26

FOR BUILDING

UNDERLEASE.

covenants by the lessor.

AGREEMENT premises so to be demised, against any person or persons claiming under him or them, he, the said C. D., his executors, administrators, or assigns, paying the rent and performing the covenants and agreements to be therein contained and on his and their part to be paid and performed, and all such other covenants, clauses, and agreements, on the part of the landlord, as are usually contained in leases of the like kind (h); and also a covenant on the part of the said A. B. for production, if required, of the original lease or leases from the said E. F. IN WITNESS &c.

(h) As to the risk incurred by this stipulation, see supra, p. 13, n. (b).

TO A BUILDER.

Parties.

Recital of
agreement for
a lease on com-

pletion of the
buildings.

-of further agreement for a lease, from

III.

UNDERLEASE to a BUILDER of a HOUSE in LONDON, which had been built by him under an Agreement, the House being COVERED IN but NOT FINISHED.

THIS INDENTURE, made &c. BETWEEN L. M., of &c., [lessor], of the one part; and C. D., of &c., [lessee], of the other part; [recital of agreements, whereby A. B. became entitled, on the completion of the building, to a lease from E. F., (see the recital, supra, p. 11), and of an agreement for a lease from A. B. to C. D.; (see the precedent of this agreement, supra, p. 11)]: AND WHEREAS, by articles of agreement, made and entered into on the day ofbetween the said E. F. of the one part, and the said A. B. landlord to the of the other part; the said E. F. agreed with the said A. B., his executors and administrators, that he, the said E. F., would, upon the performance of certain stipulations and agreements therein contained on the part of the said A. B., grant a lease or leases unto the said A. B., his executors, administrators, and assigns, of (amongst other hereditaments) the piece or parcel of ground and premises

the superior

intended les

sor.

tended lessor's will.

-of his death, and the probate

hereinafter demised and leased, for the term of ninety- TO A builder. nine years from Midsummer day, at the rent therein mentioned: AND WHEREAS the said A. B. duly of the inmade, signed, and published his last will and testament in writing, bearing date the day of, and thereby appointed X. Y., the said L. M., and Y. Z., executors thereof: AND WHEREAS the said A. B. died on the day of without having revoked or altered the ap- of his will. pointment of executors contained in his said will; and the same will, with a codicil thereto, were proved by the said L. M. alone, in the Prerogative Court of the Archbishop of Canterbury, on the day of : AND of the renunWHEREAS the said X. Y. and Y. Z. renounced probate of claimer of two the said will and codicil, and, by an indenture bearing date the day of, renounced and disclaimed all the devises and bequests under the said will and codicil: AND WHEREAS, by an indenture bearing date the

of the

ciation and dis

of the execu

tors.

of the ori

having been

of the inlessee having performed the stipulations as to building, &c.

tended under

day of ginal lease and made or expressed to be made between the said granted. E. F. of the one part, and the said L. M. of the other part, the said E. F. granted to the said L. M., as executor of the said A. B., a lease of the piece or parcel of ground and premises hereinafter demised, being part of the hereditaments and premises in the said articles of agreement day of, [the articles between A. B. and C. D.], particularly described: AND WHEREAS the said C. D. hath caused to be erected or built, and covered in, the messuages or tenements agreed to be erected and built by him, the said C. D., in and by the hereinbefore recited articles of agreement, of the day of, [the articles between A. B. and C. D.], conformably to the agreements on the part of the said C. D. therein contained, and the same hath been certified to the said L. M., as such executor as aforesaid, by the surveyor of the said E. F. and L. M.: AND WHEREAS, in pursuance of the said agreement of the agreeof the day of [the articles between A. B. and ment for the C. D.], it hath been agreed between the said L. M. and of the rent C. D. that the said rent of £- shall be apportioned, and that the annual rent of £-shall be paid in respect of the piece or parcel of ground and hereditaments hereinafter particularly mentioned, and intended to be hereby

apportionment

houses erected on the land included in the agreement.

among several

Witnesseth.

