Page:EB1911 - Volume 16.djvu/176

Rh is that in a lease there must be an expression of intention on the part of the lessor to convey, and of the lessee to accept, the exclusive possession of the thing let for the prescribed term and on the prescribed conditions. The landlord must not part with the whole of his interest, since, if he does so, the instrument is not a lease but an assignment. Where a tenant enters under an agreement for a lease and pays rent, the agreement will be regarded as a lease from year to year; and if the agreement is one of which specific performance would be decreed (i.e. if it contains a complete contract between the parties and satisfies the provisions—to be noted immediately—of the Statute of Frauds, and if, in all the circumstances, its enforcement is just and equitable), the lessee is treated as having a lease for the term fixed in the agreement from the time that he took possession under it, just as if a valid lease had been executed. At common law a lease for a term of years (other than a lease by a corporation) might be made by parol. But under the Statute of Frauds (1677, ss., 1, 2) leases, except those the term of which does not exceed three years, and in which the reserved rent is equal to two-thirds at least of the improved value of the premises, were required to be in writing signed by the parties or their lawfully authorized agents; and, under the Real Property Act 1845, a lease required by law to be in writing is void unless made by deed. The Statute of Frauds also prohibits an action from being brought upon any agreement for a lease, for any term, unless such agreement is in writing and signed by the party to be charged therewith or by some agent lawfully authorized by him.

Forms of Tenancy.—The following are the principal forms of tenancy: (i.) Tenancy for Life.—A lease for life must be made by deed, and the term may be the life of the lessee and the life or lives of some other person or persons, and in the latter case either for their joint lives or for the life of the survivor; also for the lives of the lessee himself and of some other person or persons, and this constitutes a single estate. A tenant for life under a settlement has extensive powers of leasing under the Settled Land Act 1882. He may lease the settled land, or any part of it, for any time not exceeding (a) in the case of a building lease, 99 years; (b) in the case of a mining lease, 60 years, (c) in the case of any other lease, 21 years. He may also grant either a lease of the surface of settled land, reserving the mines and minerals, or a lease of the minerals without the surface. A lease under the Settled Land Act 1882 must be by deed and must be made to take effect in possession not later than 12 months after its date; the best rent that can reasonably be obtained must be reserved and the lease must contain a covenant by the lessee for payment of the rent, and a condition of re-entry on non-payment within a specified time not exceeding 30 days, (ii.) Tenancy for Years, i.e. for a term of years.—This tenancy is created by an express contract between the parties and never by implication, as in the case of tenancy from year to year and tenancy at will. Here the tenancy ends on the expiry of the prescribed term, without notice to quit or any other formality. (iii.) Tenancy from Year to Year.—This tenancy may be created by express agreement between the parties, or by implication as, e.g. where a person enters and pays rent under a lease for years, void either by law or by statute, or without any actual lease or agreement, or holds over after the determination of a lease whether for years or otherwise. In the absence of express agreement or custom or statutory provision (such as is made by the Agricultural Holdings Act 1883), a tenancy from year to year is determinable on half a year’s notice expiring at the end of some current year of the tenancy. Where there is no express stipulation creating a yearly tenancy, if the parties have contracted that the tenant may be dispossessed by a notice given at any time, effect will be given to this provision. The common law doctrine of a six months’ notice being required to terminate a tenancy from year to year of a corporeal hereditament, does not apply to an incorporeal hereditament such as a right to shoot. (iv.) Tenancies for Shorter Periods.—Closely associated with tenancies from year to year are various other tenancies for shorter periods than a year—weekly, monthly or quarterly. Questions of considerable importance frequently arise as to the notice necessary to terminate tenancies of this character. The issue is one of fact; the date at which the rent is payable is a material circumstance, but it may be said generally that a week’s notice should be given to determine a weekly tenancy, a month’s to determine a monthly tenancy, and a quarter’s to determine a quarterly tenancy. It is chiefly in connexion with the letting of lodgings, flats, &c., that tenancies of this class arise (see, ). (v.) Tenancy at Will.—A tenancy at will is one which endures at the will of the parties only, i.e. at the will of both, for if a demise be made to hold at the will of the lessor, the law implies that it is at the will of the lessee also and vice versa. Any signification of a desire to terminate the tenancy, whether expressed as “notice” or not, will bring it to an end. This form of tenancy, like tenancy from year to year, may be treated either by express contract or by implication, as where premises are occupied with the consent of the owner, but without any express or implied agreement as to the duration of the tenancy, or where a house is lent rent free by one person to another. A tenancy at will is determined by either party alienating his interest as soon as such alienation comes to the knowledge of the other. (vi.) Tenancy at Sufferance.—A tenant who comes into possession by a lawful demise, but “holds over” or continues in possession after his estate is ended, is said to be a “tenant at sufferance.” Properly speaking, tenancy at sufferance is not a tenancy at all, inasmuch as if the landlord acquiesces in it, it becomes a tenancy at will; and it is to be regarded merely as a legal fiction which prevented the rightful owner from treating the tenant as a trespasser until he had himself made an actual entry on or had brought an action to recover the land. The Distress for Rent Act 1737, however, enables a landlord to recover double rent from a tenant who holds over after having himself given notice to quit; while another statute in the reign of George II.—the Landlord and Tenant Act 1730—makes a tenant who holds over after receiving a notice from his landlord liable to the extent of double the value of the premises. There is no tenancy by sufferance against the crown.

