Tenant

(The Lease).

the same, or their agents thereunto lawfully authorised by writing, CH. XII. s. 2. shall have the effect of leases at will only. The second section Landlord and excepts all leases not exceeding the term of three years from the making thereof, whereupon the rent shall amount unto two third parts, at the least, of the full improved value of the thing demised. And, by the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 3, every lease required by law to be in writing, of any tenements or hereditaments, "shall be void at law, unless made by deed."

Effect of

enactments

requiring

by deed.

The effect of these enactments is that a lease for three years, to commence in futuro, will be inoperative unless made by deed (0). But a lease by parol for a year and a half, to commence after lease to be the expiration of a lease which wanted a year of expiring, would be good; for it would not exceed three years from the making thereof (p). And so, a parol agreement in the following terms:"Jan. 26. A. agrees to let, and B. agrees to take, the large room, &c. from 14th February next, until the following Midsummer twelvemonths, and with the right, at the end of that term, for the tenant, by a month's previous notice, to remain on for three years and a half more "- -was held to be good: because it operated as an actual demise, only for a term of less than three years (q).

Although a parol lease for more than three years was void within the statute, as to the duration of the term, yet the contract, as a contract of tenancy from year to year (see p. 313, infra), regulates the terms of the holding in other respects (1), and specific performance may be decreed of it (s).

No action lies against a

lessee under

a parol

demise for not

And though the second section of the Statute of Frauds renders valid a parol lease for less than three years from the making, yet, until entry by the lessee, there is a mere interesse termini; and if he refuses to take possession, he cannot be sued for not occupying or becoming tenant (t). But still, such leases entering. being valid under the statute, whatever remedy can be had upon them in their character of leases, may be resorted to (u). Under such a lease, therefore, the lessee becomes liable to pay the reserved rent, although he has never entered (x). And where, under a contract for a lease-which did not operate as a demise

(0) Rawlins v. Turner (t. Will. III.), 1 Ld. Raym. 736; Foster v. Reeves, [1892] 2 Q. B. 255.

(p) Ryley v. Hicks (1726), 1 Str. 651. (q) Hand v. Hall (1877), 2 Ex. D. 355, C. A.

(r) Richardson v. Gifford (1834), 1 A. & E. 52; Beale v. Sanders (1837), 5 Scott, 58; Doe d. Rigge v. Bell (1793), 5 T. R. 471; 2 R. R. 642; Tidey v. Mollett (1864), 16 C. B., N. S. 298; Tress v. Savage (1854), 4 E. & B. 36.

(s) Parker v. Taswell (1858), 27 L. J., Ch. 812.

(t) Inman v. Stamp (1815), 1 Stark. 12; 18 R. R. 740; Edge v. Strafford (1831), 1 C. & J. 391.

(u) Per Bayley, J., delivering the judgment of the Court; Edge v. Strafford (1831), 1 C. & J. 391.

(x) Bellasis v. Burbriche (1698), 1 Ld. Raym. 170, 171. But where the lease is at will entry must be averred. Ib.

Lessee liable

for rent

before entry.

the defendant undertook to hold the land, until the execution of the lease, "at the rent, and subject to the conditions to be contained" in the lease; it was held that he might be sued for the rent, although he had never entered upon or taken possession of the land (y).

It is obligatory on the lessee to stamp (ante, p. 122).

The ordinary stipulations of a written tenancy are for payment of rent and rates, for repair, and against alienation on the part of the tenant (all of which are usually supported by proviso for re-entry on breach) and for quiet enjoyment on the part of the landlord. Rent (pp. 316-9), repair (p. 319), and alienation are dealt with elsewhere in this chapter, and so are the proviso for re-entry and the restrictions upon it, but it is desirable to notice here the stipulations as to rates and quiet enjoyment, inasmuch as both these stipulations have for the last few years been the subject of much controversy.

