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REASONS FOR INSERTING THE LESSEE'S COVENANTS.

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The reader may ask-Why is it necessary to insert Reason for inserting covenants for the payment of rent or against the commis- the lessee's sion of waste, since in the absence of such covenants the covenants. landlord has his remedy by action against the tenant for the time being? The answer is that, by the insertion of the covenants, the lessor obtains a personal remedy against the lessee even after he has assigned the lease (c). If the lessee assigns the land, and the assign commits waste, the landlord may, if he thinks fit, bring an action against the lessee on his covenant. The personal remedy against the lessee is of additional use, for the following reason: "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and hath no remedy over, there the law will excuse him. As in the case of waste, if the house be destroyed by tempest or by enemies, the lessee is excused. But when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; and therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it" (d). It is also convenient for the lessee to know the principal obligations thrown on him.

(a) Although the words "yielding and paying" in the Reut. reservation of the rent amount to an express covenant by the lessee for payment (e), it is the practice to insert a covenant for payment. Where the lessor is to receive Accounts. royalties, the lessee should covenant to weigh and keep accounts of the working of the minerals, and to allow the lessor to be present at the weighing, and to inspect the accounts or an abstract of them, and to take copies of them.

(c) Auriol v. Mills, 4 T. R. 94 See as to the effect of surrender of part of lease on the covenant, Baynton v. Morgan, 22 Q. B. D. 74. (d) Prince Rupert's Case, Para

dine v. Jane, Aleyn. 26; S. C. Sty.
47, Shubrick v. Salmond, 3 Burr.
1637; Bullock v. Dommitt, 6 T. R.
650.

(e) Hellier v. Casbard, 1 Sid.

A

Rates and taxes (f).

If there are extensive underground workings, the lessee should be bound to keep accurate plans, and to deliver copies free from expense (or at cost price) to the lessor.

(B) It is often intended that the tenant shall pay all rates and taxes. A stipulation that the tenant shall, as between himself and the landlord, bear the landlord's share of the property-tax, would be void (g); but the same end might probably be attained by reserving a larger rent than that actually intended to be paid, with a proviso for a variation in amount with the variation of the property-tax; Colbron v. Travers, 12 C. B. N. S. 181. The most sweeping words for including all rates and taxes are "all rates, taxes, duties, charges, assessments, and outgoings whatsoever, whether parliamentary, parochial, local, or of any other description which are now or may at any time hereafter be assessed, charged, or imposed upon the demised premises or on the owner or occupier in respect thereof." When it is intended that the landlord should, so far as the law admits, take his rent without any deduction, the words "or on the owner "should not be omitted: for it has been held that if an Act of Parliament directs a rate to be assessed on the owner" of the premises, and the words in question are inserted, the tenant is bound to indemnify the landlord against the rate; but, on the other hand, if these words are omitted, and the tenant covenants only to pay the rates, &c., imposed" "on the demised premises," or "on the tenant or occupier in respect thereof," he is not liable (h). In a short lease any 66 sums recoverable from the lessor by any local

266; Porter v. Swetnam, Sty. 406;
see Interp. 419, 420.

(f) The cases on the construc-
tion of covenants to pay rates and
taxes, &c., are collected in 28 Sol.
J. 778, 787, 795, 803, 814; 43 Sol.
J. 4, 1 K. & E. 683, 697. See also
Foa, L. & T. 148.

(g) The Income Tax Act, 1842 (5 & 6 Vict. c. 35), ss. 73, 103.

agreement that if the

An tenant

will continue to pay his rent in full without any deduction in respect of landlord's property-tax paid by him, the landlord will repay to the tenant all sums which he has paid or shall pay for the tax, is not contrary to the Act. Lamb v. Brewster, 4 Q. B. D. 220, 607.

(h) Tidswell v. Whitworth, L. R. 2 C. P. 326; Rawlings v. Briggs,

RATES AND TAXES.

or public authority under the provisions of the Public Health Acts or Metropolis Management Acts" are sometimes excluded (i).

Occasionally the lessor covenants to pay the rates and taxes. In this case, if the rateable value of the property is at the time when the lease is granted, or afterwards becomes, larger than the rent payable to the landlord, the tenant who pays the rates, &c., in the first instance, is only allowed to deduct so much as is payable in respect of the rent payable to the landlord, and not the total sum payable. (Smith v. Humble, 15 C. B. 321.)

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(y) The covenants with respect to repairs inserted in the Repairs (k). lease of a house are

1st. To repair and keep the premises in good repair.

2nd. To paint the outside and inside at certain times in

a prescribed manner.

3rd. To allow the lessor to enter and view the premises, and on his giving written notice of want of repair, to repair within three months.

3 C. P. D. 368; Allum v. Dickinson, 9 Q. B. D. 632. Tenants have got off where no such word has occurred as "charge," "duty," or "outgoings," or where there have been no words extending to charges upon the owner, or where there are words indicating an intention that the landlord is to pay; per Wright, J., Smith v. Robinson (1893), 2 Q. B.

