276 LANDLORD and "parcel of the demise"; (3) covenants relating to things not in being but to be built or done on the premises, if the covenant be for the covenantor himself and "his assigns." But things merely collateral do not bind the assigns even if they be named.
The right of the tenant to assign his lease – as well as his right to make an underlease – may itself be restricted by agreement, and covenants to that effect are not un common. Sometimes the tenant covenants not to assign or underlet without consent, and it may be provided that such consent will not be refused except on reasonable grounds. The lessee is not discharged from liability by the assignment unless the landlord accepts the assignee as his tenant, and even then the original lessor will remain liable on his own express covenants.
The term may be forfeited either for breach of some condition on which tli3 leiss was granted, or in virtue of a specific provision for re-entry on breach of any covenant. Such a proviso is generally attached to the covenants, and the effect of a breach of a covenant so protected is to make the leise voidible at the option of the landlord. The tenant cannot tako advantage of his own default to terminate the tenancy. Ths landlord must signify his intention to avoid the lease by some specific act. If he accepts rent, or, it seems, if he even asks for it after notice of an act of forfeiture, hs waives any breach of covenant up to th it time, but not forfeiture for future or continuing breiches. The condition of forfeiture on breach may be attached to any covenants the parties choose to make, and may therefore in many cases press hardly on the tenant, who for a trifling default may lose the whole value of his term. The courts in some few instances will relieve a tenant from forfeiture. Thus they may relieve once against a forfeiture for breach of covenant to insure, when no damage has occurred and an insurance is in effect at the time of application. Relief will also be given for forfeiture by non-payment of rent, if the arrears be paid up. And on the ground of fraud, accident, or mistake forfeitures may be relieved against in other cases. The determination of a lease by forfeiture has the same effect as its determina tion in any other way, in destroying subtenancies or other rights created under it.
It will be seen that with a few insignificant exceptions the contract is left by law to be regulated by the parties. In one particular an important change has been made by a recent Act. The right to the game, as we have already pointed out, can only be taken out of the tenant by an express grant made by him. The Ground Game Act, 1880, enacts that "any occupier of land shall have as incident to and inseparable from his occupation of the land the right to kill and take ground game thereon, concur rently with any other person who may be entitled to kill and take ground game on the same land," – subject to certain conditions which need not be recounted here. And "every agreement, condition, or arrangement which purports to divest or alienate the right of the occupier, so declared, given, and reserved to him by this Act, or which gives to such occupier any advantage in consideration of his forbearing to exercise such right, or imposes upon him any disadvantage in consequence of his exercising such right, shall be void." Another clause provides that, when the right to kill and take ground game is at the passing of the Act vested in any person other than the occupier, under a bona fide contract, the occupier's rights under the Act shall not come into existence until the determination of that contract. "Ground game" means "hares and rabbits."
Scotland. – In Scotch law, "the contract of location is consensual and in its own nature merely personal; but by statute it is made real against singular successors" (i.e., purchasers). A lease for any greater term than one year must be in writing. The lessor and his representatives are bound by a written lease which is "authenti
cated in terms of the statutes and delivered, or fortified by rei interventus,[1] or sanctioned by homologation," or which is an offer, followed by real evidence of acceptance, or written articles or conditions proved by written evidence to have been adopted by the parties, or even a written obligation to grant a lease. The singular successors of the lessor will be bound where he is bound, provided (1) that the lease is definite as to subject, rent, and term of duration, and (2) that possession shall have followed as a badge of real right under the statute (1449, c. 17). Thus, while a lease of any duration will be good against the lessor and his heirs, as against singular successors it must in general have a definite term of dura tion, unless it be specially warranted and homologated. The usual term in agricultural leases is nineteen years, and longer terms are common for building and mining leases, but there appears to be some uncertainty as to whether any and what limit must be imposed on the length of a term. So, as to rent, it may be as against the grantor a merely nominal sum, or may be retained by the lessee for debt; but as against singular successors it must stand payable. Kent, it is said, may be either in money, grain, or service, but it must not be elusory. Rent in money is generally payable at the "legal terms" Whitsunday and Martinmas. The obligation to pay rent is extinguished by the destruction of the subject, and this principle appears to have been applied to the partial destruction of the subject occasioned by the disastrous failure of a particular season. "When the destruction is partial, the point is more doubtful; and the distinction seems to be that, if it be permanent though partial, the failure of the subject let will give relief by entitling the tenant to renounce the lease unless a deduction be allowed, but, that if it be merely temporary and occasional, it will not entitle the tenant to relief. In the decisions, however, relief has been given to a greater extent than that distinction would authorize; thus devasta- tion of the crop by storms, &c., if plus quam tolerabile, has been admitted as a ground of abatement; but as the tenant takes the risk of the seasons it must at least be some extraordinary event that will justify such a decision" (Bell's Principles). And it would appear that the tenant has no relief against such partial destruction of the subject let as may be occasioned by a subsequent law, as for ex ample in the case of a fishing lease, by an Act extending the close time. Rent may be recovered either by personal action or by the equivalent of distress, viz., hypothec. (But see HYPOTHEC.) In Scotch law there is not, as in English, a prima facie right in the tenant to assign the lease or sublet the premises. On the principle. of delectus personæ, the landlord is presumed to have excluded all save those whom he has expressly admitted, at least in ordinary leases, though a different rule prevails in longer leases. Even the heirs of tenants were at one time excluded, but they now succeed to the lease. The obligations of the parties as to mode of cultiva tion, amount of rent, length of term, repair, and so on are for the most part regulated as in England by the express provisions of the lease. The tenant is bound to give up the premises at the expira tion of the term without compensation for any permanent or unex hausted improvement thereon. "It is implied," says Bell, "in the contract of lease that any buildings, fences, or improvements which the tenant may spontaneously make are made in contemplation of his own interest and for his own use only. And so he has no claim for such meliorations at the end of his lease without special stipulation. But, if the tenant's possession be terminated abruptly and prematurely, he ought in equity to be entitled to recompense."
Ireland. – The law of landlord and tenant has been until recently substantially the same as that which has already been described for England, and it will only be necessary to notice here the more import ant changes that have been made in Ireland by legislation. It may be pointed out, without touching at all on the vexed Irish land question, that the inconvenience of the situation in which a limited class own the soil, and let it out on hire on what terms they please to cultivators, has been felt with particular force in Ireland. Agriculture is the one industry of the country, and that industry was carried on under conditions which made it all but impossible. The Irish tenant was, equally with the English tenant, at the mercy of his landlord. If he made improvements he did so at the risk of losing them by eviction or by being taxed for them by an in creased rent. The insecurity of his tenure gave him the alternative of doing nothing to better his farm or bettering his farm without bettering himself. At the same time there existed in Ireland, in consequence of circumstances peculiar to the people, an excessive competition for land such as has never been paralleled in England. The natural outcome of this condition of things was a demand for some change in the law which could give tenants a reasonable security for their industry. And the way was paved for such changes by the existence in Ulster of a local custom having virtually the force of law, which did provide such a security. This was not a custom of which the courts could take judicial notice, and any landlord who chose to do so might insist upon
- ↑ This is inferred from the fact that the grantor has knowingly permitted acts "not unimportant to be done by the lessor on the faith of the contract."
