Henry Williams Challis Henry J. Hood.

The Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... online

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received, enforced, and taken advantage of by the
person from time to time entitled, subject to the term,
to the income of the whole or any part, as the case
may require, of the land leased.

(2.) This section applies only to leases made after
the commencement of this Act.

It is conceived that the words " lease** and ** lessee" must have
in this section the same meaning as in the 32 Hen. 8, c. 34, where
they include leases for life or lives and terms of years, but not
estates tail. (Co. Litt. 215 a, resolution 3.) On the meaning of
Jirmariif see 2 Inst. 145. On the meaning of the words "lessor"
and " lessee," see Lit. sect. 57.

It is also conceived that the words "having reference to the
subject-matter thereof," must be interpreted to restrict the covenants
and conditions contemplated by this section to those which are
within the 32 Hen. 8, c. 34. ( " The covenants whereof grantees
by this statute shall take advantage are inherent covenants;
i.e., such covenants as do concern the thing granted, and tend to the
supportation of it." Shep. T. 176. And see the remark at the end
of tiiis note, p. 139, infra.)

This section deals with three distinct subjects, which are often
confused together: — (1st) The apportionment of rent reserved by a
lease, so far only as regards the right to recover it, not as regards
the right to re-enter, under a condition or proviso for re-entry upon
non-payment of the rent ; (2ndly) the apportionment of the benefit
of lessee's covenants contained in a lease, so feu: only as regards the
right of the reversioner to sue for damages for a breach, not as



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LEASES. 137

regards the right to re-enter, under a proviso for re-entry upon a C. A. 1881,
breach of the covenant ; and (3rdly) the apportionment of conditions Sect. 10.

contained in a lease, which concerns the nght to re-enter upon a

breach.

As regards the first branch, this section seems to add nothing to
the rights given by the common law to legal owners of reversions.
As regards the second branch, it is doubtful whether the section adds
anything to the rights given by the 32 Hen. 8, c. 34, to such legal
owners. But the words "entitled ... to the income," seem to
include equitable owners also. As regards the third branch, the
change made in the law by this section is still more important.

(I.) As to the apportionment of rent reserved by a lease, upon a
severance of the reversion in a part of the lands from the
reversion in another part, so far only as regards the right
to recover the apportioned rent.

If the rent consists of money, or anything admitting of sub-
division (but not otherwise, Litt. sect. 222), it is apportionable at
common law upon such a severance, whether the severance is
effected by surrender of a part of the lands (Co. Litt. 148 a) ; or
by a grant or devise of the reversion in a part {Ibid. ; 2 Inst. 504 ;
Collins and Harding^ 8 casey 13 Rep. 57); or by re-entry of the
reversioner upon a part only, imder a special condition {Ibid, at
p. 58) ; or by eviction of the tenant from a part, by a title para-
mount to that of the lessor {Smith v. Malings, Cro. Jac. 160) ; or
by a partition among coparceners of the reversion {Ewer v. Moyle,
(>o. Eliz. 771); or by the different descent of the reversion in
different parts of the lands ; as where borough-english and conmion
law lands are comprised in a single lease {ibid,).

The apportionment is according to the respective values of the
severed parts. If the lessee is not a party, he is not, by an appor-
tionment agreed upon between the reversioner and his grantee,
precluded from insisting that the apportionment shall be legally
made by a jury. {Bliss v. Collins, 5 B. & Aid. 876).

(II.) As to the apportionment of the benefit of lessee's covenants
contained in a lease, upon such a severance as above
mentioned, so far only as regards the right of the rever-
sioner to sue for damages.

Two questions arise: — whether the benefit will pass (1) to an
assign of the whole reversion ; (2) to an assign of the reversion in
apart.

Although the burden of the lessee's covenants (the covenants
being what are comimonly styled " inherent " covenants and not
collateral) would, at conmion law, pass to an assign of the lands,
yet at common law the reciprocal benefit probably did not pass to
an assign of the reversion (1 Wms. Saund. 299) ; so that the latter
could sue neither the lessee nor the lessee's assigns for a breach of
the lessee's covenants.

But, by the 32 Hen. 8, c. 34, s. 1, the benefit of the lessee's
covenants, being inherent covenants, passes to an assign of the
reversion. The statute provides, that all grantees or assignees
of any reversion of any hereditaments, and their heirs, executors,
successors and assigns, shall have and enjoy like advantages
against the lessees, their executors, administrators and assigns by
entry for non-payment of the rent, or for doing of waste, or other
forfeiture; and, also, every such like advantage, benefit and

c. L



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138 CONVEYANCING AND LAW OF PROPERTY ACT, 1881.

