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Published online by Cambridge University Press: 02 January 2018
1. Megarry & Wade The Law of Real Property, 5th edn, p 1.
2. Elements of Land Law, 2nd edn, p 674.
3. Glendon The Transformation of American Landlord-Tenant Law (1982) 23 Boston College LR 503.
4. (1970) 428 F 2d 1071. The theory emerged from two earlier cases, Pines v Perssion (1961) III NW2d 409 (Wisconsin); Lemle v Breeden 462 P2d 470 (Hawaii). On the political background to the Javins case, see Rabin The Revolution in Residential Landlord-Tenant Law: Causes and Consequences (1984) 69 Cornell LR 5 17.
5. See further judicial developments from Javins: Boston Housing Authority v Hemingway 293 NE2d 831 (Massachusetts); Green v Superior Court of City and County of San Francisco (1974) 517 P2d 1168 (California).
6. Pursuant to the Uniform Residential Landlord and Tenant Act, adopted by some 20 states, the landlord has the obligation to keep the premises in a fit and habitable condition and to comply with relevant housing codes: Schoshinski American Law of Landlord and Tenant p 152. See also Glendon, op cit, p 526.
7. Highway Properties Ltd v Kelly, Douglas & Co Ltd (1971) 17 DLR 7 10; Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17.
8. National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675.
9. Hussein v Mehlman [1992] 2 EGLR 87, a decision of Mr Assistant Recorder Sedley QC, sitting in the county court at the Wood Green Trial Centre, on 5 March 1992. The learned judge was appointed to the High Court, Queen's Bench Division, on 1 October of that year. As county court decisions go, Hussein v Mehlman must be rated ‘highly persuasive’ at least, but it is important to realise that it is not a precedent binding even the High Court, let alone the Court of Appeal.
10. See Harpum [1993] CLJ 212.
11. At p 571.
12. At p 90.
13. Law Com Consultation Paper No 123, Landlord and Tenant: Responsibility for state and Condition of Property.
14. [1986] QB 809.
15. The Court of Appeal was considering provisions now contained in the Landlord and Tenant Act 1985, ss 11 and 8 respectively.
16. See p 384 et seq.
17. Law Corn No 221, para 1.13.
18. Bopp The Unwarranted Implication of a Warranty of Fitness in Commercial Leases-An Alternative Approach (1988) 41 Vanderbilt LR 1057.
19. See Atiyah and Summers Form and Substance in Anglo-American Law, p 306 et seq.
20. (1968) 397 F 2d 687.
21. Glendon, op cit, p 539 et seq.
22. Page 234.
23. At p 235, it is incorrectly asserted that the Rent Act 1977 introduced succession rights. Although in the later chapter on ‘Change of Tenant’, succession to assured tenancies is dealt with, statutory succession to Rent Act tenancies is referred to, parenthetically, as ‘the earlier law’, without any acknowledgement of its continuing relevance (p 527).
24. At p 603. See Housing Act 1988, Sch 2, para 2(a)(ii), set out at p 606. Assured shorthold tenancies, despite their current popularity and importance, are given very short shrift (see pp 251–2, 624–5), and the availability of the accelerated possession procedure in their regard could be given much greater emphasis.
25. At p 572. Whilst fixed term assured tenancies should contain a right of re-entry, the landlord who seeks to recover possession during the currency of the fixed term for breach of covenant does not ‘forfeit’ as such: see Housing act 1988, ss 5(1); 45(4); Bridge Residential Leases, p 51 et seq. Thus waiver of a relevant breach will not disentitle the landlord from proceeding (although it may be material in the exercise by the court of any relevant discretion to grant possession).