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II.

AGREEMENT for an Under-lease to a AGREEMENT

UNDERLEASE.

Builder, the Lease to be granted on the Com- for bdild,no

Pletion of certain Buildings.

THIS INDENTURE, made &c, Between A. B., of Parties.

&c, [the intended lessor], of the one part; and C. D., of

&c, \th# intended lessee], of the other part: Whereas, Recital of

under and by virtue of certain articles of agreement, bear- df^^h'the

ing date the day of , and made or expressed to be intended lessor,

made between E. F. of the one part, and G. H. of the o^^sti.'*

other part, and of certain other articles of agreement, bear- pulations, will , . , . ° 'be entitled to a

mg date the day or , and made or expressed to lease.

be made between the said G. H. of the one part, and the said A. B. of the other part, the said A. B. will be entitled, on the performance of certain stipulations or agreements in the said articles contained, (corresponding to the stipulations and agreements hereinafter contained), to a lease or leases from the said E. F., his heirs or assigns, of (among other hereditaments) the piece or parcel of ground and other hereditaments hereinafter more particularly described and covenanted to be demised, such lease or leases to

be for the term of years from the day of , and

to be at, under, and subject to the several rents, conditions, and covenants in the said articles mentioned, and on the part of the intended lessee, his executors, administrators, and assigns, to be paid, observed, and performed: And Whereas That intended the said A. B. hath some time since, at his own expense, h"c bmlt built vaults and other buildings upon the said piece or parcel of ground hereinafter particularly described: And Whereas —of agreement the said A. B. and C. D. have agreed to enter into such covenants?10 covenants as are hereinafter contained, subject to the provisions and agreements hereinafter contained: NOW Witnesseth.

AGREEMENT FOR BUILDING UNDERLEASE.

Consideration.

Covenant by lessor, on the completion of certain buildings to be erected by lessee, to grant a lease of—

—the piece of ground described;

—and of the messuages to be built thereon.

THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideration of the expense which the said C. D. will incur in the erection of the messuages and buildings, hereinafter covenanted to be erected, and of the covenants hereinafter contained on the part of the said C. D.: He The Said A. B. doth hereby, for himself, his heirs, executors, and administrators, covenant with the said C. D., his executors and administrators, that he the said A. B., his executors, administrators, or assigns, shall and will, when and so soon as the messuages or tenements hereby agreed to be built upon the piece or parcel of ground hereinafter mentioned and described shall be erected, built, and covered in, and all the necessary girders, joists, and other timbers put therein, and the areas thereof formed, and the garden walls of the said messuages or tenements built in conformity to the agreements hereinafter for that purpose contained, and so certified by the surveyor for the time being of the said A. B., his executors, administrators, or assigns, grant unto the said C. D., his executors, administrators, or assigns, at his or their costs and charges, an indenture or indentures of lease, of All That piece or parcel of ground,

situate and being in the parish of , in the county of

, on the east side of a certain new square, intended to

be called X. Square, and particularly delineated and described in the plan drawTi in the margin of these presents, abutting west on the said square, south on other ground held by the said A. B., under the hereinbefore recited agreements, east on the gardens of three other houses in Y. Square, belonging to the said A. B., and north on a certain street called X. Place, and containing in length in

front and rear, from north to south, feet inches,

and in depth from west to east, at the north end thereof, for the first feet inches thereof, feet or thereabouts, and for the remaining feet thereof, feet

or thereabouts: And also of the several messuages or tenements to be erected and built thereon, pursuant to the agreement hereinafter contained (a): and also of the rights, ease

(a) The parcels are given at length in this precedent, in order to ments, and appurtenances, For The Term of years, Agreement

to be computed from the 25th day of December, , Underlease.

at and under the rent of a peppercorn for the first two years ~ term of the said intended term, (if demanded), and during the and at rents remainder of the said term, at and under the yearly rent of sPeclfied

£ , to be paid quarterly, clear of the land tax (if any),

sewers rate, and all other existing and future taxes, rates, assessments, impositions, and deductions whatsoever: Such —the rent, if Rent, if required by the said C. D., his executors, adminis- [2»eetobe trators, or assigns, to be apportioned and divided in the lease apportioned

i c • i i r among the

or leases so to be granted as aforesaid, at the rate oi not more houses to be

than £ nor less than £ per annum for each house built

to be built on the said piece or parcel of ground hereinbefore

described: And Such Lease or leases, and the counter- —and the parts thereof, if required as aforesaid, to be prepared by lessor"

the solicitor of the said A. B., his executors, administrators, at cost of lesor assigns, at the costs and charges in all things of the ascertain""

said C. D., his executors, administrators, or assigns, and to exception and

. ~ , •!> i•i covenants re

contain such an exception ot the running of water and soil ferred to.
as is usually inserted in the leases of the said E. F.; and
also covenants for payment of the rent and insurance, and
all such other covenants, provisoes, and agreements, as are
contained in the printed form of lease signed by the said
C. D. as approving thereof, and such other covenants as
are mentioned and set forth in the hereinbefore recited
articles of agreement, as concern or relate to the premises (6):

furnish a guide to the right method of describing the parcels in agreements and leases for building purposes.

