PRECEDENTS IN CONVEYANCING.

LEASES.

66

LEASES.

General obser

THE following Precedents of Leases will be found to differ, in many
instances, from the language and forms of the other precedents in
this Collection. Most of the other precedents (as has been previously vations.
observed), are taken from the drafts of a very small number of
draftsmen, and those men, all acting on the same principles and
habituated to the use of the same language and forms;" but it was
found impossible to obtain a sufficient number of such drafts of
leases, because leases are seldom settled or prepared by counsel. The
extensive Collections of precedents to which the Editor has access, did
not contain a single precedent of a lease, or agreement for a lease,
which could be rendered available for his purpose; and he was
unable to obtain more than three or four drafts of leases which
had been settled by counsel. Even these precedents appeared to the
Editor inferior to the rest of his Collection, as they were little more
than the common forms cleared of the grosser improprieties, and did
not possess that accuracy which has, in the course of time, by con-
stant and progressive improvements, been imparted to the forms
daily used by eminent counsel. For the other precedents, the Editor
was compelled to have recourse to those common forms of leases
which are usually to be met with, and to trust to his own judgment
in pruning their redundancies, and correcting their faults.
hopes that they may be found to have been improved by the atten-
tion he has paid to them, but he has deemed it right to point out
that they cannot be so implicitly relied on as the other precedents
in this Collection.

He

AGREEMENT

FOR A LEASE.

Parties.

Agreement.

for a certain

term at a certain rent.

I.

AGREEMENT for a LEASE (a).

ARTICLES OF AGREEMENT, made and entered into this day of, BETWEEN A. B., of &c. [intended lessor], of the one part; and C. D., of &c. [intended lessee], of the other part; as follows, (that is to say), EACH of them, the said A. B. and C. D., (so far as relates to the acts and deeds by him, his heirs, executors, administrators, or assigns, to be observed or performed), doth hereby agree with the To grant a lease other of them: THAT the said A. B., his heirs or assigns, shall and will, before the day of next, by indenture under his hand and seal, well and effectually demise and lease unto the said C. D., his executors, administrators, and assigns, ALL THAT, &c. [parcels], with the fixtures now in, upon, or belonging to the same, and the rights, easements, and appurtenances therewith held, used, or enjoyed for the term of years, to be computed from the day of, and at the yearly rent, clear of all existing and future taxes, rates, deductions, and outgoings whatsoever, of £, to be payable by four equal payments, on the day of, the day of the day of, and the day of, in every year of the said term, the first of such payments to be made on the next: THAT the said indenture of lease shall contain covenants on the part of the said C. D., his executors, administrators, and assigns, for payment of the said net yearly rent of £—, in the parts, on the days, and in manner aforesaid; AND for payment of all existing

That the lease shall contain certain covenants.

day of

2

(a) It has been thought more convenient to class the agreements for leases with the Leases, than with the Agreements. The number of the precedents is extremely small, because agreements ought not, in ordinary cases, to be made substitutes for leases (see infra, note (c); and the agreements for building leases, and other special agreements, are, in most cases, too long to be inserted in this Collection.

AGREEMENT

FOR A LEASE.

That the lease shall contain a

proviso for reentry.

and future taxes, rates, deductions, and outgoings whatsoever, from the day of : AND to keep the said messuage, buildings, fixtures, and premises, in good and sufficient repair: AND in such good and sufficient repair to deliver up the same, with all new fixtures and other additions, to the said A. B., his heirs or assigns, at the expiration or other sooner determination of the said term: AND to keep the said messuage and buildings, at all times during the said term, insured against loss by fire, in a sum not less than £: AND, at all times when required, to produce the policy or policies of such insurance, and the receipts for the premiums and other payments in respect of the same, to the said A. B., his heirs and assigns: AND ALSO not to assign or underlet the said premises, without license in writing from the said A. B., his heirs or assigns, AND not to carry on or permit to be carried on on the said premises, any noisome or offensive trade, business, or occupation: THAT the said indenture of lease shall also contain a proviso for re-entry by the said A. B., his heirs or assigns, on nonpayment of the said yearly rent of £or any part thereof, for twenty-one days next after any of the said days on which the same or any part thereof shall become due, and whether the same shall have been legally demanded or not, or on the non-observance or non-performance of any of the covenants in the said indenture of lease to be contained, and on the part of the said C. D., his executors, administrators, or assigns, to be observed or performed: THAT the said indenture of lease shall contain a covenant on the part of the said A. B., his heirs or assigns, that the said C. D., his executors, administrators, and assigns, may, on due payment by him and them of the said yearly rent, to be reserved as aforesaid, and on the observance and performance of the covenants in the said indenture to be contained, and on his and their part to be observed and performed, quietly enjoy the premises to be demised, without eviction or disturbance by the said A. B., his heirs or assigns, or any person or persons lawfully claiming, or to claim, by, from, under, or in trust for him or them: THAT the said C. D., his executors, administra- That lessee tors, or assigns, shall duly execute and deliver to the said

and a covenant for quiet enjoyment.

shall execute a counterpart.

AGREEMENT

FOR A LEASE.

That lease and
counterpart
shall be pre-
pared by the
lessor's soli.
citor, and the
expense equally
divided.

