^>. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 f ilM - liii 12.5 ^: ii^ 22 m '""^ 2.0 U nil 1.6 <$> ^V ^ /i jj^ ^';> A c% %» >/ // y /«^ Hiotographic Sciences Corporation iv ^< 4 ^^ o 6^ i'^.vK ^Sf*^ '%^ ^ 33 WEST MAIN STREET WEBSTER, N.Y 14580 (716) 872-4503 i.y ^pfi CIHM/ICMH Microfiche Series. CIHM/ICIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Featuros of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut'dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la m^thode normale de filmage sont indiqu^s ci-dessous. D D Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommagde Covers restored and/or laminated/ Couverture restaurde et/ou pellicul6e I I Cover title n^'ssing/ Le titre de couverture manque D D D Coloured pages/ Pages de couleur Pages damaged/ Pages endommag6es Pages restored and/or laminated/ Pages restaur^es et/ou peilicul6es Pages discoloured, stained or foxed/ Pages d6color6es, tachetdes ou piqu6es □ Coloured maps/ Cartes gdographiques en couleur v/ D D D n Coloured init (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relid avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La reliure serrie peut causer de I'ombre ou de la distortion le long de la marge int^rieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajout^es lors d'une resti^uration apparaissent dans le texte, mais, lorsque cela dtait possible, ces pages n'ont pas 6t6 filmdes. D n n Pages detached/ Pages ddtach^es Showthrough/ Transparence Quality of print varies/ Quality in^gale de I'impression Includes supplementary material/ Comprend du materiel supplementaire Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6t6 film6es d nouveau de fagon d obtenir la meilleure image possible. D Additional comments:/ Cominentaires suppl^mentaires; This item is filmed at the reduction ratio checked below/ Ce document est film6 au taux de reduction indiqu6 ci-dessous. 10X 14X 18X 22X 26X 30X y 12X 16X 20X 24X ?sx 32X e itails 8 du modifier r une Image The copy filmed here has been reproduced thanks to the generosity of: National Library of Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. L'exemplaire film6 ft g4n6rosit6 de: 't reproduit grSce d la Bibliothdque nationale du Canada Les images suivantes ont 6tii reproduites avec le plus grand soin, compte tenu de la condition et de la nettetd de l'exemplaire film6, et en conformity avec les conditions du contrat de filmage. )S Original copies in printed paper covers are filmed beginning with the front cover rnd ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated im-)res- sion, and ending on the last page with p ^/rinted or illustrated impression. The last recorded frame on each microfiche shall contain the symbol -^ (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Les exemplaires originaux dont la couverture en papier est imprim6e sont filmis en commenpant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont film6s en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniire page qui comporte une telle empreinte. Un des symbo!es suivants apperaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole ^^ signifie "A SUIVRE", le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est filmd d partir de Tangle sup^rieur gauche, de gauche h droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrert la mdthode. 9rrata to pelure, )n d n 32X 1 2 3 1 2 3 4 5 6 T** .'V 1^ MANUAL OF THE LAW OF LANDLORD and TENANT f I FOR USE IN THE Province of Ontario. BY R. E. KINGSFORD, M.A., LL.B. BARRISTER, TORONTO. TORONTO Ti/$- CUrswell Co., Ltd., Law Publishers, Etc. 189G. JB340 ' ^ - V ■ft. te Entered according? to Art of the Farliatnout of Canada, in the your i thousand eight hundred and ninety-six, by The CABBWKiiZt GO. (Ltd.X in the Office of tha Minister of Agriculture. TORONTO PIUNTBD BY THE CARSWELL CO., LTD. 22, 30 Adelaide St. Eoat. ^ff ■ I PREFACE. I % nnHAT persons outside the legal profession often expect to know law by some patent method, which persons inside of that profession have never yet discovered, is very true. That the expectation is not real- ized is also very true. Therefore, to tell any person that he may expect to become an ex- pert in the law of Landlord and Tenant by reading any S3'noi)sis would be to mislead. But there are points of law which every man should learn something about, so that he may know that there are difficulties to be guarded against. This manual is drawn up with the intention of imparting information of that kind. At the same time it is hoped that the book may be of use to the legal profession as a means of ready reference. I have added to each chapter a selection of notes of cases from our own courts. These ) '>j 34 Murray Street, Toronto, November, 1896. R. E. K. ♦ IV PREFACE. eases have been carefully chosen, and the notes are as full as space would allow. The cases .are included up to the end of 26 On- tario Reports and 22 Ontario Appeal Reports. Later than those volumes they are taken from the Canadian Law Times. The statute law referred to includes legis- lation of last session (1896). The precedents are taken from sources too numerous to specify. For the whole book Holdsworth's Landlord sind Tenant, published over forty years ago by Routledge, has been a model. But that work however good in its time, is long out of date, and contains English law never in force here. Still, I feel bound to acknowledge my obligations to that book. It has been of great assistance. ti \ 1 i w ABBREVIATIONS. R. S. O.— Revised Statutes of Ontario [1887] . IT. C. R.— Upper Canada Queen's Bench Reports. C. P.— Upper Canada Common Pleas Reports. Chy. — Upper Canada Chancery Reports. O. R. — Ontario Reports. A. R.— Ontario Appeal Reports. S. C. R.— Canada Supreme Court Reports. THE STATUTES Relating to Lawllord and Tenant, 2'>a88ed before 170^^, still in force in Ontario, are as follows : — A.n. 1266—51 Hen. III. st. 4 (Distress). The owner may feed his cattle im- pounded. No distress shall be taken of plough cattle or sheep. 1267—52 HoA. III. cc. 1-21 (Statute of Marlebridge). Penalty for Wrongful Distress. 1275—3 Edw. I. cc. 16, 17 (Westminster the First). Distress not to be driven out of County. 1285—13 Edw. I. cc. 2, 3, 37 (Westminster the Second). Replevin Bonds. No distress but by bailiffs sworn and known. 1?00— 28 Edw. I. c. 12 (see also Hen. III. st. 4, above). Beasts of the plough not to be distrained on for the King's debt. 1540—32 Hen. VIII. c 34. Grantees of Reversions to take benefit of conditions to be performed by lessees. 1540—32 Hen. VIII. c. 37. Recovery of Rent by Executor. 1554—1 & 2 Ph. & Mary, c. 12. Impounding of Distress. nl STATUTES. Vll appraisement if not replevied in flyo days. Distress on sheaves or cocks of corn, or hay loose, or in straw. Treble damages for pound breach. Double damages for unlawful distress and sale. 1705-4 Anne.^c^l^G.^^ reversion valid without attorn- ment of tenant. 1709—8 Anne. c. 14. No goods to be taken in execution un- less party before removal of goods pay the landlord the rent due up to i lease covenants 223 Option to purchase 224 Covenant to build 225 Covenant to reinstate 22(! Covenants in biiildini: lease 227 Covenant for perpetual renewal 228 Covenant for renewal 229 Lease of part of a house 2'M') Underlease 2.'{5 Landlord's indemnity 2.'}G Assignment of lease 2'M Mortgage of lease ^ 2:W Surrender 214 Distress forms 245 Notices 249 ■'■-•^ THE LAW OF LANDLORD AND TENANT. CHAPTER I. WHO MAY BECOME LANDLORD OR TENANT. 1. The object of the following pages is to Object of furnish a short, simple and untechuical state- ^^"'^ ^°"^- ment of the respective and reciprocal rights and liabilities of landlord and tenant. In dealing with any subject relating to any branch of law the use of technical terms is absolutely necessary to some extent. Where such terms occur in these pages they will be as far as possible explained. 2. The law relating to property and civil rights is assigned by the British North America Act to the Provincial Legislatures L.T.— 1 •i; z LANDLORD AND TENANT, r">'l-"n n„(hin« ! •" ^ " ""^'«, tluTefo.v, l'«8 comM.on to nil t 1 „?'".""" '"w, l.e,.a„so •"'•:,* •'« tlH. booK of o" f'^'*''ntsofOi,tario, rx'ople to ,Ks,> „,*"•' P''"V<'r bo.!].- for ^] <-o.n.u„„woalt;, "onunor.'? '' ""'^' ^'■'ooso «>-e anaJoffons't,! '"""•' f.n. co,nnio„ riglff f'c> ».v,.stij;at,,d i orl r t """""'*' "^ 'aw Lit •7«o„t Jaw o.. ."^t ,fl?'^"''*»''n wl'-it he volume will, theroforo V ' '"«•>' "'C- Tin's )P i WHO MAY liECOMK. 8 sub- ,1 4. A landlord* is one who havini? an in- "Laml. 11*' terest in land f» rants to another (called a »'Tj,\iant.' tenant) a portion of such interent, either so limited in point of duration or so much burdened by oblij^ations and aj»:rcements to be diseharpMl or j)erfornied, or l)y payments of rent to be made by tlie tenant to tlie land- lord, (bat the interest n'maininj; to the latter in the land is of a])j)reciable, if not of sub- stantijil, value. \V(? would scarcely repird the owner of tin? fee simple as the *' landlord " of another to whom he had leased tlie land tor 991) years at a nominal rental. Such, how- ever, would technically be the case; and im- portant consecjuences mij?ht, under certain circumstances, result from the apparently merely nominal connection thus established between the parties. To trace these, how- ever, is beyond the scope of the present work, which has to deal entirely with the practical and everyday ciuestions arising out of such a relation as is above described. 1 5. Before entering? into any explanation Who may of the various descriptions of tenancv, it will ^^'^'^^ ^^ '■ '- ' rent. * "Tenant" shall moan and include an occupant, a sub- tenant, under-tenant, and his and tiieir assigns and legal representatives. " Landlord " shall mean and include the lessor, owner, the person giving or permitting the occupation of the premises in question and the person entitled to possession thereof, and his and their heirs and assigns and legal representatives : Ontario Overholding Tenants Act, R. S. O. c. 144, sec. 1. LANDLORD AND TENANT. be best to consider who may become land- lord or tenant. Every person, except those to whom I shall immediately call attention, may grant to another any interest not exceeding in duration that which he himself holds in any land. And even if a person grants a lease for a period not necessarily less than his own estate in land, it will be good, and cannot be set aside so long as his own estate endures. There are, indeed, some cases in which per- sons may lease or let land for a term longer than their own estate in it, but I will not specify them here, as they are not within the province of these pages. ■ Married women. O. Now, as to who may lease. A married woman may now own land and make leases and receive rents, and also may become a tenant exactly as if she were unmarried. Her husband need not execute the conveyance nor the lease, and she may, if she is the bona tide tenant of the property, exclude her husband fi'om her premises exactly as she could any stranger. If she makes no will of hue estate leaving it away from her husband, he becomes entitled to a share in her property, whether real or personal, dependent on certain condi- tions. t $ \\ 7. With regard to land which has not been *i WHO MAY BECOME. 5 made the subject of a marriage settlement, Husband's the husband may have at his election, if he has [ea.sew?fe's b3' the wife issue who may succeed to the pro- property. perty, a further estate for his own life in case he is the survivor, and a lease by him would bind his estate as far as it extended. H. Leases made by the guardian of an infant's infant, if such guardian have been appointed P^"ardian. by will, are valid until the heir comes of age, but they may then be confirmed or set aside by him. ?