Page:The American Cyclopædia (1879) Volume X.djvu/275

LEASE 269 outside of the contract, provided this evidence neither varies nor contradicts the written con- tract. If the uncertainties cannot thus be cured, they may be rejected, if they leave behind them a good and sufficient instrument. Generally, anything, whether real or personal, which is hired to be used, carries with it all the appurtenances and accompaniments already connected with it, and proper or necessary for that use of it. We will in this article consider : 1, the right and obligation of the lessor; 2, those of the lessee ; and 3, some special rules of law applicable to leases. If the lease be under seal, there is an implied covenant of good title in the lessor, and in all leases there is one of quiet enjoyment by the lessee. If the lease contain an express covenant of re- newal, on reasonable terms, which do not im- ply perpetuity, the law enforces them. But a lease for six years, with a covenant to renew " on the same terms," means the same terms excepting the covenant to renew, which will be omitted ; for otherwise this covenant to re- new would amount to a perpetuity, which the law prohibits. The landlord is under no obli- gation to repair the premises, without an ex- press covenant to that effect ; and it seems to be the decidedly prevailing rule, that the un- inhabitableness of the premises is no defence against a claim of rent. The tenant is bound to pay his rent as agreed on, but not to pay the taxes unless the lease so specifies ; but this may be inferred from an agreement that the lessee shall pay his rent " free from taxes and charges," or "a net rent," or any similar phraseology. In general, if the lease does not contain a clause giving the lessor a right to reenter and oust the lessee on his failure to pay rent, the lessor has no such fight. And if there be such a clause (as is commonly the case in American leases), the law is exceed- ingly exact and punctilious as to the exercise of this right of reentry. That is, to justify it, a demand must be made for the rent due, and of the precise sum, on the precise day when it is due, at a convenient hour before sunset, and at the very place where it is payable if one be specified, or otherwise at some accessible, con- spicuous, and noticeable place on the premises. Without express agreement, a tenant is not bound to make repairs. It has been sometimes held, however, that he was bound to make such repairs as his own use of the house causes to become necessary, or such as are called for by some accident and are required to prevent the premises from becoming untenantable. Generally, an outgoing tenant should leave the premises wind and water tight, but is not bound to any ornamental repair, unless his covenants require this of him. If the tenant agrees to make repairs, and to leave the prem- ises in good repair, he is not justified in not doing so by the fact that the premises were not in good repair when he took them. If, with no obligation on his part to repair, he chooses to repair, the lessor is not bound to repay him unless he promises so to do. It is important to know, that if a lease contains a covenant on the part of the lessee to keep the premises in repair, and to return them in good repair, he must not only repair if injured by a fire, but rebuild if the house is burned down, unless it be done by the act of God or of the public enemy. And if there be no such clause, although the lessee is not bound to rebuild, he is bound (by a prevailing but not universal rule) to continue to pay rent during the lease. Hence the best and most carefully prepared leases in recent times provide expressly (and all leases should), that if the premises shall be made untenantable by fire, in whole or in part, the rent shall cease or abate proportionably until repair or rebuilding ; and the clause re- quiring repair and a return of the premises in good condition contains the exception, "un- less in case of injury by fire or other unavoid- able accident." In the absence of express covenants, the tenant is not bound to rebuild a house burned down through his own negli- gence or that of his servants. The tenant of a farm is bound, without express covenants, to manage and cultivate the same in such wise as good husbandry and the usage of the neigh- borhood require ; and for any wide departure from this he would be responsible in damages. A tenant may assign and transfer, if he do not covenant otherwise, the whole or any part of his lease. Technically, if he transfers the. whole, it is an assignment; if less than the whole, it is under-leasing. If therefore he covenants, as is commonly done, "not to as- sign, transfer, or set over " the lease, this does not restrain him from under-leasing any part of it; and to prevent this, the words " or any part of it " should be added. A tenant cannot defend against his landlord's claim for rent, by denying or contesting his title to the premises, unless the tenant can show that the landlord caused the tenant to accept the lease by a fraud upon him. But it was always held that a land- lord forfeited his rent, and authorized the ten- ant to cancel the lease, by his expulsion of the tenant from the premises; and now it seems to be law, at least in the United States, that the lease is cancelled and all right to rent lost by any violent outrage or indecency on the part of the landlord, or any intentional and material interference with the tenant's proper use and enjoyment of the premises. (For the right of an outgoing tenant of a farm or gar- den to his crops, see EMBLEMENTS; for his right to remove anything he has added to the premises, see FIXTUKE.) The lease may be for the life of either the lessor or the lessee or any other person, and then the lessee has a freehold, which is considered in the law as real estate. Or it may be for any term of years, and then it is a chattel only, although a real chattel ; for the law regards a lease determina- ble at a time certain, however distant that time, as a less estate than one for the life of any person, however old or feeble he may be.