Celia R

Real Property 2

Tutorial Presentation

Landlord and TenantQuestion:

Student X is a resident on the Sir Frank Worrell Hall of the Cave Hill Campus. Prior to entering into occupation, X received a letter from the halls business manager telling her she was being offered a place on the hall and asking her to indicate whether she wanted it by signing and returning an Acceptance Form and Contract. X signed and returned the documents. The terms of the agreement included:

1. Hall accommodation is offered on a yearly basis.

2. Fees are payable in advance at the beginning of the academic year or of each semester.

3. Failure to pay appropriate fees will result in the offer of the room been cancelled.

4. Fees payable for a semester are non-refundable.

5. Each resident must pay a compulsory $200 security deposit. This deposit is refundable less any charge for damage to property or loss of keys.

6. Students are required to vacate their rooms at the end of the semester.

7. Each student is responsible for maintaining his or her own private room and study area and to assist the other members of the household with the cleaning etc. of the common areas.

8. Management will provide cleaning services for the bathroom, common areas, steps and stairways.

9. Residents are responsible for the cleaning of the stove, fridge and kitchen sink.

10. Residents must dispose of all garbage in the bins provided at the bottom of each block.

11. Plumbing and similar problems are to be reported to the Resident Assistant or to the Security Guards on duty.

12. All hall residents share the laundries and junior common room.

13. Residents are responsible for any damage to or loss of furniture, fittings or equipment.

14. Residents may not make attachments to any furniture or fittings, alter the layout of the premises or interfere with electrical installations.

15. Residents must seek permission before mounting any item to walls or doors.

16. Residents are responsible for securing their money and valuables in their private room and keeping their rooms locked when unoccupied.

17. Management will inspect the buildings and rooms from time to time but residents will be extended the necessary identification and courtesies.

18. Residents are required to comply with these and all other rules of the agreement.

Discuss whether X and the other residents of Sir Frank Worrell Hall can accurately be called tenants. If not, what are they?

Answer:

I hereby contend that this decision hinges upon the definition to be given to the term a place used in the letter accompanying the acceptance form and contract. If by a place is meant a room, then it can safely be said that the residents of FWH are tenants. However, this statement would be false if, alternatively, the term were to be interpreted as meaning the entire hall or even a particular block or floor of a block. The bases upon which I form this conclusion will now be explained.

In order for X and the other residents to be tenants of FWH they would have to satisfy the basic requirements of all tenancies as established in the case of Street v Mountford. In that case the House of Lords proposed that:

Where the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term at a rent, the result is a tenancy.

The case therefore set the requirements of a tenancy as exclusive possession, rent and a specific term.

In the Privy Council case of Isaac v Hotel de Paris, however, the deciding factor was held to be the intention of the parties as inferred from the circumstances.

Since Privy Council decisions are binding on many jurisdictions and House of Lords decisions are highly persuasive authority, it is likely that the courts in deciding a case will consider both tests.

Thus the test for the existence of a tenancy can be set out as:

1. Exclusive possession of premises;

2. Certainty of duration/term;

3. Certainty of rent; and

4. Lack of exceptional circumstances that would negative an intention to create a lease.

Exclusive Possession

Exclusive possession refers to the right of the tenant to be the sole occupant of the premises and to exclude all other persons including the landlord from the land. In order for there to be a tenancy, it should not be given as an act of generosity, by way of a family arrangement, or as service occupancy. The tenants interest in the land must be binding on the whole world and he should be able to sue anyone on the land without his permission for trespass. To qualify as a tenant, a person must have the right to assign his lease. The Rent Restrictions Act also covers tenants.

X and the other residents are the sole occupants of their private rooms and study area and they may exclude all other persons from their rooms. Even the landlords access to their rooms is restricted since the landlord cannot enter without them being present or without providing proper notification and identification. However, the residents share all other parts of the premises except their rooms and cannot exclude anyone from them. If a place were to mean a block, then the conclusion would be that they are not tenants.

They were given possession of their rooms as part of a business agreement not as any act of kindness, family arrangement or to facilitate their providing a service to the landlord.

It can be assumed that the Rent Restrictions Act protects X and others because the act covers dwelling houses and residential premises. A dwelling house has been defined as all or part of a building separately let, or a room separately let, which is used as a place of residence. For premises to be separately let, the tenant must not be under any liability to share it. Note that while the residents must share the general areas of their block and the hall they are under no obligation to share their rooms with anyone.