C. A. 1881, remedies hy action only^ for not performing of other conditions.
Sect. 10. covenants or agreements contained in their leases against the lessees,
their executors, administrators and assigns, as the lessors them-
selves, their heirs or successors might have had and enjoyed.

On the whole subject since the statute, both as to what covenants
are qualified to run, and when they wiU run with the land, and
also with the reversion, see Spencer^ s Case, 5 Rep. 16 ; and the notes
thereto in 1 Smith L. 0.

It is to be observed that, according to the 2nd resolution in
Spencer's Casey which is often misapprehended, the naming of the
assigns on the part of the covenantor, will, in certain cases, cause
a covenant to be inherent which would not otherwise be inherent.
These cases are, where the covenant affects something which is not
parcel of the thing demised at the date of the covenant, but which
will, when it comes into being, be such parcel.

The benefit of the lessee's covenants would, previously to the
present section, have passed to the assign of the reversion in a part
of the lands, so far as the covenants referred to that part. ( Ttoynam
V. Ptckardy 2 B. & Aid. 105 ; and see Henniker v. Turner, 4 B. & O.
157; Walter v. Maunde, 1 Jac. & W. 181 ; Mayor of Swansea v.
Thomas, 10 Q. B. D. 48.) Similarly, the burden of a covenant to
repair, being divisible, would have passed to an assign of part of
the lands. (Congham v. King, Cro. Car. 221.)

It is conceived that the wide language of this section must be
subjected to a similar restriction ; and that the owner of the rever-
sion in a part can enforce only such covenants as refer to that part.

(in.) As to the apportionment of conditions contained in a lease,
notwithstanding such a severance of the reversion as
above mentioned.

Here, also, we have to consider the effects of (1) assignment ;
(2) severance.

*' By the common law, no grantee or assignee of the reversion
could take advantage of a re-entry, by force of any condition."
(Co. litt. 215 a.)

The words of the above-cited Act of 32 Hen. 8, " by entry, for
non-payment of the rent, or for doing of waste, or other forfeiture,"
extend the benefit of entry for a broach, to breaches of other
conditions besides a condition for re-entry upon non-payment of
rent. But only to *'such conditions as either are incident to the
reversion, as rent, or for the benefit of the estate, as for not doing
of waste, for keeping the houses in reparations, for making of
fences, scouring of ditches, for preserving of woods, or sudi Eke,
. . . . so as other forfeiture shall be taken for other forfeiture
like to those examples wnich were there put, viz., of payment of
rent, and not doing of waste, which are for the benefit of the rever-
sion." {Ibid. 215 b, resolution 12.)

By a " condition incident to the reversion, or for the benefit of the
estate," Lord Coke seems here to mean a condition of re-entry for
the not doing of something which is incident to the reversion, or
which is for flie benefit of the estate.

The assignee of a particular estate carved out of the reversion in the
whole of the lands may take advantage of conditions. {Ihid. 215 a,
resolution 4.)

But (except as next hereinafter mentioned) the assignee of the
reversion in a part of the lands could not (previously to the present



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LEASES. 139

seotion) take advantage of conditions. {Ibid, resolution 5 ; Dumpor^s C. A. 1881,
Case, 4 Rep. 119 ; see also Knight^ s Case^ 6 Rep. 54.) Sect 10,

The exceptions to the above rule were (1) the king (Co. litt.

215 a, see resolution 6) ; (2) an assignee taking by act of the law
only ; as where borough-english lands and common law lands are
comprised in the same lease, and the reversion descends upon
different heirs. {Ibid, resolution 7.)

And as to the apportionment of conditions of re-entry for non-
payment of rent, see 22 & 23 Vict. c. 35, s. 3.