Form of a Lease.—The component parts of a lease are the parties, the recitals (when necessary) setting out such matters as the title of the lessor; the demise or actual letting (the word “demise” is ordinarily used, but any term indicating an express intention to make a present letting is sufficient); the parcels in which the extent of the premises demised is stated; the habendum (which defines the commencement and the term of the lease), the reddendum or reservation of rent, and the covenants and conditions. The Conveyancing Act 1881 provides that, as regards conveyances subsequent to 1881, unless a contrary intention is expressed, a lease of “land” is to be deemed to include all buildings, fixtures, easements, &c., appertaining to it; and, if there are houses or other buildings on the land demised, all out-houses, erections, &c., are to pass with the lease of the land. Rights which the landlord desires to retain over the lands let are excepted or reserved. Sporting rights will pass to the lessee unless reserved (see ). A grant or reservation of mines in general terms confers, or reserves, a right to work the mines, subject to the obligation of leaving a reasonable support to the surface as it exists at the time of the grant or reservation. It is not necessary that a lease should be dated. In the absence of a date, it will take effect from the day of delivery.

Covenants in Leases.—These may be roughly divided into four groups: (i.) Implied Covenants.—A covenant is said to be implied when it is raised by implication of law without any express provision being made for it in the lease. Thus a lessee is under an implied obligation to treat the premises demised in a tenant-like or “husband-like” manner, and again, where in a lease by deed the word “demise” is used, the lessor probably covenants impliedly for his own title and for the quiet enjoyment of the premises by the lessee. (ii.) ”Usual” Covenants.—Where an agreement for a lease specifies only such essential conditions as the payment of rent, and either mentions no other terms, or provides that the lease shall contain the “usual” covenants, the parties are entitled to have inserted in the lease made in pursuance of the agreement such other provisions as are “usual” in leases of property of the same character, and in the same district, not being provisions tending to abridge or qualify the legal incidents of the estate intended to be granted to the lessee. The question what covenants are “usual” is a question of fact. A covenant by the lessor, limited to his own acts and those of persons claiming under or through him, for the “quiet enjoyment” by the lessee of the demised premises, and covenants by the lessee to pay rent, to pay taxes, except such as fall upon the landlord, to keep the premises in repair, and to allow the landlord to enter and view the condition of the premises may be taken as typical instances of “usual” covenants. Covenants by the lessee to build and repair, not to assign or underlet without license, or to insure, or not to carry on a particular trade on the premises leased, have been held not to be “usual.” Where the agreement provides for the insertion in the lease of “proper” covenants, such covenants only are pointed at as are calculated to secure the full effect of the contract, and a covenant against assignment or under-letting would not ordinarily be included. (iii.) The Covenants running with the Land.—A covenant is said to “run with the land” when the rights and duties which it creates are not merely personal to the immediate parties (in which case a covenant is said to be “collateral”), but pass also to their assignees. At common law, it was said that covenants “ran with the land” but not with the reversion, the assignee of the reversion not having the rights of the original lessor. But the assignees of both parties were placed on the same footing by a statute of Henry VIII. (1540). A covenant “runs with the land” if it relates either to a thing in esse,