LANDLORD 277 ignoring it in his dealings with his tenants. Nor was the custom in itself everywhere clear or uniform. "It is a strange thing to say," says Mr Butt, "but it would be impossible to frame any statement as to the nature and meaning of the custom which would be universally accepted as a correct description of its char acter." 1 The Ulster custom had, however, two main features fixity of tenure, and free right of sale by the tenant of his interest. "So long as the tenant pays his rent the landlord will not use his legal powers to put an end to the tenancy," says Judge Longfield, describing the system, and the same authority adds that "the sale by an outgoing tenant of his tenant right is to be with the approba tion of the landlord. This approbation is not to be capriciously refused, but on the other hand the tenant is not at liberty to select any substitute that he thinks proper irrespective of his character and possession of sufficient means for the efficient cultivation of the land." 2 The strength of the custom may be estimated from a state ment made by one of the witnesses before the Devon commission : " If systematic attempts were made amongst the proprietors of Ulster to invade tenant right, I do not believe there is a force at the dis posal of the Horse Guards sufficient to keep the peace of the pro vince. " And Mr Butt estimates that the sum which tenants under the Ulster custom would receive on the sale of their tenant right n-ould amount to more than 20,000,000. The Landlord and Tenan t ( Ireland) Act, 1870, enacts, section 1 , that "the usages prevalent in the province of Ulster (in this Act intended to be included under the denomination of the Ulster tenant right custom) are hereby declared to be legal, and shall in the case of any holding in the province of Ulster proved to be subject thereto be enforced in the manner provided by this Act." By section 2 like usages elsewhere than in Ulster are in like manner legalized. And a tenant who is not entitled to compensation under sections 1 and 2 is nevertheless declared to be entitled to the following rights: (1) if holding under a tenancy created after the passing of the Act he is disturbed in his holding by the landlord, he shall be entitled to com pensation for the loss which the court shall find to have been incurred by him, subject to a scale of maximum amounts varying from seven years rent on holdings of the annual value of 10 and under to one year s rent on holdings of the value of 100 and over, and in no case exceeding 250 ; and (2) he ma} , on quitting his hold ing, claim compensation in respect of improvements made by himself or his predecessors in title, subject to certain considerable excep tions, as regards tenancies and improvements. The second part of the Act contains clauses to facilitate the purchase by tenants of the f e simple of their holdings, and the third part authorizes the com missioners of public works in Ireland to advance moneys both to landlords for payment of compensation for improvements and to tenants for the purchase of their holdings. Section 44 enacts that the board, if they are satisfied with the security, may advance to any tenant for the purpose of purchasing his holding, in pursuance of the Act, any sum not exceeding two-thirds of the price of such hold ing, and upon an order being made by the board such holding s lall be deemed to be charged with an annuity of five pounds for every one hundred pounds of such advance, and so in proportion for any less sum, such annuity to be limited in favour of the board, and to be declared to be repayable in the term of thirty-five years. Section 46 requires the Landed Estates Court on the sale of estates to afford as far as may be consistent with the interests of the persons concerned facilities for such purchases by tenants, whether by selling the estate in suitable lots or otherwise. The principle of transfer ring the occupying tenants into peasant proprietors which these clauses are intended to carry out is associated with the name of Mr Bright. The Bright clauses have not had the practical success that was hoped for, a result which is attributed to the unfitncss of the Landed Estates Court for working them. 3 And it may be added that the Act of 1870 failed to satisfy the wishes of the Irish people, rackrenting and eviction being still possible, and the process for obtaining compensation being tedious and expensive. The Land Law (Ireland) Act, 1881, was accordingly passed. Sec tion 1 provides that the tenant for the time being of every holding not specially excepted may sell his tenancy for the best price that can 1)3 obtained, subject to certain conditions and provisions specified in sixteen subsections. A tenant from year to year is not permitted to subdivide or sublet his holding without permission of the landlord. A person to whom a tenant has bequeathed the tenancy is in the same position as a purchaser after sale. When a landlord demands an increase of rent from a present or future tenant, then (1), if the tenant submits, his tenancy shall become a statutory tenancy, sub ject to statutory conditions for the period of fifteen yeais ; (2) a future tenant not accepting increase lint selling shall be entitled to receive such amount as a court may fix fur depreciation of the sell ing value by the increased rent; (3) a tenant, not accepting but not 1 Practical Trratitf on thr Law of Compensation to Tenants in Ireland, by Isaac Butt. Q.C., Dublin, 1871. 