>i ,j Section 10 of the Landlord and Tenant Act (R. S. O. c. 143) is as follows: " Where any person being under the age of twenty-one years, or a lunatic, or a person of un- sound mind, shali be seised of the reversion of land subject to a lease, and such lease shall contain a covenant not to assign or sublet without leave, the guardian of such infant, or the committee of such lunatic, or peioon of unsound mind, mny, with the approbation of the Judge of the Surrogate Court of the county in which the land is situate, consent to any assignment or transfer of such leasehold in- terest, in the snme manner and with the like effect as if the consent were given by a lessor under no dibability." Section 33 of the Judicature Act (Ontario Acts, 1896, page 66), empowers the High Court of Justice to make settlements of infants' estates on marriage, and chapter 20 (page 143, same volume), authorizes the making of leases of settled estates. 6 LANDLOllD AND TENANT. Executors 9. Exccutors and administrators are en- andadniin- -^j^i^.^ ^q ^^uj leasehold estates possessed by istrators. ^^^^.^^ testator, and may dispose of or sublet them as they please, unless he has bequeathed them to a particular person, and they have assented to the bequest; which they must do if he has left other property not specifically bequeathed sulhcient for the payment of his debts. Under the Devolution of Estates Act executors are allowed a year or more to wind up an estate. When they have once assented tu a bequest, the lease becomes vested in the person to whom it is left as a legacy, and, of course, thev have no further right to deal with it.* Assignees. lO. The rights of assignees in insolvency require special attention, and as they are specially dealt with by statute of Ontario we Avill come to them later on. (Chapter XI.) Idi(;ts. 11. Leases made by idiots or insane per- sons are binding unh^ss steps are taken to set them aside; but thev nuiv be avoided on ])i()()f of the idiocy or insanity. A lease made during a lucid interval cannot be impeached on the grounds of previous or subsequent in- * By R. 8, O. c. 110, sees. 34 and 35, where an executor or administrator, who is liable as such on a lease or on a Hint charge, assigns the lease, he may, after he has satisfied all liabilities under the lease and set aside any sum required by the lease to be expended on the property, safely distribute the estate. J % i WHO MAY BECOME. Jl sanit3% The committee of a lunatic may make leases under the direction of the High Court of Justice for Ontario. IS. If an infant makes a lease he can avoid infants. it when he conies of age, but if he then by any act — such, for instance, as the receipt of rent — recognize it as subsisting, he will be thence- forth bound by it. lf{. Infants may, within a reasonable timoRepudia- after coming of age, rei)udiate leases made^^^uby by them during infancy. If, however, circum-"^ '^" ^' stances render it necessarv for them to reside apart from their family, even during infancy they may be compelled to pay for the actual occupation of any houses or lodgings suitable to their condition in life. 14. The intoxication either of the lessor Intoxicat- or lessee will be a good ground for settinoj^^^^^^^^^^"^' aside a lease, if it appear that t\vt party was so drunk that he did not know wh^^t he was doing when he executed it; or if wiiile parti- ally intoxicated fraud was practiced on him. 15. Subject to similar exceptions and qualifications as in the case of landlords, any- one may become a lessee or tenant. 16. I stated that the provincial statutes Aliens. contained everything relating to the law of 8 LANDLORD AND TENANT. Assignee of an insol- vent. Agent. landlord and tenant, but I have now to men- tion the subject of aliens. Under the British Korth America Act aliens and naturalization are assij^ned to Dominion jurisdiction, and therefore for laws relating to aliens we must consult the Dominion statutes. Under these statutes aliens can hold and dispose of all real and personal propert}^ exactly as if they were natural born subjects. There is no con- tradiction in calling attention to this branch of Dominion jurisdiction, because it is far wider than that of landlord and tenant, and covers all relations which may exist between aliens and natural-born subjects. IT. The assignee of an insolvent cannot take a lease of any part of the insolvent's or bankrupt's property for his own benefit, nor can a trustee of the property of the person for whom he is trustee. If he does, he is com- pellable to account to the creditors for any I)rofits which he may derive from it, while anv loss which it may entail must fall upon hini- self. A trustee must likewise account to the person for whom he is trustee. tH. An agent can bind his principal bv making a lease for him or by renting property on his account when the transaction is within the scope of his authority. When tlu^ lease in for a long term of years the party dealing with the agent should insist on the regist^'a- J i 9 I WHO MAY liECOME. 9 lion of the power of attorney under wliieh the a^ent assumes to act. A principal may become bound by ratitication. In fact, anv person may adopt, if lie chooses, the act of another who has assumed to act for liim. Silence does not necessarily mean consent, but as a rule repudiation should always be prompt.* CASES. The owner of an oil well lot, on which was also situate a blaeksmUh's shop, which was known not to be the property of the owner of the land, agreed to lease the oil well and lot for a term of years, with- out any express reservation of the blacksmith's shop; the intended lessee insisted on obtaining a lease with- out any reservation of such shop, and filed a bill for that purpose. Bill dismissed, with costs: Morris v. Kemp, 13 Chy. 487. Power of trustees to grant lease for twenty-one Trustees. years, with provision for compensation for improve- ment or renewal: Brooke v. Brown, 19 O. R. 124. The guardian of an infant, tenant for life, with- Ko,v„lt of out the sanction of the Court, executed a lease for a, ie.Msel.y years, during W.?. existence of which the infant died, pruardian. and an application having been made in the cause for an order on the tenant lo deliver up possession, he was ordered to do so, and on payment into Court of the amount of rent in arrear, he was permitted to remove the buildings and erections put by him A man can- not be compelled to lease wliat does not belong to liim. * See R. 8. O. c, 07, as to acts done under a power of attor- ney after the deatli of the constituent, 10 LANDLORD AND TENANT. Infant. Executor. Act of ten- ant does not pieju- dice land lord's rights. Tenant may re- deem. on the property (doing no damage to the realty), but the Court refused to allow him out of such rents for any improvements made by him upon the premises: Townsley v. Neil, 10 Chy, TI. An infant cannot during infancy avoid a lease by him reserving rent for his benefit: Lipsett V. Perdue, 18 O. R. 575. Under the Devolution of Estates Act an executor of deceased lessor can make a valid renewal of a lease pursuant to the covenant of the testator to renew: G. P. R. v. National, 24 O. E. 205. Any act of the tenant, without the knowledge or sanction of the landlord, could only affect his interest as tenant, and could not prejudice the reversioner: Dixon v. Cross, 4 O. II. 465. The right of a tenant for years to redeem a mort- gage is absolute, and the Court has no discretion to grant or refuse redemption: Martin v. Miles, 5 O. R. 404. The eleva- Liability of landlord to tenant for injuries occa- torboy. sioned by negligence of employee of landlord in charge of an elevator: Stephens v. Chausse, 15 S. C. R. 379. Who may There can be no reservation of a right of re- re-enter, entry to a stranger to the legal estate: Hyndman v. WiUiams, 8 C. P. 293. How rati- A person assuming to have an interest in pro- fication of perty, though he had none, executed a lease or an ^^7,''i.r agreement for a lease to a tenant; one of the true t"!^ r 1 ''WUv^rs shortly afterwards took an assignment of the .J ;^}. instrument and gave to the tenant notice of the 4 I TENANCIES. assignment; and successive owners demanded and received rent reserved by the instrument, insisted on the building of a barn which the agreement provided for, and otherwise recognized the existence of the agreement. Held, that the agreement was thereby confirmed and adopted, and was binding on the es- tate: Simmons v. Campbell, 17 Chy. 612. n CHAPTER II. TENANCIES 19. The "tenancies" recognized bj law "Tenan- are various. In one sensQ, every man is a^^^^'" tenant, because in theory every holder of land holds it as tenant of the Crown. But the tenancies we have to deal with are "lease- hold'' tenancies. A tenant for life has a larger interest than a leasehold tenancy, so has a tenant in tail or tenant in dower. We have nothing to do with these tenancies. We hrive only, as just stated, to consider " lease- hold " tenancies. 20. Tenancies for terms of years, or as'«Lease- they are usually called " leaseholds," are hold." created by lease, which is a contract whereby the use and possession of a house or land is "I^ease." granted by the owner (called the lessor) to 12 LANDLORD AND TENANT. "Lessor." i\]^^ liiror or taker (the lessee) for a fixed time (a term) at a stipulated remuneration (gener- •' Lessee." e.\]y ^n annual rent), subject to such condi- tions or mutual obligations as they may mutually agree upon. The essence of this description of tenancy consists in it being for a term certain. Tenancies from year to year also arise by operation of law. These tenan- cies, although they may not arise from an ex- ecuted lease, are also called "leasehold," be- cause the law implies that the relationship of landlord and tenant has been created. Entry by lessee necessary, 21. It should be remarked that although live lease grants the lands or house for a term to commence immediately, the interest or estate of the lessee (tenant) is not for all pur- poses complete until he has either by himself or his servants or agents entered upon the l)remises; for he can bring no action for any trespass previously committed thereon. 22. Agreements for leases, except in the Caution as men^sTor *^'^^^^ implied by law, are not usual in Ontario. leases. Whenever they are used, great care should be taken. Prelimin- ary en- quiries before leasing. 23. Before entering into a lease the in- tending tenant should always ascertain whether the person proposing to become his landlord is the owner of the land out and out, or whether he has only a lease of the pre- TENANCIES. 18 I mises. If the latter should turn out to be the "Under- case, this lease must be carefully examined, ^*''^^®' ' otherwise the new tenant, who would then have only what is termed an under-lease, and could of course take no more, nor iu any other wav, than his immediate landlord had power to give, might eventually find himself harassed and burthened by restrictions which he did not foresee, and which might render the property wholly unsuitable to the purpose for which he desired it. Perhaps also the consent of some person should be obtained before the under-lease is valid. 24. Enquiry should also be made in the registry office as to whether there is a mort- gage on the property. If there is a mort- gage in existence the consent to the lease of the person holding the mortgage should be obtained; if not, and default is made in pay- ment of the mortgage, the person claiming under the lease subsequent to the mortgage could be turned out by the mortgagee. If, on the other hand, a lease is made, and after the lease the owner of the land executes a mort- gage, the mortgagee can only take subject to the rights of the lessee; that is to say, as to all leases under seven years in length. The registry law of Ontario requires leases over seven years to be registered.* If the person *The Registry Act, 1893, sec. 39, says: "This Act shall not extend to any lease for a term not exceeding seven years where the actual possession goes along with the lease ; but it shall extend to every lease for a longer term than seven years. Rights of a mort- gagee. Registra- tion of leases. Effect of failure to register. u LANDLORD AND TENANT. liaving such a lease does not register it, and the owner of the land executes a mortgage, and the mortgagee registers this mortgage in the registry oltice without notice or know- ledge of the prior lease, then the iiortgage would cut out the lease. If the mortgagee had notice of the prior lease, the mortgage might or might not cut out the prior lease, according to the circumstances of the case. Therefore, any person having a lease of over seven years should register it in the same way that he would a deed. If a person pro- poses to take a lease of property and applies to the mortgagee when a mortgage is on the land for the mortgagee's consent, and it is refused, the proposed lessee then completes the transaction at his peril. J Registra- 25. The same remarks apply to an agree- agteement w»^^t for a lease as to a lease. If a man for lease, wislics to protect himself under a proposed agreement for a lease he should register it. Otherwise he may be cut out by some person who has acquired an interest subsequent to himself, and has registered the document under which he claims. 