AGREEMENT FOR BUILDING UNDERLEASE. -and other particulars. As to the maemployed. terials to be That no magot out of the terials are to be land. sance to be created. said E. F., his heirs or assigns, shall direct; and that all the blocking courses, coping, balustrade, and stringing of the said houses, shall be of Portland stone or cement, the same as the other houses in Y. square: AND ALSO, THAT he, the said C. D., his executors, administrators, and assigns, in the erecting, forming, and building of the said houses and walls, shall not make use of any timber, mortar, bricks, stone, or other materials, but such as shall be new and perfectly sound and good, and shall be approved by the surveyor, for the time being, of the said E. F., his heirs or assigns, and that the mortar to be used in the same buildings respectively shall be made with good and fresh lime, mixed with river sand or road drift: AND ALSO THAT no earth, clay, sand, gravel, or other material whatsoever, shall be dug or got in, or out of, or from the said piece or parcel of ground hereinbefore mentioned and described, except what shall be necessary in order to form the foundations of the said houses and walls, and the said areas and sinking of walls: AND ALSO, THAT nothing shall be done and no nuiin or upon the said piece or parcel of ground, or any part thereof, which shall or may be, or may grow to the annoyance, nuisance, grievance, damage, or disturbance of the said A. B., his executors, administrators, or assigns, or to the said E. F., his heirs or assigns, or his or their tenants, or any of them, and which he, the said C. D., his executors, administrators, or assigns, shall be required by the said A. B., his executors, administrators, or assigns, or the said E. F., his heirs or assigns, or their or his agents or agent, for the time being, not to do, or permit or suffer to be done: AND ALSO, THAT he, the said C. D., his executors, administrators, or assigns, shall and will, at any time or times hereafter, if he or they shall be required by the said A. B., his executors, administrators, or assigns, or the said E. F., his heirs or assigns, or his or their agent or surveyor for the time being, so to do, but not otherwise, carry away and remove off and from the estate of the said E. F., his heirs or assigns, such earth, sand, gravel, rubbish, and other materials, as the said C. D., his executors, administrators, or assigns, shall or may, at any time hereafter, dig or raise, or bring or place, or cause to be dug or —and rubbish to be removed. (if required) FOR BUILDING settled by the surveyor of the original lessor. AGREEMENT raised, brought or placed, upon any part of the estate of the said E. F.: AND FURTHER, THAT if any difference, Disputes to be controversy, or dispute whatsoever shall happen to arise between the said A. B., his executors, administrators, or assigns, and the said C. D., his executors, administrators, or assigns, or any of their respective tenants, surveyors, or workmen, in, about, or concerning the setting out the said piece or parcel of ground, or any part thereof, or the frontage or depth, or frontages or depths, of the said several houses, or the lines, directions, depths, breadths, or levels of any of the said areas and spaces, or foot and carriage ways, or concerning any party walls, or party gutters, drains, or sewers, or any other matter or thing whatsoever, in any manner relating to the said piece or parcel of ground, or any part thereof, or to the erecting, building, or finishing any of the said houses and walls to be erected thereon as aforesaid, or any part or parts thereof, or to the construction or meaning of the clauses, articles, or agreements, herein contained, or any of them, or otherwise howsoever, in any manner relating to these presents, or to the premises, the same shall be settled and determined by the surveyor, for the time being, of the said E. F., his heirs or assigns: AND ALSO, THAT the said rent or sum of £- shall be paid by the said C. D., his executors, administrators, or assigns, unto the said A. B., his executors, administrators, or assigns, by four equal quarterly payments, on the four most usual quarterly days for payment of rent in the year, although the said messuages or tenements, or any of them, shall not be erected by the time hereinbefore limited for the erection of the same respectively, until this agreement shall be determined as hereinafter mentioned (e): AND ALSO, mine the agree THAT if default shall be made in erecting and completing the said messuages or tenements hereinbefore agreed to be Rent to be paid on certain days, although the houses are not completed. Power to the lessor to deter ment on his (e) With respect to this provision, see supra, pp. 6, 9. In some of the cases there cited, a provision of this nature was held to make the agreement operate as a present demise, but there cannot be much doubt that in the present instance the circumstances of the case, and the express proviso to the contrary, (infra, p. 24) would prevent such a construction being adopted. AGREEMENT FOR BUILDING part, if the houses be not the time appointed. completed at built, or any of them, within the time in which the same are herein before agreed to be built and completed, it shall be lawful for the said A. B., his executors, administrators, or assigns, at any time thereafter, to give to or leave at the then dwelling-house or last place of abode of the said C. D., his executors, administrators, or assigns, notice in writing of the intention of the said A. B., his executors, administrators, or assigns, to determine and put an end to this agreement; and that immediately after the expiration of two calendar months from the day of such notice having been so given or left, in case the said messuages or tenements, or any of them, shall not then be erected, built, and completely finished, all and every the covenants and agreements herein contained, on the part of the said A. B., his executors, administrators, or assigns, to grant the said lease or leases of the said piece or parcel of ground, and premises, or any part thereof, to the said C.D., his executors, administrators, or assigns, shall be utterly void and of no effect