1911 Encyclopædia Britannica/Landlord and Tenant
LANDLORD AND TENANT. In Roman Law, the relationship of landlord and tenant arose from the contract of letting and hiring (locatio conductio), and existed also with special incidents, under the forms of tenure known as emphyteusis—the long lease of Roman law—and precarium, or tenancy at will (see Roman Law).
Law of England.—The law of England—and the laws of Scotland and Ireland agree with it on this point—recognizes no absolute private ownership of land. The absolute and ultimate owner of all land is the crown, and the highest interest that a subject can hold therein—viz. an estate in fee simple—is only a tenancy. But this aspect of the law, under which the landlord, other than the crown, is himself always a tenant, falls beyond the scope of the present article, which is restricted to those holdings that arise from the hiring and leasing of land.
The legal relationship of landlord and tenant is constituted by a lease, or an agreement for a lease, by assignment, by attornment and by estoppel. And first of a lease and an agreement for a lease. All kinds of interests and property, whether corporeal, such as lands or buildings, or Leases. incorporeal, such as rights of common or of way, may be let. The Benefices Act 1898, however, now prohibits the grant of a lease of an advowson. Titles of honour, offices of trust or relating to the administration of justice, and pensions granted by the crown for military services are also inalienable. Generally speaking, any person may grant or take a lease. But there are a number of common-law and statutory qualifications and exceptions. A lease by or to an infant is voidable at his option. But extensive powers of leasing the property of infants have been created by the Settled Estates Act 1877 and the Settled Land Act 1882. A person of unsound mind can grant or take a lease if he is capable of contracting. Leases may be made on behalf of lunatics subject to the jurisdiction in lunacy under the provisions of the Lunacy Act 1890 and the Settled Land Act 1882. A married woman can lease her “separate property” apart from or under the Married Women’s Property Acts, as if she were a single woman (feme sole). As regards other property, the concurrence of her husband is generally necessary. An alien was, at common law, incapable of being either a lessor or a lessee. But this disqualification is removed by the Naturalization Act 1870. The right to deal with the property of a convict while he is undergoing sentence (but not while he is out of prison on leave) is, by the Forfeiture Act 1870, vested in his administrator. Leases by or to corporations must be by deed under their common seal, and the leasing powers of ecclesiastical corporations in particular are subject to complicated statutory restrictions which cannot here be examined (see Phillimore, Eccl. Law, 2nd ed., p. 1281). Powers of granting building and other leases have been conferred by modern legislation on municipal corporations and other local .
A person having an interest in land can, in general, create a valid interest only to the extent of that interest. Thus a tenant for years, or even from year to year only, may stand in his turn as landlord to another tenant. If he profess, however, to create a tenancy for a period longer than that to which his own interest extends, he does not thereby give to his tenant an interest available against the reversioner or remainder man. The subtenant’s interest will expire with the interest of the person who created it. But as between the subtenant and his immediate lessor the subtenancy will be good, and should the interest of the lessor become greater than it was when the subtenancy was created the subtenant will have the benefit of it. On his side, again, the subtenant, by accepting that position, is estopped from denying that his lessor’s title (whatever it be) is good. There are also special rules of law with reference to leases by persons having only a limited interest in the property leased, e.g. a tenant for life under the Settled Land Acts, or a mortgagor or mortgagee.
The Letting.—To constitute the relationship of landlord and tenant in the mode under consideration, it is necessary not only that there should be parties capable of entering into the contract, but that there should be a letting, as distinct from a mere agreement to let, and that the right conveyed should be a right to the exclusive possession of the subject of the letting and not a simple licence to use it. Whether a particular instrument is a lease, or an agreement for a lease, or a bare licence, is a question the answer to which depends to a large extent on the circumstances of individual cases; and the only general rule is that in a lease there must be an expression of intention on the part of the lessor to convey, and of the lessee to accept, the exclusive possession of the thing let for the prescribed term and on the prescribed conditions. The landlord must not part with the whole of his interest, since, if he does so, the instrument is not a lease but an assignment. Where a tenant enters under an agreement for a lease and pays rent, the agreement will be regarded as a lease from year to year; and if the agreement is one of which specific performance would be decreed (i.e. if it contains a complete contract between the parties and satisfies the provisions—to be noted immediately—of the Statute of Frauds, and if, in all the circumstances, its enforcement is just and equitable), the lessee is treated as having a lease for the term fixed in the agreement from the time that he took possession under it, just as if a valid lease had been executed. At common law a lease for a term of years (other than a lease by a corporation) might be made by parol. But under the Statute of Frauds (1677, ss., 1, 2) leases, except those the term of which does not exceed three years, and in which the reserved rent is equal to two-thirds at least of the improved value of the premises, were required to be in writing signed by the parties or their lawfully authorized agents; and, under the Real Property Act 1845, a lease required by law to be in writing is void unless made by deed. The Statute of Frauds also prohibits an action from being brought upon any agreement for a lease, for any term, unless such agreement is in writing and signed by the party to be charged therewith or by some agent lawfully authorized by him.
