Lease Covenants
Covenants Bind Successors
The position in relation to leasehold covenants differs from that of freehold covenants. Prior to Deasy’s Act, the tenant was bound by covenants in the lease, which touched and concerned the land. Obligations touching and concerning the land are those which benefit it as such. They are covenants that benefit the land and not the owner, tenant or landlord in a personal capacity.
Under Deasy’s Act, successors in title may enforce covenants under the lease. The Act provides that successors are bound by covenants in the lease. This has been interpreted not to apply to those which require performance by the original tenant as such. They must be covenants that benefit the land as such and are not a purely personal obligation.
The same principles apply to enforcement by the landlord or tenant against the other. Obligations between the original landlord and tenant could potentially continue without any requirement that they touch and concern land as a personal contract.
Deasy’s Act Provisions
Deasy’s Act provided that the benefit and burden of covenants contained or implied in leases and tenancies are enforceable by and against successors of the original landlords and tenants. Where part of the land is assigned, the benefit and burden of the covenant run with that part.
Deasy’s Act does not require expressly that the covenants must touch and concern the land. However, the courts have interpreted in, a similar requirement. Obligations on the part of the original landlord and tenant, which are not capable of being performed by third parties, do not bind successors.
The assigning tenant is discharged from future obligations under lease covenants when he assigns with the landlord’s consent and gives notice accordingly. Written notice is to be given to the landlord. The assignee has the benefit of the covenants from the other party while he is the tenant.
Discharge and Substitution
Deasy’s Act makes clear provision for substitution of the original landlord and tenant by their successors. The ongoing landlord and tenant are discharged from the benefit and burden of the and their respective successors assume their position.
The outgoing tenant is discharged after he gives notice to the landlord in accordance with the terms of the lease. Consent to assignment is required where applicable under the terms of the lease.
It is necessary that the successor has the same estate in the land as the original covenantee. Therefore, a covenant may not be available to a lessee of the covenantee who is not the covenantee’s successor.
Touch and Concern Land
In the case of leases, positive and negative covenants that touch and concern the land, have long since, bound the original landlord and tenant and their respective assignees. This applies to all categories of leases, even the very long leases at nominal rent, common found in urban areas in Ireland.
There are differing views as to whether Deasy’s Act require that the covenant must “touch and concern” the land. On one view a lease is simply a contract. On another view, Deasy’s Act preserved aspects of the existing law.
Deasy’s Act was duplicated by the Conveyancing Acts 1881, which apply to the whole of the United Kingdom including Ireland. This Act confirmed that lease covenants were enforceable against successors, provided that they touched and concerned the land.
Long Leases and Enfranchisement
In a number of cases, statute has provided for enlargement of these long leases into freehold. The statute has preserved some of the relevant covenants in the context of enlargement, so that they survive, even when the freehold is acquired.
Mid Victorian legislation provided for the conversion of very commonly encountered leases for lives, renewable for ever, into fee farm grants. The legislation provided that the covenants in the superseded lease for lives, continued to subsist, notwithstanding the acquisition of the freehold estate.
Deasy’s Act allowed for the creation of leases for ever, a category of fee farm grant. The covenants in them are enforceable, as between the original grantor and grantee and their respective successors under Deasy’s Act.
Ground Rent Leases
Early ground rents legislation allowed for extension of long leases into freehold interests. It provided that the estate as so enlarged, would be subject to the same covenants and provisions, as to use and enjoyment and the same obligations, as they would have applied, had the lease still subsisted.
Ultimately, ground rents legislation was broadened the 1960s and 1970s. The 1978 legislation, which is still in force, provides that upon acquisition of the free simple, most covenants other than a limited category are extinguished. See separately the section on ground rent interest enlargement.