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KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 1
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Types of Leases in Ghana
An Equitable Lease
An Equitable Lease is a lease which
takes effect in equity only. They may
be such that it fails to comply with the
provisions of the Conveyancing
Decree, 1973 (NRCD 175) and therefore
not enforceable at law.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 2
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Types of Leases in Ghana
An Equitable Lease
However depending on the
circumstances of a case, a court of
equity may treat it as a lease and
therefore enforce it as an agreement for
a lease.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 3
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Types of Leases in Ghana
An Equitable Lease
Thus a lease may be invalid from the
legal point of view. However it may be
enforceable in equity under the
doctrine of part performance or some
other equitable principle.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 4
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Types of Leases in Ghana
An Equitable Lease
Section 3(2) of the Conveyancing Act
enables a party who seeks the
intervention of equity to bring the
transaction under the ambit of the law.
An equitable lease is enforced by way
of a decree of specific performance.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 5
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Types of Leases in Ghana
A Fixed Term Lease
• A Fixed Term Lease is one in which
the duration of the lease has been
agreed upon by the parties. In Ghana a
lease may be for a minimum of one
year and a maximum of 99 years.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 6
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Types of Leases in Ghana
A Fixed Term Lease
• The important thing to note is that
the term of the lease is certain or ought
to be capable of ascertainment before it
takes effect. The date of
commencement must be known.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 7
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Types of Leases in Ghana
A Fixed Term Lease
• If the duration of the lease is uncertain
it may render the purported lease
invalid.
• Sevenoaks, Maidstone and Turnbridge
Rail Co. v London, Chatham and Dover
Rly Co (1879) 11 Ch D 625
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 8
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Types of Leases in Ghana
A Reversionary Lease
A Reversionary Lease is a lease, which
is created to take effect at a future date.
Where a lease is granted to commence
after the expiration of a previous lease,
it is referred to as a reversionary lease.
A lease may be created to take effect in
reversion at any future date.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 9
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Types of Leases in Ghana
A Concurrent Lease
A Concurrent Lease is a lease granted to
commence before the expiration of a
subsisting lease of the same property to a
different lessee.
The lease is concurrent with the earlier one
because it runs with it.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 10
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Types of Leases in Ghana
A Concurrent Lease
The term of the new lease may be shorter
or longer than the earlier one.
Quite often a concurrent lease is a security
arrangement to enable the second lessee
to intercept the income from the property
to satisfy
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 11
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Types of Leases in Ghana
A Concurrent Lease
a debt owed to him by the owner of the
property (the lessor). The earlier lessee
must pay the rent due to the concurrent
lessee for so long as both leases subsist
concurrently.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 12
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Types of covenants in Ghana
Nature of a Covenant
• In its broadest usage, a covenant refers to
any agreement or contract. It is an
agreement, convention, or promise of two
or more parties, by deed in writing,
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 13
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Types of covenants in Ghana
Nature of a Covenant
• by which either of the parties pledges
himself to the other that something is
either done, or shall be done, or shall not
be done, or stipulates about the truth of
certain facts.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 14
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Types of covenants in Ghana
Nature of a Covenant
• At common law, such requirements were
required to be under seal. In Ghana,
section 40(2) of the Conveyancing Act
dispenses with the need for a seal
particularly where the transaction is
between
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 15
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Types of covenants in Ghana
Nature of a Covenant
• individuals as distinct from corporations or
certain companies, which sign documents
by means of their seals.
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Types of covenants in Ghana
Nature of a Covenant
• Covenants contained in such instruments
are, however, binding in Ghana
notwithstanding the absence of a seal.
• Presently the term is used in relation to
promises in conveyances or other
instruments relating to real estate.
KWASI PREMPEH-ECK, GHANA
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Types of covenants in Ghana
Nature of a Covenant
There are 4 types of covenants in Ghana.
• (i) Express covenants;
• (ii) Covenants implied under the
common law;
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 18
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Types of covenants in Ghana
Nature of a Covenant
There are 4 types of covenants in Ghana.