Forms of Tenancy.—The following are the principal forms of tenancy: (i.) Tenancy for Life.—A lease for life must be made by deed, and the term may be the life of the lessee and the life or lives of some other person or persons, and in the latter case either for their joint lives or for the life of the survivor; also for the lives of the lessee himself and of some other person or persons, and this constitutes a single estate. A tenant for life under a settlement has extensive powers of leasing under the Settled Land Act 1882. He may lease the settled land, or any part of it, for any time not exceeding (a) in the case of a building lease, 99 years; (b) in the case of a mining lease, 60 years, (c) in the case of any other lease, 21 years. He may also grant either a lease of the surface of settled land, reserving the mines and minerals, or a lease of the minerals without the surface. A lease under the Settled Land Act 1882 must be by deed and must be made to take effect in possession not later than 12 months after its date; the best rent that can reasonably be obtained must be reserved and the lease must contain a covenant by the lessee for payment of the rent, and a condition of re-entry on non-payment within a specified time not exceeding 30 days, (ii.) Tenancy for Years, i.e. for a term of years.—This tenancy is created by an express contract between the parties and never by implication, as in the case of tenancy from year to year and tenancy at will. Here the tenancy ends on the expiry of the prescribed term, without notice to quit or any other formality. (iii.) Tenancy from Year to Year.—This tenancy may be created by express agreement between the parties, or by implication as, e.g. where a person enters and pays rent under a lease for years, void either by law or by statute, or without any actual lease or agreement, or holds over after the determination of a lease whether for years or otherwise. In the absence of express agreement or custom or statutory provision (such as is made by the Agricultural Holdings Act 1883), a tenancy from year to year is determinable on half a year’s notice expiring at the end of some current year of the tenancy. Where there is no express stipulation creating a yearly tenancy, if the parties have contracted that the tenant may be dispossessed by a notice given at any time, effect will be given to this provision. The common law doctrine of a six months’ notice being required to terminate a tenancy from year to year of a corporeal hereditament, does not apply to an incorporeal hereditament such as a right to shoot. (iv.) Tenancies for Shorter Periods.—Closely associated with tenancies from year to year are various other tenancies for shorter periods than a year—weekly, monthly or quarterly. Questions of considerable importance frequently arise as to the notice necessary to terminate tenancies of this character. The issue is one of fact; the date at which the rent is payable is a material circumstance, but it may be said generally that a week’s notice should be given to determine a weekly tenancy, a month’s to determine a monthly tenancy, and a quarter’s to determine a quarterly tenancy. It is chiefly in connexion with the letting of lodgings, flats, &c., that tenancies of this class arise (see Flats, Lodger and Lodgings). (v.) Tenancy at Will.—A tenancy at will is one which endures at the will of the parties only, i.e. at the will of both, for if a demise be made to hold at the will of the lessor, the law implies that it is at the will of the lessee also and vice versa. Any signification of a desire to terminate the tenancy, whether expressed as “notice” or not, will bring it to an end. This form of tenancy, like tenancy from year to year, may be treated either by express contract or by implication, as where premises are occupied with the consent of the owner, but without any express or implied agreement as to the duration of the tenancy, or where a house is lent rent free by one person to another. A tenancy at will is determined by either party alienating his interest as soon as such alienation comes to the knowledge of the other. (vi.) Tenancy at Sufferance.—A tenant who comes into possession by a lawful demise, but “holds over” or continues in possession after his estate is ended, is said to be a “tenant at sufferance.” Properly speaking, tenancy at sufferance is not a tenancy at all, inasmuch as if the landlord acquiesces in it, it becomes a tenancy at will; and it is to be regarded merely as a legal fiction which prevented the rightful owner from treating the tenant as a trespasser until he had himself made an actual entry on or had brought an action to recover the land. The Distress for Rent Act 1737, however, enables a landlord to recover double rent from a tenant who holds over after having himself given notice to quit; while another statute in the reign of George II.—the Landlord and Tenant Act 1730—makes a tenant who holds over after receiving a notice from his landlord liable to the extent of double the value of the premises. There is no tenancy by sufferance against the crown.
Form of a Lease.—The component parts of a lease are the parties, the recitals (when necessary) setting out such matters as the title of the lessor; the demise or actual letting (the word “demise” is ordinarily used, but any term indicating an express intention to make a present letting is sufficient); the parcels in which the extent of the premises demised is stated; the habendum (which defines the commencement and the term of the lease), the reddendum or reservation of rent, and the covenants and conditions. The Conveyancing Act 1881 provides that, as regards conveyances subsequent to 1881, unless a contrary intention is expressed, a lease of “land” is to be deemed to include all buildings, fixtures, easements, &c., appertaining to it; and, if there are houses or other buildings on the land demised, all out-houses, erections, &c., are to pass with the lease of the land. Rights which the landlord desires to retain over the lands let are excepted or reserved. Sporting rights will pass to the lessee unless reserved (see Game Laws). A grant or reservation of mines in general terms confers, or reserves, a right to work the mines, subject to the obligation of leaving a reasonable support to the surface as it exists at the time of the grant or reservation. It is not necessary that a lease should be dated. In the absence of a date, it will take effect from the day of delivery.