The tenant may not take the landlord's property tax upon himself, and any contract against its deduction by the tenant is void, though a larger rent subject to reduction is good, as also is a stipulation for repayment by the landlord (2). Rates are more often payable by the tenant than by the landlord, but the Rating Act, 1874, 37 & 38 Vict. c. 54, partly shifts the burden, and the Public Health Act, 1875, 38 & 39 Vict. c. 55, and similar Acts, have expressly imposed on owners the duty of improving their property at their own expense, to the temporary benefit of existing tenants, and the permanent benefit of succeeding tenants and themselves. It is in connection with clauses framed to throw assessments generally upon the tenant that the controversies have arisen, the question always being whether particular words will include particular assessments or not. In one of the most recent cases (a) it was said to be impossible to get any clear principle out of the authorities, and to reconcile them with one another (a). In Foulger v. Arding (b), however, the words "impositions charged or imposed upon or in respect of" the demised premises "on the landlord, tenant, or occupier," were held to include the expenses of the landlord in removing a privy and constructing a water-closet, as thereto required by the county council under sect. 4 (1) of the Public Health (London) Act, 1891; and it is submitted generally that either the words "impositions,"

(y) Adams v. Hagger (1879), 4 Q. B. D. 480, C. A.

(*) See Woodfall, L. & T., 17th ed., at p. 629, citing Colbron v. Travers (1862), 31 L. J., C. P. 257; Lamb v. Brewster (1879), 4 Q. B. D. 607.

(a) Weld v. Clayton-le-Moors Urban

District Council (1902), 86 L. T. 584, per Lord Alverstone, C.J.

(b) Foulger v. Arding, [1902] 1 K. B. 700, C. A., reversing [1901] 2 K. B. 151, which had allowed an appeal from a County Court.

66

outgoings," or "duties," but no other words, will throw non- CH. XII. s. 2. recurring payments on the tenant.

Landlord and
Tenant

The express stipulation for quiet enjoyment (c) usually runs to (The Lease). the effect that

Quiet enjoy.

The lessor doth hereby for himself, his heirs, executors, administrators ment. and assigns covenant with the lessee, his executors, administrators and assigns that he and they paying the rent hereby reserved, and performing the covenants herein before contained, may peaceably possess and enjoy the said demised premises for the term hereby granted, without any interruption or disturbance from or by the said lessor, his heirs, executors, administrators or assigns, or by any person or persons claiming by, from, or under him, them, or any of them.

This and any express stipulation to the like effect, by virtue of the maxim, expressum facit cessare tacitum (d), qualifies the generality of any implied stipulation to the like effect (e), so that the acts of a third person lawfully acting by virtue of a title paramount, which would be comprehended in the implied stipulation, are not comprehended in the express one, though wrongful acts of such third person are comprehended in neither express nor implied contract (ƒ).

To be actionable by the lessee, it is not necessary that the What interinterruption of the lessor should take place on the demised ruption is a breach. premises (g); but interruption by mere noise is not actionable (h), though interruption by causing chimneys to smoke has been said to be (i). The apparent conditions as to payment of rent, &c., have no practical effect, and a lessee in arrear may sue (k). Unnecessary consent of a lessee to a lessor's judgment renders him liable to a sub-lessee (1).

In Davis v. Town Properties Investment Corporation, the assignee of the reversion bought a house from a stranger, and after pulling it down erected a higher building on its site, with the effect of causing the lessee's chimney to smoke, and this was held to be no breach of a covenant for quiet enjoyment, on the ground that the interruption of enjoyment was caused by a person not claiming under the lessor, but under an independent title (m). Notice to sub-tenant to pay rent to landlord instead of tenant is an interruption if complied with (n).

(c) Woodfall, L. & T., 17th ed., at p. 759. (d) Broom's Legal Maxims, 7th ed., at p. 491, citing Nokes' case, infra (from which it appears that the express stipulation is at least more than 300 years old); Merrill v. Frame (1812), 4 Taunt. 329. (e) Nokes' case (1594), 2 Rep. 80. (f) Tisdale v. Essex (1614), Hob. 34. (g) Shaw v. Stenton (1858), 2 H. & N. 858.

(h) Jenkins v. Jackson (1888), 40 Ch. D. 71.

(i) Tebb v. Cave, [1900] 1 Ch. 642, per Buckley, J.

(k) Edge v. Boileau (1885), 16 Q. B. D. 117.

(1) Cohen v. Tannar, [1900] 2 Q. B. 609, C. A.

(m) Davis v. Town Properties Investment Corporation, [1903] 1 Ch. 797, C. A. See also Jones v. Lavington, [1903] 1 K. B. 253, C. A.

(n) Edge v. Boileau (1885), 16 Q. B. D. 117.

The implied contract has been held in the Court of Appeal, in Baynes v. Lloyd (o) and in Jones v. Lavington (p), to arise only from the use of the word "demise" by the landlord; but there are judgments to a contrary effect of the High Court, especially in Budd-Scott v. Daniell (q), and it is submitted that the implied contract arises from the mere relationship of landlord and tenant.