" Where the reversion upon a lease is severed, and the rent 22 & 23 Vict

" or other reservation is legally apportioned, the assignee of ®- ^^» *• ^•

"each part of the reversion shall, in respect of the ap-

" portioned rent or other reservation allotted or belonging to

" him, have and be entitled to the benefit of all conditions or

** powers of re-entry for non-payment of the original rent or

** other reservation, in like manner as if such conditions or

" powers had been reserved to him as incident to his part of

** the reversion in respect of the apportioned rent or other

** reservation allotted or belonging to him."

The words "notwithstanding severance of that reversionary

estate," suggest the conclusion, that the operation of the section is

restricted to altering the law touching severance, and that only those

covenants and conditions are within its scope, which are within the

32 Hen. 8, c. 34. (See Co. litt. 215 b, resolution 12, cited above.)

11. — (1.) The obligation of a covenant entered into Sect. 11.
by a lessor with reference to the subject-matter of the i^^^^^e-*
lease shall, if and as far as the lessor has power to nantstorun
bind the reversionary estate immediately expectant on ^^ '®^®'"
the term granted by the lease, be annexed and inci-
dent to and shall go with that reversionary estate, or
the several parts thereof, notwithstanding severance
of that reversionary estate, and may be taken ad-
vantage of and enforced by the person in whom the
term is from time to time vested by conveyance, de-
volution in law, or otherwise ; and, it and as far as the
lessor has power to bind the person from time to time
entitled to that reversionary estate, the obligation
aforesaid may be taken advantage of and enforced
against any person so entitled.

(2.) This section applies only to leases made after
the commencement of this Act.

This section deals with the running of the burden of the lessor* s
covenants with the reversion notwithstanding severance.

It is conceived that reversions upon leases for life or lives and
terms of years are within this section, but not reversions upon
estates tail. (See note to sect. 10, ante,)

The 32 Hen. 8, c 34, s. 2, gives to all farmers, lessees and
grantees of any hereditaments for term of years, life, or lives, their
executors, administrators and assigns, the like action, advantage,
and remedy against all persons and corporations, having any grant
of the reversion of the same hereditaments, or any parcel thereof,

l2



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140 CONVEYANCING AND LAW OF PROPEETY ACT, 1881.

C. A. 1881, for ^^y condition, covenant, or agreement contained in their leafiee.
Sect. 11. ^ ^^6 lessees might have had against the lessors, their heirs and

. successors.

The obscure words of the present section, ' * if and as far as the lessor
has power to bind the reversionary estate," &c., and, " if and as far
as the lessor has power to bind the person," &c., seem to mean,
that the covenants may be enforced against any person for the time
being in of the revision, as against whom the term is valid.

Only legal owners of the reversion are liable ; but they will be
liable without any reference to the question, how they came into
the reversion. For example, if the lease be (validly) granted by a
tenant for life under a power, whether statutory or otherwise, the
covenants will be binding upon the person entitled in remaind er
after the tenant for life.

Sect 12. 12, — (1.) Notwithstanding the severance by con-
Apportion- veyance, surrender, or otherwise, of the reversionary
S^Ds otI^^" estate in any land comprised in a lease, and notwith-
severance, &c. standing the avoidanco or cesser in any other manner
of the term granted by a lease as to part only of the
land comprised therein, every condition or right of re-
entry, and every other condition, contained in the
lease, shall be apportioned, and shall remain annexed
to the severed parts of the reversionary estate as
severed, and shall be in force with respect to the term
whereon each severed part is reversionary, or the term
in any land which has not been smrenaered, or as to
which the term has not been avoided or has not other-
wise ceased, in like manner as if the land comprised
in each severed part, or the land as to which the term
remains subsisting, as the case may be, had alone
originally been comprised in the lease,

(2.) This section applies only to leases made after
the commencement of this Act.

This section deals with the running with the reversion, notwith-
standing severance, of the benefit of conditions annexed to the
estate of the lessee, a subject which has already been fully dealt
with in sect. 10, ante. (See note thereon.)

The words in sect. 10, ** and every condition of re-entry and other
condition therein contained," seem to have been left in the Act by
inadvertence, when sect. 12 was inserted.

One coparcener cannot enter alone for a breach. (Doe v. Letois,
5 A. & E. 277.)

Where the reversion upon a lease is severed, and the rent or
other reservation is legally apportioned, the 22 & 23 Vict. c. 35,
s. 3 (cdted above, note to sect. 10, p. 139, ante), provides for the
apportionment of conditions of re-entry /or non-payment of the rent.

Sect. 13. 13. — (1.) On a contract to grant a lease for a term
On mib-de. of yoars to be derived out of a leasehold interest, with

mise, title to



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LEASES. 141

a leasehold reversion, the intended lessee shall not C* A. 1881,
have the right to call for the title to that reversion. Seot. 18.