Covenants in Leases.—These may be roughly divided into four groups: (i.) Implied Covenants.—A covenant is said to be implied when it is raised by implication of law without any express provision being made for it in the lease. Thus a lessee is under an implied obligation to treat the premises demised in a tenant-like or “husband-like” manner, and again, where in a lease by deed the word “demise” is used, the lessor probably covenants impliedly for his own title and for the quiet enjoyment of the premises by the lessee. (ii.) ”Usual” Covenants.—Where an agreement for a lease specifies only such essential conditions as the payment of rent, and either mentions no other terms, or provides that the lease shall contain the “usual” covenants, the parties are entitled to have inserted in the lease made in pursuance of the agreement such other provisions as are “usual” in leases of property of the same character, and in the same district, not being provisions tending to abridge or qualify the legal incidents of the estate intended to be granted to the lessee. The question what covenants are “usual” is a question of fact. A covenant by the lessor, limited to his own acts and those of persons claiming under or through him, for the “quiet enjoyment” by the lessee of the demised premises, and covenants by the lessee to pay rent, to pay taxes, except such as fall upon the landlord, to keep the premises in repair, and to allow the landlord to enter and view the condition of the premises may be taken as typical instances of “usual” covenants. Covenants by the lessee to build and repair, not to assign or underlet without license, or to insure, or not to carry on a particular trade on the premises leased, have been held not to be “usual.” Where the agreement provides for the insertion in the lease of “proper” covenants, such covenants only are pointed at as are calculated to secure the full effect of the contract, and a covenant against assignment or under-letting would not ordinarily be included. (iii.) The Covenants running with the Land.—A covenant is said to “run with the land” when the rights and duties which it creates are not merely personal to the immediate parties (in which case a covenant is said to be “collateral”), but pass also to their assignees. At common law, it was said that covenants “ran with the land” but not with the reversion, the assignee of the reversion not having the rights of the original lessor. But the assignees of both parties were placed on the same footing by a statute of Henry VIII. (1540). A covenant “runs with the land” if it relates either to a thing in esse, which is part and parcel of the demise, e.g. the payment of rent, the repair of houses or fixtures or machinery already built or set up, or to a thing not in esse at the time of the demise, but touching the land, provided that the word “assigns” is used in the covenant. All implied covenants run with the land. As instances of “collateral” covenants, we may take a covenant by a lessor to give the lessee a right of pre-emption over a piece of land adjoining the subject of the demise, or in the case of a lease of a beer-shop, not to keep any similar shop within a prescribed distance from the premises demised, or a covenant by a lessee to pay rates on premises not demised. A covenant not to assign without the lessor’s assent runs with the land and applies to a re-assignment to the original lessee. (iv.) Restrictive Covenants.—These may be subdivided into two classes—covenants not to assign or underlet without the lessor’s consent (it may be noted that such consent must be applied for even if, under the covenant, it cannot be withheld); and covenants in restraint of trade, e.g. not to use the demised premises for certain trading purposes, and in the case of “tied houses” a covenant by the lessees to purchase all beer required from the lessors.
In addition a lease frequently contains covenants for renewal of the lease at the option of the lessee, and for repairs or insurance against damage by fire by the lessee. Leases frequently contain a covenant by the lessee to bear and pay rates, taxes, assessments and other “impositions” or “charges,” or “duties” or “outgoings,” or “burdens” (except property tax) imposed upon the demised premises during the term. Considerable difficulty has arisen as to the scope of the terms “impositions,” “charges,” “duties,” “outgoings,” “burdens.” The words, “rates, taxes, assessments” point to payments of a periodical or recurring character. Are the latter words in such covenants limited to payments of this kind, or do they include single and definite payments demanded, for example, by a local authority, acting under statutory powers, for improvements of a permanent kind affecting the premises demised? The decisions on the point are numerous and difficult to reconcile, but the main test is whether, on the true construction of the particular covenant, the lessee has undertaken to indemnify the landlord against payments of all kinds. The stronger current of modern authority is in favour of the landlords and not in favour of restricting the meaning of covenants of this class. It may be added that, if a lessee covenants to pay rates and taxes, no demand by the collector apparently is necessary to constitute a breach of the covenant; where a rate is duly made and published it is the duty of the parties assessed to seek out the collector and pay it.
Mutual Rights and Liabilities of Landlord and Tenant.—These are to a large extent regulated by the covenants of the lease. (i.) The landlord generally covenants—and, in the absence of such a proviso, a covenant will be implied from the fact of letting—that the tenant shall have quiet enjoyment of the premises for the time agreed upon. This obligation makes the landlord responsible for any lawful eviction of the tenant during the term, but not for wrongful eviction unless he is himself the wrong-doer or has expressly made himself responsible for evictions of all kinds. It may be noted here that at common law no lease for years is complete till actual entry has been made by the lessee. Till then, he has only a right of entry or interesse termini. (ii.) The tenant, on his part, is presumed to undertake to use the property in a reasonable manner, according to the purposes for which it was let, and to do reasonable repairs. Repairs. A landlord is not presumed to have undertaken to put the premises in repair, nor to execute repairs. But the respective obligations of parties where repairs are, as they always are in leases for years, the subject of express covenant, may vary indefinitely. The obligation is generally imposed upon the tenant to keep the premises in “good condition” or “tenantable repair.” The amount and quality of the repairs necessary to fulfil the covenant are always relative to the age, class and condition of the premises at the time of the lease. A tenant is not responsible, under such a covenant, for deterioration due to diminution in value caused by lapse of time or by the elements. Where there is an unqualified covenant to repair, and the premises during the tenancy are burnt down, or destroyed by some other inevitable calamity, the tenant is bound to rebuild and restore them at his own expense, even although the landlord has taken out a policy on his own account and been paid by the insurance company in respect of it. A covenant to keep in repair requires the tenant to put the premises in repair if they are out of it, and to maintain them in that condition up to and at the end of the tenancy. A breach of the covenant to repair gives the landlord an action for damages which will be measured by the estimated injury to the reversion if the action be brought during the tenancy, and by the sum necessary to execute the repairs, if the action be brought later. (iii.) The improper user of the premises to the injury of the reversioner is waste (q.v.). (iv.) Covenants by the tenants to insure the premises and keep them insured are also common; and if the premises are left uninsured for the smallest portion of the term, though there is no damage by fire, the covenant is broken. (v.) Covenants to bear and pay rates and taxes have been discussed above. (vi.) As to the tenant’s obligation to pay rent, see Rent.
