CHAPTER XXX.

OF LANDLORD AND TENANT.

SECTION 1. Of Leases.

A LEASE is a contract for the possession and profits of land for a certain and definite period, which is always fixed upon at the creation of the estate. This form of estate is never created by act of law, but alway by a contract, properly called a lease; the parties to which are the lessor, who transfers the possession and is to receive the rent, and the lessee, who receives possession and is to pay the rent. These parties are also sometimes called landlord and tenant.

It makes no difference as to the nature of this estate, whether it be for a day or a year, or any number of years. Leases for ninety-nine years, or for nine hundred and ninetynine years, are not uncommon; and, indeed, perpetual leases are somewhat frequently created, in which a certain term is fixed, which is necessary to the creation of a lease, but the term is, by the express stipulation of the instrument, renewable from time to time and forever, as provided in the lease. No certain form of words is necessary to create this lease; but those in most common use are "demise," "lease," and "let;" any other words, substantially equivalent thereto, will be sufficient.

We have seen, that, by one clause of the Statute of Frauds, no contract, which embraces for its subject-matter an interest in lands, is valid, unless in writing and signed by the party to be charged thereby. In some of the States, however, leases for a term not exceeding one year are, by statute provision, made valid, though created by parol. Leases having longer time to run than one year are, ordinarily, required, by statute regulation, to be executed and recorded with the same

formalities as an absolute conveyance of realty, to render them valid against subsequent purchasers and bona fide creditors.

The technical terms, demise and lease, imply a covenant of title in the lessor, and of quiet enjoyment by the lessee, during the term, against all persons claiming by superior title. Foster vs. Peyser, 9 Cush., 242, 246.

day of

The most common expression for the commencement of the term is, "from the "The general rule upon such an expression is, that the day of the date is excluded; and, if it be desired to make it certain that that day shall be included, it should be changed so as to read, "from and including the day of ," as in No. 14

of the forms hereto annexed.

It is not necessary to state to whom the rent shall be paid; for, if rent be reserved generally, without saying to whom it shall be paid, the law would make the proper application of it. It is prudent to insert a provision, where rent is reserved payable quarterly, that a like proportion shall be paid for any part of the quarter; the rule being that, if a lease determines in accordance with its own provisions before the day on which the rent is in terms made payable, the tenant is not liable for any portion of the rent which would have become payable on the next rent day, if the lease had been continued. The same rule holds, where the tenant is turned out between two rent days by the landlord. An interruption, which might -amount to a trespass by the landlord, or anything less than an actual turning out, will not thus suspend rent. See Nicholson vs. Munigle, 6 Allen, 215; Leishman vs. White, 1 Allen, 489; Fuller vs. Ruby, 10 Gray, 285.

Where there is any doubt of the ability of the lessee to pay rent, it is sometimes, by stipulation, made payable in advance. Of the effect of such provision in a written lease, see Elliott vs. Stone, 1 Gray, 571; Bartlett vs. Greenleaf, 11 Gray, 98. The clause is sometimes inserted after the reservation of rent to this effect:-" and at that rate for such further time as the lessee may hold the premises." This clause would work to the disadvantage of a landlord, where the ren

al value of the premises has risen during the term; and would probably be of no special use, except in cases where payment of rent by the lessee is guaranteed by a third party, in which case the guaranty would probably be held to extend to the payment of rent, &c., for the time of occupancy subsequent to the expiration of the term. See Saulsbury vs. Hale, 12 Pick., 416.

As a general rule, the covenants contained in a lease run with the land. An assignee, or sub-tenant, takes, therefore, only the title of the lessee, with its limitations and restrictions, and an action for the rent may be maintained by the lessor or his assigns against the lessee or his assigns, upon the covenants of the lessee contained in the original lease. Howland vs. Coffin, 12 Pick., 125; Patten vs. Deshon, 1 Gray, 325. Such an action, however, cannot be maintained against a sub-tenant. He is liable only to the lessee, who, so long as the original lease remains in force, is, to all intents and purposes, his landlord. Most leases contain a covenant, that the lessee will "not assign or underlet," either of which may be done by the lessee, in the absence of such a covenant.

