agrd by and betn the pties hereto That the expenses of Expenses to obtaining the sd Act and carrying the same into exon be defrayed shall be sustained and pd by the sd (lord) and the sevl by all parties propor freehdrs and copyhdrs and psns interested in the sd com- tionably. mons and waste lds in proportion to the value of the allotments which shall have been made to them resply. In Witness, &c. Agreements for a Lease. Obs. 1. An agreement for a lease, unless for a term not exceeding Agreement three years, and for which the rent reserved is at least two-thirds of to be in the real value, is required by the Statute of Frauds, 29 Car. II. c. 3, writing. to be in writing, and signed by the party to be charged therewith, or his agent legally authorized. (See further as to signing Agreements,' Pref. § 5.) 2. Parties are frequently let into possession under such an agreement, and allowed to continue in possession without any more formal instrument being executed; but the practice is very insecure, and has given rise to much litigation. An agreement for a lease will not operate as an actual lease, unless it be considered to amount to a present demise, on which the decisions of courts have not been uniform. Formerly, any words showing the intention of the parties that the lessee should occupy as tenant, were deemed sufficient to constitute an actual present demise; Cro. Eliz. 33, 486. Hob. 34. Baxter v. Brown, Blackst. 973. Barry v. Nugent, cited 5 T. R. 165, n. But by the current of recent authorities it is now settled, that where the paper is executory in its terms, containing no words of present demise, it shall be construed to be an agreement only. Hegan v. Johnson, 2 Taunt. 148. Morgan v. Bissell, 3 ib. 765. Tempest v. Rawling, 13 E. 18. Dunk v. Hunter, 5 B. & A. 322. Hamerton v. Stead, 3 B. & C. 478. Clayton v. Burtenshaw, 5 B. & C. 41. A tenant holding under such an agreement has no security for his possession, as he is always liable to be evicted in an action at law, and the owner has no remedy by distress for non-payment of rent, but is driven to his action for use and occupation; Hegan v. Johnson, ub. sup. ; unless rent has already been paid, which creates a tenancy from year to year. Hamerton v. Stead, ub. sup. Mann v. Lovejoy, 1 R. & M. N. P. 355. An agreement not a substitute for a lease. binding On husl and, 3. An agreement for a lease will in many cases not be equally Agreement binding on the parties as a lease would be. An agreement for a lease by tenant in tail under the 32 Hen. VIII. c. 28, although binding on him, will not be binding on his issue, if he die without perfecting the agreement. 1 Ch. Ca. 171. 1 Lev. 239. Prec. Chan. 278. Hinton v. Hinton, 2 Ves. 634. So an agreement by husband and wife seised in right of the wife under the same statute will not, it is apprehended, be binding on the wife or her heirs in the event of the husband dying before the execution of the lease, because the statute (which authorises leases only) must be strictly construed. Cowp. 267. 2 Freem. 224. 1 Rop. Husb. & W. 96. If, however, a husband possessed of a term of years in right of his wife, enters into an agreement for an under-lease, and dies before the execution of the lease, such an agreement will it seems be binding on the wife, because terms of years are not within the statute. Stead v. Craigh, 9 Mod. 42. Druce v. Denison, 6 Ves. 385. An agreement for a lease, under a leasing power, will be good On remainagainst the remainderman, provided it is a contract to grant such derman. a lease as the power warrants. Campbell v. Leach, Ambl. 749. Shannon v. Bradstreet, 1 Sch. & Lef. 72. Blore y, Sutton, 3 Mer, On the wife also. For a Lease. On an alien artificer. On copyholder. Specific perform ance. Agree ments ought to be explicit. Covenants not to assign. To repair. To pay rent. To pay taxes. For production of lessor's title 237. Although leases to alien artificers are void by the 32 Hen. VIII. c. 16, s. 13, yet it has been held, that if an alien artificer occupies a house under an agreement, an action for use and occupation will lie against him. I Saund. 8, n. 1. Although a copyholder cannot, by the custom of most manors, grant a lease før a longer period than a year, yet a mere agreement to grant a lease, if the lord will give his license, bas been held not to work a forfeiture. 3 Keb. 638. Doe dem. Coore v. Clare, 2 T. R. 739. 4. As to parol agreements for a lease, courts of equity will, notwithstanding the Statute of Frauds, enforce specific performance; where by so doing they discourage fraud and perjury, which it was the object of the statute to prevent. 1 Eq. Ca. ab. 19. 2 Ch. Ca. 135. I Vern. 151. 2 Freem. 268. 