The implied contract for quiet enjoyment extends to eviction by title paramount (r) existing at the time of the demise, but not to the cases, as where a landlord was tenant for life and died before the tenancy agreed, by a lease for 15 years, came to an end (s), or where the landlord was himself a lessee, who had let on a yearly tenancy (t), where the landlord's own title, good at the time of the demise, comes to an end. In each of these three cases the implied contract differs from the express one, as usually framed.

Where there is no express agreement otherwise, the lessor's solicitor prepares the lease at the expense of the lessee (u), the lessor bearing the expense of the counterpart (x).

A scale of solicitor's charges is provided by the Solicitors Remuneration Order, 1882 (y).

Acquirement of freehold

after 13 years.

SECT. 3.—The Tenancy at Will.

A tenancy at will is created by any letting for a time not limited. Such a tenancy is determinable at the will of either landlord or tenant, even though it be expressed to be determinable at the will of the landlord only. The determination may either be express declaration or by implication from any act inconsistent with an estate at will, as assignment, or bankruptcy, or death of either party.

On determination by the landlord the tenant has reasonable right of entry to remove his furniture.

The effect of non-payment of rent by a tenant at will for 13 years is to give him a title to the freehold as against the landlord, by virtue of sect. 7 of the Real Property Limitation Act, 1833,

(0) Baynes v. Lloyd, [1895] 2 Q. B. 610, C. A.

(p) Jones v. Lavington, [1903] 1 K. B. 253, C. A.

(q) Budd-Scott v. Daniell, [1902] 2 K. B. 351. And see Mostyn v. West Mostyn, &c., Co. (1876), 1 C. P. D. 145. (r) See Woodfall, L. & T., 17th ed., at p. 757, but the authorities (there cited) are conflicting.

3 & 4 Will. 4, c. 27, and the Real Property Limitation Act, CH. XII. s. 3. 1874, 37 & 38 Vict. c. 57.

Landlord and
Tenant

(Tenancy at
Will).

The effect of payment of rent is ordinarily to turn the tenancy at will into a tenancy from year to year, determinable by a half year's notice, or if the tenancy be agricultural or pastoral, or of a Acquirement of yearly market garden, by a year's notice, as appears below.

tenancy.

SECT. 4.-The Tenancy from Year to Year.

of the

tenancy from year to year.

In very early times a general letting of land, that is, a demise without limit as to the period of holding, was held to create a tenancy strictly at the will of the parties, and determinable at the pleasure of either. But in modern times this rule has long been modified; and although, even at the present day, a mere general letting or permission to occupy creates only a tenancy at will, How created. yet if the lessor accept from the lessee a yearly rent or rent measured by any aliquot part of a year, the Courts will infer rom this circumstance an intention to create a tenancy from year to year (z).

tenancies at

Where, however, there is an express contract for a strict tenancy Strict at will-although it be at a yearly rent payable quarterly-occu- will. pation and payment of rent for more than a year will not create a tenancy from year to year (a).

demise from year to year,

A demise "for a year, and afterwards from year to year" (b) Effect of a has been held to.constitute a tenancy for two years certain. But, according to the more modern cases on this subject, a tenancy &c. from year to year so long as both parties please, is determinable at the end of the first or of any subsequent year; unless, in creating such tenancy, the parties use words showing that they contemplated a tenancy for two years at least (c).

a

A tenancy from year to year is often created by implication. Thus, if a remainderman receive the same rent as that under lease by the tenant for life, and at the same times of payment, the Court will presume an agreement between the remainderman and the lessee, that the latter should continue to hold, as yearly

(=) Per Parke, B., Doe d. Hull v. Wood (1845), 14 M. & W. 682; Richardson v. Langridge (1811), 4 Taunt. 128; 13 R. R. 570; and see especially Parker v. Constable (1769), 3 Wils. 25.

(a) Doe d. Bastow v. Cox (1847), 11 Q. B. 122; and see Doe d. Dixie v. Davies (1851), 21 L. J., Exch, 60.

(b) Birch v. Wright (1786), 1 T. R. 378; 1 R. R. 223; and see Johnstone v. Huddlestone (1825), 4 B. & C. 922; Doe d. Chadborn v. Green (1839), 9 A. & E. 658.

(c) Doe d. Clarke v. Smarridge (1845), 7 Q. B. 957; Doe d. Plumer v. Mainby (1847), 10 Q. B. 473.

Cases in which a

tenancy from year to year is created by implication.