Page 36 - ALG Issue 3 2019

quiet enjoyment revisited
The article on page 7 of the last edition of the magazine Allotment and Leisure Gardener introduced the concept of the unwritten covenant of quiet enjoyment by the immediate landlord to the allotment tenant and occupier. This is now being explained in greater detail. It must
be said first that all agreements in England and Wales with the allotment holder has a landlord and tenant relationship.
The covenant (legal commitment or promise) by
the landlord for quiet enjoyment will arise from the relationship of landlord and tenant, however created, whether by deed, in writing, or orally. The covenant in law continues only for as long as the landlord’s estate and
is excluded by any express covenant for quiet enjoyment contained in the lease. Originally it was described as a covenant to secure title and possession. Its scope has been considerably extended. It entitles the tenant to be put into possession.
The covenant of quiet enjoyment extends to unlawful
acts of the landlord and to lawful acts of other persons claiming under the landlord by way of entry, eviction,
or interruption of the tenant’s peaceful enjoyment of
the land. It protects the tenant from acts which cause physical interference, whether those acts are done on the premises or not and, from any conduct of the landlord or his agent interfering with the tenant’s freedom of action in exercising his rights as tenant. It has been held in a court case as the landlord’s covenant of quiet enjoyment was broken if the landlord threatens by letters and by shouting and banging on the front door, and in another, cutting off gas and electricity supplies. I would assume that turning off water supplies to the allotment plotholder would in the same way be a breach of the landlord’s covenant of quiet enjoyment.
Although Liz Bunting mentioned exclusive possession in her article on page 6 of the last edition of the magazine Allotment and Leisure Gardener, the legal concept can be explained more succinctly:
Exclusive possession is the hallmark of an estate in
land and is an essential characteristic of a tenancy. It enables the tenant to exclude from the premises all other persons, including the landlord, without his consent, and explains why it is necessary for the landlord to reserve a right of entry in the lease, for him to view the state of the premises from time to time, and if necessary, to carry out repairs.
Some self-management allotment schemes confuse exclusive possession with exclusive enjoyment sometimes found in contractual licences. The plotholder has to take control of and be responsible for the destiny of his plot. It is akin to being a driver of a car or a skipper of a boat rather than being a passenger in a car or
a member of the crew. Furthermore, the concept of exclusive possession clearly defines that the produce grown on the plot is what the plotholder owns and is to be enjoyed by him. To have it any other way would be a nonsense.
A plotholder dug a foot-high mound of earth around his plot, did not weed his plot but scattered seeds onto it. Every day he would fill his plot with water from the communal water supply in order to create a paddy field situation
We had heard at the last London Region AGM that a number of ethnic groups around London are bringing
to allotments their own unique horticultural styles of cultivation and growing produce not seen before in
this country. The Society needs to embrace this and to encourage it, but we have to be careful to ensure that allotment management is adept in fostering this diversity.
There is another legal concept to consider which is the non-derogation of grant. A covenant is an application of the general principle that a grantor may not derogate from his grant; in other words, he may not take away with one hand what he has given with the other. So, an owner must not interfere with easements (access to the plot
by paths) he has granted. It applies where the landlord retains adjacent land and gives the tenant a remedy in respect of the activities or neglect on the part retained (ie another plotholder), which adversely affect the use of the land let. Another example of the legal principle of a derogation of grant is to let the plot in order to grow fruit and vegetables with a restriction on planting of soft fruit bushes. It should be regarded as separate from the covenant of quiet enjoyment, for though the two may sometimes overlap, they are complementary.
The form of the allotment tenancy agreement, therefore, needs to be considered carefully by all parties before entering into it.
We did hear of a situation at the last meeting of the London Region. A plotholder dug a foot-high mound of earth around his plot, did not weed his plot but scattered seeds onto it. Every day he would fill his plot with water from the communal water supply in order to create a paddy field situation. Apparently, he was successful in producing a crop of vegetation which his family could eat. However, in this instance, I believe that it is taking the concept of quiet enjoyment a step too far.
The source material for this article has been derived from the book Evans, Law of Landlord and Tenant (Second Edition). The legalise has been excluded so that the article is more readable. However, the court case details have been given to Liz Bunting, if anyone wishes to explore these any further.
In conclusion, what message should this article give
to everyone? The tenants should have the freedom
to cultivate their plots as they like to produce the
crops they want to eat and enjoy within the ambit of
good horticultural and allotment practice without an overbearing control of the landlord. If the landlord adopts the stance of a good neighbour, then he will not fall foul of the principles expressed before.
Chris Barker LLB FRICS Dip Rating (Chartered Surveyor)
Vice Chairman London Region
With thanks to Tony Eden BSc (Est Man) FRICS Dip Rating for his assistance in the production of this article.
36 Allotment and Leisure Gardener