him to have the distress redelivered to him in specie to keep until the action has been tried (b). Double the value of goods distrained and sold where no rent is due may be recovered by the owner (c). The landlord cannot himself purchase the goods distrained, even at an auction; the sale must be to a third party (d). distress. If no rent be due, the tenant may within six years sue for Illegal, &c., damages instead of proceeding by replevin, and damages may also be recovered for a distress, which, though lawful, was irregular or excessive. distress. The costs of distress are regulated and restricted by the Distress Costs of for Rent Rules, 1888, Rules 15 to 18, and the two scales in Appendix II. of the schedule to those rules, which are made by the Lord Chancellor under the authority of sect. 8 of the Law of Distress Amendment Act, 1888. SECT. 8.-The Liability to Repair. Unless there be an express agreement so to do, a tenant from Tenant from year to year year to year is not bound to make substantial and lasting, or not liable for general repairs, such as putting a new roof on an old worn-out substantial repairs. house; but he is liable only to do tenantable repairs, such as putting in windows or doors that have been broken by him, so as to prevent obvious waste and decay of the premises (e). Accordingly, it is held, that a tenant from year to year is bound to do fair and tenantable repairs, so as to keep the house wind and watertight; and that he is liable if he omit to adopt reasonable and usual precautions, to obviate the occurrence of great and manifest injury to the premises (ƒ). Thus it seems, that if a window or tile were even accidentally broken, he would be liable if he did not repair it, provided the plain consequence of his neglect would be a serious damage to the house from wet, or the like (g). If the contract of tenancy be in writing, it will as a general rule contain an express stipulation for repair by the tenant. Under an agreement to keep premises and, at the expiration of the tenancy, to deliver up the same in good repair, the tenant is 8; Auworth v. Johnson (1832), 5 C. & P. (9) It would seem, from the observa- Liability to keep in repair. Landlord and (Repairs). Age. CH. XII. s. 8. bound to put them into good repair; and he is not justified in keeping them in bad repair, because he found them in that condition (h); although the age and class of the premises may be taken into consideration, in order to measure the extent of the repairs to be done (i); and a tenant has been held not liable for the result of a defect caused by the natural operation of time and the elements upon a house the original construction of which was faulty (k). Fire. "Tenantable 1epair." Proudfoot v. Hart. Remedies for Where there is an express and unconditional agreement to repair and keep in repair, the tenant is bound so to do, though the premises be destroyed by fire or other accident (1). The meaning of the expression "tenantable repair" was much discussed by the Court of Appeal in Proudfoot v. Hart (m), where it was held that under an agreement to keep a house in good tenantable repair and so leave the same at the expiration of the term, the obligation of the tenant is to put and keep the premises in such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a tenant of the class who would be likely to take it, and the Court appears to have considered that a certain amount of decorative repair might in some cases be legally requisite. If the landlord agrees to put the premises into repair in the first instance, his doing so is a condition precedent to the tenant's liability on his agreement to keep the premises in repair (n); and the tenant is not liable, under such an agreement, for acts done before the execution thereof, although the habendum state that the premises are to be held from a day prior thereto (0). Where an action is brought during the term for breach of the ordinary agreement by the tenant to keep the premises in repair during the term, the proper measure of damages is, not what it would cost to put the premises into repair, but only the amount to which the reversion is injured by the premises being out of repair (p). Nor will specific performance of the agreement to repair be decreed. The landlord's best remedy for serious