26. I explained at tlie beginning of this chapter that " leasehold " tenancies are all that we have to consider. Such tenancies r.re either from year to year — for a shorter TENANCIES. 15 term than a year— or for a fixed and definite Icrm of years. 37. rarties renting? must carefully bearDistinc- in mind the distinction between renting forj^""^®- a term certain and for an indefinite period. termV.- If a man lets a house for a term certain, he tain and has no right to hold on after the expiration j^^;^""^^^ of that time. If he does hold on after the expiration of that time and pays rent, he be- comes a tenant from year to year; but many people forget that if a house or other pro- perty is rented for one year, or two years or five years, that their occupation is fixed for that time; they remain liable for the rent for that period, and are entitled to occupy the house or premises for the same period; they cannot by abandoning the premises escape their liability for rent, nor can the land- lord claim the premises until the time has expired or default made. It is necessary to state these distinctions very clearly, because there is apparently much misconception on this point. 28. A tenancy from year to year arises Tenancy by presumption of law when the tenant ^^om year coming in under an agreement for lease haspre^ump^^ made a payment of rent. If the tenant can tionoflaw. show that the rent was paid with reference to the agreement, then it is not a tenancy from year to year, but a tenancy according 16 LANDLORD AND TENANT. m m 1. Enter- to the aj?roomoiit. The tenant would be ';|Jt called npon to show in what nietiiod the pay- 2. Over- holding and paying r(!nt. ing under iigreenienv - , fork'ftsu. nient was made. It' ji tenant under a lease for a term of years holds over after the ex- l)iration of his term, he is, until he has paid the rent siibsecjuently falling due, merely i tenant by sufferance and may be evicted at any monient, and is liable for rent at the old rate up to the time of his eviction. Directly he has paid the r(*nt to the landlord, and the landlord has received any such rent, he is considered a tenant from year to year, and must give, and is entitled to receive, the pro- per notice to quit. Tenancy^^ 30. If one man, either by word of mouth t^o^^yelv,^^ or by writing, let to another houses or lands at a yearly rental and for an undefined time, agreement. '"^ tenancy from year to year will be created unless tlie letting is accompanied by some stipulation to the contrary. The point about this tenancy is this: that if a tenant enters into possession of premises at a yearly rental and for an undefined time, he is entitled to hold them, and he is liable to pay rent for them for a twelve-month. If the requisite notice to determine the tenancy at the year's end be not given by either landlord or tenant, another year's tenancy is thereby created, and so on from year to year until such notice (expiring on the anniversary of the day on which the tenancy first commenced) shall have how cre- ated by Notice to quit. TENANCIES. 17 I boon givou by oitlier party. Tho day on \vhi(!h tlio tonancy commoncos is eitlior tho (lay naniod jit tho timo of lotting;, oi* if no day is naniod, tlic day on which tho tonant on tors into possossion. In tho absonco of any other aj^rooniont, tlio rocinisito notico is ono of six Length of months, torniinatin<»:, as I have already said, J|uiJ.^t]^^"' on tho anniversary on which tho tonancy bejian; but the notice may bo by agreement, a quarter's or a montli's, or, in fact, any other. (See chapter XIV.) SO. A yearly tenancy can be created ver- Agree- bally, but it should not bo created in this "J^*^'jj ^'JJ^^^ manner, because, until the tenant enters on^*^'^^^ the it anoy. premises it is a mere agreement tor an interest in the land, and if not in writing, as wo will presently see, is void. Therefore, if tho person who wishes to be the tenant re- fuses to take possession of the premises, the would-be landlord would have no remedv for breach of contract. 31. A tenant from year to year sometimes Under- underlets the premises, as he has a perfect tenant. right to do, either because he wishes to leave them before the expiration of tho proper notice, or for the sake of making something by subletting. The person coming in as undertenant must satisfv himself that the rent to the superior landlord is paid, and if L.T.— 2 18 LANDLORD AND TENANT. Enquiries there is a written lease so providing, that the ^'^^^'"^^^ consent of the landlord to the subletting has been obtained. He should also investigate whether the taxes have been paid or not. Reductictix of rent. »2. If the landlord in the middle of the term reduces the rent, or if the rent is re- duced T\ ithout any further change in the ten- ancy being made, no effect is produced on the tenancv itself. Casoof 3!^. If a house is let for one year, and so Tnan^'^at ^^^ *^'^"^ ^^^^^ ^^ J^^r, in that case the tenant least?^^ ^ must retain the house for two years. He cannot give notice to quit until six months before tlie expiration of the first year of the tenancy from year to year, which in this case is a tenancy for two years at least. Construe- 34. The next kind of tenancy to consider ancyTtn- ^^ ^^^^^ ^^^' terms sliorter than a year. If periods of premises for the purpose of business houses a year. yj. apartments are let for an undefined period at a rent collected in reference to any shorter period than a year, as for instance, at so much a quarter, month or week, the hiring will be COD rued as quarterly, monthly or weekly in the absence of any circumstances or agree- ment to the contrarv. 35. There are two other kinds of tenan- cies which must be mentioned, because they T I TENANCIES. 19 * may arise, but when persons find themselves in the situation of being either landlord or tenant under the circumstances which create these tenancies, they had much better con- sult a solicitor at once. 30. Tenancies at will arise where a party Tenancy is let into the possession of land on the terms *^^*^^- tbat he is either compellable to leave at the \»dll of his landlord or entitled to go at his own pleasure. It arises by operation of law in the case where a jiurchaser enters into possession on the execution of a contract of sale and before the execution of the convey- ance to him. 3T. Courts of law lean as much as pos- sible against construing demises where no certain term is mentioned to be tenancies at will, but rather hold them to be tenancies from year to year, so long as both parties please, especially where an annual rent is reserved. 38. A tenancy by sufferance is that rela Tenancy tion which subsists between a landlord and ^y suffer- tenant when the latter holds over after the^"^^' expiration of his term without the assent, but also without the expressed dissent, of the landlord. I have already stated that gener ally speaking the receipt of rent by a land- lord turns this tenancy into a tenancy from 3^ear ;o year. 20 l.ANDLOllD AND TENANT. m Servant;s 39. A Hervaut ill the occupation of orinlister's preiiiiscs of liis iiiat«'ter, and receiving less premises. Avjiges on tliat account, is not a tenant. A caretaker occupying; rooms in a public build- ing, say for i)urpose of offices, on similar terms, is also not a tenant. If the occupa tion of the premises or rooms forms a part of the stij)uhited rf^uuneration of the servant, v/hen he entered his employer's service, he will be compellable to leave both premises and employment by the same notice. If, on the other hand, l)y a subsequent arrangement, it was agreed thiit the occupation should be e(]uivalent for so much wages, and no time was fixed for the continuance of the arrange- im^it, either party may end it at any time by giving reasonabh* notice. Reasonable notice depends on the circumstances of each case. A lesser estate merf^ps in a greater. CASES. Dofendnnt granted land in question to S. to hold " to the said S. and the heirs of his body for twenty- one years, or the term of his natural life, from 1st April, 1853, fully to be completed and ended." Held, that S. took a life estate, in which the terra merged: Dalye v. Eohertsov, 19 U. C. E. 411. Result of Where a lessee of land for five years demised the an assign- land for seven years: Held, that the demise in ques- tenantoA^^^^ operated as an assignment of the original term, •* and conferred upon the original lessor, in respect of the priority of estate thus created, a right of ac- I: ^*m^ TENANCIES. 21 tion against the assignee of the term for the ar- larger in- rears of rent due under the original lease: terestthan Sclby V. Iiobin.wned. Plaintiff leased to defendant for one year, with the privilege of holding for an indefinite time, on condition that three months' notice in writing should be given prior to leaving the premises, and prior to the termination of a full year by either party so inclined. Held, that defendant was bound to give three months' notice of his intention to quit at the end of the first year: Counter v. Morton, 9 U. C. R. 253. The plaintiff's agent offered to lease a house to defendant at £100 a year, payable quarterly, and de- fendant assented to the terms, but never occupied. Held, that he was not liable for the rent. It was alleged that after the defendant had been told what the rent would be, he got the key by the agent's directions, and went to examine the house, and leav- ing the key in the door returned and said he would take it. Apparently, this would not have altered the decision: Bank of U. C. v. Torrant, 19 U. C. R. 4'?8. A., living at Collingwood, wrote to B., at Toronto, on the 5th July, 1859, to the effect that he would give £40 a year for his house, and pay taxes, adding, " If you agree, telegraph at once to that effect, and I will take it." On the 6th B. telegraphed, " You mjiy have the store for one year on terms of your letter." A. obtained the key from the former tenant on the 11th and first entered on that day. Held, that there was a perfect demise; that the rent commenced from acceptance by B, of A.'s offer, not from the time when A. entered; and that B. was therefore entitled to dis- train for a year's rent on the 7th July, 1860: Prosser v. Henderson, 20 U. C. R. 438. Case de- cided on the word- ing of an agreement to give a certain notice of termina- tion of tenancy. The defen- dant's actions did not amount to an actual taking of possession. This case is one where a tenant was lield to be liable as such from a date be- fore he ac- tually took IKjssession ■PM ^fe 22 The term of a lease is exclu- sive of tirst day and inclusive of last an- niversary. LANDLORD AND TENANT. Under a lease dated 1st October, 1857, habendum for five years from the date thereof, " yielding and pnying therefor on every first day of October during the said term"; it was proved that the first year's rent had been paid in advance. Held, that the term included the whole of the 1st October, 1862: Held, also, that the rent was not payable in ad- vance for the subsequent years: McCallum v. Snyder, 10 C. P. 191. The lessee had the right of purchase on his desiring to do so within the period of two years after the date of the commencement of the term, the 1st of April, 1852. On the 1st of April, 1854, the desire of purchasing was declared. Held, in time, the day of commencement of the term, 1st of April, 1852, being exclusive: SiitJierland v. Buchanan, 9 Chy. 135. A lease of land for four years, with a covenant to renew for four years more, was held not to re- quire registration, actual possession having gone with the lease; and such a lease, though not regis- tered, was held valid as respects the covenanted re- newal as between the lessee and subsequent mort- gagees of the lessor: Latch v. Bright, 16 Chy. 653. Notice to A tenant from year to year cannot be ejected quit must without regular notice to quit. Abortive negotla- be given to ti^^^^j^g which fall through do not deprive him of this a tenant ^.tp-v,*. from year "^^'^• to year. Crookshank v. Croakshanlc, M. T. 5 Vict. A tenancy Where the tenant enters under a verbal lease void from year under the statute, a tenancy from year to year may to year be implied though no rent has been paid. Under created the circumstances of this case (a verbal lease fol- lowed by entry and clearance of land): Held, that Registra- tion of lease. TENANCIES. 