Page:EB1911 - Volume 16.djvu/177

Rh which is part and parcel of the demise, e.g. the payment of rent, the repair of houses or fixtures or machinery already built or set up, or to a thing not in esse at the time of the demise, but touching the land, provided that the word “assigns” is used in the covenant. All implied covenants run with the land. As instances of “collateral” covenants, we may take a covenant by a lessor to give the lessee a right of pre-emption over a piece of land adjoining the subject of the demise, or in the case of a lease of a beer-shop, not to keep any similar shop within a prescribed distance from the premises demised, or a covenant by a lessee to pay rates on premises not demised. A covenant not to assign without the lessor’s assent runs with the land and applies to a re-assignment to the original lessee. (iv.) Restrictive Covenants.—These may be subdivided into two classes—covenants not to assign or underlet without the lessor’s consent (it may be noted that such consent must be applied for even if, under the covenant, it cannot be withheld); and covenants in restraint of trade, e.g. not to use the demised premises for certain trading purposes, and in the case of “tied houses” a covenant by the lessees to purchase all beer required from the lessors.

In addition a lease frequently contains covenants for renewal of the lease at the option of the lessee, and for repairs or insurance against damage by fire by the lessee. Leases frequently contain a covenant by the lessee to bear and pay rates, taxes, assessments and other “impositions” or “charges,” or “duties” or “outgoings,” or “burdens” (except property tax) imposed upon the demised premises during the term. Considerable difficulty has arisen as to the scope of the terms “impositions,” “charges,” “duties,” “outgoings,” “burdens.” The words, “rates, taxes, assessments” point to payments of a periodical or recurring character. Are the latter words in such covenants limited to payments of this kind, or do they include single and definite payments demanded, for example, by a local authority, acting under statutory powers, for improvements of a permanent kind affecting the premises demised? The decisions on the point are numerous and difficult to reconcile, but the main test is whether, on the true construction of the particular covenant, the lessee has undertaken to indemnify the landlord against payments of all kinds. The stronger current of modern authority is in favour of the landlords and not in favour of restricting the meaning of covenants of this class. It may be added that, if a lessee covenants to pay rates and taxes, no demand by the collector apparently is necessary to constitute a breach of the covenant; where a rate is duly made and published it is the duty of the parties assessed to seek out the collector and pay it.

Mutual Rights and Liabilities of Landlord and Tenant.—These are to a large extent regulated by the covenants of the lease. (i.) The landlord generally covenants—and, in the absence of such a proviso, a covenant will be implied from the fact of letting—that the tenant shall have quiet enjoyment of the premises for the time agreed upon. This obligation makes the landlord responsible for any lawful eviction of the tenant during the term, but not for wrongful eviction unless he is himself the wrong-doer or has expressly made himself responsible for evictions of all kinds. It may be noted here that at common law no lease for years is complete till actual entry has been made by the lessee. Till then, he has only a right of entry or interesse termini. (ii.) The tenant, on his part, is presumed to undertake to use the property in a reasonable manner, according to the purposes for which it was let, and to do reasonable repairs.

A landlord is not presumed to have undertaken to put the premises in repair, nor to execute repairs. But the respective obligations of parties where repairs are, as they always are in leases for years, the subject of express covenant, may vary indefinitely. The obligation is generally imposed upon the tenant to keep the premises in “good condition” or “tenantable repair.” The amount and quality of the repairs necessary to fulfil the covenant are always relative to the age, class and condition of the premises at the time of the lease. A tenant is not responsible, under such a covenant, for deterioration due to diminution in value caused by lapse of time or by the elements. Where there is an unqualified covenant to repair, and the premises during the tenancy are burnt down, or destroyed by some other inevitable calamity, the tenant is bound to rebuild and restore them at his own expense, even although the landlord has taken out a policy on his own account and been paid by the insurance company in respect of it. A covenant to keep in repair requires the tenant to put the premises in repair if they are out of it, and to maintain them in that condition up to and at the end of the tenancy. A breach of the covenant to repair gives the landlord an action for damages which will be measured by the estimated injury to the reversion if the action be brought during the tenancy, and by the sum necessary to execute the repairs, if the action be brought later. (iii.) The improper user of the premises to the injury of the reversioner is (q.v.). (iv.) Covenants by the tenants to insure the premises and keep them insured are also common; and if the premises are left uninsured for the smallest portion of the term, though there is no damage by fire, the covenant is broken. (v.) Covenants to bear and pay rates and taxes have been discussed above. (vi.) As to the tenant’s obligation to pay rent, see.

Assignment, Attornment, Estoppel.—The relationship of landlord and tenant may be altered either voluntarily, by the act of the parties, or involuntarily, by the operation of law, and may also be dissolved. The principal mode of voluntary alteration is an assignment either by the tenant of his term or by the landlord of his reversion. An assignment which creates the relationship of landlord and tenant between the lessor or lessee and the assignee, must be by deed, but the acceptance by a landlord of rent from a tenant under an invalid assignment may create an implied tenancy from year to year; and similarly payment of rent by a tenant may amount to an acknowledgment of his landlord’s title. This is one form of tenancy by estoppel. The principle of all tenancies of this kind is that something has been done by the party estopped, amounting to an admission which he cannot be allowed to contradict. “Attornment,” or the agreement by a tenant to become tenant to a new landlord, is a term now often used to indicate an acknowledgment of the existence of the relationship of landlord and tenant. It may be noted that it is still common to insert in mortgage deeds what is called an “attornment clause,” by which the mortgagor “attorns” tenant to the mortgagee, and the latter thereupon acquires a power of distress as an additional security. If the lands assigned are situated in Middlesex or Yorkshire, the assignment should be registered under the Middlesex Registry or Yorkshire Registries Acts, as the case may be; and similar provision is now made for the registration by an assignee of his title under the Land Transfer Acts 1875 and 1897.

Underlease.—Another form of alteration in a contract of tenancy is an under-lease, which differs from assignment in this—that the lessor parts with a portion of his estate instead of, as in assignment, with the whole of it. There is no privity of contract between an underlessee and the superior landlord, but the latter can enforce against the former restrictive covenants of which he had notice; it is the duty of the underlessee to inform himself as to the covenants of the original lease, and, if he enters and takes possession, he will be considered to have had full notice of, and will be bound by, these covenants.

Bankruptcy, Death.—The contract of tenancy may also be altered by operation of law. If a tenant become bankrupt, his interest passes to his trustee in bankruptcy—unless, as is frequently the case, the lease makes the occurrence of that contingency determine the lease. So, on the death of a tenant, his interest passes to his legal representatives.

Dissolution of Tenancy.—Tenancy is dissolved by the expiry of the term for which it was created, or by forfeiture of the tenant’s interest on the ground of the breach of some condition by the tenant and re-entry by the landlord. A breach of condition may, however, be waived by the landlord, and the legislature has made provision for the relief of the tenant from the consequences of such breaches in certain cases. Relief from forfeiture and rights of re-entry are now regulated chiefly by the Conveyancing Acts 1881 and 1882. Under these acts a right of re-entry or forfeiture is not to be enforceable unless and until the lessor has served on the lessee a written notice specifying the breach of covenant or condition complained of, and requiring him to remedy it or make compensation, and this demand has not within a reasonable time been complied with; and when a lessor is proceeding to enforce such a right the court may, if it think fit, grant relief to the lessee. A forfeiture is also waived if the landlord elects not to take advantage of it—and shows his election either expressly or impliedly by some act, which acknowledges the continuance of the tenancy, e.g. by the acceptance of, or even by an absolute and unqualified demand for,