2 Claim under contract of tenancy
9.13 Instead of pursuing his statutory claim, the landlord can by s 71(3) pursue an alternative claim under the terms of the contract of tenancy. The contract of tenancy must be in writing, and compensation under s 71(3) is only recoverable on the tenant’s quitting on termination of the tenancy.
Compensation cannot be claimed in respect of any one holding under both ss 71(1) and 71(3).25 The landlord must elect either to pursue a claim under s 71(1), or s 71(3), and cannot claim in respect of some items of damage under one head, and as to other items under the other. The alternative contractual claim under s 71(3) covers the possibility of the contract of tenancy putting on the tenant a liability to repair greater than that imposed by Statute26 or the rules of good husbandry.9.14 Although s 71(4)(b) provides that compensation cannot be claimed in respect of any one holding both under s 71(1) (above) and under the contract, this does not prohibit the landlord’s statement of claim being made in the alternative.27 He can frame his notice of claim in the alternative, but must elect which claim he wishes to pursue by the date of the subsequent arbitration. The claim must be pursued exclusively under either the contract or s 71(1), and the landlord’s statement of case must be framed accordingly.28
9.15 Where a contractual claim is made under s 71(3) the measure of damages is prima facie the injury to the landlord’s reversion occasioned by the breaches complained of. The principles by reference to which this will be quantified are discussed above.