5. Agreements for a lease should be clear and explicit on all material points. This is so much the more important, as it has been expressly decided, that nothing can be added by parol to an agreement which is reduced into writing. Sugd. V. & P. 128. Where an agreement omits to specify the term or number of years for which the lease is to be granted, or if the rent be not specified, or the time when the term is to commence is omitted, or there is no mention respecting the payment of taxes, no parol evidence can be adduced to supply the omission. Clinan v. Cooke, 1 Sch. & Lef. 22. Woollam v. Hearn, 7 Ves. 221. Pym v. Blackburne, 3 Ves. 34. Rich v. Jackson, 4 B. C. C. 514. The Marquis of Townsend v. Stangroom, 6 Ves. 334, n. So in an agreement for a building lease, the nature of the building must be specified, or the agreement cannot be enforced. Mosely v. Virgin, 3 Ves. 184. 6. A covenant againt assigning or underletting is not deemed a usual covenant, and must therefore be expressly stipulated in the contract, if it is intended to be inserted in the lease. Henderson v. Hay, 3 B.C.C. 632. Verey. Loveden, 12Ves. 179. Church v. Brown, 15 Ves. 258. So under a covenant to repair, a lessee will be liable to rebuild if a house is burnt down, unless the clause be added, damage by fire or tempest, or other inevitable accidents excepted. Bullock v. Dommitt, 6 T. R. 650. Pym v. Blackburne, 3 Ves. 34. It is now usual to insert a covenant for insurance by the lessee, which obviates this question; but a tenant will still be liable under his covenant to pay rent, although the house is burnt down, unless it be stipulated in the contract that there should be a suspension of rent in case of accidents by fire. All. 27. Monk v. Cooper, 2 Stra. 763. Belfour v. Weston, 1 T. R. 312. Baker v. Holzapfel, 4 Taunt. 45. Holzapfel v. Baker, 18 Ves. 115. And the tenant has no equity to compel his landlord to expend the money received from an insurance office in rebuilding. Leeds v. Cheetham, 1 Sim. 146, his only remedy in that case being to give notice to quit. Pindar v. dinsley, cited 1 T. R. 312. Pym v. Blackburne, ub. sup. A reservation of rent free from all and all manner of taxes' is now held to extend to the land-tax and all taxes subsequently imposed. Bradbury v. Wright, Dougl. 602. Amfield v. White, 1 R. & M. 246. Where any exception is intended to be made, it ought to be expressly stipulated in the agreement. An agreement for a lease, contains no implied engagement for general warranty of the land, nor for delivery of an abstract of the lessor's title, Gwillim v. Stone, 5 Taunt. 433. Temple v. Brown, 6 ib. 60. The right of the lessee to inspect the lessor's title is however admitted in all cases, Waring v. Mackreth, Forr. 138; except in the case of a bishop. Fane v. Spenser, 2 Madd. 438; and specific performance of an agreement will not be enforced, when the title is not clearly made out, a lessee being considered as a purchaser, pro tanto. Fildes v. Hooker, 2 Mer. 424. But as in many cases lessors may object to produce their title, and in others it may be of great im For a Lease. portance to the lessee to be assured of the title of his lessor, care should be taken to make this a part of the contract, wherever the interests of either party require it. On the principle that deeds ought to be construed most in favour of the grantee, it has been Duration decided, that where an agreement contains a power to determine a of term. lease at the end of seven, fourteen, or twenty-one years, it shall be in the power of the lessee to determine, and not of the lessor, unless it be expressly so stipulated. Dann v. Spurrier, 3 B. & P. 399. 6 Doe v. Dixon, 9 E. 15. Price v. Dyer, 17 Ves. 363. Under the clause usual covenants' are to be understood such as are usual Usual coin reference to the nature of the property, the term 'usual' being venants. the same as reasonable,' 'fair.' Prec. Ch. 25. Where, in an agreement for a lease, it is stipulated that it shall contain such covenants as are usual in leases of land,' &c. in the neighbourhood, it appears that a court of equity will enforce specific performance. Not to Boardman v. Mostyn, 6 Ves. 467. As a school has been held to come under the general clause not to carry on any trade,' it must be expressly stipulated, if any exception is to be made. Likewise, as it appears doubtful whether, if a house be destroyed before the tenancy commences, a person shall be bound by his contract, it is advisable to make provision for this event in the agreement. Phillipson v. Leigh, 1 Esp. 397. carry on any trade. As to intervening accidents. 