Assignment, Attornment, Estoppel.—The relationship of landlord and tenant may be altered either voluntarily, by the act of the parties, or involuntarily, by the operation of law, and may also be dissolved. The principal mode of voluntary alteration is an assignment either by the tenant of his term or by the landlord of his reversion. An assignment which creates the relationship of landlord and tenant between the lessor or lessee and the assignee, must be by deed, but the acceptance by a landlord of rent from a tenant under an invalid assignment may create an implied tenancy from year to year; and similarly payment of rent by a tenant may amount to an acknowledgment of his landlord’s title. This is one form of tenancy by estoppel. The principle of all tenancies of this kind is that something has been done by the party estopped, amounting to an admission which he cannot be allowed to contradict. “Attornment,” or the agreement by a tenant to become tenant to a new landlord, is a term now often used to indicate an acknowledgment of the existence of the relationship of landlord and tenant. It may be noted that it is still common to insert in mortgage deeds what is called an “attornment clause,” by which the mortgagor “attorns” tenant to the mortgagee, and the latter thereupon acquires a power of distress as an additional security. If the lands assigned are situated in Middlesex or Yorkshire, the assignment should be registered under the Middlesex Registry or Yorkshire Registries Acts, as the case may be; and similar provision is now made for the registration by an assignee of his title under the Land Transfer Acts 1875 and 1897.
Underlease.—Another form of alteration in a contract of tenancy is an under-lease, which differs from assignment in this—that the lessor parts with a portion of his estate instead of, as in assignment, with the whole of it. There is no privity of contract between an underlessee and the superior landlord, but the latter can enforce against the former restrictive covenants of which he had notice; it is the duty of the underlessee to inform himself as to the covenants of the original lease, and, if he enters and takes possession, he will be considered to have had full notice of, and will be bound by, these covenants.
Bankruptcy, Death.—The contract of tenancy may also be altered by operation of law. If a tenant become bankrupt, his interest passes to his trustee in bankruptcy—unless, as is frequently the case, the lease makes the occurrence of that contingency determine the lease. So, on the death of a tenant, his interest passes to his legal representatives.
Dissolution of Tenancy.—Tenancy is dissolved by the expiry of the term for which it was created, or by forfeiture of the tenant’s interest on the ground of the breach of some condition by the tenant and re-entry by the landlord. A breach of condition may, however, be waived by the landlord, and the legislature has made provision for the relief of the tenant from the consequences of such breaches in certain cases. Relief from forfeiture and rights of re-entry are now regulated chiefly by the Conveyancing Acts 1881 and 1882. Under these acts a right of re-entry or forfeiture is not to be enforceable unless and until the lessor has served on the lessee a written notice specifying the breach of covenant or condition complained of, and requiring him to remedy it or make compensation, and this demand has not within a reasonable time been complied with; and when a lessor is proceeding to enforce such a right the court may, if it think fit, grant relief to the lessee. A forfeiture is also waived if the landlord elects not to take advantage of it—and shows his election either expressly or impliedly by some act, which acknowledges the continuance of the tenancy, e.g. by the acceptance of, or even by an absolute and unqualified demand for, rent, which has accrued due since the forfeiture, by bringing an action for such rent, or by distraining for rent whether due before or after the forfeiture.
A tenancy may also be determined by merger, i.e. where a greater and a less estate coincide and meet in one and the same person, without any intermediate estate, as, for instance, when a tenant for years obtains the fee simple. There may also be a surrender, either voluntary or by operation of law, which will determine a tenancy, as, for example, when a tenant is party to some act, the validity of which he is legally estopped from denying and which would not have been valid had the tenancy continued to exist.
The land, on the expiration of the tenancy, becomes at common law the absolute property of the landlord, no matter how it may have been altered or improved during the occupation. In certain cases, however, the law has discriminated between the contending claims of landlord and tenant. (1) In respect of fixtures (which may be shortly defined as movables so affixed to the soil as to become part thereof), the tenant may sometimes remove them, e.g. when they have been brought on the premises for the purpose of being used in business (see Fixtures). (2) In respect of emblements, i.e. the profits of sown land, a tenant may be entitled to these whose term comes to an end by the happening of an uncertain contingency (see Emblements). (3) A similar right is very generally recognized by custom in tenants whose term expires in the ordinary way. The custom of the district, in the absence of stipulations between the parties, would be imported into their contract—the tenant going out on the same conditions as he came in. Such customary tenant right only arises at the expiration of the lease, and on the substantial performance of the covenants; and is forfeited if the tenant abandons his tenancy during the term. Tenant right is assignable, and will pass under an assignment of “all the estate and interest” of the outgoing tenant in the farm. But, with the exceptions noted, the land in its improved condition passes over at common law to the landlord. The tenant may have added to its value by buildings, by labour applied to the land, or by the use of fertilizing manures, but, whatever be the amount of the additional value, he is not entitled to any compensation whatever. This again is a matter which the parties may, if they please, regulate for themselves.
The law as to Ejectment is dealt with under that heading.