(2.) This section applies only if and as far as a con- leasehold re-
trary intention is not expressed in the contract, and v!"^^^^!?^.*^
shall have effect subject to the terms of the contract ^^
and to the provisions therein contained,

(3.) This section applies only to contracts made
after the commencement of this Act.

Tliis section has been noted in connection with sect. 3, sub-s. (1),
aniCy to wbicli it properly belongs.

Wben an intending lessor, himself holding by sub-lease, contracts
to grant a sub-sub-lease, his intending lessee cannot " call for the
title to " the leasehold estate out of which the sub-lease is derived.
This seems to mean, that he may call for the sub-lease itself but not
for the title of the person granting it.

It will be advisable, in contracts contemplated by this section, for
the intending lessee to stipulate that the original lease shall be pro-
duced, and ihe title duly deduced thereunder.

The word ** sub-demise " in the marginal note is misleading, and
not consistent with the rest of the marginal note.

Forfeiture.

14, — (1.) A right of re-entry or forfeiture under Sect. 14.
any proviso or stipulation in a lease, for a breach of Eeetnotionfl
any covenant or condition in the lease, shall not be a^^^7^
enforceable, by action or otherwise, unless and until feituroof
the lessor serves on the lessee a notice specifying the "*
particular breach complained of and, if the breach is
capable of remedy, requiring the lessee to remedy the
breach, and, in any case, requiring the lessee to make
compensation in money for the breach, and the lessee
fails, within a reasonable time thereafter, to remedy
the breach, if it is capable of remedy, and to make
reasonable compensation in money, to the satisfaction
of the lessor, for the breach.

The words, " by action, or otherwise," seem to be emphatic ; and
the lessor's common law right of entry upon a breach does not arise
(except in the cases referred to in sub-sects. 6 and 8, infra) until he
has complied with the formalities prescribed by this suD-section.
Lessors must be careful not to take possession, e.y., of vacant
houses, without serving the required notice ; because their possession
would, under such circumstances, be a wrongful possession.

This enactment does not apply to a proviso for cesser of the
interest of a lessee or assignee upon the performance of a condition
by the lessor or assignor. Mortgages to building societies are often
made subject to such a proviso upon payment of the instalments of
principal and interest : a practice wnich probably was adopted to
avoid the expense of a reconveyance, before the 6 & 7 Will. 4, c. 32,
s. 5 (see now, 37 & 38 Vict. c. 42, s. 42) revested the mortgaged
property upon the execution of a statutory receipt endorsed on the
mortgage.



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leases.



142 CONVBYANCING AND LAW OF PEOPEETY ACT, 1881.

C. A. 1881 Upon the distinction between forfeiture of the lease and for-
Seot. 14. feiture of a privilege annexed thereto, see note on sub-s. (8), infra,

(2.) Where a lessor is proceeding, by action or
otherwise, to enforce such a right of re-entry or for-
feiture, the lessee may, in the lessor's action, if any,
or in any action brought by himself, apply to the Court
for relief; and the Ck>urt may grant or refuse relief, as
the Court, having regard to the proceedings and con-
duct of the parties under the foregoing provisions of
this section, and to all the other circumstances, thinks
fit ; and in case of relief may grant it on such terms,
if any, as to costs, expenses, damages, compensation,
penalty, or otherwise, including the grantmg of an
injunction to restrain any like breach in the future, as
the Com*t, in the circmnstances of each case, thinks fit.

In some leases, the proviso for re-entry stipnlates that notice
shall be given before a forfeiture is enforced. (See 5 Day. Conv.
156, 189, 392.) Any terms or restrictions imposed on the lessor by
the proviso in the lease must be complied with, in addition to those
imposed by sub-s. (1), supra^ so far as they are not identical

" A right of re-entry .... shall not be ew/brwoifo ;" the
Act does not merely say, shall not be enforced^ which might relate
only to getting judgment. A right which is not enforceable by action
can hardly be a sufficient ^ound to maintain the action. It there-
fore seems that the prescribed notice must be served by the lessor,
and that he must wait a '' reasonable time,'' before he issues the
writ.

The compensation in money seems to possess two characteristics :
it must be (1) reasonable, (2) to the satisfaction of the lessor.
Perhaps, under this vague language, the lessor will obtain oon-
sideraole latitude in making his demand, without losing hiB oosts if
an action should ensue.