An assignment is a transfer of the lessee's whole interest. A sub-letting is a transfer of a portion only of the estate, or of the whole estate for a portion only of the term. See Kent, vol. 4, 96. If the covenant, instead of being as stated above, is, "not to assign, transfer or set over the lease," this does not restrain him from underletting. Breach of either of these covenants, by assigning or underletting the premises, gives the lessor a claim for damages, but does not cancel or terminate the lease, nor authorize the lessor to enter and turn out the tenant, unless an express covenant so provides. In every important lease, great care should be taken, to insert such provisions in reference to the effect of the destruction of the premises let, by fire or otherwise, as will be just and equitable, and satisfactory to the parties: otherwise the lessee may be compelled to pay the rent to the end of the term, although the buildings leased should be wholly destroyed by fire or other casualty, and the lessor should refuse to repair or rebuild. See Fowler vs. Bott, 6 Mass., 63; Wall vs. Hines, 4

Gray, 256, 268; Leavitt vs. Fletcher, 10 Allen, 119, 121. It has, however, been held, that if the entire subject-matter and estate, described in the lease, (as where a room in a building was leased,) is wholly destroyed, the lease and all rights under it are thereby terminated. Stockwell vs. Hunter, 11 Met., 448. In the absence of express covenants, the tenant is not bound to repair or rebuild a house burned down, even through his own negligence or that of his servants.

The expression," or other unavoidable casualty," is sometimes used as synonymous with the phrase," or other casualty occurring without fault of the lessee:" but the meaning of the two phrases is materially and radically different; the first comprehends only damage or destruction arising from uncontrollable force or accident, as lightning, or destruction by an enemy in time of war, an earthquake, or a whirlwind. See Fowler vs. Bott, quoted above, also Bigelow vs. Collamor, 5 Cush., 226; Welles vs. Castles, 3 Gray, 323; Cramer vs. Cook, 7 Gray, 550. See also this last, for a discussion of what renders a building unfit for use or occupation. The meaning of the other form of expression is quite plain, excluding liability, on the part of a lessee and his assigns, for every injury or damage to the premises, happening without their fault or carelessness.

As to implied covenants, we have seen that the words "demise, lease," &c., imply a covenant of title on the part of the lessor, and of quiet enjoyment by the lessee. This matter is thus stated in an opinion by Mr. Baron Parke: "It is clear, that from the word demise, in a lease under seal, the law implies a covenant: in a lease not under seal, a contract, for title to the estate merely; that is, for quiet enjoyment against the lessor, and against any claiming under him, or by superior title, during the term: and the word, "let," or any equiva lent word which constitutes a lease, has, no doubt, the same effect and no more. There is no authority for saying that these words imply a contract for any particular state of the property at the time of the demise; and there are many, which clearly show that there is no implied contract, that the property shall continue fit for the purpose for which it is de

mised." It is an important practical rule, that the landlord is under no implied obligation to repair; and it is the prevailing rule that a want of repair; amounting even to uninhabitableness, is no defence against a claim of rent. Sée Leavitt vs. Fletcher, 10 Allen, 119, 121.

In a lease of a warehouse not described or let for any particular purpose, no covenant is implied that the building is safe, well built, or fit for any special use. Dutton vs. Gerrish, 9 Cush., 89. So, in the lease of a house, though described as a dwelling house, and to be used as a private dwelling house only, and not as a boarding house, there is no implied covenant that it is reasonably fit for occupation. See Foster vs. Peyser, 9 Cush., 242; Welles vs. Castles, 3 Gray, 323. But see also, Dexter vs. Manly, 4 Cush., 14, 25, also 9 Cush., 94.

Under the covenant for quiet enjoyment, the lessor is liable for entries, disturbances, and evictions, made by force of rights existing when the covenant is made: but not of rights afterwards acquired. Thus, he is not responsible for damages occasioned by widening the street on which the premises are situated. As to distribution of damages between the parties, in such a case, see Patterson vs. Boston, 20 Pick., 149.

Under a covenant to pay "all taxes which may be assessed on the premises during said term," the lessee would not be liable to repay to his lessor the expense of paving a sidewalk in front of the premises; 10 Gray, 293, also, Torrey vs. Wallace, 3 Cush., 442, 447. The terms in which such a covenant is sometimes expressed, as, to pay "all taxes, assessments, and water rates whatsoever, which may be payable for or in respect of the premises during the said term," would be broad enough to include such an assessment. As such an improvement is of such permanent character that a lessee would not be likely voluntarily to assume it, care should be taken in so drafting the covenant as to exclude such liabilities, and to include only such as the lessee might reasonably be required to pay.

Taxes are usually payable by the landlord, if the lease contains no provision relative thereto. This matter is, however,