Rights and Liabilities of Lessor and Lessee

In one line

Section 108 is the standard tenancy agreement the law supplies: three duties for the landlord, and fourteen rights and duties for the tenant, all of which the parties may rewrite.

In exam wording: section 108 provides that, in the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property possess, as against one another, the rights and are subject to the liabilities in the rules following, or such of them as are applicable to the property leased.

Why the section exists

It is the lease counterpart of section 55, and for the same reason. Most tenancies are agreed in a few sentences, and the parties think about rent and duration and nothing else. Rather than leave every dispute about repairs, fixtures, destruction or sub-letting to be argued from first principles, the Act supplies a full set of terms that a fair agreement would have contained.

The opening words matter as much as the rules: "in the absence of a contract or local usage to the contrary". Every clause below can be varied, and in practice many are.

Part (A): the lessor's three clauses

(a) Disclose material defects. The lessor is bound to disclose any material defect in the property, with reference to its intended use, of which he is aware and the lessee is not, and which the lessee could not with ordinary care discover.

The words "with reference to its intended use" are the difference from section 55(1)(a). A defect is judged against what the property was let for: damp that would be trivial in a godown may be material in a lease of a paper warehouse.

(b) Put the lessee in possession. The lessor is bound, on the lessee's request, to put him in possession of the property. Note that the duty arises on request; the lessor need not force possession on an absent tenant.

(c) The covenant for quiet enjoyment. The lessor is deemed to contract that if the lessee pays the rent reserved and performs the contracts binding on him, he may hold the property during the time limited by the lease without interruption.

The benefit runs. As in sections 55(2) and 65, the benefit of that covenant is annexed to and goes with the lessee's interest, and may be enforced by every person in whom the interest is from time to time vested. So an assignee of the lease may sue on it.

Notice that quiet enjoyment is conditional: it protects a lessee who pays and performs, and not one who does not.

Part (B): the lessee's fourteen clauses

The lessee's rights

(d) Accessions. If during the lease any accession is made to the property, it is deemed to be comprised in the lease, subject to the law of alluvion. So the tenant enjoys it for the term, and it goes back with the property at the end.