Statutory Provisions.—Reference may be made, in conclusion, to a few modern statutes which have affected the law of landlord and tenant. The Agricultural Holdings Act 1908 (which repeals the Agricultural Holdings Acts of 1883, 1900 and 1906) gives to the agricultural tenant a right to compensation for (i.) certain specified improvements made by him with the landlord’s previous consent in writing; and (ii.) certain other classes of improvements although the landlord’s consent has not been obtained. As examples of class (i.) may be mentioned—erection or enlargement of buildings, laying down of permanent pasture, making of gardens or fences, planting of hops, embankments and sluices; as examples of (ii.)—chalking of land, clay burning, application to land of purchased artificial or purchased manure, except they have been made for the purpose of making provision to protect the holding from injury or deterioration. In the case of proposed drainage improvements, notice in writing must be given to the landlord, who may then execute the improvements himself and charge the tenant with interest not exceeding 5% per annum on the outlay, or such annual instalments, payable for a period of twenty-five years, and recoverable as rent, as will repay the outlay, with interest at the rate of 3% a year. Under s. 11 of the act a tenant is entitled to compensation for disturbance, when he is compelled to quit without good and sufficient cause, and for reasons inconsistent with good estate management. An agricultural tenant may not contract himself out of his statutory right to compensation, but “contracting out” is apparently not prohibited with regard to the right given him by the acts of 1883 and 1900 to remove fixtures which he has erected and for which he is not otherwise entitled to compensation, after reasonable notice to the landlord, unless the latter elects to purchase such fixtures at a valuation. The Agricultural Holdings Act 1906 conferred upon every tenant (with slight exceptions) entire freedom of cropping and of disposal of produce, notwithstanding any custom of the county or explicit agreement to the contrary. (See further the articles Ejectment, Fixtures, Rent.) The Small Holdings and Allotments Act 1908, which repealed previous acts of 1887, 1890 and 1907, deals, on terms similar to those of the Agricultural Holdings Act 1908, with small holdings and allotments (the expression “small holding” meaning an agricultural holding which exceeds one acre, and either does not exceed fifty acres, or, if exceeding fifty acres, is at the date of sale or letting of an annual value for the purposes of income tax not exceeding fifty pounds; the expression “allotment” includes a field garden). Section 47 of the act gives the tenant the same rights to compensation as if his holding had been a holding under the Agricultural Holdings Act 1908 (vide supra). Compensation was given to market gardeners for unexhausted improvements by the Market Gardeners’ Compensation Act 1895 and by the Agricultural Holdings Act 1906 for improvements effected before the commencement of that act on a holding cultivated to the knowledge of the landlord as a market garden, if the landlord had not dissented in writing to the improvements. The important sections of these acts were incorporated in the Agricultural Holdings Act 1908, s. 42.
Scots Law.—The original lease in Scots law took the form of a grant by the proprietor or lessor. But, with advancing civilization and the consequent increase in the number of the conditions to be imposed on both parties, leases became mutual contracts, bilateral in form. The law of Scotland as to landlord and tenant may be considered under two main heads:—I. Ordinary Leases, Common Law and Statutory; II. Building or Long Leases.
I. Ordinary Leases, Common Law and Statutory.—A verbal lease for a year is good. Such a lease for more than a year is not effectual even for a year, except where the lessee has taken possession. At common law, while a lease was binding on the grantor and his heirs, it was not good against “singular successors,” i.e. persons acquiring by purchase or adjudication, and the lessee was liable to be ejected by such persons, unless (a precaution usually taken) sasine of the subjects demised was expressly conferred on him by the lease. To obviate this difficulty, the Scots Act 1449, c. 18, made possession of the subjects of the lease equivalent to sasine. This enactment applies to leases of agricultural subjects, houses, mills, fisheries and whatever is fundo annexum; provided that (a) the lease, when for more than one year, must be in writing, (b) it must be definite as to subject, rent (which may consist of money, grain or services, if the reddendum is not illusory) and term of duration, (c) possession must follow on the lease. Special powers of granting leases are conferred by statute on trustees. (Trusts [Scotland] Act 1867, s. 2), curatores bonis (Judicial Factors [Scotland] Act 1889) and heirs of entail (cf. Entail Act 1882, ss. 5, 6, 8, 9). The requisites of the statutory leases, last mentioned, are similar to those imposed in England upon tenants for life by the Settled Land Acts (v. sup. p. 3). The rent stipulated for must not be illusory, and must fairly represent the value of the subjects leased, and the term of the lease must not be excessive (as to rent generally, see Rent). A life-renter can only grant a lease that is effectual during the subsistence of the life-rent. There is practically no limitation, but the will of the parties, as to the persons to whom a lease may be granted. A lease granted to a tenant by name will pass, on his death during the subsistence of the term to his heir-at-law, even if the lease contains no destination to heirs. The rights and obligations of the lessor and the tenant (e.g. as to the use of the produce, the payment of rent, the quiet possession of the subjects demised, and as to the payment of rates and taxes) are similar to those existing under English law. An agricultural lease does not, apart from stipulation, confer any right to kill game, other than hares and rabbits (as to which, see the Ground Game Act 1880, and Game Laws) or any right of fishing. A tenant is not entitled, without the landlord’s consent, to change the character of the subjects demised, and, except under an agricultural lease, he is bound to quit the premises on the expiration of the lease. In the case of urban leases, however, ejectment (q.v.)