• (iii) Covenants implied by statute; and
• (iv) “Usual covenants”
• Sackey v Ashong
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 19
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Types of covenants in Ghana
Nature of a Covenant
• (i) Express Covenants
• The parties to a lease may expressly enter
into any covenant they wish provided they
are not illegal or contrary to public policy.
In addition there are certain covenants,
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 20
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Types of covenants in Ghana
Nature of a Covenant
• (i) Express Covenants
• which are not implied by the common law
or statute, and which must be expressly
stated in the lease e.g. covenants to
insure, to repair.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 21
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Types of covenants in Ghana
Nature of a Covenant
• (i) Express Covenants
• The express covenants are created by the
express words of the parties to the deed
and is declaratory of their intentions
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 22
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Types of covenants in Ghana
Nature of a Covenant
• (i) Express Covenants
• Covenants such as to insure the leased
land, to renew the lease, to repair etc, are
never implied by the common law or
statutes into leases.
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6/30/2016 SCHOOL OF LAW 23
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Types of covenants in Ghana
Nature of a Covenant
• (i) Express Covenants
One advantage of express covenants is
that they bind the original parties to the
lease throughout the existence of the
lease by virtue of privity of contract.
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Types of covenants in Ghana
Nature of a Covenant
• (ii) Covenant implied by common law
• That is where the parties are silent on
them, the common law implies certain
covenants:
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 25
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Types of covenants in Ghana
Nature of a Covenant
• (ii) Covenant implied by common law
– Covenant not to derogate from the grant
– Covenant by the lessee to pay for utility
services
– Covenant to pay for rates and taxes.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 26
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Types of covenants in Ghana
Nature of a Covenant
• (ii) Covenant implied by common law
• An implied covenant is one, which may
reasonably be inferred from the whole
agreement and circumstances leading to
the execution of the agreement.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 27
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Types of covenants in Ghana
Nature of a Covenant
• (iii) Covenants implied by statute
• Where the lease is by way of a
conveyance for valuable consideration,
S. 23 of NRCD 175 implies certain
covenants into the lease to be observed or
performed by the lessee.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 28
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Types of covenants in Ghana
Nature of a Covenant
• (iii) Covenants implied by statute
• S.22 also implies covenants to be
observed or performed by the lessor. The
terms of those covenants are set out in the
2nd and 3rd schedules to the Act.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 29
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Types of covenants in Ghana
Nature of a Covenant
• (iv) The Usual Covenants
• Where the lease is preceded by a contract
for a lease or is oral, the usual covenants
are implied into it.
KWASI PREMPEH-ECK, GHANA
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Types of covenants in Ghana
Nature of a Covenant
• (iv) The Usual Covenants
• The usual covenants are outlined in the
case of Sackey v Ashong (1956) 1
WALR 108.
• (-4 covenants on the part of lessee and 1
on the part of the lessor)
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 31
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Types of covenants in Ghana
Nature of a Covenant
• The rule laid down in this case was that
in the absence of express provisions, the
“usual covenants” and conditions binding
on a tenant were the following:
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 32
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Types of covenants in Ghana
Nature of a Covenant
• covenant to pay rent;
• (ii) payment for all utilities consumed
e.g. Water and electricity;
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 33
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Types of covenants in Ghana
Nature of a Covenant
• (iii) payment of all rates and taxes levied
on the occupier of the premises;
• to keep and deliver up the premises in a
tenant-like manner, fair wear and tear
excepted
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 34
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Types of covenants in Ghana
Nature of a Covenant
• to make good any damage done to the
premises through any act or default of
himself or his licensees
KWASI PREMPEH-ECK, GHANA
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Types of covenants in Ghana
Nature of a Covenant
• There is also a condition entitling the
landlord to re-enter the premises for non-
payment of rent but not for the breach of
any other covenant or condition.
