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Thus, if this happens to be a leading drain, other necessary drains may be opened into it. In purchasing land for building on, you should expressly reserve a right to make an opening into any sewer or watercourse on the vendor's land for drainage purposes.
2699. Constructions.—Among the cautions which purchasers of houses, land, or leaseholds, should keep in view, is a not inconsiderable array of constructive notices, which are equally binding with actual ones. Notice to your attorney or agent is notice to you; and when the same attorney is employed by both parties, and he is aware of an encumbrance of which you are ignorant, you are bound by it; even where the vendor is guilty of a fraud to which your agent is privy, you are responsible, and cannot be released from the consequences.
2700. The Relations Of Landlord And Tenant are most important to both parties, and each should clearly understand his position. The proprietor of a house, or house and land, agrees to let it either to a tenant-at-will, a. yearly tenancy, or under lease. A teoancy-at-will may be created by parol or by agreement; and as the tenant may be turned out when his landlord pleases, so he may leave when ho himself thinks proper; but this kind of tenancy is extremely inconvenient to both parties. Where an annual rent is attached to the tenancy, in construction of law, a lease or agreement without limitation to any certain period is a lease from year to year, and both landlord and tenant are entitled to notice before the tenancy can be determined by the other. This notice must, be given at least six months before the expiration of the current year of the tenancy, and it can only terminate at the end of any whole year from the time at which it began; so that the tenant entering into possession at Midsummer, the notice must be given to or by him, so as to terminate at the same term. When once he is in possession, he has a right to remain for a whole year; and if no notice be given at the end of the first half-year of his tenancy, he will have to remain two years, and so on for any number of years.
2701. Tenancy By Scffekance.—This is a tenancy, not very uncommon, arising out of the unwillingness of either party to take the initiative in a more decided course at the expiry of a lease or agreement. The tenant remains in possession, and continues to pay rent as before, and becomes, from sufferance, a tenant from year to year, which can only be terminated by one party or the other giving the necessary six months' notice to quit at the term corresponding with the commencement of tho original tenancy. This tenancy at sufferance applies also to an under-tenant, who remains in possession and pays rent to the reversioner or head landlord. A six months' notice will be insufficient for this tenancy. A notice was given (in Right v. Darby, I.T.R. 159) to quit a house held by plaintiff as tenant from year to year, on the 17th June, 1840, requiring him "to quit the premises on the 11th October following, or such other day as his said tenancy might expire." The tenancy had commenced on the 11th October in a former year, but it was held that this was not a good notice for the year ending October 11, 1841. A tenant from 3-c.ir to year gave his landlord notice to quit, ending the tenancy at a time within the half-year; the landlord acquiesced at first, but afterwards refused to accept the notice. The tenant quitted the premises; the landlord entered, and even made some repairs, but it was afterwards held that the tenancy was not determined. A notice to quit must be such as the tenant may safely act on at the time of receiving it; therefore it can only be given by an agent properly authorized at the time, and cannot be made good by the landlord adopting it afterwards. An unqualified notice, given at the proper time, should conclude with "On failure whereof, I shall require you to PW me double the former rent for so long as you retain possession."
2701. Leases.—A lease is an instrument in writing, by which one person grants to another the occupation and use of lands or tenements for a term of years for a consideration, the lessor granting the lease, and the lessee accepting it with all its conditions. A lessor may grant the lease for any term less than his own interest. A tenant for life in an estate can only grant a lease for his own life. A tenant for life, having power to grant a lease, should grant it only in the terms of the power, otherwise the lease is void, and his estate may be made to pay heavy penalties under the covenant, usually the only one onerous on the lessor, for quiet enjoyment. The proprietor of a freehold— that is, of the possession in perpetuity of lands or tenements—may grant a lease for 999 years, for 99 years, or for 3 years. In the latter case, the lease may be either verbal or in writing, no particular form and no stamps being necessary, except the usual stamp on agreements; so long as the intention of the parties is clearly expressed, and the covenants definite, and well understood by each party, the agreement is complete, and the law satisfied. In the case of settled estates, the court of Chancery is empowered to authorize leases under the 19 & 20 Vict. c. 120, and 21 & 22 Vict. c. 77, as follows :—
21 years for agriculture or occupation.