2 An excellent account of the origin and remits of the t lst T custom will be found i-i The Irish Land Question from 18- 9 to I860, by It. Barry O Brien, London, 1880. s See O Biien s Irith f.an/l Question, cU p. vii. selling, is entitled to compensation as for disturbance ; (4) and a present tenant may apply to the court to have a rent fixed. A tenant during a statutory term shall not be compelled to pay a higher rent than the rent payable at the commencement, and shall not be compelled to quit except on breach of the statutory conditions, some of which arc as follows: the tenant must pay rent at the appointed time, must not commit persistent waste, must not sub divide or sublet or erect a dwelling house otherwise than is provided in the Act. Agistment, or letting for pasture, and letting on conacre for growing potatoes or other green crop are not within this pro hibition. The landlord retains the right to enter for the purpose of taking minerals, stone, timber, making roads, hunting, shooting, fishing, and so on. The tenant may not open a public house without the landlord s consent. The section is not to prejudice any eject ment for non-payment of rent in respect of rent accrued due for a holding before the commencement of the statutory term. 4 Sections 6 and 7 amend the law as to compensation for disturbance and compensation for improvements as contained in the Act of 1870. Section 8 authorizes the court (to be created by the Act) to fix a fair rent on the application of either party, and such judicial rent shall be the rent of the tenancy for the statutory term of fifteen years as above described. The court is to determine what is a fair rent after hearing parties, having a due regard to their respective interests and to the circumstances of the case, holding, and district. A new statu tory term shall not begin until the expiration of a preceding one, and an alteration of judicial rent shall not take place at less intervals than fifteen years. Two important subsections deserve to be specially noticed. It is provided (subsection 2) that the court may disallow the tenant s application if it be satisfied that "the per manent improvements on the holding, which if executed by the tenant would have entitled him to compensation under the Acts of 1870 and 1881, have been made and maintained, by the land lord and his predecessors in title and not made or acquired by the tenant or his predecessors. On the other hand, no rent shall be allowed or made payable in respect of improvements made by the tenant or his predecessors in title for which, in the opinion of the court, they shall not have been paid by the landlord or his prede cessors in title. When application is made to the court to fix a judicial rent on a holding not subject to the Ulster tenant light or other analogous custom, the parties by agreement or the court may fix a value on the tenancy ; and, if during the term the tenant should give notice to the landlord of his intention to sell, the landlord may purchase the tenancy at the value so fixed, subject to addition for subsequent improvements and deduction for dilapi dations. Subsection 10 provides that "the amount of money or money s worth that may have been paid or given for the tenancy of any holding by a tenant or his predecessors in title, otherwise than I to the landlord or his predecessors in title, shall not of itself, apart from other considerations, be a ground for reducing or increasing the rent of such holding." The Act may be excluded by agreement as follows. The landlord j and tenant may agree to a "judicial lease " for thirty-one years and upwards, which if approved by the court will take effect, and the holding will be regulated by the lease and not be deemed subject to the Act. The parties may agree to a "fixed tenancy," which shall not be deemed subject to the Act, which shall be held upon such condi tions as parties may agree upon, and with reference to which the court shall consider the interest of persons entitled to an estate or interest after a present limited owner. In such a case the tenant sliall pay a fee farm rent, which may or may not be subject to revaluation by the court, and shall not be compelled to quit his holding except on breach of some of the conditions previously declared to be statutory. These are the main provisions of the Act, establishing more or less completely what are known as the three F s "fair rents," "fixed tenure," and "free sale." Miscellaneous provisions supple mental to these can only be briefly noticed. Section 20 enacts that the " tenancies to which the Act applies shall be dei-med to have determined whenever the landlord has resumed possession of the hold ing either on the occasion of a purchase by him of the tenancy or default of the tenant in selling, or by operation of law or reverter or otherwise." But a tenant holding under an Ulster or other analo gous custom shall be entitled to the benefit of such custom, notwith standing the determination of his tenancy by breach of a statu tory condition. Section 21 deals with existing leases, which are to remain in force, but at the expiration of such leases the tenants shall be deemed to be tenants of "present ordinary tenancies from year to year," and therefore subject to the Act. Section 22 allows a tenant whose holding is of the annual value of 150 to contract himself out of this or the previous Act, and there is a special clause dealing with the case in which a landlord has before the Act purchased the Ulster tenant right ; but otherwise any provision contained in any lease or contract of tenancy inconsistent with the provisions of the Act shall be void. Part 5 relates to the acquisi- 4 The right of ejectment for non-payment of rent was conferred on IH milords by special legis ntion. It is unknown to English law, where nun-payment only Kives a right of re-ei.try if protcc ed b/ a special proviso to that effect in the Iras?.