• On the part of the landlord, the usual
covenant implied was the covenant for
quiet enjoyment.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 36
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Types of covenants in Ghana
Nature of a Covenant
• Enforcement of Covenants
• Privity of Interest - description
• Privity of contract - description
• Privity of estate - description
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 37
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Types of covenants in Ghana
Nature of a Covenant
• Enforcement of Covenants
• Privity of contract arises out of a
relationship of contract between the
parties.
• Privity of interest – parties share the
same interest
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 38
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Types of covenants in Ghana
Nature of a Covenant
• Privity of Estate- relationship of landlord
and tenant between the parties.
• Section. 24, 1st schedule
• Part 6, paragraph 4
• Sections 27, 28.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 39
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Types of covenants in Ghana
Nature of a Covenant
• Periodic Tenancies
• Annual tenancy, monthly tenancy.
Created expressly or by operation of law
i.e. through the mode of payment.
• They are terminated by notice, as stated
by the parties or by law.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 40
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Types of covenants in Ghana
Nature of a Covenant
• Alameddine Brothers v Paterson
Zochonis & Co. Ltd. [1971] 2 GLR 403
• Generally leases must be terminable by
both parties.
• Centaploy Ltd. v Matlodge Ltd. [1974] Ch
1;[1973] 2 AER 720
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 41
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Types of covenants in Ghana
Nature of a Covenant
• Tenancy at will
• Tenancy at Sufferance
• Statutory tenancy
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 42
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Types of covenants in Ghana
Nature of a Covenant
Tenancy at will
• This comprises a personal relationship
between the landlord and his tenant.
The tenant at will is only considered a
tenant because he is in occupation of a
piece of land or property, but he has no
other interest.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 43
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Types of covenants in Ghana
Nature of a Covenant
Tenancy at will
• He holds no proprietary interest in the
land capable of sublease or assignment
to a third party. However, he has an
exclusive right of occupation.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 44
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Types of covenants in Ghana
Nature of a Covenant
Tenancy at will
• He is entitled to maintain an action in
trespass against a stranger, but not
against the owner himself.
• He is also liable to make payment in
respect of his occupation and use of the
land at the open market value.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 45
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Types of covenants in Ghana
Nature of a Covenant
Tenancy at will
• The understanding is that either party
may determine the tenancy at any time.
It is also terminated with the death of
either party or where either party parts
with his interest in the property.
KWASI PREMPEH-ECK, GHANA
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Types of covenants in Ghana
Nature of a Covenant
Tenancy at Sufferance
• This occurs where a tenant, having
entered upon land under a valid tenancy
holds over without the landlord’s assent
or dissent.
• Nuamah v Frimpong [1973] 2 GLR 37
KWASI PREMPEH-ECK, GHANA
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Types of covenants in Ghana
Nature of a Covenant
Statutory Tenancy
• Union Trading Co. Ltd. v Karam [1975]
1 GLR 212
• Monta v Patterson Simmons (Gh) Ltd.
[1982-83] 2 GLR 195
KWASI PREMPEH-ECK, GHANA
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Types of covenants in Ghana
Nature of a Covenant
• Waste
• To land of anything which changes the
texture of the land.
• Voluntary waste
• Ameliorating waste
KWASI PREMPEH-ECK, GHANA
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Types of covenants in Ghana
Nature of a Covenant
• Waste
• Equitable Waste
• Bodoa v Ofoli (1910) Earn 51
• Thome v Barclays Bank Ltd. [1976] 2
GLR 126
KWASI PREMPEH-ECK, GHANA
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Types of covenants in Ghana
Nature of a Covenant
• Permissive waste – Failing to do what
ought to be done as regards repair.
• Tenant’s liability for waste
• Remedies for waste -
• Escrow - conditional
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 51
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Types of covenants in Ghana
Nature of a Covenant
• FORFEITURE
• When a lease or a tenancy terminates by
expiry or by the occurrence of an event
expressly provided for in the lease as
terminating it, the lessor’s or landlord’s
right accrues at common law to forfeit
the lease.
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 52
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END OF LECTURE FOR TODAY
THANK YOU
KWASI PREMPEH-ECK, GHANA
6/30/2016 SCHOOL OF LAW 53