There is nothing in the agreement that indicates that the tenant cannot himself sue for trespass if the privacy of his room is violated.

The agreement, while not expressly permitting the residents to assign their rooms, does not expressly forbid it either.

Thus if the agreement refers to their rooms and not the whole all then on this criteria alone, we could find that they qualify as tenants.

Certainty of Duration

By this requirement the date at which a lease commences and terminates must be certain. However, the period need not be continuous.

The agreement between the residents and the business manager of FWH did not specify exactly when the agreement was to take effect or when it was to terminate. In fact, it merely stated that accommodation was offered on a yearly basis. This might seem insufficient to establish certainty but it must be remembered that not all the terms of an agreement need to be expressly incorporated in the document. What is common knowledge to both of the parties or accepted practice will generally be taken be taken as implied terms. In this case, it is common knowledge that accommodation is offered for the academic year but not continuously. It is offered for the period of a semester and therefore begins and ends with each semester. Since the date on which each semester begins and ends is known to all students or at least ascertainable with little effort, it can be argued that the period of residence is sufficiently certain. Therefore on the basis of this requirement also the residents of FWH can be considered tenants.

Little need be said on the last two requirements. While the residents may choose whether to pay by the year or by the semester, the amount to be paid is fixed. Also, in my opinion there seems to be no circumstances or factors that would indicate that neither the business manager nor the residents intended to create a lease. Hence, the conclusion here also is that the residents of FWH are tenants. Covenants

The matter of covenants may be briefly considered. Since covenants are a common if not essential feature of lease agreements, their expressed or implied inclusion in an agreement fro accommodation may be taken as an indication that a tenancy has been created. The boarding agreement has its fair share of covenants.

The covenant for quiet enjoyment is implied. The student who takes up residence on FWH expects that he will be able to occupy his room without substantial physical interference from the landlord or someone acting on his behalf.

The landlords covenant not to derogate from the grant is also implied. The student who takes a room on campus does so in order to have a place where he might study and have easy access to campus facilities. It is expected that the business manage will ensure that the environment remains conducive to study and not encourage or condone such behaviour as would make the hall unfit as a students residents. To this effect, several clauses have been included in the agreement prohibiting residents from certain loud or disturbing acts.

The covenant as to fitness for habitation is implied in the boarding agreement. Since it is furnished rooms that are let to students, it is implied that at the start of the tenancy i.e. when the student enters the room, he will find the necessary furniture already in place. As per the agreement, it is the tenants responsibility after to secure the room and ensure that nothing is lost, stolen or removed. By stating that all problems must be reported to the relevant authorities, the agreement implies that the landlord will be responsible for all repairs and keeping the place fit for human habitation. Thus the covenant to repair is also implied.

The agreement expressly makes the student resident liable for waste. It forbids any altering of the property and imposes a penalty (non-refundability of deposit) for any damage to the property. Thus there is an express covenant not to commit waste.

The rent to be paid by each student is calculated with certainty and is known to the student at the date of the agreement if not before. Also the agreement clearly states that fees are payable in advance. When therefore the student enters into occupation on the hall, he accepts that he has an obligation to pay rent.

In this case the student who is the tenant is under no obligation to repair the premises if it becomes damaged but he is obligated to report such damage to the relevant authorities so the necessary action can be taken.

The agreement does not expressly stipulate that the tenant cannot assign, sublet or part with possession of the premises so despite the fact that it is the custom for the students offered accommodation to retain possession of their room, technically the student has the student has the right do so if he so pleases.

In may be concluded that all things considered the residents of FWH are in fact tenants although they may not have the ideal tenancy agreement with the business manager. The acceptance form and contract includes terms, which fulfill the requirement of the standard lease. Also the existence of common landlord and tenant covenants attests to the fact that there is indeed a lease and the student resident of FWH is a tenant of the business manager as the agent of the university.

Notes:

Alternatively, the residents of FWH may be considered mere lodgers. The House of Lords in the obiter dicta in the Street v Mountford case distinguished between the lodger and the tenant. It was said there that a person could have exclusive occupation of a place for a term and still be precluded from the status of tenant. According to Lord Templeman, the distinction between lodger and tenant could be made based on the location of control in respect of the premises occupied. The lodger lacks a vital territorial stake in the premises: he is entitled to live there but it can not be referred to as his own. His conduct is subject to the supervisory authority of the owner and the owner retains control and possession of the premises in order to supply services such as cleaning, etc. The decisive factor is the lack of any right of the occupier to resist intrusion.