(6) It is obvious that the preparation of the present agreement was Expediency of considerably facilitated by the circumstance that the proposed lease determining acwas an under-lease, which was to contain, for the most part, such cove- agreement the nants as were contained in the original lease, and that the property to clauses and cobe demised formed part of a large estate, let on lease under uniform venants to be leases. There was, therefore, small difficulty in indicating the clauses ig^gg. and covenants which the proposed lease was to contain. But in ordinary cases there is no alternative between specifying each clause and covenant to be contained in the lease, and stipulating that the lease shall contain " such covenants as are usually contained in leases of the like nature." Both methods may give rise to litigation. For if,

Agreement AND THIS INDENTURE ALSO WITNESSETH, that, in further pursuance of the said agreement, and in

UNDERLEASE.

Witnesseth,

nant*b "lessee 'n ^rs*; case, tue draftsman contents himself -with specifying to take the generally the nature of each clause or covenant, disputes may arise as lease, without to the extent and particular wording of them. And in the second

tessor^title?f CaS6' quest'oni wnat are "usual covenants," or "proper covenants," or covenants of any other general class, is nearly certain to be debated. The ground of litigation may undoubtedly be removed by inserting in the agreement all the clauses and covenants literally as they are to stand in the lease, and this is the only safe and correct way. But it often happens that, at the time of executing the agreement, the parties have not given much consideration to the intended clauses and covenants, and are unwilling to defer entering into the agreement till they can be settled. It is often the case too that the agreement to be effectuated is an informal instrument, prepared without legal advice, or any sound consideration of the circumstances: and on a bare contract for a lease, the law implies that there should be proper covenants, and implies too what they are. (16 Ves. 265; Propert v. Parker, 3 Aly. & Ke. 280). It will, therefore, be desirable to ascertain what clauses and covenants the law does imply or consider usual or proper, and what are authorized by the particular terms of an agreement . What are usual In Church v. Browne, 15 Ves. 263, 265, Lord Eldon appears to covenants and have considered that the usual covenants in a lease are almost as well known as those in a conveyance in fee simple. But it is much to be lamented that his Lordship did not specify the covenants which he considered to be usual in leases; for certainly they are not clearly determined by the practice of conveyancers, in such a manner as to enable them to be used as common forms like the covenants in conveyances. It may, however, probably be laid down that all leases ought to contain covenants by the lessee—for payment of the rent ( Taylor v. Horde, 1 Burr. 60, 125)—for payment of such taxes as are not expressly payable by the landlord (see infra, p. 32, n. (g))—to keep the premises in repair (2 B. & Ad. 903)—and to yield them up in that condition at the expiration or determination of the term ; and a covenant by the lessor for quiet enjoyment as against himself and those claiming through him. In addition to these covenants, leases of houses, for particular purposes, as public-houses, farming and .mining leases, and perhaps all leases, (at least where there is a stipulation for usual or customary covenants), ought to contain such covenants and clauses as are usually inserted in such leases, according to - the custom of trade or by the local usage of the district where the property is situate. {Folkingham v. Croft, 3 Anstr. 700; Vere v. Leveden, 12 Ves. 179; Jones v. Jones, Id. 186). An agreement for a lease

clauses.

consideration of the covenant hereinbefore contained, he Agreement the said C. D. doth hereby, for himself, his heirs, executors, Underlease0

of land, to be built upon by the lessee, would most likely imply an agreement that the lessee should erect some buildings; (Jones v. Verney, Willes, 169; Doe d. Dymote v. Withers, 2 B. & Ad. 89C) ; and would perhaps (if the circumstances should admit) imply that such buildings should be erected on the same scale and of the same class as other buildings in the neighbourhood. But this is very improbable.

A covenant in an ordinary lease for the lessee to repair, being allowed timber, may in some cases be supported by custom. ( Wright v. Smith, 5 Esp. 203; Doe d. Bromley v. Bettison, 12 East, 205). In the latter case, too, a covenant by the lessor to repair a mansion house, was not deemed an unusual covenant, so as to vitiate a lease under a power.

It is apprehended that in the absence of a stipulation as to the rent being net or clear of deductions, that the tenant should covenant to pay all existing and future taxes, rates, and out-goings, except the land tax; and also except the sewer rate, where, under the statute, that is imposed on the landlord, or on both landlord and tenant; and that the landlord should covenant to pay the land tax, and, in such cases as above, the sewer rate. (Bennett v. Womaci, 7 B. & C. 627)- At any rate it is settled that a stipulation for a net rent authorizes the insertion in the lease of a covenant, by the tenant, to pay land tax, sewer rates, and all other rates and taxes. (Id.; see too infra, Precedent III., n.(^)).

A covenant, restraining the lessee from carrying on particular What are untrades without the license of the lessor is not a usual covenant, usual ^covenants (Propert v. Parker, 3 My. & Kee. 280). And an agreement that the lease should contain the usual covenants between landlord and tenant, and that the house should not be converted into a school, was held not to authorize a restriction on the carrying on of other trades. ( Van v. Corpe, 3 My. & Kee. 269; see, too, Flight v. Barton, 3 My. & Kee. 282; Cosser v. Collinge, Id. 283). In a lease of a public-house, a proviso for re-entry by the lessor, if any business should be carried on except that of a victualler, is a reasonable proviso; Bennett v. Womach, 7 B. & C. 627); and so probably is a similar proviso, if the house should cease to be used as a public-house. But it should be observed, that the case was not between lessor and lessee, and that the proviso was held reasonable, because out of ten leases of public-houses produced, six contained such a proviso.

It has been settled, after some conflict of decision, that a covenant restraining alienation, without the license of the lessor, is not a usual or proper covenant to be inserted in a lease without special stipulation. (Church v. Brown, 16 Ves. 258, where all the earlier cases are cited and commented on; Browne v. Rohan, Id. 528). A pro

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