2703. A lessor may also grant an under-lease for a term less than his own: to grant the whole of his term would be an assignment. Leases are frequently burdened with a covenant not to underlet without the consent of the landlord: this is a covenant sometimes very onerous, and to be avoided, where it is possible, by a prudent lessee.
2704. A lease for any term beyond three years, whether an actual lease or an agreement for one, must be in the form of a deed; that is, it must bo "under seal;" and all assignments and surrenders of leases must be in the same form, or they are void at laic. Thus, an agreement made by letter, or by a memorandum of agreement, which would be binding in most cases, would be valueless when it was for a lease, unless witnessed, and given under hand and seal. The last statute, 8 & 9 Vict. e. 106, under which these precautions became necessary, has led to serious difficulties. "The judges," says Lord St. Leonards, "feel the difficulty of holding a lease in writing, but not by deed, to be altogether void, and consequently decided, that although such a lease is void under the statute, yet it so far regulates the holding, that it creates a tenancy from year to year, terminable by half a year's notice; and if the tenure endure for the term attempted to be created by the void lease, tho tenant may be evicted at the end of the term without any notice to quit." An agreement for a lease not by deed has been construed to be a lease for a term of years, and consequently void under the statute; "and yet," says Lord St. Leonards, "a court of equity has held that it may be specifically enforced as an agreement upon the terms stated." The law on this point is one of glorious uncertainty; in making any such agreement, therefore, we should be careful to express that it is an agreement, and not a lease; and that it is witnessed and under seal.
2705. Agreements.—It is usual, where the lease is a repairing one, to agree for a lease to be granted on completion of repairs according to specification. This agreement should contain the names and designation of the parties, a description of the property, and the term of the intended lease, and all the covenants which are to be inserted, as no verbal agreement can be made to a written agreement. It should also declare that the instrument is an agreement for a lease, and not the lease itself. The points to be settled in such an agreement are, the rent, term, and especially covenants for insuring and rebuilding in the event of a fire; and if it is intended that the lessor's consent is to be obtained before assigning or underleasing, a covenant to that effect is required in the agreement. In building-leases, usually granted for 99 years, the tenant is to insure the property; and even where the agreement is silent on that point, the law decides it so. It is otherwise with ordinary tenements, when the tenant pays a full, or what the law terms rack-rent; the landlord is then to insure, unless it is otherwise arranged by the agreement.
2706. It is important for lessee, and lessor also, that the latter does not exceed his powers. A lease granted by a tenant for life before he is properly in possession, is void in law; for, although a court of equity, according to Lord St. Leonards, will, "by force of its own jurisdiction, support a bond fide lease, granted under a power which is merely erroneous in form or ceremonies,'' and the 12 & 13 Vict. c. 26, and 13 & 14 Vict. c. 19, compel a new lease to
( be granted with the necessary variations, while the lessor has no power to compel him to accept such a lease, except when the person in remainder is competent and willing to confirm the original lease without variations, yet all these difficulties involve both delay, costs, and anxieties.
4707. In husbandry leases, a covenant to cultivate the land in a husbandlike manner, and according to the custom of the district, is always implied; but it is more usual to prescribe the course of tillage which is to be pursued. In the case of houses for occupation, the tenant would have to keep the house in a tenantable state of repair during the term, and deliver it up in like condition. This is not the case with the tenant at will, or from year to year, where the landlord has te keep the house in tenantable repair, and the tenant is only liable for waste beyond reasonable wear and tear.