—called in Scots Law “removing”—will not be authorized unless the tenant received 40 days’ warning before the term of removal. In the absence of such notice, the parties are held, if there be nothing in their conduct or in the lease inconsistent with this presumption, to renew their agreement in all its terms, and so on from year to year till due notice is given. This is called “tacit relocation.” A lease may be transmitted (i.) by “assignation,” intimated to the landlord, and followed by possession on the part of the assignee; (ii.) by sub-lease—the effect of which is equivalent to that of under-lease in English law; (iii.) by succession, as of the heir of a tenant; (iv.) in the case of agricultural holdings, by bequest (Agricultural Holdings [Scotland] Act 1883, s. 29). A lease terminates (i.) by the expiration of its term or by advantage being taken by the party in whose favour it is stipulated, of a “break” in the term; (ii.) by the occurrence of an “irritancy” of ground of forfeiture, either conventional, or statutory, e.g. where a tenant’s rent is in arrear, or he fails to remove on the expiry of his lease (Act of Sederunt, 14th of Dec. 1756: Agricultural Holdings Act 1883, s. 27); (iii.) by the bankruptcy or insolvency of the tenant, at the landlord’s option, if it is so stipulated in the lease; (iv.) by the destruction, e.g. by fire, of the subject leased, unless the landlord is bound to restore it. Complete destruction of the subject leased, e.g. where a house is burnt down, or a farm is reduced to “sterility” by flood or hurricane, discharges the tenant from the obligation to pay rent. The effect of partial destruction has given rise to some uncertainty. “The distinction seems to be that if the destruction be permanent, though partial, the failure of the subject let will give relief by entitling the tenant to renounce the lease, unless a deduction shall be allowed, but that if it be merely temporary or occasional, it will not entitle the tenant to relief” (Bell’s Prin. s. 1208). Agricultural leases usually contain special provisions as to the order of cropping, the proper stocking of the farm, and the rights of the incoming and outgoing tenant with regard to the waygoing crop. Where the rent is in money, it is generally payable at Whitsunday and Martinmas—the two “legal terms.” Sometimes the term of payment is before the crop is reaped, sometimes after. “The terms thus stipulated are called ‘the conventional terms’; the rent payable by anticipation being called ‘forehand rent,’ that which is payable after the crop is reaped, ‘back rent.’ Where the rent is in grain, or otherwise payable in produce, it is to be satisfied from the produce of the farm, if there be any. If there be none the tenant is bound and entitled to deliver fair marketable grain of the same kind.” (Bell’s Principles, ss. 1204, 1205). The general rule with regard to “waygoing crops” on arable farms is that the tenant is entitled to reap the crop sown before the term of removal (whether or not that be the natural termination of the lease), the right of exclusive possession being his during seed time. But he is not entitled to the use of the barns in threshing, &c., the corn.
The Agricultural Holdings (Scotland) Acts 1883 and 1900, already referred to incidentally, contain provisions—similar to those of the English acts—as to a tenant’s right to compensation for unexhausted improvements, removal for non-payment of rent, notice to quit at the termination of a tenancy, and a tenant’s property in fixtures. The Crofters’ Holdings (Scotland) Acts 1886, 1887 and 1888, confer on “crofters” special rights. A crofter is defined as “a tenant of a holding”—being arable or pasture land, or partly arable and partly pasture land—“from year to year who resides on his holding, the annual rent of which does not exceed £30 in money, and which is situated in a ‘crofting parish.’” Nearly all the parishes in Argyll, Inverness, Ross, Cromarty, Sutherland, Caithness and Orkney and Shetland answer to this description. The crofter enjoys a perpetual tenure subject to the fulfilment of certain conditions as to payment of rent, non-assignment of tenancy, &c., and to defeasance at his own option on giving one year’s notice to the landlord. A Crofters’ Commission constituted under the acts has power to fix fair rents, and the crofter on renunciation of his tenancy or removal from his holding is entitled to compensation for permanent improvements. The Small Holdings Act 1892 applies to Scotland.
Under the law of Scotland down to 1880, a landlord had as security for rent due on an agricultural lease a “hypothec”—i.e. a preferential right over ordinary creditors, and extending, subject to certain limitations, over the whole stock and crop of the tenant. This right was enforceable by sequestration and sale. It was abolished in 1880 as regards all leases entered into after the 11th of November 1881, where the land demised exceeded two acres in extent, and the landlord was left to remedies akin to ejectment (Hypothec Abolition, Scotland, Act 1880).
II. Building or Long Leases.—Under these leases, the term of which is usually 99 and sometimes 999 years, the tenant is to a certain extent in the position of a fee simple proprietor, except that his right is terminable, and that he can only exercise such rights of ownership as are conferred on him either by statute or by the terms of his lease. Extensive powers of entering into such leases have been given by statute to trustees subject to the authority of the Court (Trusts [Scotland] Act 1867, s. 3) and to heirs of entail (Entail Acts 1840, 1849, 1882). Where long leases are “probative,” i.e. holograph or duly tested, do not exceed 31 years, or, except as regards leases of mines and minerals, and of lands held by burgage tenure, relate to an extent of land exceeding 50 acres, and contain provisions for renewal, they may be recorded for publication in the Register of Sasines, and such publication has the effect of possession (Registration of Leases [Scotland] Act 1857).
Ireland.—The law of landlord and tenant was originally substantially the same as that described for England is. But the modern Land Acts have readjusted the relation between landlords and tenants, while the Land Purchase Acts have aimed at abolishing those relations by enabling the tenant to become the owner of his holding. The way was paved for these changes by the existence in Ulster of a local custom having virtually the force of law, which had two main features—fixity of tenure, and free right of sale by the tenant of his interest. These principles, with the addition of that of fair rents settled by judicial means, were gradually established by the Land Acts of 1870 and subsequent years, and the whole system was remodelled by the Land Purchase Acts (see Ireland).