Consideration.

TO A BUILDER. demised (a): NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said recited agreement of the day of, [the articles between A. B. and C. D.], and in consideration of the expense the said C. D. hath been at in erecting the messuage or tenement hereinafter demised, and of the rent hereby reserved, and the covenants and agreements hereinafter contained, and on the part of the said C. D., his executors, administrators, or assigns, to be observed and performed, he the said L. M. hath demised and leased, and by these precents doth demise and lease (b), unto the said C. D., his executors, administrators, and assigns, ALL THAT piece or parcel of ground, with the messuage or tenement, (being the third house southward from X. place), erected on part thereof, situate &c.; and the other descriptions whereof are contained in

Demise.

Parcels.

As to the apportionment of rent, and liabilities in building leases.

Operative words of leases.

(a) If the rent were not apportioned, and separate leases taken for the separate houses, each house would remain liable to the whole rent, and the lessor would be at liberty to re-enter on the whole in case of a breach of covenant as to any part, (that is to say), each lessee would be liable to eviction on account of the acts of the other lessees, over whom he would have no control. (See ante, Vol. 3, p. 83, n. (d)). If, therefore, the lessor will consent, every agreement for a building lease of more than one house should contain a provision for granting a distinct lease of each house, at an apportioned part of the rent, and the demise should be made accordingly. The only objection to this course on the part of the lessee is the increased expense, which is unworthy of consideration in comparison with the increased facility of transfer acquired. There cannot be much doubt, too, that the lessor will get a higher rent on account of the increased value imparted to the leases, and will hardly lose any real security for his rent and covenants for, in practice, the lessor of a considerable estate never proceeds against one tenant for the default or breach of another, on account of the injury which such an act would occasion to the general letting of the estate.

(b) The ordinary operative words of leases are," demise, lease, and to farm let" (Co. Lit. 45. b.); but any words amounting to a grant (Ib.) or any words by which one party agrees to give, and the other to take possession, (supra, p. 4, n. (c)), will create a lease. It is very usual to employ the words "demise and lease" alone, as in the present case; but sometimes "grant" is added, and occasionally "demise" is employed alone. The rational course would be to use "demise" alone, and only in the present tense; but the practice is not so.

a plan in the margin hereof, together with the porch, TO A BUILder. vaults, areas, rights, easements, and appurtenances thereto belonging (c), EXCEPT AND RESERVED out of this demise, Reservation of a right of pas the free passage and running of water and soil from other sage for water houses and buildings of the said E. F. and his tenants, by and soil. and through the channels and drains of the premises hereby demised, the tenant or tenants of such other houses and buildings, on request, paying his or their proportion of the charges of cleansing and repairing the same when need shall require: TO HAVE AND TO HOLD the said piece or Habendum for parcel of ground, messuage or tenement, and all and singular other the premises herein before demised, or expressed and intended so to be, unto the said C. D., his executors, administrators, and assigns, from the 25th day of December, for the term of

a term.

years (d); YIELDING AND PAYING, Reddendum of

a peppercorn

Parcels.

General words

(c) See the mode of describing parcels in leases of this nature, supra, p. 12. A plan is always desirable. The general words commonly employed in leases, are usually much more brief than those in leases. in deeds affecting the freehold. In the present case they are unusually so, but several other forms will be found in the subsequent precedents: it may be proper to add, or therewith usually held, used, or enjoyed." (See ante, Vol. 3, p. 200, n. (n); p. 213, n. (h); Hinchcliffe v. Earl of Kinnoul, 5 Bing. N. C. 1; and infra, Precedent XII., n. (a)).