3708. Insurance.—Every lease, or agreement for two lease, should covenant not only who is to pay insurance, but how the tenement is to be rebuilt in the oront of a fire; for if the house were burnt down, and no provision made for insurance, the tenant, supposing there was the ordinary covenant to repair in the lease, would not only have to rebuild, but to pay rent while it was being rebuilt. More than this, supposing, under the same lease, the landlord had taken the precaution of insuring, he is not compelled to lay out the money recovered in rebuilding the premises. Sir John Leach lays it down, that "the tenant's situation could not be changed by a precaution, on the part of the landlord, with which he had nothing to do." This decision Lord Campbell confirmed in a more recent case, in which an action was brought against a lessee who was not bound to repair, and neither he nor the landlord bound to insure; admitting an equitable defence, tho court affirmed Sir John Leach's decision, holding that the tenant was bound to pay the rent, and could not require the landlord to lay out the insurance money in rebuilding. This is opposed to the opinion of Lord St. Leonards, who admits, however, that the decision of the court must overrule his dictum. Such being the state of the law, it is very important that insurance should be provided for, and that the payment of rent should bo made to depend upon rebuilding the house in the event of a fire. Care must be takon, however, that this is made a covenant of the lease, as well as in the agreement, ethorvriso the tenant must rebuild the house.
■2709. The law declares that a tonant is not bound to repair damages by tempest, lightning, or other natural casualty, unless there is a special covenant to that effect in the lease ; but if thero is a general covenant to repair, the repair will fall upon the tenant. Lord Kenyon lays it down, in the case of a bridge destroyed by a flood, the tenant being under a general covenant to repair, that, "where a party, by his own contract, creates the duty or charge upon himself, he is bound to make it good, because he might have guarded against it in the contract." The same principle of law has been applied to a house destroyed by lightning. It is, thoreforo, important to have this settled in the insurance clause.
2710- Lord St. Leonards asserts that '•' his policies against fire are not so framed as to render the company legally liable." Generally the property is inaccurately described with reference to the conditions under which you insure. They are framed by companies who, probably, are not unwilling to have a legal defenoe against any claim, as they intend to pay what they deem n just claim without taking advantage of any technical objection, and intending to make use of their defence only against what they believe to be a fraud, although they may not be able to prove it. "But," says his lordship, "do not rely upon the moral feelings of the directors. Ascertain that your house falls strictly within the conditions. Even having the surveyor of the company to look over your house boforo the insurance will not save you, unless your policy is correct." This is true; but probably his lordship's legal jealousy overshoots the mark here. Assurance companies only require an honest statement of the facts, and that no concealment is practised with their surveyor; and the case of his own, which he quotes, in which a glass door led into a conservatory, rendering it, according to the view of the company, "hazardous," and consequently voiding the policy, when a fire did occur, the company paid, rather than try the question; but even after the fire they demurred, when called upon, to make the description correct and indorse on the policy the fact that the drawing-room opened through a glass door into conservatories. One of two inferences is obvious here ; either his lordship has overcoloured the statement, or the company could not be the respectable one represented. The practice with all reputable offices is to survey the premises before insurance, and to describe them as they appear; but no concealment of stoves, or other dangerous aocessoriee or inflammable goods, should be practised. This certainly binds the office so long as no change takes place ; but the addition of any store, opening, or door through a party wall, the introduction of gunpowder, saltpetre, or other inflammable articles into the premises without notice, very properly "voids the policy." The usual course is to give notice of all alterations, and have them indorsed on the policy, as additions to the description of the property: there is little fear, where this is honestly done, that any company would adopt the sharp practice hinted at in Lord St. Leonards' excellent handy book.
2711. Breaks In The Lease.—Where a lease is for seven, fourteen, or twenty-one years, the option to determine it at tho end of the first term is in the tenant, unless it is distinctly agreed that the option shall bo mutual, according to Lord St. Leonards.
2712. Noxious Trades.—A clause is usually introduced prohibiting the carrying on of any trade in some houses, and of noxious or particular trades in others. This clause should be jealously inspected, otherwise great annoyance may be produced. It has been held that a general clause of this description prohibited a tenant from keeping a school, for which he had taken it, although it lunatic asylum and public-house have been found admissible; the keeping an asylum not being deemed a trade, which is defined as "conducted by buying and selling." It is better to have the trades, or class of trades objected to, defined in the lease.
2713. Fixtures.—In houses held under lease, it has been the practice with landlords to lease the bare walls of the tenement only, leaving the lessee to put in the stoves, cupboards, and such other conveniences as he requires, at his