United States.—The law of landlord and tenant in the United States is in its principles similar to those of English law. It is only possible to indicate, by way of example, some of the points of similarity. The relationship of landlord and tenant is created, altered and dissolved in the same way, and the rights and duties of parties are substantially identical. A lease must contain, either in itself or by clear reference, all the terms of a complete contract—the names of the parties, description of the property let, the rent (see Rent) and the conditions. The date is not essential. That is a matter of identification as to time only. In Pennsylvania, parol evidence of the date is allowed. The general American doctrine is that where the contract is contained in separate writings they must connect themselves by reference, and that parol evidence is not admissible to connect them. The English doctrine that a verbal lease may be specifically enforced if there has been part performance by the person seeking the remedy has been fully adopted in nearly all the American states. The law as to the rights and obligations of assignees and sub-lessees and as to surrender is the same as in England. Forfeiture only renders a lease void as regards the lessee; it may be waived by the lessor, and acceptance by the landlord of rent due after forfeiture, with notice of such forfeiture, amounts to waiver. Where there is a lease for a certain period, no notice to quit is necessary. In uncertain tenancies there must be reasonable notice—i.e. at common law six months generally. The notice necessary to determine a monthly or weekly tenancy is generally a month or a week (see further under Lodger; Lodgings). In the United States, as in England, the covenant for quiet enjoyment only extends, so far as relates to the acts of third parties, to lawful acts of disturbance in the enjoyment of the subject agreed to be let.
Laws of other Countries.—It is impossible here to deal with the systems of land tenure in force in other countries. Only the question of the legal relations between landlord and tenant can be touched upon. In France, the Code Civil recognizes two such relationships, the letting to hire of houses (bail à loyer) and the letting to farm of rural properties (bail à ferme). To a certain extent, both forms of tenancy are governed by the same rules. The letting may be either written or verbal. But a verbal lease presents this disadvantage that, if it is unperformed and one of the parties denies its existence, it cannot be proved by witnesses. The party who denies the letting can only be put to his oath (Arts. 1714–1715). It may further be noted that in the case of a verbal lease, notice to quit is regulated by the custom of the place (Art. 1736). The tenant or farmer has the right of underletting or assigning his lease, in the absence of prohibiting stipulation (Art. 1717). The lessor is bound by the nature of his contract and without the need of any particular stipulation (i.) to deliver to the lessee the thing hired in a good state of repair; (ii.) to maintain it in a state to serve the purpose for which it has been hired; (iii.) to secure to the lessee peaceable enjoyment during the continuance of the lease (Arts. 1719–1720). He is bound to warrant the lessee against, and to indemnify him for, any loss arising from any faults or defects in the thing hired which prevent its use, even though he was not aware of them at the time of the lease (Art. 1721). If during the continuance of the letting, the thing hired is entirely destroyed by accident, the lease is cancelled. In case of partial destruction, the lessee may, according to circumstances, demand either a diminution of the price, or the cancellation of the lease. In neither case is there ground for damages (Art. 1722). The lessor cannot, during the lease, change the form of the thing hired (Art. 1723). The lessee is bound, on his side (i.) to use the thing hired like a good head of a household (bon père de famille), in accordance with the express or presumed purpose of the hiring; (ii.) to pay the price of the hiring at the times agreed (Art. 1728). On breach of the former obligation, the lease may be judicially cancelled (Art. 1729). As to the consequences of breach of the latter, see Rent. If a statement of the condition of the property (état des lieux) has been prepared, the lessee must give it up such as he received it according to the statement, except what has perished or decayed by age or by means of force majeure (Art. 1730). In the absence of an état des lieux, the lessee is presumed to have received the thing hired in a good state of tenantable repair, and must so yield it up, saving proof to the contrary (Art. 1731). He is liable for injuries or losses happening during his enjoyment, unless he prove that they have taken place without his fault (Art. 1732); in particular, for loss by fire unless he show that the fire happened by accident, force majeure, or defect of construction, or through communication from a neighbouring house (Art. 1733). The lessee is liable for injuries and losses happening by the act of persons belonging to his house or of his sub-tenants (Art. 1735). A lease terminates (i.) at the expiration of the prescribed term (Art. 1737)—if at that period the lessee remains and is left in possession, there is, in the case of written leases, a tacit renewal (tacite reconduction) of the lease as a verbal lease (Arts. 1738–1739); (ii.) by the loss of the thing hired and by the default of the lessor or lessee in the fulfilment of their respective obligations (Art. 1741), but (iii.) not by the death either of the lessor or of the lessee (1742). The conditions of Ejectment are stated under that heading. The special rules (Arts. 1752–1762) relative to the hire of houses are touched upon in Lodger and Lodgings. It only remains here to refer to those applicable to leases to farm. The lessee is bound to stock the farm with the cattle and implements necessary for its husbandry (Art. 1766), and to