53.

(i) See Foa, L. & T. 151 et seq., and consider Brett v. Rogers (1897), 1 Q. B. 525; Baylis v. Jiggens (1898), 2 Q. B. 315; Wix v. Rutson (1899), 1 Q. B. 474.

(k) The measure of damages for breach of a covenant to repair must be the damage to the reversion, not the sum required to repair ; Henderson v. Thorn (1893), 2 Q. B.

E.I.C.

164. In estimating the liability
in damages of an underlessee on his
covenants, the liability of his lessor
on the covenants in the head lease
must be taken into account if the
under-lessee had notice of the
original lease; Conquest v. Ebbetts
(1896), A. C. 490. No damages can
be claimed in respect of natural
operation of elements on original
faulty construction; Lister v. Lane
(1893), 2 Q. B. 212. As to the
meaning of "good tenantable
repair" see Proudfoot v. Hart,
25 Q. B. D. 42; Crawford v. Newton,
36 W. R. 54; Foa, L. & T. 177.
A lease under the S. L. A. 1890,
s. 7, is invalidated, while a lease
under the S. L. A. 1882, s. 6, is
not invalidated, by an exception of
reasonable wear and tear."
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It is the almost universal practice for a tenant for a term of twenty-one years and upwards to covenant to repair generally, but where the term is less than twenty-one years, or where the house is of small value, the lessor sometimes covenants to do substantial repairs to the walls, drains, and roof. Though such a covenant by the lessor produces no inconvenience where he resides near the property or has a resident agent, it is most inconvenient where this is not the case; for, on the tenant stating that repairs are required according to the covenant, the lessor may be forced to take a journey for the purpose of ascertaining whether the statement is correct.

It should be remembered that giving notice to repair under the covenant to repair on notice is a waiver of any forfeiture that may have happened under the general covenant to repair (Doe d. Morecraft v. Meux, 4 B. & C. 606): while a notice to repair "in accordance with the covenants" of a lease is not (Few v. Perkins, L. R. 2 Ex. 92). The repairing covenants in the case of a farm, mines, or quarries, respectively, are very different, and depend upon the special circumstances of each case.

In a farming lease the tenant generally covenants to keep the buildings, gates, hedges, ditches, roads, &c., in repair, on being found specified materials by the lessor. (See as to the construction of such covenants, Interp. 420, 421.)

In a mining lease the lessee should covenant not to injure the mines, to protect them from encroachments, to keep the works in repair, to fence pits and railways, and possibly to leave certain parts of the minerals unwrought as support to the surface, or as bulwarks against water from the neighbouring mines. It may be necessary to make some special provisions as to tramways, and as to the disposal of rubbish by way of spoil-banks or otherwise.

In the lease of a quarry, where the nature of the working is to use open pits, so that the whole of the soil above the stone quarried has to be removed, thus leaving a large hole, it is sometimes provided that the lessee shall fill up the hole

REPAIRS.

and replace the surface soil after the stone has been worked, so as to leave the surface fit for agricultural purposes. It may also be necessary to insert covenants to repair the roads leading to the quarry.

In the lease of a brickfield the tenant should covenant to preserve the two top spits of soil, and replace such soil after the clay has been removed, so as to leave the land fit for agricultural purposes.

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Where the covenant to repair is unqualified, the lessee Destruction by must repair, even if the premises be burnt down. (Bullock fire.

v. Dommitt, 6 T. R. 650.) If either lessor or lessee insures, whether pursuant to a covenant or not, the other of them can require the Insurance Office to cause the insurance moneys to be laid out in rebuilding the premises (1), if the property insured be a house or buildings situated within the Bills of Mortality, but not in other cases unless the lease contains express provisions as to the application of the insurance moneys. (Edwards v. West, 7 Ch. D. 858; Rayner v. Preston, 14 Ch. D. 297; S. C. 18 Ch. D. 1.) In all cases it is advisable, and where part of the property demised consists of machinery and the like, it is essential, that the covenant for insurance (1 K. & E. 689), should also provide for the application of the insurance money in reinstating the property. (Lees v. Whitely, L. R. 2 Eq. 143). Where there is a general covenant to repair by the lessee, and the lessor voluntarily insures in his own name, the lessee has no equity to compel the lessor to expend in rebuilding the moneys received from the Insurance Office on the premises being burnt down, or to restrain the landlord from suing for the rent till the premises are rebuilt. (Leeds v. Cheetham, 1 Sim. 146; Loft v. Dennis, 1 El. & E. 482.)

(8) Where the lease, not being an agricultural lease, Insurance. comprises buildings, machinery, furniture, or other property that is likely to be damaged by fire, it is a common practice

(1) Ex parte Gorely, 4 De G. J. & S. 477; 5 N. R. 22; 13 W. R. 0, where the facts are more fully

stated. See Ex parte Gorely,
discussed, ante, p. 158.

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