A breach which has been remedied before it is detected by the
lessor seems not to have been contemplated by sub-s. (1), unless it
is taken to be not '* capable of remedy," as having been already
remedied. But the word ** capable" seems rather to mean " intrin-
sically capable." Probably, such a case will be held to be within
sub-s. (1), and the lessor's notice will refer only to the ^'reasonable
compensation in money."

This section applies to breaches occurring before the commence-
ment of the Act. {Quilter v. Mapleson, 9 Q. B. D. 672.)

IjiEbhetsY. Booth, '*The Times," 7th July, 1883, Stephen, J.,
refused to grant relief against a forfeiture, upon the ground that
the breach committed by the lessee had plcuied the lessor in danger
of a forfeiture to his superior landlord, who was not before 5ie
court.

On the application of a lessee's equitable mortgagees, relief was
granted (upon terms) against a forfeiture, the lessor not having, in
his notice before commencing the action, required the lessee '' to
remedy the breach." {North London Land Co, v. Jacques, W. N.
1883, p. 187.) The lessee diould be made a party to any such
application. (Ibid,)

It seems that, even when the lessee has been served with the pie-



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LEASES. 143

scribed notice, and has omitted to comply, he may still apply to the C. A. 1881,
court for relief, under sub-s. (2). How the application should be Sect. 14.

made, is less clear. When the lessee himself brings the action, he ■.

would naturally ask for relief in the claim. When the application
is made in an action brought by the lessor, the substantive trial can
hardly have been intended to take place over a summons in
chambers. It is conceived that procee<ungs under this section are
not within sect. 69, sub-s. (3), post.

The enactment of this section has perhaps impaired the efficacy
of certain covenants sometimes found in leases; for example, a
covenant upon every assignment or subletting, to deliver a copy of
any deed relating to the transaction, and pay a stipulated fee, to
the lessor's solicitor, which does not seem to come within sub-s. (6),
infra. Such a covenant sometimes imposes a very sensible burden
upon persons engaged in building transactions, who may wish
to mortgage numerous houses held under separate leases from
the same lessor. Under the present law, it is not probable
that a condition of forfeiture for the breach of such a covenant
could be enforced; and the lessee is therefore under a strong
temptation to break the covenant, because the consequences, even
if rigorously enforced by the lessor, are not likely to be much more
onerous than the punctual performance of the covenant would have
been. It will therefore be in future advisable that lessors, who
desu'e strictly to enforce such covenants as are here referred to,
should insert an additional covenant on the part of the lessee, to pay
a substantial sum by way of liquidated damages in case of a breach
of any of his other covenants.

(3.^ For the purposes of this section a lease includes
an original or derivatiye under-lease, also a grant at a fee
farm rent, or securing a rent by condition ; and a lessee
includes an original or derivative under-lessee, and the
heirs, executors, administrators, and assigns of a lessee,
also a grantee under such a grant as aforesaid, his
heirs and assigns ; and a lessor includes an original or
derivative under-lessor, and the heirs, executors,
administrators, and assigns of a lessor, also a grantor
as aforesaid, and his heirs and assigns.

(4.) This section applies although the proviso or
stipulation under which the right of re-entry or for-
feiture accrues is inserted in the lease in pursuance of
the directions of any Act of Parliament.

(5.) For the purposes of this section a lease limited
to continue as long only as the lessee abstains from
committing a breach of covenant shall be and take
effect as a lease to continue for any longer term for
which it could subsist, but determinable by a proviso
for re-entry on such a breach.

For some remarks upon determinable limitations and limitations
liable to be determined by re-entry for breach of condition, see
p. 53, ante. Since a ** lease limited to continue as long only as the



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144 CONVEYANCING AND LAW OF PROPEETY ACT, 1881.

C. A. 1881, less©© abstains from committing a breach of covenant," is ipso facto
Sect 14. determined by a breach, without any entry by the lessor, it is a
■ curious theoretical question, what is the estate of such a lessee who
obtains relief, and where the estate comes from.

(6.) This section does not extend —

(i.) To a covenant or condition against the assigning,
under-letting, parting with the possession, or
disposing of the land leased ; or to a condition
for forfeiture on the bankruptcy of the lessee,
or on the taking in execution of the lessee's
interest; or

(ii.) In case of a mining lease, to a covenant or con-
dition for allowing the lessor to have access to
or inspect books, accounts, records, weighing
machines or other things, or to enter or inspect
the mine or the workings thereof.

A covenant or condition against assigning, &c. without the lessor* s



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