23 the plaintiff was a tenant from year to year, and de- though no f endant was a trespasser in entering upon him : rent paid. Gibboney v. Gilboiiey, 36 U. C. K. 230. Where D., being tenant for life of two lots, gave M. verbal permission to occupy one lot and build upon it on condition that he should pay the taxes on both lots; and M. accordingly went on and built and paid the taxes for several years: Held, that a yearly tenancy had been created, and that D. could not eject M.'s subtenant without notice to quit: Davis V. McKinnon, 31 U. C. R. 564. Yearly tenancy created ; notice to quit neces- sary before premises can be re- covered. A defendant not in possession under any con- ^ tenancy eluded agreement regarding the lease, is merely a at will, tenant at will: Lennox v. Westney, 17 O. R. 472. . A tenant at will cannot sue his landlord for oust- Tenant at ing him from possession: will. Henderson v. Harper, 1 U. C. R. 481. A person put in possession of a brick yard and Servant in house thereon was dismissed by his employer, but occupation refused to give up possession until certain accounts "^ master s were adjusted. Held, that he was an " occupant " Pi^«in»ses. overholding without color of right: FoivJie v. Turner, 12 L. J. 140. . ■■■■■■I 24 LANDLORD AND TENANT. r I'reci.se forms not necessary but safer. CHAPTER III. LEASES. 40. No precise words or technical forms of language are requisite to constitute a lease. Whatever words are sufficient to explain the intent of the parties that one shall divest hirase]^ o'' ,<, possession and profits of the land, and > ther come into them for a de- terminate time, are of themselves sufficient, and will ir tl" construction of the law amount to a lease for years as effectually as if the most formal and regular words had been made use of for that purpose. It is, however, hardly necessary to observe that it would be in the highest degree imprudent to depart: from the settled and established forms which experience and repeated deci- sions of the Courts have sanctioned. Statutes 41. The statutory requirements as to the of leal™ ^^^'^^ ^^ leases are as follows: Statute of Frauds* (29 Car. II. c. 8), section I. All leases and other interests in lands nuide and created by parol, and not put into * This is tlie name (>f a statute passed in the reign of Charles II. in order to prevcn' fraud. Its chief object is to require " writings " as evidence of certain contracts specified in it. f LEASES. 25 I writing by the parties making or creating the same, or their agents lawfully author ized in writing, are void and have the effect of estates at will only; except, Section 2. Leases not exceeding three years from the making whereon is reserved as rent two-thirds of the full improved value. Section 4. An agreement for a lease or for any interest in lands to be binding on the party to be charged must be signed by him or his agent. 42. Therefore, a lease not exceeding three years at a rental of two-thirds of the full im- proved value is good by parol. A parol agree- ment for such a lease is void as against the party making it. In the case of the agreement, a parol authority to the agent making it will suffice; in the case of the lease, the authority to an agent making it must be in writing. 43. But R. S. O. c. 100, s. 8, says: A lease, required by law to be in writing, of land is void at law unless made by deed (that is, under seal). The authority to an agent must be also by deed, on the general principle that the authority to contract must be of no less a character and nature than the contract. 26 Vfabal leases iin- advi sable. Agree- ments for lease. LANDLORD AND TENANT. 44. Verbal leases should never be made for these aiuoiij^st other reasons. Doubts may arise in respect ro the precise words that passed, whether they amounted to the actual letting- then and then? perfected, and leaving rothing to be done but the taking possession, or merely to an agreement that one party would let and the other would take, the letting and the taking to be carried ^ out at some future meeting, or by some writing to be drawn up. Now, by the Statute of Frauds above quoted, although actual leases for terms not exceeding three years are valid if made orally, yet mere agreements for such leases are void unless reduced to writing. Consequently, even supposing the tenant en- tered into i)ossession and paid rent, if the jury were to lind that words had been used which merely amounted to an agreement for a lease, the tenancy would only be one from year to year, liable to terminate by a notice to quit, and if no rent had been paid it might be that the tenant would be able to leave, or be liable to be turned out at any moment. If, indeed, the tenant had not only entered, but had in pursuance of and in reliance upon the agreement laid out money in improving the premises, the Court might then on the tenant's motion compel the landlord to exe- cute a valid lease, but it w^ould be after a law- suit. Further, even if words amounting to a present letting were clearly used (still more I LEASES. 27 if such words had not been clearly used), and the tenant without havinji^ entered upon the premises refused to carry out the arrange- ment, the landlord would have no remedy for the breach of contract. 45. A lease commences with what are Contents generally called the premises. This word °^ ^ ^^'^^^'• does not mean the premises granted in the lease, but means the date of the lease, J^J""^"'" the names of the lessor and lessee, the con- ''^''* sideration for which the lease is granted, and then the subject matter of the lease. 4G. (2) The next part is the habendum, 2. Haben- which specifies the duration of the lease, f'"!"- Generally speaking, leases last during the wiiole anniversary of the date from which they are granted. If a lease is granted for an alternative period, as say, seven, fourteen or twenty-one years, then, if nothing is said as to who is to have the option of determining or continuing the lease at the end of the re- spective periods, the choice rests with the lessee. 47. (3) The reddendum reserving the rent 3. Redden- to be paid by the lessee. ^"^"• 48. (4) The covenants. A covenant is a4. cove- promise or agreement, and any promise omants. agreement under seal is a covenant; no pre- f. 28 LANDLORD AND TENANT. cise wordH are i'(M|iiisite to constitute a cove nant. It is siinicic^nt if it can be clearly col- lected that something? is to be done or not to be done by one of tlie parties to the deed. i Implied 40. There are such things as implied cove- covenants. j^.^jj^y.# f^^. instance, on the part of the lessor, that the lessee shall quietly enjoy the land or house demised; on the part of the lessee, that he will pay the rent; that he will com- mit no waste; that he will do proper repairs; that he will cultivate in a husband-like manner; that he will not cut down timber. It is evident that the less parties rely upon these implied covenants, the less likely they are to go. to law; each man should have put in black and white what he expects the other to do for him, and wLi^t he is willing to do for the other. Where 50. The fact of granting a lease or letting there is no j^ house or land on an annual tenancy creates covenant i»o implied agreement on the part of the land- i^stocon- lord that the one is reasonabl}^ lit for habi- ^ tation or the other for cultivation. If it turns out not to be the case it will furnish no excuse tc the tenant for refusing to i)ay his rent. * For covenants now implied in leasehold transactions, see later in chapter on Covenants not included in statutory Short Form of Leases, dition of premises I 5SB? J I 29 1? TSSS* No implied covenant as to con- dition in case of un- furnished liouse. Agree- ment to repair . LEASES. 51. The landlord of an unfurnished house, letting it on a yearly tenancy, does not any more than if granting a lease warrant it as fit for habitation. If a tenant once enters or signs an agreement to take it, no matter what- ever state it may be in, he is without redress, unless he has previously obtained the land- lord's written agreement to put it in repair. Even if the hou.^e were to tumble down he might be compelled to pay rent until he is able to release himself by giving the regular notice. An agreement on the part of a land- lord to make repairs should specify the repairs to be made ks accurately as possible, and also mention a fixed time by which they will be done. 53. Contracts for the hiring of a furnished Contracts house, whether for a term or from year to ^^J^J^^'^^^^."^ year, or even a less period, and also contracts nished for letting furnished rooms, are peculiar. They house. are contracts of a mixed nature, partaking partly of the character of a lease of real pro- perty and partly of that of a contract for the letting and hiring of movable chattels. 53. There is an implied warrai^ty on the Implied part of the lessor that a ready iurnished^^^^^^'jj^ 1 1 J • • 1,1 /'L J! 1 I, • as to con- house or lodging is reasonably ht for liabi- dition of tf.tion or occupation by the tenant. If the {"'^"^^hed furniture is not fit for use or encumbered with a nuisance of so serious a nature as to deprive !i 30 S(?aro}i for chattel iuortf,'ago nect'ssaiy. LANDI-OUI) AND TENANT. the tonnnt of all essential onjoyinont of it, ho is entitled to throw up both house and furni- tures and brin^ aetion af;ainst the landlord for breach of eontract. The fact that the beds in a ready furnished house were so overrun with buji's that they eould not bo slept in, was lu^ld to bo a nuisance which would entitle the tenant; to abandon the premises. 54. If a person proposes to lease a fur- nished room or a furnished house, ho should satisfy himself that there is no chattel mort- ojjo(» i'cj^ist(^r(Hl a^uinst the furniture. If a chattel mortj^age is registered the consent of the chattel mortjjfaj?oo should be obtained. The rij»lits of a chattel mortgapjee with regard to chattels, as far as the tenant or lessor of the chattels is concerned, are as extensive as those of a mortgagee of real ])roperty. If a landlord has not mentioned the fact to his juoposed tenant that there is a chattel mort- gage on the furniture intended to be leased, and the mortgagee claims possession of the goods, the tenant would have the right to bring an action against the landlord. "The usual cove- nants." 55. Sometimes an agreement for a lease stij)ulates that the lease shall contain " the usual covenants." This mode of expression is not safe. It is better to say that the lease shall contain the covenants required by the Short Form of Leases Act. LEASES. ai '■X 56., Some covenants nro said to bo r(\'il Covenants and to run witli Ihe land, while others are "'?"".'"« nieivl.v personal and do not rnn. The ex|)ivs llmi '' snm ''rnnninj;' with Ihe land" is explained (Chapter XI.) Ijiter on. 57. In dealinn: with the snbjeet of cove- Oral varia- nants it cannot be loo plainly impressed npon ^'*^"' ^'^ the reader that whatc ver either party requires uTnT or expects from the other should be inserted "litted. in the Ieas(^ itself; no verbal addition or ni-derstanding- will be allowed; the lease must speak for itself and be a complete exposition of the intention of the parties. 