upon the terms of the original lease, so far as not inconsistent with a yearly tenancy.
Tenancies, How Created.—A lease for not more than three years from the making may, if accompanied by the giving and taking possession of the premises, be made verbally, though it is very undesirable. In other cases it must be in writing and signed by the party to be charged, or by some person authorized by him for that purpose. A lease for three years which, it is provided, shall commence on a future day is a lease for more than three years from the making. An agreement to grant a lease to be subsequently made cannot be enforced unless in writing, even though the intended lease be for less than three years.
A lease for more than three years must be by deed. But if the parties have come to a definite agreement in writing, the document, though invalid as an actual lease (not being under seal), is valid as "an agreement for a lease"; and, upon application, the Court may enforce its specific performance by ordering the execution of a deed embodying its terms. So, too, if the agreement be verbal only, but possession has been given under it.
In many cases the parties may be prepared to act upon and abide by such agreement, but strictly speaking, if no application to the Court be made forits specific performance, or for some reason or other such application is not granted, there will only be a tenancy at will if the tenant has merely entered into possession, or a tenancy from year to year, if rent has been paid.
In order to save the delay in preparing and obtaining the execution of a deed, and in order to enable immediate possession to be safely given, the parties not unfrequently make an express agreement to grant and take a lease to be subsequently prepared. Where this is done care should be taken to insert in such agreement any special terms it is desired that the lease itself should contain, for unless they are specified, only what are known as "usual covenants" can be inserted. Such an agreement must be stamped as if it were a lease, a nominal stamp only being required on the actual lease when subsequently executed.
Implied Condition as to Fitness for Habitation.—In the case of furnished houses or apartments there is an implied condition that the premises are reasonably fit for the purposes of habitation. This only applies, however, to the condition of the premises at the commencement of the tenancy. The fact that the landlord actually resides on the premises makes no difference. Thus, if one of the landlord's family develops scarlet fever during the tenancy, the tenant has no redress for any injury he may sustain in consequence. But if a contagious disease or defective drains exist, or noxious insects infest the premises at the commencement of the tenancy, the tenant may, on discovering the fact, immediately leave the premises and repudiate the agreement, unless he comes to terms with the landlord that the defect shall be made good. He may also recover damages for any expenses to which he has been put in consequence of the breach of the implied undertaking. In the letting of an unfurnished house there is, in the absence of agreement, no undertaking that it is fit for habitation. But, although there be no such agreement in the lease, a representation by the landlord with reference to the existing condition of the drains may amount to a collateral warranty for breach of which an action for damages can be maintained.
And, notwithstanding that in the absence of agreement there is no obligation on the landlord to remedy a defect which renders the house unfit for
- As to which, see following page.
- Because the undertaking as to the fitness of the house for habitation amounts to a condition. On breach of an undertaking %vhich only constitutes a warranty or covenant damages may be recovered but the agreement itself cannot be repudiated.
- Except in the case of small holdings let to persons of the working class; in the letting of which such an undertaking has been imposed by Statute, Tor definition of "Small holding" see Rates p. 1989.
- See note 2, above.