Encyclopaedia Britannica, 11th Edition, "Lamennais, Robert de" to "Latini, Brunetto" / Volume 16, Slice 2

by Various

The Letting.—To constitute the relationship of landlord and tenant in the mode under consideration, it is necessary not only that there should be parties capable of entering into the contract, but that there should be a letting, as distinct from a mere agreement to let, and that the right conveyed should be a right to the exclusive possession of the subject of the letting and not a simple licence to use it. Whether a particular instrument is a lease, or an agreement for a lease, or a bare licence, is a question the answer to which depends to a large extent on the circumstances of individual cases; and the only general rule 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 [Flats], [Lodger and Lodgings]). (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 [Game Laws]). 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, 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. 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 waste (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 [Rent].

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, rent, which has accrued due since the forfeiture, by bringing an action for such rent, or by distraining for rent whether due before or after the forfeiture.