A. B., his heirs or assigns, a counterpart of the said indenture of lease: THAT the said indenture of lease and the counterpart thereof shall be prepared by the solicitor of the said A. B., his heirs or assigns; and that the costs and expenses of preparing and executing this agreement, and the said indenture of lease, and the counterpart thereof, and all other costs and expenses of and incidental to the same and to the premises, shall be paid and borne by the said A. B., his heirs or assigns, and the said C. D., his executors, administrators, or assigns, in equal shares (b). That agreement LASTLY, THAT this agreement or anything herein contained shall not operate, or be deemed or held to operate, as an actual or present demise of the premises hereby agreed to be demised, or to give the said C. D., his executors, administrators, or assigns, any legal interest in the said premises, until the said indenture of lease shall be actually executed (c). IN WITNESS, &c.

shall not ope

rate as an ac-
tual demise.

(b) In the absence of special stipulation, a lease is always prepared by the solicitor of the lessor, and at the expense of the lessee. Where, in an agreement for a lease, it was provided that the lease should be drawn, prepared, and executed at the sole expense of the lessor, it was held that, in an action by the lessee on the agreement, it was not necessary to aver that a lease was tendered to the lessor for execution. Price v. Williams, 1 Mee. & Wels. 6.

(c) As a lease for a chattel interest may be created by a writing not under seal, a question frequently arises, whether an instrument relating to the creation of such an interest is an actual demise, or an agreement for a future demise. It will, therefore, be convenient to refer briefly to some of the leading principles and cases on the subject, in order to guide the draftsman in preparing agreements for leases; there is no difficulty in preparing a formal lease, but the state of the decisions on the subject renders it a somewhat difficult task to frame an instrument which shall operate merely as an agreement, and shall, at the same time, effectuate the usual intentions of the parties.

The general rule is, that any words which indicate that one party is to give, and the other to take possession, primâ facie constitute a lease. Thus, the words, "A. agrees to let, and B. agrees to take," make an actual lease from A. to B., if the terms of the tenancy are distinctly stated. (8 Bing. 182). So, too, the words "I will you shall have a lease" on certain terms. (Maldon's case, Cro. Eliz. 33). A covenant that a man may hold and enjoy on certain terms, constitutes a lease. (Tisdale v. Essex, Hob. 34. See too Drake v Munday,

Cro. Car. 207; S. C., W. Jones, 231; Roe d. Jackson v. Ashburner,

AGREEMENT

5 T. R. 163). The words, "A does this day agree to let B. three FOR A LEASE. cottages for ten years, he further agrees to build a brewhouse and make a cellar, at the rent of 351.; he agrees to pay the ground rent; and has this day received 41. from B. in earnest," constitute a lease commencing from the date of the agreement; for as no future day is fixed for the rent to commence, or for the entry of the tenant, both must be intended to commence from the date. Staniforth v. Fox, 7 Bing. 590; S. C., 5 Moo. & Pay. 589; see too Doe d. Pearson v. Ries, 8 Bing. 178, 182; S. C., 1 Moo. & Scott, 259. The case of Sturgion v. Painter, Noy, 128, cannot now be considered law.

future lease does not per se prevent an in

demise.

Cases in which the reference to a future lease

has been held

to constitute an agreement executory.

A reference to a future lease does not per se take the instrument A reference to a out of the general rule, if the terms of the future lease are ascertained by the agreement, (Maldon's case; Tisdale v. Essex, ubi supra; Harrington v. Wise, Cro. Eliz. 486; S. C., 1 Roll. Abr. 847, Est. X.; strument from Baxter d. Abrahall v. Browne, 2 Wm. Blackst. 973; Barry v. Nugent, operating as a cited 5 T. R. 165; Warman v. Faithful, 5 B. & Ad. 1042 ; S. C., 3 Nev. & Man. 137), for the future lease is considered simply as a matter of further assurance. And the terms of the future lease are sufficiently ascertained by a reference to the terms of an existing lease, under which the intended lessor himself holds, (Doe d. Pearson v. Ries, 8 Bing. 178), or to an abandoned lease between the parties. (Pearce v. Cheslyn, 4 Ad. & Ell. 225; S. C., 5 Nev. & Man. 652). There are, however, several cases in which the reference to a future lease has been held to render the agreement containing it executory, when either the terms of the future lease have been unascertained at the time of entering into the agreement, or something ulterior to the agreement appeared to be contemplated. Thus in Goodtitled. Estwick v. Way, 1 T. R. 735, words of present demise, followed by an agreement for immediate possession, and with a stipulation that "leases, with the usual covenants shall be made and executed by the parties on or before Michaelmas next," were held to constitute merely an agreement. The case of Roe d. Jackson v. Ashburner, 5 T. R. 163, appears to have been decided on the general ground that a stipulation for a future lease prevents an agreement from operating as an actual demise; but this is clearly not law, and the case may perhaps be referred to the circumstance, that an act was to be done by the landlord before the demise would be complete. In Doe d. Bromfield v. Smith, 6 East, 530, words of actual demise, followed by "a clause to be added to the lease to give, &c.," were held to render the instrument an agreement. So, certain conditions of letting being set out, with the stipulation annexed, a lease to be made on these conditions, with all usual covenants," and signed by the tenant agreeing to take the premises subject to the covenants, were considered an agreement. (Tempest v. Rawlings, 13 East, 18; see too Colley v. Streeton, 2 Dow. & Ry. 522; Hamerton v. Stead, 3 B. & C. 478). In a case, which has given rise to much discussion, there was no express stipulation for a future lease,