58. If a lease is given wathont any cove- Eff.rt of nants, then the law implies on the part of the •eviction of landlord a promise tliat the tenant shall ^*'"''"^- peacefully enjoy the demised premises free from interruption by himself or anyone claim- ii?g to be entitled through him, or even claine ing against him. If the tenant is evicted by any one of these, lie may not only refuse to pay rent accruing due after the eviction, but may bring an action against his landlord for aamages arising over the loss of his holding. If the tenant is evicted or disturbed bv'^a wrongdoer, the remedy is against the wrong- doer and not against the landlord. 50. If a tenant be evicted from any part of the demised premisses by the landlord, or 32 LANDLORD AND TENANT. aDyone claiming through him, the whole rent will be immediately suspended, and nothing will be payable for the interval that elapsed since the last day (quarter-day or otherwise) on which rent was payable. 60. But if the tenant be evicted from a part only of his land by one rightfully claim- ing by title paramount to or against his land- lord, the rent will be apportioned, and so much only as may be considered fairly appli- cable to the part in question will be sus- pended. Gl. But a mere entry by the landlord, if permitted by a covenant, or even a trespass by a stranger, will not suspend the rent. In the two latter cases the tenant will, of course, liave his remedy by action of trespass against the wrongdoer. tions?^^' 62.(5) The exceptions, e.g., trees in a farm lease; a salt bed in a salt district; or a coal oil boring in a coal oil district. 6. Provisos and con- ditions. 63. ((>) Provisos and conditions. In a lease these are generally inserted for the pur- pose of enforcing due payment of rent or of performance of covenants. This is generally done by declaring the lease void or giving the landlord the right to re-enter upon the pre- mises in case of breach of covenants. i 1' r '4 LEASES. S3 64. After a lease is executed it is, of course, ^>i^so- competent to the parties to alter it or amend tSkms it, and any alteration or amendment must beoraddi- construed according to the intention of the^^'^"*^- parties. As above pointed out, the lease itself should before execution be made so per- fect that nothing else is necessary to ascer- tain what the parties intend. 65. In Ontario the Legislature has pro- short vided a short form of lease, which is the one Y''''^'!^ ''^ generally used for leases of houses or stores. Act.^^'^ Farm leases are also often drawn on this form, but farm leases require so many j^,^ special covenants that a further form for lekses. farm leases is supplied by stationers. 66. Persons who use these forms must bo Aitera- cautionod that any alteration of the printed 5'""'^ ^^^ Vv'ords allowed by the Act may defeat the in- tention of the parties. By the statute the short clauses are declared to stand for the more extended clauses set out in the second column of the Act. 67. These extended clauses confer certain rights on landlords, and provide certain securities for tenants which may be lost if the parties in using short forms do not ex- actly adhere to the text of the statute. (Ireat care is necessary, therefore, that no alteration L.T.— 3 04 LANDLORD AND TENANT. Employ - uient of profession al assist- ance. l:e made in the printed forms of covenants. If either the hindlord or the tenant desires to alter these covenants in any way, or to add fiirtlier covenants, they sliouUl be added by special clauses relating- to the matter in hand. 6^. If the transaction between the pro- posed landlord and tenant relates to a long period, or covers valuable property upoa which iini)rovements are to be made bv eitlKM* I. ty })arty, or if spet^ial covenants are reqnii'ed, it is better for the persons interested to put the matter in the hands of a solicitor, and instruct him to draw the necessary papers. As a j^eneral rule, solicitors wiio are trained fo]* the ])urpose ar(» safer j;uides than un- licensed convevancers, who mav or mav not • ^ 9 9 undersland what they are attemptino- to do. If the solicitor is guilty of gross negligence or wilful misconduct, he is liable in damages to the pjutv who is damnified bv his mistake. An unlicensed conv( vancer mav or mav not be liable according to the circumstances of the case. I next print in full the short form of lease with the short covenants and the long ones tlit^v stand for. CASES. Sir George Jossel, M.R., in ^Yal{ih v. Lonsdale, 21 LEASES. 36 nr Ch. D. 9, says: There is an agreement for a lease Effect of under which possession has been given. Now, sin/;e fusion of the Jiulieature Act, the possession is held under the ^-^'urts of agreement. There are not two estates, as there {^'^^^' '"^^1 were formerly; one estate at common law by reason ^'^^l"'*^y of the payment of the rent from year to year, and an "I'?-' ^''''" estate in equity under the agreement. There is fornun-Iv only one Court, and the equity rules prevail in it. void at kw The tenant holds under an agri^ement for a lease, under He holds, therefoie, under the same terms in Statute of equity as if a lense had been granted, it being a '^'»ti"tts. case in which both parties admit that relief is capable of being given by specific performance. Since the Judicature Act, the result of a verbal lease of real property for more than three years to continue until and to expire upon a day certain, where the tenant has taken possession, is, that he is bound to give up possession at the end of the stipu- lated period without any notice to quit: Magce v. Gihiwvr, 17 O. B. 620, 17 A. E,. 27. The plaintiff sued defendant for damages for Effect of refusal to admit him into possession of land, which verbal he alleged the defendant had verbally agreed to give lease since him a lease of for sixteen months. Held, that the -Tudicature evidence failed to shew an actual letting,' but that '^^^• if such had been proved the plaintiff must fail under the fourth section of the Statute of Frauds, as the action was brought in respect of an agreeminit for an interest in land: Moore v. luijf, 5 A. II. 2(",1. An agreement in writing, whereby A. agreed to F«p,.. ^f rent to B., for three years from date, for £50 per tiie Sta annum, with taxes payable quarterly during occupa- tute of tion, B. to spend £25 in improvements: Held, a Frauds. lease, and not a mere agreement for a lease. The Statute of Frauds says: A lease bv parol can only be made where it does not exceed 'three years from the making thereof. If a lease is required to 86 LANDLORD AND TENANT. Verbal negotia- tions do not com- plete a lease. b© in writing it must be by deed. Tliis lease was for three years, tliat is, it was for a term not ex- ceeding tliree years, and tlierefore could be by parol. It was in writing. Writing was not neces- sary, and so the seal was not necessary either: Grant v. Lynch, 14 U. C. R. 148. Same case also re- ported C. P. 178 on point of surrender. As to a portion of the property, a saw mill, one B. said that on a Saturday he rented it verbally from the plaintiff for a year, and it was intended to have a written lease; but on Monday the defendant put some one else in possession and refused to let him in, after which he had nothing further to do with it. It was not shewn that either the rent or the terms of the tenancy had been agreed upon. Held, not a lease, but an agreement only, and that the defendant could not set it up to defeat the plain- tiff's title. In this case there was no agreement in writing, and the defendant, therefore, could not be compelled to carry out his verbal bargain. If B. had taken possession there would have been a complete agree- ment, but he did not, so the other party defeated his claim: Kyle V. Stocks, 31 U. C. R. 47. There was " M., for the consideration hereinafter named, no £oaI on agrees to demise and lease to H, these premises, etc., tiiis agree- for the period of three years certain, at 10s. cy. per ment. ^j.jy^ payable monthly in advance during said term, and with the privilege to said H. to hold the same for a farther period of two years, at the same rent, payable as aforesaid. The said H. agrees to take the said premises from said M. for the price and terms aforesaid, and to pay all taxes upon the said premises, possession to be given whenever the first monthly payment of rent is made." Could the above in writing (not under seal) be in any case construed as more than an agreement for a lease? It could not I I i iJ I LEASES. 37 % be regarded as being for a term not exceeding three years from the malcing, or, in other words, was for a term exceeding three years, and so by the Statute of Frauds would be required to be in writing, and therefore, by our legislation, to be under st-l. Hurley v. AIcDonell, 11 U. C. R. 208. A. leased a farm to B., upon condition that B. was to deliver to him one-half of the wheat raised on it. B. was to harvest and thresh and deliver the wheat to defendant's granary. Held, thjit under this agreement they were not partners in the wheat while it grew in the field, but stood to each other in the relation of landlord and tenant; and that, therefore, no legal property in the wheat could vest in A. until B., his tenant, had threshed it and delivered to him his portion: Haydon v. Crawford, 3 O. S. 583. L., by instrument not under seal, dated 81st October, 1857, leased to S. O., one of the defendants, for five years. On 31st March, 1858, he mortgaged the pre- mises to the plaintiffs, and on the 8th June. 1858 by indenture, he again leased the same premises for five years to S. O. The mortgagees brought an action for possession of the property against S. O. Held, that though the indenture of June, 1858, as between the parties to it, extinguished the tenancy from year to year created by the instrument of 31st October, 1857, yet it did not entitle the plaintiffs as mortgagees to succeed, they not being parties to it: CaverhUl v. Orvis, 12 C. P. 392. The word " lease," differing from " grant " or " demise," implies no contract for entry and quiet possession: J?oss V. J\[asi^itifiherd, 12 C. P. G2. Harvey v. Ferymon, 9 U. C. R. 431. See Saunders v. Eoe, 17 C. P. 344. A verbal agreement held insuf- ficient under tlie 4th section of the Statute of Frauds. Agree- ment to worlc a farm on shares— nature of relation- ship created. Notice the result of the want of a seal in the first lease in thi.j case. S. O. be- came ten- ant from year to year for five years determin- able during the term by half a year's notice. Lease," effect of. 88 LANDLORD AND TENANT. That pre- Diisf'.s wen iniinliabit- ablo, no (lefcnc't!. "Demise," The word " demise " in a lease raises an implied etFect of. covenant to give possession: Saunders v. Jioe, 17 C. P. 314. One use of ^ ^^'^^^ ^"'^^^ ^^^ ^^^^ creation of a term (not being a lease executed nccording to law) may be looked at to void in ascertain the conditions of occupation: l»"j"t of Galhniith V. Fortune, 10 C. P. lO'J. ^^''"^" Lymiui V. Snarr, same vol., 4G2. Mining lease considered: Falnwrw. Wallbridge, 15 S. G. R. 6o0. In an action for rent: Held, no defence that the house became unfit for habitation in consequence of the roof admitting water, and for want of sufficient drainage, whereby the said house became wet, dump, unwholesome, noisome, and offensive, of which Ihe plaintiff had notice, and defendant thereupon quitted the same before the commencement of the time for which rent was demanded: Venhon v. N(itin)i, 21 U.C. K. -57. Compare also Wilkes V. Steele, U V. C. 11. 570. A Laid Plaintiff leased to defendant land in front of the case but city of T. with tho use of the water adjacent. The unfort'sten corporation, in construction of an esplanade, cut off the Jiccess to the water. Hold, that defendant was bound to pay rent and fulfil his contract: Lyman v. Snarr, '.) C. P. 101. Damage by ice to a wharf or pier not considered to be damage caused by tempest, so as to bring it within the exception of " reasonable v/ear and tear, and accidents by fire and tempest exceptotl:"' Tiiotli! V. Union Co., 2'J G. P. 70. (4o()(is Lessee of goods covenanted to restore them to the leaded lessor, " at the expiration of the term, in as good burned. c>rder as they then were, reasonable wear and tear Provide execpted," and the goods during the term were de- Jt" I )aniai;;e by irt>. il P M LKASKS. 