(d) It is better always to give the complete date, than to say "the last" or 66 day ofnext;" for if delay occur in the execution of the lease, or if there be a mistake in the date, the phrase may become inapplicable, and may alter the intended term, unless evidence can be given of the mistake. Thus, where a lease was dated the 25th day of March, 1783, habendum “ from the 25th of March now last past," but it was shewn that the lease was not executed till after the 25th of March, 1783, it was held that the lease took effect from the delivery, and that the term was, therefore, to be computed from the 25th of March, 1783. (Steele v. Mart, 4 B. & C. 272; S. C., 6 Dowl. & Ry. 392). The words in the habendum, " from the day of the date," may mean either inclusive or exclusive of that day, as the context requires; thus, where such a lease was granted, under a power which required the leases to be in possession; "from" was held to mean inclusive of the day of the date. (Pugh v. The Duke of Leeds, Cowp. 714). An habendum" from the feast of St. Michael," must be taken to mean from New Michaelmas day, the 29th of September; extrinsic evidence is not admissible to shew that the habendum was intended to be from

As to the time from which leases are to be computed.

TO A BUILDER. therefore, for the first two years of the said term, the rent for the first two of a peppercorn; AND YIELDING AND PAYING (e) there

years.

Further red

Mode of construing leases of uncertain duration.

Reddendum

implies a covenant for payment of the rent.

Old Michaelmas day. (Doe d. Spicer v. Lea, 11 East, 312; see, too, Smith v. Walton, 8 Bing. 235 ; S. C. 1 Moo. & Scott, 380). But on a demise by agreement not under seal, or by parol, “Lady-day” may be explained, by extrinsic evidence, to mean Old Lady-day. (Doe d. Hall v. Benson, 4 B. & Ald. 588; Denn d. Peters v. Hopkinson, 3 Dow. & Ry. 507).

"A.

A lease for a term if A. so long live, with remainder to B. for the residue of the term, must be construed to give B. a right to enjoy during all the residue of the years of the term. (Wright d. Arm v. Cartwright, 1 Burr. 288; 1 Ld. Keny. 529). In a recent case, agreed to let, and B. agreed to take, a certain piece of land, for the term of his natural life," and B. agreed to lay out money on the premises. A. became bankrupt, and B. having laid out the money, A., and his assignees, by indenture, demised to " B., his executors, administrators, and assigns, all that &c., of which the said A. is tenant for life. Habendum to B., his executors, administrators, and assigns, for the term of his natural life." There were covenants by B., for himself, his executors, administrators, and assigns, at all times during the term to pay rent, and to repair, and to yield up "at the end of the said term, or other sooner determination of this lease by the death of the said A., or otherwise," and other covenants; and a covenant for quiet enjoyment by B., his executors, administrators, and assigns, during the natural life of the said A." The court held, that, notwithstanding the habendum referred to the life of B., yet, as the estate was limited to the executors and administrators of B. (which could only be valid for an estate pur auter vie), and referring to the language of the covenant for quiet enjoyment, and of the other covenants, the estate granted must be an estate for the life of A. (Doe d. Pritchard v. Dodd, 5 B. & Ad. 689; S. C. 2 Nev. & Man. 838; see further as to cases of uncertain duration, Harris v. Evans, 1 Wils. 262; Amb. 329; Roe d. Bree v. Lees, 2 Wm. Bl. 1171; Mackay v. Mackreth, 4 Doug. 213; S. C. 2 Chit. 461; Doe d. Waters v. Houghton, 1 Man. & Ry. 208; Gwynne v. Maynestone, 3 Car. & Pay. 302; Evans v. Vaughan, 4 B. & C. 261; S. C. 6 Dow. & Ry. 349.

(e) The reddendum of a lease creates an implied covenant for the payment of the rent; (Giles v. Hooper, Carth. 135; 9 Ves. 330); but an express covenant for that purpose, which does away with the implication, is always inserted in formal leases. The covenant implied on the reservation does not arise till entry. (1 Burr. 125). Of course it will be understood that no formal reservation of rent is necessary; any words indicating the intention of the parties, that a stated rent shall be paid, operate as a reservation of it, so as to give the owner of the reversion a right of action on the implied covenant.