Question 1 Part A: · About covenants in leases · Because we have COA authority that quiet enjoyment and non-derogation from grant are the same thing, we would just argue quiet enjoyment because it has more case law · Quiet enjoyment = to breach QE there must be substantial interference with use of premises by tenant (Southwark London Borough Council v Baxter) · Whether disturbance is substantial is Q of Fact (Byrnes v Jokona) · If known to both parties, the nature of the business for which leased premises is granted 'forms the framework of the analysis' as to whether covenant is breached (Byrnes) Air conditioning and fan exhaust: · We presume Charles knows nature of Johns business - thus bakery business forms framework of this analysis · Bakery business needs exhaust and air conditioning > interference with air con and exhaust could amount to substantial interference with use of premises (Hawkesbury Nominees Pty Ltd v Battik Pty Ltd - specifically about exhaust and air con) - will depend on nature and extent of interference - thus we need more info on that o John can provide evidence that customers are affected by interference o This could amount to substantial interference and if it is, damages available to John o Conclusion can be influenced by individual circumstances and terms of lease (should write this in exam) o Could be under the lease that its explicitly given to John the obligation to maintain and fix exhaust and air con Cant contract out of QE but those covenants could well affect the liability for individual problems Tree roots:
· Interrupted use of toilet - now no longer operational · Can confidently say interference with use of toilet can amount to substantial interference with use of premises -> case law says failure to maintain essential services is capable of being breach of covenant if interruption is substantial - Perera v Vandiyar · Toilet no longer working would be considered substantial interference - changes what you can do with premises · We need to note - we're not told in question whether Charles knows about these interferences (would say this for exhaust and air-con above) o We would tell John to advise Charles about them if he hasn't already, because Charles has a reasonable time to fix interferences - no case law on reasonable time but that's just a matter of logic o But if he is advised of these problems and he doesn't fix them within reasonable time -> John has actions against Charles which can have remedy of damages Neighbouring fruit and flower shop: · Alleged interference with John's use of premises and because Charles knows that John operates a bakery business, that forms framework of our analysis - we know that under covenant of QE, a landlord can be liable for the actions of a neighbouring tenant provided the landlord had some ability to control this behaviour (similar to Aussie Traveller) o Fanigun Pty Ltd v Woolworths Ltd (per textbook) -