30 •» i stroyod by fire without lossoc's default. TTtdd. lessee U>v tliis not liable to replace: contin- Chamherlen v. Trenouth, 23 C. V. 11)7. gi^m-y. A. leased to B. a house for fifteen years, and dur- j>„. careful ing the term, by agreement, A. therein assented to to fix your an assignment by B. to C, and gave C. the opt4on liabiliiy in to purchase the fee within one year at a given sum, caseof fire, payable by instalments; and C. at the time of the agreement paid A. £50, to be on account of purchase money in case he elected to purchase, otherwise to go for rent. There was a proviso in the original lease that should the house be burnt, the rent should cease. C. did not purchase, and the premises were after- wards burned, at which time, long before the expira- tion of the lease, the rent due was £12 10.3. Held, that notwithstanding the proviso, A. was entitled to rent until the £50 was absorbed: Pnlver v. Williams, :^ C. P. 5G. Plaintiff sued defendant for trespass, and for ^vi,at cutting and carrying away grain. Defendant set up trouble that the plaintiff was lessee of the defendant under would an indenture of lease; that on the negotiation for, have been and execution of that lease, it was verbally agreed J^^'^'** "''yi between them, and the true agreement was, that the J^^^.^^^^^^^'J^"^^^^ defendant should have the right to enter and har-^^^^^^ jj,^^ vest the crbp then in the ground sowed by him; that in^o writ- when the lease was executed a reservation of such ing. right was suggested, but was omitted on the plain- tiff's assurance that it was unnecessary, as the agreement between them was well understood, and defendant would be allowed to take the crop; and that the entry in pursuance of this agreement is the trespass complained of. Held, to be a good defence, for the independent verbal agreement, made in con- sideration of the defendant signing the lease, was good as an agreement, though defendant by the 40 LANDLORD AND TENANT. fourth seclioii of the Stnlute of Frauds might be pre- vented from suing on it: McGiniiesa v. Kcnnedfj, 20 U. C. B. OiJ. A vtrl)al A party entered into possession and sowed a crop arianj^'o- upon the verbal understnnding that he should have ment Itiuls the product thereof, but no special time for occupa- to a law- tion was mentioned. Held, that a sufficient tenancy suit. ^.^g created 1o entitle him to such crop: Mulherne v. Fortune, 8 C. P. 4:-U. Do not As to the use of short form covenants and the alter forms necessity for not altering them: See Enuiutti v. Quiim, 7 A. R. 801). Lee V. Lunch, 87 IT. C. 11. 2()2. CHAPTER IV. LODGERS. Lodgers. ^•^•. Lodgers* havo in general the same rights and are subject to the same liabilities as other tenants. They are, in fact, tenants of a different kind of holding and for a shorter period tlian from year to year of a house, but they are not tenants of a different kind. The * There is a distinction between a lodger and a boardei*. A lodger is a ])ers(m who ongagos rooms only. A boarder is one who engages rooms and lioard, or board only. A boarder in our meaning of the word is .'carcely ever found in England. Another term common in Ontnrio is a "roomer," that is to say, a person who engages rooms, furnislied or unfurnislied, without board. These persons are strictly lodgers. *. w I i T.ODGERS. 41 law as to payment of rent by a lodger, and as to remedies against him for refusing to give np possession, are the same as in the ease of a tenant of house or lands. An innkeeper r„„. has a right of lien, and mav detain the goods k<,): If a superior landlord shall levy, or authorize to be levied, a distress on any furniture, goods or chattels, of any boarder or lodger, for arrears of rent due to the superior landlord by his immediate tenant, the boarder or lodger may serve the superior land- lord or the bailiff, or other person employed by him to levy the distress, with a declaration in writing, made by the boarder or lodger, setting forth that the immediate tenant has no right of property or benefi- cial interest in the furniture, goods or chattels so distrained, or threatened to be distrained upon, and that such furniture, goods or chattels, are the pro- perty or in the lawful possession of such boarder or lodger; and also setting forth whether any, and what amount by way of rent, board, or otherwise, is due from the boarder or lodger to the said immediate tenant; and the boarder or lodger may pay to the LANDLORD AND TENANT. superior landlord, or to the bailiff or other person (>mployod by him as a foresaid, the amount, if any, so due as last aforesaid, or so much thereof as shall be suflicient to discharge the claim of th-^ superior land- lord; and to such declaration shall Ir" annexed a cor- rect inventory, subscribed by tlu' boarder or lodger, of the furniture, goods and chattels referred to in the declaration. If a superior landlord or a bailiff, or other person employed by him, after being served w^ith the before- mentioned declaration and inventory, and after the boarder or lodger shall have paid or t(>ndered to the superior landlord, bniliff, or other person, the amount, if any, which by the last preceding section the boaro'U' or lodger is authorized to pay, shall levy or proceed with a distress on the furniture, goods or chattels of the boarder or lodger, the superior land- lord, bailiff or other person, sha'l be deemed guilty of an illegal distress, nnd the boarder or lodger may replevy such furniture, goods or chattels, in any Court of competent jurisdiction, and the superior landlord shall also be liable to an action at the suit of the boarder or lodger, in which action the truth of the declnrrition and inventory may likewise be in- quired into. Any p.-iymcnt made by a boarder or lodger pur- suant to section 44 of this Act, shall be deemed a valid payment on account of 'he amount due from him to the immediate tenant mentioned in the said section. The declaration hereinbefore rt>fe»'i'ed to shall be made under and in accordance with the Act respect- ing Extra Judicial Opths. I «U011T FORM LEASE. 47 CHAPTER A . SHORT FORMS OF LEASES. 1 -'iid «0. The ,sl;itrit(^ respect iiij^' Slioit Forms of Leases is E. S. (). o. 10(). It consists of four sections and two schedules, .\ and F>. Kdiedule A is a brief form of h'ase. schedule l\ is divided into two columns. The first column contains the short form covenants. The second column contains The lon<»' form to which the corresi)ondinj; short form is e(iuiva- lent. The Act provides: (1) Where ^Yords in the short form are used they have th(» same effect as the lonj;' form. (2) A deed, aUhouj>h it fails to take effect under thc^ Act, may be <;ood as belween the l)arties. Tluit is, tJie Court is bound, in case of dispute, to ti'y and construe the j)arties* language so as to make it effectual, if it can. (.*)) Every leas(^ under seal, unless an ex- ception is sp(U'ially made, includes all out- houses, barns, ynids, gaidens or other appur- teiij'.nces. (4) Covenants not to assign or sublet with- out leave run with the land, and a proviso ■:1 ! I 48 LANDLORD AND TENANT. for re-entry applies to breaches of either an affirmative or negative covenant. The lease itself (Schedule A) runs thus: This Indenture, made the day of in the year of our Lord one thousand eight hundred and in pursuance of the Act respecting Short Forms of Leases. Between of the first part; and of the second part. Witnesseth, that in consideration of tlie rents, covenants and agreements, hereinafter reserved and contained, on the part of the said party (or parties) of the second part, his (or their) executors, administra- tors and assigns, to be paid, observed and performed, he (or they) the said party (or parties) of the first part, hath or have demised and leased, and by these presents do (or doth) demise and lease unto tlie said party (or parties) of the second part, his (or their) executors, administrators and assigns, all that messuage or tenement, situate (or all that parcel or tract of land) situate, lying and being (here insert a description of the premises, with sufficient certainty). To have and to hold the said demised premises for and during the term of to be computed from the day of one thousand eight hundred and and from thenceforth next ensuing, and fully to be completed and ended. Yielding and paying therefor yearly, and every year during the snid term hereby granted, unto the said party (or parties) of the first part, his (or their) heirs, executors, administrators or assigns, the sum of to be payable on the following days nnd times, that is to say, etc., the first of such payments to become due and be made on the day of next. ■=% SHORT FORM LEASE. 40 of ' f^f) 81. The covenants (Schedule B) ave as fol- lows: The short form in large type is followed by its corresponding long form in smaller type. The Act, as it stood in the Revised Statutes, was amended in 181)5. I have printed iv as H reads when the amendments are in- serte • following each covenant by some anno- tation. I .1 (1) That the said (lessee) covenants with the said (lessor) to pay rent : And the said lessee doth hereby, for himself, his heirs, executors, administrators and assigns, cove- nant with the said lessor, that ho, the said lessee, his executors, administrators and assigns, will during the said term pay unto the said lessor the rent here- by reserved in manner hereinbefore mentioned with- out any deduction whatsoever. (See the chapter on Rent.) (2) And to pay taxes: And, also, will pay all taxes, rates, duties and assessments whatsoever, whether n-unicipal, parlia- mentary, or otherwifv^, now charged, or hereafter to be charged, upon the said demised premises, or upon the said lessor on account thereof. (See chapter on Taxes.) ('^>) And to repair: And, also, will during the said term well and snfRciently repair, maintain, amend and keep the Ii.T.--4 50 LANDLORD AND TENANT. said demised premises with the appurtenances in good and substantial repair, and all fixtures and things thereto belonging, or which at any time during the said term shall be erected by the lessor, when, where, and so often as need shall be. Printed as amended, 1895. In Holderness v. Lang, 11 U. C. K. 1, it was lield tliat the tenant was bound to keep in repair not only the demised premises, but also imj)liedly all fixtures and things erected or made during the term which he had a right to erect or make. The alteration in this covenant made by the Act of 1895 contines the liability to those erected by the lessor. In a lease for 3^ears of premises made to G., his executors and assigns, and assigned by G. as cO the residue of the term to the de- fendants, was contained after the usual cove- nants to yield up the same in good repair the following proviso: A cove- " Provided always, that nothing herein iiiffa contained shall be deemed or taken, or con- MiKiai strued to be deemed or taken, in any way to repair ui*' coiiipel file Said G., his executors, administra- f^o.M piv- tors or assigns, to give up the buildings at cedent.) |he expiratioii thereof, which d <} all wooden and linble to decay, in as sound and good a slate as they now are; but such buildings are not to be wilfully or negligently wasted or destroyed; necessary repairs, however, for the preservation of the said buildings to f . -;..^^>-.^.A.-w^...-.^v,. SHORT FORM LEASE. 