Where a tenant is required to spend money on remedying the breach of the landlord’s covenant to repair, the money so spent could be invoked to abate the rent even if it thereafter falls due to a successor landlord. Discharge by the tenant of the landlord’s obligation to pay a rent charge issuing out of the land where this had been requested by the landlord was a good defence to a claim for rent. Macdonald CB: ‘I do not see how you entitle yourself to the interposition of this court. If the landlord is bound in law or equity to repair in consequence of the accident that has happened, and you were right in expending this sum in repairs for him, it is money paid to his use and may be set off against the demand for rent. If you fail in making out these points your ground of relief is destroyed in equity, as well as at law.’ The court established a right at common law of recoupment for a tenant against his landlord.
Lord Kenyon CJ said the landlord had no obligation to repair and even had there been he could be no set-off because the damages claimed were uncertain, which in the context must mean unliquidated: ‘One objection to the plea is that it does not set off any certain debt for uncertain damages. I do not indeed see by what covenant the landlord is bound to repair damages occasioned by fire or tempest. The exception was introduced in the lessee’s covenant for his benefit and to exempt him from particular repairs, but if the defendant can maintain any action against the plaintiff, his landlord, the sum to be recovered is uncertain. It must be assessed by a jury and there is no pretence to say that those uncertain damages may be set-off to the present action.’
(1591) Cro Eliz 222
England and Wales
Cited – Smith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 29 April 2022; Ref: scu.185862