stack in the places appointed for the purpose in the lease (Art. 1767). A lessee, who farms on condition of dividing the produce with the lessor, can only underlet or assign if he is expressly empowered to do so by the lease (Art. 1763). The lessee must give notice to the lessor of any acts of usurpation committed on the property (Art. 1768). If at least half of the harvest in any year is destroyed by accident, the lessee (a) in the case of a lease for several years, obtains, at the end of his lease, a refund of rent, by way of indemnity, unless he has been indemnified by preceding harvests; (b) in the case of a lease for a year only, may secure a proportional abatement of the current rent. No refund is payable if the produce was severed before the accident, unless the lessor was entitled to a portion of it, when he must bear his share of the loss, provided the lessee was not in morâ as regards the delivery of the lessor’s portion. The lessee has no right to a refund when the cause of damage was existing and known at the date of the lease (Arts. 1769–1771). Liability for loss by “accidents” may be thrown on the lessee by express stipulation (Art. 1772). “Accidents” here mean ordinary accidents only, such as hail, lightning or frost, and the lessee will not be answerable for loss caused by extraordinary accidents such as war or floods, unless he has been made liable for all accidents, foreseen or unforeseen (Art. 1773). A verbal lease is deemed to be for the term necessary to enable the lessee to gather in all the produce, thus for a year in the case of a meadow or vineyard; in the case of lands leased in tillage, where they are divided into shifts or seasons, for as many years as there are shifts (Art. 1774). The outgoing must leave for the incoming tenant convenient housing and other facilities for the labours of the year following; the incoming must procure for the outgoing tenant conveniences for the consumption of his fodder and for the harvests remaining to be got in. In either case the custom of the place is to be followed (Art. 1777). The outgoing tenant must leave the straw and manure of the year, if he received them at the beginning of his lease, and even where he has not so received them, the owner may retain them according to valuation (Art. 1778). A word must be added as to letting by cheptel (bail à cheptel)—a contract by which one of the parties gives to the other a stock of cattle to keep under conditions agreed on between them (Art. 1800). There are several varieties of the contract, (i.) simple cheptel (cheptel simple) in which the whole stock is supplied by the lessor—the lessee taking half the profit and bearing half the loss (Art. 1804); (ii.) cheptel by moiety (cheptel à moietié)—here each of the contracting parties furnishes half of the stock, which remains common for profit or loss (Art. 1818); (iii.) cheptel given to a farmer (fermier) or participating cultivator (colon partiaire)—in the cheptel given to the farmer (also called cheptel de fer) stock of a value equal to the estimated price of the stock given must be left at the expiry of the lease (Art. 1821); cheptel given to the participating cultivator resembles simple cheptel, except in points of detail (Arts. 1827–1830); (iv.) the term “cheptel” is also improperly applied to a contract by which cattle are given to be housed and fed—here the lessor retains the ownership, but has only the profit of the calves (Art. 1831).
The French system just described is in force in its entirety in Belgium (Code Civil, Arts. 1713 et seq.) and has been followed to some extent in Italy (Civil Code, Arts. 1568 et seq.), Spain (Civil Code, Arts 1542 et seq.), and Portugal (Civil Code, Arts. 1298 et seq., 1595 et seq.). In all these countries there are varieties of emphyteutic tenure; and in Italy the mezzadria or metayer system (see Civil Code, Arts. 1647 et seq.) exists. The German Civil Code adopts the distinction between bail à loyer (Miehl, Arts. 535 et seq.) and bail à ferme (Pacht, Arts. 581 et seq.). Dutch law also (Civil Code, Arts. 1583 et seq.) is similar to the French.
The Indian law of landlord and tenant is described in the article Indian Law. The laws of the various British colonies on the subject are too numerous and too different to be dealt with here. In Mauritius, the provisions of the Code Civil are in force without modification. In Quebec (Civil Code, Arts. 1605 et seq.) and St Lucia (Civil Code, Arts. 1512 et seq.) they have been reproduced by the local law. In many of the colonies, parts of the English law of landlord and tenant, common law and statutory, have been introduced by local enactments (cf. British Guiana, Ord. 4 of 1846; Jamaica, 1 Vict. c. 26). In others (e.g. Victoria, Landlord and Tenant Act 1890, No. 1108; Ontario, Rev. Stats. 1897, c. 170) consolidating statutes have been passed.
Authorities.—English Law: Wolstenholme, Brinton and Cherry, Conveyancing and Settled Land Acts (London, 9th ed., 1905); Hood and Challis, Conveyancing and Settled Land Acts (London, 7th ed., 1909); Foà, on Landlord and Tenant (London, 4th ed., 1907); Woodfall, on Landlord and Tenant (London, 18th ed., 1907); Fawcett, Landlord and Tenant (London, 3rd ed., 1905). Scots Law: Hunter, on Landlord and Tenant (Edinburgh, 4th ed., 1876); Rankine, on Land Ownership (Edinburgh, 3rd ed., 1891); Rankine, on Leases (Edinburgh, 2nd ed., 1893); Hunter, Landlord and Tenant (4th ed. G. Guthrie, Edinburgh, 1876). Irish Law: Kelly’s Statute Law of Landlord and Tenant in Ireland (Dublin, 1898); Barton and Cherry’s Land Act 1896 (Dublin, 1896); Quill, Hamilton and Longworth, Irish Land Acts of 1903 and 1904 (Dublin, 1904). American Law: Bouvier, Law Dictionary (ed. Rawle) (London, 1897); McAdam, Rights, Remedies and Liabilities of Landlord and Tenant (New York, 1900); Wood, Law of Landlord and Tenant (New York, 1888). Foreign and Colonial Laws: Field, Landholding and the relation of Landlord and Tenant in various Countries; Ruling Cases (American Notes), (London and Boston, 1894–1901). (A. W. R.)