4 Contracting out
9.18 By virtue of s 78(1) of the 1986 Act, save as expressly provided in the Act itself, in any case in which the provisions of the 1986 Act provide for compensation, a tenant or landlord shall be entitled to compensation in accordance with the statutory provisions ‘and not otherwise’, and shall be so entitled notwithstanding any agreement to the contrary.
Consequently, save as expressly provided in the 1986 Act itself, the landlord will be entitled to compensation in accordance with the Act, and will be so entitled notwithstanding any agreement to the contrary. Note, however, that if there is a written tenancy varying the tenant’s normal liability for repairs the landlord can pursue his contractual claim under s 71(3) instead of the statutory claim under s 71(1). This is unaffected. Similarly, in Kent v Conniff,34 it was held that as ss 71 and 7235 only provide compensation on termination of the tenancy, the landlord is not barred by s 78 from claiming damages for breach of covenant during the tenancy. The latter is not a situation provided for in the 1986 Act at all, and the landlord’s contractual claim for damages is therefore preserved. The measure of damages will be the amount by which the value of the landlord’s reversion has diminished as a result of the breaches complained of. Note, however, that s 78(1) does deprive the landlord of the right to claim compensation during the tenancy in one case. Section 15(5) of the 1986 Act provides that if the tenant exercises his rights to freedom of cropping, and to dispose of the produce of the holding, in such a way as to injure or deteriorate the holding, then the landlord has the remedies laid down in s 15 itself ‘but no others’. The remedies prescribed by s 15(5) are an injunction to restrain the exercise of the tenant’s rights in this way, and a statutory claim for damages on the tenant’s quitting the holding. It was held in Kent v Conniff that in cases within s 15 the right to damages was preserved, but postponed to the end of the tenancy, and that an action for damages under this head could not therefore be brought during the tenancy.
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