whatsoever; and the said C. D., his executors, administrators, or assigns, shall pay to the said A.B., his executors, administrators, or assigns, at the rate of £- per foot per annum, on the frontage of the said piece or parcel of ground hereinbefore mentioned and described, as or in the nature of rent, from the date of this agreement, up to the time to which the same shall be so determined by such notice as aforesaid: AND FURTHER, THAT he the said C. D., his execu- As to the lestors, administrators, or assigns, shall and will, at his and see's making a footway and their own costs and charges, make or procure to be made road. a footway before all the said several houses so agreed to be built, and on the north side of the said piece or parcel of ground, of such and the same width as that in front of the said messuages or tenements on the south side of Y. square aforesaid, and pave the same footway with good Yorkshire paving, and a moor-stone or granite kirb, and shall and will pave, or cause to be paved, the same street or carriageway in front of the said houses, to the rails of the said square, and the said street or carriage-way, on the north side of the said piece or parcel of ground, with Scotch granite or square Jersey pebble, so and in such manner, and to such extent, as to complete the foot and carriage AGREEMENT FOR BUILDING The agreement not to operate as a lease. Covenant by the lessee to Tenancy at will. way paving in front of the said houses, and north side of the said northernmost house, or macadamize the same, to the satisfaction of the said surveyor of the said E. F., his heirs or assigns, unless the same be done by the commissioners of the paving act; and also, that he the said C. D., his executors, administrators, or assigns, shall and will make, or cause to be made, the same foot and carriageway paving, hereby agreed to be made, at such time or times as he or they shall be required so to do by the surveyor or agent, for the time being, of the said E. F., his heirs or assigns: PROVIDED ALWAYS, and it is hereby declared and agreed by and between the said parties hereto, that nothing in this agreement contained is meant or intended to be, or shall in any manner or for any purpose whatsoever be deemed, taken, or held to be or operate as a present demise or in the nature thereof, or to give or vest in the said C. D., his executors, administrators, or assigns, any term of years in the said piece or parcel of ground to be demised, when the messuages or tenements herein before agreed to be built shall be erected and built as aforesaid (ƒ); and that, until such messuages or tenements shall be built and actually demised as aforesaid, the said piece or parcel of ground and premises shall be deemed to be held by the said C. D., his executors, administrators, or assigns, in the nature of a tenancy at will, determinable at two calendar months' notice in writing by the said A, B., his executors, administrators, or assigns, at any time after neglect or default shall be made in the building or completing of any of the said messuages or tenements so agreed to be built within the time herein before limited for that purpose (g): AND THE SAID C. D. doth hereby (f) See supra, pp. 6, 9. (g) The effect of this stipulation, creating "a tenancy at will, determinable at two months' notice," is not very intelligible. A tenancy at will is properly determinable at the will of either party, upon notice, i. e. it is to be presumed immediately upon notice; and, therefore, it may be questionable whether a tenancy not determinable till after two months' notice can be a tenancy at will. The provisions of the agreement seem altogether inconsistent with the nature of a AGREEMENT FOR BUILDING UNDERLEASE. build certain Certain erections put up by the lessor to remain his pro perty. for himself, his heirs, executors, and administrators, further covenant with the said A. B., his executors and administrators, that he the said C. D., his executors, administrators, or assigns, will, at his own expense, erect garden walls. and build a proper garden-wall, of the several heights and dimensions hereinbefore mentioned, to divide off the said piece or parcel of ground from the gardens at the backs of the houses, Nos. — and, in Y. square aforesaid, belonging to the said A. B.; and also, two like garden-walls to inclose and divide the gardens of the said three lastmentioned houses, in such manner as the said A. B., his executors, administrators, or assigns, may direct or point out, and cover the same with cement coping. AND IT IS HEREBY further agreed and declared, by and between the said parties hereto, that the dressed flank-wall, with the balustrades thereon, and the iron-rails in front thereof, next X. place aforesaid, erected by the said A. B., shall remain and be the property of the said A, B.; and that the three sets of iron-rails and stone coping, erected by the said A. B. at the rear of the said intended three houses, shall be carefully removed and delivered up to the said A. B. as his property, and that the said C. D. shall pay to the said A. B., at the rate of shillings per thousand for the bricks as standing, of so much of the present fence wall next X. place and X. square as immediately adjoins and surrounds the said piece or parcel of ground, such fence-wall being retained by the said A. B. as his own property: AND LASTLY, it is further agreed between the said parties hereto, that in such lease or leases to be granted as hereinbefore mentioned, there shall also be contained a covenant on the part of the said A. B., his executors, administrators, and assigns, for the quiet possession of the tenancy at will, which is absolutely determined, not only by notice but by any act of ownership by the lessor, or by an assignment or waste by the lessee, or by the death or outlawry of either party. (2 Blackst. Comm. 145; 11 Ves. 391). It would, perhaps, be better to say that the tenancy should be a tenancy from year to year, determinable upon two months' notice, expiring at any time; and it is not improbable that even the existing stipulation would be held to import a tenancy of such a nature. The leases to contain cove nants. for quiet enjoyment and certain other |