1. Chicago
A single lease can contain covenants; even the most informal leases will still contain provisions which characterise obligations. A covenant 'is a promise made by one party for the benefit of another party which is contained in a deed'; under The Law of Property Act (LPA) 1925 Section 52 leases of more than three years should be made by deed anyway.1 The Law Commission's criticism is that some obligations pass automatically onto the new landlord and tenant by privity of estate and sometimes this burden does not pass on, for example due to continuing liability. This argument is commendable because the contrast in a single document, the LPA 1925 before reform was unsatisfactory as it lead to inconsistency and unfairness. However, since the Landlord and Tenant Act 1995 (the 1995 Act) improvements have taken place and 'although the Law Commission's proposals were not enacted as originally conceived, they did provide the impetus for reform'.2 These points will be discussed in depth and lead to the essential idea that although reform is apparent it did not go as far as many including the Law Commission intended. .
It is important to note that in order for leases to run with the land on assignment before the 1995 Act two conditions were required; privity of estate and the concept of 'touch and concern'. Privity of estate is essentially the relationship between landlords and tenants where they may impose obligations on one another. 'Touch and concern' is a concept whereby the covenant relates to the demised premises in comparison to a specific person. This concept is governed by the Spencer's Case [1582] that highlights how the burden of positive covenants can pass to assignees of a lease.3 In the case, a lease contained a covenant that the tenant would build a wall; the lease was assigned twice but it was held that the burden of lease covenants that 'touch and concern' the land passes to assignees of the lease.