51 be done and performed by the said G. at his own pi jper cost and charge." Held, that the words recited constituted a covenant, and that such covenant ran with the land and bound the assignees of the lease, though assigns were not expressly mentioned in the irstrument: Perrv v. Bank of II. C, IG C. P. 404. (See chapter on Waste.) (4) And to keep up fences: And, also, will from time to time during the said term keep up the fences and walls of or belonging to the said premises, and make anew any parts thereof that may require to he new made in a good and husband-like manner, and at proper seasons of the year. In this countrv^ the removal of a fence on a farm from one place to another is not necessarily a breach of a covenant to repair and keep fences in repair. Whether it would be so or not is a question of fact in eacli case: Leighton v. Medley, 1 O. R. 207. (5) And not to cut dowm timber: And, also, will not at any time during the said term hew, fell, cut down, or destroy, or cause, or knowingly permit or suffer to be hewed, felled, cut down or destroyed, without the consent in writing of the lessor, any timber or timber trees, except for necessary repairs, or firewood, or for the purpose of clearance, as herein set forth. (See as to tapping of trees the chapter on Waste.) LANDLORD AND TENANT. (6) And that the said lessor may enter and view state of repair, and that the said lessee will repair according to notice. And it is hereby agreed, that it shall be lawful for the lessor and his agents at all reasonable times during the said term to enter the said demised premises to examine the condition thereof; and further, that all want of reparation that upon such view shall be found, and for the amendment of which notice in writing shall be left at the premises, the said lessee, his executors, administrator? and assigns, will, within three calendar months next after such notice, well and sufficiently repair and make good accordingly. (See chapter on ^Vaste.) (7) And will not assign or sublet without leave: And, also, that the lessee shall not nor will dur- ing the said term assign, transfer or set over, or otherwise by any act or deed procure the said pre- mises, or any of them, to be assijrned, transferred, set over, or sublet unto any person or persons whom- soever without the consent in writing of the lessor, his heirs and assigns, first had and obtained. This covenant runs witli tlie land. (See noteat head of chapter, also directions at end.) Conditions tliat Uie tenant shall not assign without the landlord's license, and also that he shall not underlet, ai'e frequently inserted in leases in order to prevent tli'e tenant from parting with his interest in the premises to an insolvent person, or to one of bad character. T'nless, however, special I SHORT FORM LEASK. .^3 4 words are inserted such a condition will not bo broken by an '^ assij>nment by operation of the law/' that is to say, Avhere the tenant's interest in the lease is sold by the sheriff under an execution, or if he makes a volun- tary assignment for the benefit of creditors. If the lease require the landlord's license to be in writinp^', a license by word of mouth Avill not bind him. A tenant may, however, still remain liable to an action for dama<>' s for breach of the covenant not to assign. Neither a condition Ihat the lessee shall not under- let, nor a covenant to the same ell'ect, are violated by liis taking lodgers. (See Toronto Hospital Trustees v. Denham, :\1 C. P. 208; Crawford v. Bugg, 12 O. R. 8.) When a, lease containing a covenant against assignment without the consent of the lessors is so assigned, the assignment containing a covenant by the assignee to pay tlie rent and indemnify tlu^ assignor, and the assignee goes into possession of tlu^ demised ju^emises, he is bound by his covenant, and is liable, notwithstanding the non assent of the lessors, to repay to the assignor rent ac- cruing due after tlie assignment paid by the assignor to the lessors under threat of legal proceedings: Brown v. Lennox, 22 A. R. 442. (8) And that he will leave the premises in good repair: 54 LANDLOlll) AND TENANT. And further, the lessee will, at the expiration or other sooner determination of the said term, peace- ably surrender and yield up to the said lessor the said premises hereby demised, with the appurte- nances, together with all buildings, erections and fixtures erected or made hy tJie lessor thereon, in good and substantial repair and condition, reasonable wear and tear, damage by fire or tempest only, excepted. (Alterations made in 1895 in italics.) The words "erected or made by the les- sor," and " or tempest " were added in 1805. (See cases on destruction of property under chapter on Kent.) (9) Provided that the lessee may remove his fixtures: Provided always, and it is hereby expressly agreed, thnt the lessee may, at or prior to the ex- piration of the term hereby granted, take, remove, and carry away from the premises hereby demised Jill fixtures, fittings, plant, machinery, utensils, shelving, coimters, safes, or other articles upon the said premises in the nature of trade or tenant's fixtures, or other nrticlos belonging to or brought upon the said premises by the said lessee, but the lessee shall in such removal do no damage to the said premises, or shall make good any damage which he may occasion thereto. This proviso was added in 1895. (See chapter on Fixtures.) (10) Provided that in the event of fire, rent shall cease until the premises are rebuilt: 1 If SHOUT FORM LEASE. r)5 * Providod also, and it is hereby declared and agreed, that in case the premises hereby demised, or any part thereof, shall at any time during the term hereby agreed upon be burned down or damaged by fire so as to render the same untit tor the purposes of the said lessee, then, and so often as the same shall happen, the rent hereby reserved, or a proportionate part thereof according to the nature and extent of the injuries sustained, shall abate, and all or any remedies for recovery of said rent or such proportionate part thereof, shall De suspended until the said premises shall have been rebuilt or made fit for the purposes of said lessee. This proviso was added in 1895. "By the proviso in tlie lease in case of the Kent pay- miU'demised beinj.- accidentally burned the ^W;^j;^^;|- rent was thenceforth to cease. The mill was destvuc- so burned on the 5th March. The rent was tion of pro- payable in advance, and was due on the 1st of' March, The tenant had to pay the rent although the premises were burned on the 5th: Ryerse v. Lyons, 22 V. C. R. 12. (11) Proviso for re-entry by the said (lessor) on non-payment of rent or non-per- formance of covenants: Provided always, and it is hereby expressly n?rted, that if the rent hoveby reserved, or any part thereof shall bo unnaid for fifteen days after f^ny of the days on which the same ought to have been paid, althrAigh no formal demand shall have been made thereof, or in case of the breach or non-performance of any' of the covenants or agreements herein con- tained, on the part of the lessee, his executors, ad- miniBtrators, or assigns, ihon. and in either of such I ;g LANDLORD AND TENANT. CMses, it shall be lawful for the lessor at any tlmo hereafter, into and upon the said demised promises, or any part thereof, in the name of the whole to re- enter, and the same to have again, re-possess and enjoy as of his or their former estate, anything hereinafter contained to the contrary notwith- standing. (S('e chapter on Foi'f(4ture and Ke-entry.) (S(v also text at head of this eliapter.) (12) The said lessor covenants with the said lessee for quiet enjoyment: And the lessor doth hereby, for himself, his heirs, executors, administrators and assigns, covenant with the lessee, his executors, administrators and assign?, that he and they paying the rent hereby reserved, and performing the covenants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, without any Interruption or disturbance from the lessor, his heirs, executors, administrators and assigns, or any other person or persons lawfully claiming by, from, or under him, them, or any of them. Covenants for quiet enjoyment, thouj^h a])parently directed to tlie protection of the tenant, really limit the liability of the land- lord. For, if there were no such covenant in the lease, the law would imply one on the pru't of the landlord to ])rotect the tenant from all disturbance in his holdin^*- by the landlord, or by those claiming under him, or by those claiminf? by title paramount to him (that is by an adverse and better title). But I i SHOUT Fomi LEASE. 57 / >■ f I as lliese covt'iiauls are usually frauied, the landlord only euj;a}.»es to protect the tenant from beln^ ejected either by himself or by those claiminj; under him. Where ])lainiiff (lessee) was evicted by title paramount to lessor: Held, he could not recover. The abov(^ covenant is limited to acts of lessor and those claiming- under him: Davis V. I»itch(M's, 24 C. l\ rAil St^e Snarr V. Baldwin, 11 C. P. :?5:i Defendant havinj;' executed a lease of certain premises to plaintilf, containini? the ordinary statutory covenant for quiet enjoy- ment, ])laintilf was subsequently ejected by the assi^iKH^ of mort,ca.^es thereon created prior to the leas(S and thereupon sued d(^fend- ant for breacli of the covenant; but, held, that he could not recover as the assignee of the mort.i;a^'es was not a person claiming" "by, from or under '■ the defendant, but under the defendant's predecessor in title; held, also, that the fact that defendant had taken the land subject to the mortj>aj?es and was to pay them off, did not extend her liability undiM* the covenant : liellamy v. llarnes, 14 V. C. K. 315. The foll()wini»' are the statutory directions for the use of the al)Ove short forms. The first column co^'ennnts ar(> in larpje type above the second column in small type: 58 LANDJ.UllI) AN'U TENANT. 1. Parties who use any of the forms in the first column of this schedule may substitute for th<' words " leasee " or *' lessor " any name or names (or other designation), and in every such case corre- sponding substitutions shall be taken to be made in (he corresponding forms in the second column. 2. Such parties may substitute the feminine gender for the masculine, or plural number for the singular, in the forms in the first column of this schedule, and corresponding changes shall be taken to be made in the corresponding forms in the second column. 3. Such parties may introduce into or annex to :my of the forms in the first column any express exceptions from, or express qualifications thereof, respectively; and the like exceptions or quMlifications shall be taken to be made from or in the corre- sponding forms in the second column. 4. Where the premises demised Jire of freehold tenure, the covenants 1 to 8 shall be taken to bo made with, and the proviso 9 to apply to, the heirs and assigns of th(; lessor; and where the premises demised are of leasehold tenure, the cover ants and proviso shall be taken to be made with, and jipply to, the lessor, his executors, administrators and jissigns. 5. Unless the contrary is expressly stated in the lease, in all leases made after 25lh day of March, 1886, the extended form of covenant numbered 7 shall be read as containing afl<'r the word " lessee," in the first line thereof, the words "his executors, julministrators and assigns." :# hil»F.CIAL Ccn^ENANTS. 60 CHAPTER VI. COVENANTS NOT IN THE STATUTORY SHORT FORM OFTEN USED. 82. Leases frequently contain covenants Covenant on the part of the lessee to keep the pi't^mises [|^'J3. insured; the name of the office in which the insurance is to be effected and the amount of the policy being also generally stated. Questions on these covenants very often arise in practice, and it may, therefore, be well for the tenant to bear in mind some of the most important points decided in relation to his liabilities. When a lessee has covenanted to insure and keep premises insured, it will be a breach of the covenant to allow them to remain uninsured for ever so short a i)eriod, and that, too, although no fire occur or damage be done to the premises in tlie mean- time. It will also be a breach of cove- nant to insure in the name of the tenant only, when the lease stipulates that the x)olicy sliall bii in the joint names of the landlord and tenant. And as the breach of this covenant continues so long as a state of things exists inconsistent with the provisions of the lease, any sanction, express or implied (as by re- ceipt of rent), which the landlord may give 60 LANDLORD AND TENANT. to a departuio from tlie letter of the covenant, will only apply to what is past. But these matters may be condoned by the Court under section 2(1 of the Judicature Act, hereafter (1 noted. Lessor ti » have bent- fit of an informal insurance. SJ^. In a Canadijin Act passed in 18(>5 the following;- sections were included (S, 0, 10): The person entitled to the benefit of a covenant o'l the part of a lessee or mortgagor to insure ji gainst loss or damage by fire shall, on loss or damage by fire happening, have the same advantage from the then subsisting insurance relative to the building or other property covenanted to be insured, effected by the lessee or mortgagor in respect of his interest under the lease or in the property, or by any person claiming under him, but not effected in con- formity with the covenant, as he would have from an insurance effected in conformity with the covenant. Protect ion V/here on a bona fide purchase, after the passing of purelias- of this Act, of a Itasehold interest containing a er against covenant on the part of Ihe lessee to insure against loss or damage by fire, the pui chaser is furnished with the written receipt of the person entitled to forfeiture undpr covenant for insur- ance a^i^inst fir( in eertair cases. receive the rent, or his agent, for tlie last payment of the rent accnu^d due before the compU>tion of the purchase, and there is subsisting at the lime of the completion of the purchase an insurance in conform- ity with 'he covenant. th(^ purchaser, or any person claiming under him, shall not be su])j<'ct to any liability by way of forfeiture or damaso. or other- wise, in respect of any breach of the covenant com- mitied at any time before the completion of the purchase, of which the purchaser had uot notice before the comphMion of the purchase; but this pro- vision is net to take awaj any remedy vvhich the SPECIAL COVENANTS. 