for the recovery of the possession of or for the ejectment …except in any of the following situations:
• a) Arrears of rent: where the tenant has failed to pay rent which is lawfully, one month after the rent ….that is one of the grounds under which the courts will order the ejectment of the tenant under section 17(1)
• b) where any obligation of the tenancy, other than that specified in paragraph (a), so far as such obligation is consistent with the provisions of this Act, has been broken or not performed
⦁ c) Nuisance or annoyance: The tenant is always making noise or playing music too loud disturbing everybody on the premises. dennis v agbetei
• d) Immoral or illegal purpose
• e) Deterioration of the premises as a result of the neglect or acts of waste of the tenant
• f) Notice to quit by the tenant and landlord has contracted to sell or let the premises. That is promissory estoppel.
⦁ g) Where the landlord reasonably requires it for his personal occupation as a dwelling house by himself or a member of his family. Member of his family.
Who constitutes members of the landlord’s family? Section 36(definition section) –a father, or mother, wife, brother, sister, husband or wife, child… Owusu v. Asante-a nephew or niece is not a member of the landlord’s family for the purposes of section 17(1) (g).
Saka v. LokumAl-child means any offspring of the landlord and not a minor (it includes adult children of the landlord). Owusu v asante. Residential property. The property must have been constructed as residential property (or as a dwelling house). So if the property was not constructed as a dwelling house, eg. Commercial property, a landlord cannot rely on section 17(1).
Reasonable requirement. Owusu v ansah Nimako v Archibald. The courts have held that, the landlord must show not that he prefers or delights, and not even that he requires but that he reasonably requires. The court will take into consideration the existence or otherwise of alternative accommodation; the size of the house; size of his family; location of the property. The courts have also held that the onus of proving reasonable requirement is on the landlord.
Balance of hardship. The section also requires the court to weigh the equities. To determine whether greater hardship will be caused to the tenant or landlord if the order of recovery of possession is made and that the court should only make the order if on balance greater hardship will be done to the landlord if the order is not made. The court is required to take into account all the circumstances of the case. The courts have held that the onus of proving greater hardship is on the tenant. Gbedemah v ofori
⦁ h) where the lease has expired and the premises is needed by the landlord for his business purpose, he is to give six months’ notice of his intention to recover possession and that he intends to use premises for purpose for which the premise was constructed.
Elements:
1. The lease has expired:
2. Business premises: the property in question must have been constructed as business premises. Thus (g) deals with residential property whilst (h) deals with business or commercial property. This means that if the property was constructed as residential property but is being used as commercial or business purposes, the landlord cannot apply under this section.
On the other hand, if the property was constructed as residential property and has been given out for commercial property, you can go under 17(1) (g) if it is wanted for occupation or residential purpose.
3. The landlord must reasonably require the premises: not that he wants to or prefers but must reasonably require.
4. Six months’ notice: after the expiration, the landlord must give the tenant six months written notice that he or she must leave. This requirement should be noted is not in 17(1) (g). –this is the statutory notice (this is different from the contractual notice which deals with the termination of leases where the tenant gives the landlord written notice of his intention to terminate the lease)
⦁ I) where the lease has expired and the landlord intends to pull down the premises and construct a new one, intends to remodel and it could not be carried out with the tenant in occupation, requires the premises to carry out a scheme of re-development and the landlord has given at least six months’ written notice to the tenant of his intention to apply for order of recovery of possession.
Elements:
1. The lease must have expired and the tenant is a statutory tenant
2. The landlord intends to pull down the premises and construct a new one
3. The landlord intends to remodel the premises. And this cannot be done with the tenant in occupation-seraphin v pacific stores. So if it is the kind of remodeling which can be done with the tenant in occupation the landlord will fail to satisfy this. Note that section 17(i) unlike g and h has no such restriction and hence applies to both residential and commercial.
4. To carry out a scheme of redevelopment and the landlord has given not less than six months written notice to the tenant of his intention to redevelop. It should be noted that the statutory notice requirement applies only where the landlord is coming under section 17(1) (i) (3) and not 1 or 2. Thus only where the landlord is applying to embark upon a scheme of redevelopment. And not pulling down the property or remodeling. Osei v. Anokye
5. An order of ejectment under this section may be subject to certain conditions: the court may say that the landlord should reinstate the tenant after the completion of the new building or remodeling.
⦁ j) where the premises was let to the tenant by reason of his employment in the service of the landlord and such employment has ceased
⦁ k)situations where landlord rents premises furnished to the tenant because he was leaving Ghana or part of Ghana where the premises in situated
Elements:
1. The property must be furnished or substantially furnished. What constitutes substantially furnished is a question of fact
2. The lease must be in writing and sets out that the lease has been granted for a term during the absence of the landlord from Ghana or such area.
3. The lease must have been granted because the landlord is leaving Ghana or that part of Ghana where the property is situated and the writing states so.
4. The landlord has returned to Ghana or that part of Ghana where the property is situated
5. Requires the property for his own occupation
Note that under 17(1)(k) there is no reasonable there as in 17(1)(g). Again it should be noted that members of his family are not included and the lease must also be in writing and must also state that it is for the duration for where the landlord is absent from Ghana or that part of Ghana where the property is situated.