The Book of Household Management

by Mrs. Beeton

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 be "under seal;" and all assignments and surrenders of leases must be in the same form, or they are void at law. 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. c. 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, the 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 bonâ 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.

2707. 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 to keep the house in tenantable repair, and the tenant is only liable for waste beyond reasonable wear and tear.

2708. INSURANCE.—Every lease, or agreement for a lease, should covenant not only who is to pay insurance, but how the tenement is to be rebuilt in the event 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, the 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 be made to depend upon rebuilding the house in the event of a fire. Care must be taken, however, that this is made a covenant of the lease, as well as in the agreement, otherwise the tenant must rebuild the house.

2709. The law declares that a tenant 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 there 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 a 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, therefore, 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 defence against any claim, as they intend to pay what they deem 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 before 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 accessories or inflammable goods, should be practised. This certainly binds the office so long as no change takes place; but the addition of any stove, 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 indorse 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 the end of the first term is in the tenant, unless it is distinctly agreed that the option shall be 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 a 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.