7. A memorandum or agreement for granting a lease or tack Stamp. at rack rent, under the yearly rent of 5., is exempted from the usual agreement stamp; but it has been held that such an agreement is not within the exception, if the interest agreed for be a beneficial one. Doe v. Boulcot, 2 Esp. 595. (As to leases, see further Leases.) Agreement for the Lease of a House. demise. Articles of, &c. (see p. 15) Betn (lessor) of, &c. Partics. of the one pt and (lessee) of, &c. of the or. pt whby the sd (lessor) agrees by indenture of lease to be exe- Lessor cuted on or before day next ensuing to demise agrees to and let unto the sd (lessee) all that messe or tent with the coachhouse stable garden, &c. [Here describe parcels particularly.] To hold the same to the sd (lessee) his exrs and ads from day next ensuing for Term, the term of yrs (a) at the yrly rent of £— clear of Rent. all taxes parliamentary parochial or orwise (b) and paye quarterly at the four usual festivals In which lease shall be contained covts on the pt of the sd (lessee) to pay the rent (c) to repair the preses (d) and to deliver up the same at the end of the sd term in good and (a) Determinable at the end of seven, fourteen, or twentyone years.' And if it be so agreed, add 'At the will as well of the said (lessor) as of the said (lessee.) Obs. 6. (b) Except the land-tax or sewers-rate,' &c. as the case may be. Obs. 6. (c) Yrly and every year during the sd term unless the house should be burnt down or destroyed by any inevitable accident.' Obs. 6. Covenants on the part of the lessee to pay rent. Proviso for determining the lease. Suspension of rent. (d) It is usual to insert the exception, pest and other inevitable accidents excepted.' Lease of a House. To insure. To rebuild. To repair. tenantable repair (a) And also to insure the sd preses from loss by fire during the sd terin in one of the insurance offices in London or Westminster to be approved of by the sd (lessor) for the sum of £- And also to rebuild or repair the sd preses if destroyed or damaged by fire or otherwise And also not to assign (b) or underlet the sd preses witht the licence of the sd (lessor) with all or. usual (c) and reasone covts and a provo for the re-entry of the sd (lessor) his hrs and ass in case of non-paymt of the rent for the space of days after either of the sd days of payment or of the non-performance of the covts And that there shall also be contd in the sd lease a covt on the pt of the sd (lessor) his hrs exs and ads for quiet enjoyment by the sd (lessee) his exs and ads of the sd preses during the sd term upon paymt of the rent and performance of the covts (d) And (e) it is hby agrd by the sd pties hereto that the Expense of expense of preparing these prests and the sd lease and a preparing counterpart thot shall be pd and borne by the sd pties agreement equally And (f) lastly it is mutually agrd by and betn the pties hereto that the destruction of the sd preses by fire or or. cause before the execution of the sd lease shall not (or shall' as the case may be) in any wise alter or vacate this contract. Covenants on the part of the lessor. and lease. In Witness whof (g) the sd pties have hereunto set their hands the day of 18 Agreement for the Lease of a Farm. Articles of, &c. (see p. 15) Betn &c. (see last pre- To hold the (a) If the covenant to insure be omitted, and the above exception be inserted, then add except as last aforesaid.' (b) As to this covenant, see Obs. 6. And also, if it be so agreed, add, nor carry on or suffer to be carried on upon the sd premises any kind of trade,' or any offensive or noisy trade,' &c. See Obs. 6. (c) As to usual covenants, see Obs. 6. (d) As to the production of the lessor's title, see Obs. 6. (e) Or, as is more usual,' the said (lessee) doth hereby agree to accept such lease as afd and to execute a counterpart thereof and to pay the expense of these presents and also of the sd lease and counterpart.' (f) See Obs. 6. (g) If the agreement be entered into by the agent of either party, say 'the sd (lessor) or (lessee) has hereunto set his hand by the sd (agent) his attorney lawfully constituted.' (As to signing agreements, see Agreements, § 5.) day of and Lease of p. 29) to be paid half yrly on the yrs Agreement to Let a Furnished House or Apartments. Obs. A covenant that the landlord may distrain for rent is not necesary in an instrument of this kind, as it is held that a distress may be had upon any goods of the tenant, as well for furnished as unfurnished lodgings, Newman v. Anderton, 2 N. R. 242. Memorandum of an agreement Betn (lessor) of, &c. of the one pt and (lessee) of, &c. of the or. pt as follows That the sd (lessor) agrees to let and the sd (lessee) to take all that messuage or dwellinghouse situate, &c. (or all those the first and second floors belonging to, &c. as the case may be) togr with all the furniture fixtures crockery and all other things mentioned and comprised in the schedule here under a Farm. Covenants in the lease on the part of the Covenants on the part of the lessor. |