Requirement of notice

Where the landlord covenants to keep in repair property which is the possession of the tenant, his obligation is subject to an implied term to the effect that his liability does not arise until he has notice of the defect. ([Makin v Watkinson (1870) L.R. 6 Ex. 24]; [Torrens v Walker [1906] 2 Ch.166]; see also Pembery v Lamdin [1940] 2 All E.R. 434. There is no need to plead the notice: Ord. 18, r. 7(4)) This implied term does not apply to a case where the subject matter of the covenant remains within the landlord’s possession. [Murphy v Hurley [1922] 1 A.C. 369.]

The principle that a lessor’s covenant to repair property in the possession of the tenant is to be construed as a covenant to repair on notice had its origin in the fact that without notice the landlord has no means of ascertaining the state of repair, but this origin of the rule does not in any way limit the application of the principle. The rule still applies where the tenant has agreed that the landlord may ... Please login or signup to continue reading this content

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