breach covenant to leave premises "in good and (i) Id.; and see Lister v. Lane, [1893] (k) Lister v. Lane, supra. (1) Bullock v. Dommitt (1796), 6 T. R. 650; 3 R. R. 300; Digby v. Atkinson (1815), 4 Camp. 275; 16 R. R. 792; and see this rule recognised, Spence v. Chodwick (1847), 10 Q. B. 517, 530. (m) Proudfoot v. Hart (1890), 25 Q. B. D. 42, C. A. (n) Neale v. Ratcliffe (1850), 15 Q. B. 916; and see Coward v. Gregory (1866), L. R., 2 C. P. 153; Martyn v. Clue (1852), 18 Q. B. 661; Dean of Bristol v. Jones (1859), 1 E. & E. 484. (0) Shaw v. Kay (1847), 1 Exch. 412. (p) Mills v. East London Union (1872), L. R., 8 C. P. 79; per Coleridge, J., Doe d. Worcester Trustees v. Rowlands (1840), 9 C. & P. 734; per Parke and Alderson, BB., Turner v. Lamb (1845), 14 M. & W. 412, 414. of the agreement is to put the "proviso for re-entry" into force CH. XII. s. 8. if the contract of tenancy contain one as it usually does (q). It is well settled that there is no implied contract at common law on the part of the landlord of an unfurnished house (r), or of land (s), that they are fit for occupation or cultivation. Landlord and No implied contract that premises fit. low rent. But the 75th section of Housing of the Working Classes Act, Hart v. 1890, 53 & 54 Vict. c. 70, reproducing the 14th section of the Windsor. repealed Housing of the Working Classes Act, 1885, 48 & 49 Vict. Unfurnished c. 72, provides that "in any contract" made after the passing of house let at that Act "for letting for habitation by persons of the working classes, a house or part of a house, there shall be implied a condition" (the breach of which will give a right to damages (t), "that the house is at the commencement of the holding in all respects reasonably fit for human habitation; " and by a subsequent definition confines the operation of the section to lettings at a rent not exceeding in the metropolis 201., in Liverpool 13., in Manchester or Birmingham 10l., and elsewhere in England 81. house. Wilson v. Hatton. And where a house is let furnished, there is an implied con- Furnished tract by the landlord that it is fit for occupation at the commencement of the tenancy (u); but there is no implied contract that it Finchwill continue so for the whole of the tenancy, nor even is there any implied contract that furnished lodgings will so continue. Lodgings. Therefore where the defendant let to the plaintiff furnished lodgings at Bettws-y-Coed in Wales, and the plaintiff's wife and child took fever from a grandchild of the defendant, it was held that the plaintiff could not recover expenses of medical attendance and nursing, although the defendant had concealed his grandchild's illness from the plaintiff (x). A landlord is not ordinarily under any obligation to repair the demised premises, unless he has expressly agreed to repair (y); and where the tenant of a house undertakes by his agreement to keep it in as good repair as when he took it, fair wear and tear excepted, he is not entitled to quit upon its becoming uninhabitable for want of other repairs during the term (z). Even where the agreement stipulates that the landlord shall do the repairs, Liability of landlord to repair. CH. XII. s. 8. there is no implied condition that the tenant may quit if such repairs be not done (a). Landlord and Staircase of flat. Notice of dis repair to landlord. The landlord, however, is under an implied obligation to keep the staircase of a flat in repair, so as to be liable in damages for injuries caused by its disrepair to a person calling upon one of the tenants in the course of business (b). Where a landlord agrees to repair, notice of disrepair must be given to him by the tenant before he can maintain an action for the breach of the agreement (c). Rights and liabilities of landlord. Notice of tenant's interests. SECT. 9.