OCCUPANTS of premises fall into several categories at common law, including freeholder, licensee, trespasser, and tenant. It is important to be certain of the category in which you belong. The premises you occupy may or may not be subject to the provisions of the Rent Restriction Act (the “Act”), which is a piece of legislation passed with the intention of ensuring that tenants are treated fairly.

For the moment, we are taking a look at some of the main obligations of a tenant or a leaseholder. At a later date, we will explore the obligations of the Landlord and, of course, accompanying rights.

In order to properly constitute a tenancy, the essential elements of a lease must exist. What this means is that there must be:

1. identifiable land;

2. a landlord and a tenant, who are separate and identifiable legal persons;

3. the grant of exclusive possession;

4. a specific period for which exclusive possession is granted; and

5. a reversion of the land to the landlord at the end of the period.

The promises made when two persons enter into a relationship of landlord and tenant define the nature of the relationship and demonstrate the rights and obligations held by each of them. It is customary to find that the parties tend to agree on certain essential (and sometimes non-essential) issues early by making promises in relation to the following, for example: the use to which the property should be put; the amount of rent to be paid; the time and method of payment; the duration of the tenancy; what happens if the rent is not paid; who will be responsible for utilities; who will be responsible for property taxes; who will be responsible for insurance; who will be responsible for maintenance and repair; whether the tenant will be allowed to sublet the property; whether the tenant will be allowed to assign the lease; the landlord’s right to access; and whether the

tenant will be allowed to alter the property.

Where the parties do not expressly agree on the terms of their lease, certain terms will be implied by law and will automatically govern the relationship. Some of these implied obligations are contained in the Schedule to the Rent Restriction Act (to which not all leases are subject) and such implied obligations include, for example, a duty of the tenant to keep the premises in a state of reasonable repair.

Some examples of implied obligations on tenants are: (a) to keep the property in good order and condition (fair wear and tear excepted); (b) to pay the rent on the due date; (c) to keep the property in a sanitary condition and to refrain from any conduct which is a nuisance or annoyance to adjoining occupiers; (d) to refrain from cutting down, injuring or destroying, without the landlord’s consent, any trees standing on the property and to refrain from causing damage to any part of the property; (e) to refrain from using the amenities of the property in a wasteful manner; (f) to permit the landlord or his agents at all reasonable times to enter upon and inspect the property and its state and condition and carry out necessary repairs; (g) not to sublet the property or any part of it without the prior consent in writing of the landlord; (h) not to deny the landlord’s title; (g) if, while owing rent on the property, the tenant proposes or is obliged to vacate, to notify the landlord — prior to vacating or within a reasonable time after vacating — of the arrangements made for the payment of the rent and of the address at which, if necessary, process for recovery of rent may be served.

Typically, where there is a written agreement, it will be prepared by the landlord’s Attorneys and it will tend to serve the landlord’s interests. It is recommended that the tenant seeks to have an Attorney check through the terms of the agreement, as the tenant is not bound to accept them, particularly if they are found to be too harsh or unsuitable. Of course, it must be borne in mind that the landlord may also seek to find someone else who may be eager to rent the premises.

Express obligations include the terms of the tenancy agreement which are clearly and expressly agreed, either orally or in writing, between the landlord and the tenant. These commonly also include covenants which are implied by law. Usually, the tenant expressly agrees to: (a) pay the rent in the manner agreed; (b) pay taxes; (c) insure the property; (d) various obligations concerning the manner in which the property is used and change of use; (e) obligations concerning sub-letting and assignment of

the lease (f) obligations concerning to care, waste, repair and maintenance;

(g) obligations concerning alterations and improvements; (h) the exercise of options to purchase the property, to renew the lease, and/or to terminate the agreement.

The law treats landlord and tenant relationships as a special category of business relationship. Accordingly, the parties will be bound by the express terms of a valid contract and if they fail to agree on an essential aspect of the landlord and tenant relationship, it will be implied that the relevant common law or statute law will apply.

Alicia P Hussey is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Property Department. Alicia may be contacted via alicia.hussey@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.