-Alienation of the Demised Premises. (a) Alienation by Landlord. By a statute of Henry the Eighth, 32 Hen. 8, c. 34, where a lease is by deed, but not in any other case (d), upon assignment of land of which a lease had been granted, the assignee of the lessor has the same rights against and liabilities to the lessee on the lease as the assigning lessor had, in respect of covenants which concern the land. And notwithstanding assignment of the reversion the lessor is liable to the lessee or lessee's assignee on a covenant to repair, or other covenant which concerns the land and is therefore said to "run with the reversion" (e). In the case of a lease not by deed, actions for breaches of the contract of tenancy may and must be brought in the name of the assignor, notwithstanding the assignment (ƒ) unless, as is ordinarily the case, the tenancy has been recognised by receipt of rent by the assignee (g), or the tenancy was created in or since 1882, with the effect that sects. 10-12 of the Conveyancing Act, 1881, 44 & 45 Vict. c. 41 (which seem to apply to leases by unsealed as well as by sealed writing, but not to leases by word of mouth), are applicable to the tenancy. Mere possession by a tenant is notice to a purchaser of a tenant's interests (h), and an action for rent cannot be brought against him by the assignee without previous notice of the assignment; but previously to the Conveyancing Act, 1881, it was held that re-entry for breach of repairing covenants (and (a) Surplice v. Farnsworth (1844), 7 M. & G. 576. (b) Miller v. Hancock, [1893] 2 Q. B. 177, C. A. (c) Makin v. Watkinson (1870), L. R., 6 Ex. 25; Hugall v. McLean (1885), 53 L. T. 94, C. A. (d) Standen v. Christmas (1847), 16 L. J., Q. B. 265; Allcock v. Moorhouse (1882), 9 Q. B. D. 366. (e) Stuart v. Joy, [1904] 1 K. B. 362, C. A. (f) Bickford v. Parson (1848), 17 L. J., C. P. 192. (g) Smith v. Egginton (1874), L. R., 9 C. P. 145. (h) Daniels v. Davison (1809), 16 Ves. 249. therefore of covenants generally) could be effected without such notice (i); and such was clearly the law, hard as it may have been. (b) Alienation by Tenant. Every tenant may, either by assignment or underlease, part with the possession of the demised premises, whether they are let to him from year to year, or for a term of years, except so far as he may be restrained by the contract of tenancy from doing so; and the contract of tenancy, if in writing, frequently, and usually in the case of a furnished house or of a house let for 21 years or less, restrains him from assigning or underletting, except with the written consent of the landlord, an unreasonable withholding of which consent is frequently stipulated against. An assignment of the tenant's interest must be by deed (k). Assignment. Where a lease is assigned, the assignee becomes liable to the lessor upon all the covenants in the lease which concern the land and are therefore said to "run" with it (l). lessee till The original liability of the lessee, however, on his express Liability of covenants continues notwithstanding the assignment (m). But assigning an assignee may, by assigning over, free himself from any assignment liability to the lessor (n); and such assignment over may be made to a pauper for this express purpose (o). over. alienation not An underlease by deed for the whole term of the lease, or Underlease. longer, has the effect of an assignment (p). The underlessee is liable to be distrained upon for the rent payable by the lessee, but he cannot be sued for it. He is also liable to an ejectment for breaches of covenant committed either by himself or by the lessee. The covenant against assignment or underlease is not, techni- Covenant against cally, a "usual" covenant (q), so as to entitle a landlord contracting for a lease with "usual covenants" to have it inserted in the lease. This was held in Hampshire v. Wickens on a contract to accept a lease for 21 years, determinable at the end of 7 or 14 at option of tenant, of a dwelling-house in London at 1057. a year. The frequent covenant not to assign without consent of the landlord, "such consent not being arbitrarily withheld," does not give the lessee a right of action for arbitrary refusal, but merely allows an assignment without consent if the (i) Scaltock v. Harston (1875), 1 C. P. D. 106. Sect. 14 of the Act of 1881 (see p. 329, post), though not expressly requiring notice of assignment, indirectly necessitates it. (k) Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 3. (1) Spencer's case (1583), 1 Sm. L. C. Jac. 309. 21. (n) Taylor v. Shum (1797), 1 B. & P. (0) Onslow v. Corrie (1817), 2 Mad. 330. (p) Beardman v. Wilson (1868), L. R., 4 C. P. 57. (q) Hampshire v. Wickens (1878), 7 Ch. D. 555, per Jessel, M. R. "usual." Hampshire v. Wickens. |