61 J'. lessor or his legal representatives maj^ have against the lessee or his legal representatives for breach of covenant. The preceding sections shall be applicable to To \vhat leases for a term of years, absolute or determinable leases tlie on a life or lives, or otherwise, and also to a lease preceding for the life of the lessee, or the life or lives of any provisions shall apply. other person or persons. H4i. Tliese sections were included in the^xoitgageo Landlord and Tenant Act in the revision of may re-" 1877. They were repealed bv 49 Vict. c. ^(^^mZce s. 16 (9). The first one was considered of notmoiioy. much value, bcn-ause the Imperial statute, 14 Geo. III. c. 78, s. 8;> (which provided that in- surance money mi«:ht be applied in rebui!dinj»; on request of any party interested or on suspicion of arson), was declared to be in force in Ontario. This Imperial statute was repealed by 50 Vict. c. 26, s. 154, and thero is no similar section in anv of our Ontario t. Acts providinji^ for the case of lessees, al- though there is for mort^aji^ees. The only seetion coverinf cove- or condition in any lease to insure against "'^"t.^"^' "^^ or sure in cer- tain case.s. loss or damage by fire where no loss damage by fire has happened, and the breach has, in the opinion of the Court, been com- mitted Through accident or mistalve, or otherwise, without fraud or gross negligence, and there is an insurance on foot at the time of the application to the Court in conformity with the covenant to insure, upon such terms as to the Court may seem fit. SO. Where the landlord covenanted to Tenants insure, and the tenant had the option to pur- [*^^[j*^ *" chase, and before the time for exercisinji: the action. option expired the demised i)remises w^ere burned, the landlord receivin.c^ the insurance money, it was held thi t the tenant, on exer- cising the option, coulJ not sustain a claim to tlie insuraneo money as part of his pur- chase. OO. A covenant not 5I. 15iit, where a lease contained a cove- Specific , , i 11 i- ^1 covenant. nant to execute a renewed lease at the same rtnt, and subject to tlie same covenants, -M)!- cludinj>- Ihis present covenant,'' it was held that this was a covenant for ixu'petual renewal, and that the lessee was entitliHl to have in- sertc'd in the renewed lease a covenant for renewal in the same words as that in the original lease. No per- IM'tual re- newal through equivocal acts. One of two no right. Forfeiture of right to renew. O-l. Any construing of a covenant for re- newal as a p(n-pelual one by equivocal acts of the parties will not now be allowed. 05. One of two lessees has no single right of renewal. !>lr. The right to renew may be forfeited by not ap])lying for renewal in time. It may also be forfeitiHl by non-performance of covenants. If the covenant to renew is to be acted upon '' in case the lessee's covenants are duly perfornuHi," it is construed strictly against th(^ lessee, and will not be specilically pcrforuied if the lessor have a right of action for the breach of covenant to re])air, although the repair be but suuill. If there are any repairs wanted at all the lessee should have them done before ai)plying for the renewal. OT. A lease renewed by an executor or Executor trustee in his own namiN even in tlie absence i"i«'^^''"?- L.T. -5 G6 LAXDLOLD AND TENANT. of fraud, and upon the refusal of the lessor to f?rant a new lease to the cestui que trust, will be ordered to be held in trust for the person entitled to the old lease. Partner i^H. A partner renewinersons, oiu^ chosen by the landlord, the otlier by the tenruir. If these persons are nrbitrators. the submission can be made a ruh^ of Court. If lliev are valuers, to decidi^ by the use of their own eyes, skill and knoAvledge, it is otherwise. Wln-ther 1 SPECIAL COVf:NANTS. 07 m f :| they are valuers or arbitrators depends on the language used. 1 02. We now come to covenants which, Covenants under present legislation, are always to be ^li^^^ implied (K. H. O. c. 100, s. 17) : (1) In a conveyance made on or after the 1st day On oon- of July, 1886, there shall, in the several cases in j;;^''^"^;; this section mentioned, be deemed to be included [or ^ame and _there shall in those s<»veral cases be ijnplied ^^j^j^ covenants to the effect in this section stated by the (,^vuer. person, or by each person who conveys, as far as regards the subject matter, or share of subject matter, expressed to be conveyed by him with the person, if one to whom the conveyance is made or with the person, jointly if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common, that is to say: ((0 In a conveyance for valuable consideration, other than a mortgage, the following covenants by the person who conveys, and is expressed to con- vey as beneficial owner (namely): Covenants for right to convey; Quiet enjoyment; Freedom from incumbrances; and Further assurance; According to the tenor and effect of the several and respective forms of covenants for the said pur- poses set forth in Schedule B to the Act respecting Short Forms of Conveyances, and therein numbered 2, 3, 4, and 5, respectively, subject to the directions in the said schedule contained. 68 On con- veyance ( leasehold for value by bene- ficial owner. Validity of lease. On con- veyance trustee. Against incuni- brnnces. LANDLORD AND TENANT. (/>) In a conveyance of leasehold property for )f v.'iluable consideration, other than a mortgage, the following further covenant by the person who con- veys, and is expressed to convey as beneficial owner (namely): That, notwithstanding anything by the person who so conveys, made, done, executed or omitted, or knowingly suffered, the lease or grant creating the term or estate for which the land is conveyed \s at th(» time of conveyance a good, valid, and effectual lease or grant of the property conveyed, and is in full force, unforfeited, unsurrendered, and in nowise become void or voidable, and that notwiths^^^mding anything as aforc^said all the rents reserved by, and ;>11 the covenants, conditions, and agreements contain- ed in the lease or grant, and on the part of the lessee or grantee and the persons deriving title un- der him, to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance. {(■) In a conveyance the following covenant by to every person who conveys, and is expressed to con- vey, as trustee or mortgagee, or as personal repre- sentative of a deceased person, or as committee of a liiuatic, so found by inquisition or judicial declara- tion, or under an order of the Court, which covenant shall be deemed to extend to every such person's own acts only (namely): That the person so conveying has not executed or don(% or knowingly suffered, or been party or privy to any deed or thing whereby, or by means whereof, the subject matter of the conveyance, or any part thereof, is or may be imp(>ached, charged, affected, or incumbered in title, estate, or otherwise, or whereby, or by means whereof, the person who so conveys is in anywise hindered from conveying the subject matter of the conveyance, or any part there- of, in the manner in which it is expressed to be conveyed. 1 SPECIAL COVENANTS. (M) (2) Where in a coiiveyanoo it: is expressed that by On con- direction of ji person expressed to direct as benefi- v."y;inc(.l.y cial owner another person conveys, then the person ixiHhcuil giving the direction, whether he conveys and is ex- *'^^"''^'- pressed to convey as beneficial owner or not, shall be deemed to convey, and to be expressed to convey as beneficial owner, the subject matter so conveyinl by his direction, and a covenant on his part shall be implied accordingly. (3) Where in a conveyance a person conveying is where not expressed to convey as beneficial owner, or as c,,veniints settlor, or as trustee, or as mortgagee, or as personal ar.Miot im- representative of a deceased person, or as com- [.iicd. mittee of a lunatic, so found by inquisition, or un- der an order of the Court, or by direction of a per- son as beneficial owner, no co tenant on the part of the person ccmveying shall be by virtue of this section implied in the conveyance. (4) The benefit of a covenant implied as afore- Enforcing said shall be annexed and incident to, and shall go covbuants. with the estate or interest of the implied covenantee, and shall be capable of being enforc(Hl by every person in whom that estate or interest is for the whole, or any part thereof, from time to time vested. (5) A covenant implied as aforesaid may be Variation varied or extended by deed, and as so varied or ex- of cove- tended shall, as far as may be, operate in the like nants. manner and with all the like incidents, effects and consequences, as if such variations or extensions were directed in this section to be implied. The appliration of above section to tlie subject of this volume lies in parapjraph (h) of the first subsection. The nsadei* will observe that in this subsection the word ^' further " is used. This word shows that the covenants alreadv mentioned in subsec- 70 LANDLORD AND TENANT. Ill lion (a) nro to be JuUlcd to that mentioned in subsection ib). The transiielion referred to is ''a conveyanee of leaseliohl property for valuable consideration-' — wliat is (equivalent to a transfer by a h^sscH* of his interest, or by a lessor of liis I'cversion. Covenant to insure, extent of. CASES. Covennnt by Igssoo to insure in the name of the lessor, the insurance money to be expended in the erection of new buildings: Held, ji covenant running with the hind, und that an action would lie on it against the assignee of the lessee: iJomjlnst; V. Mnrplnj, IG U. C. R. 113. A covenant by a h^ssor (not niientloning assigns) to pay for buildings to be erected on the lands de- mised, does not run with the land, and the lessee or his assigns have no claim as against the land or the devisees of the lessor in respect of the value of buildings so erected: McClanj v. Jacktfon, DJ 0. K. 310. Carrying A lessor demised property for a term of years, on tnidinf^ with a stipulation that the lessee would not carry iitfectini? on ;iny business that would affect the insurance. I'he lessee made an under-lease, omitting any such stipulation, and the under-lessee commenced the business of rectifying highwines. Injunction grant- ed to restrain same: Arnold \. White, 5 Chy. '611. Covenant to pay for buildings not made wide enongli. tlie insiii ance. LiaVulity for nuis- ances. If a nuisnnce exist at the time of letting, both t(^nant and owner are liable. If it arise a,£ter the tenancy is created, the tenant only is responsible: Meg, V. Oder, 32 U. C. l\. 324. I I i KENT. 71 I Where the h'ssor covenants for a renewal of the Lessor's term, or in deftuilt lor payment of improvements, fptioji to the option rests with the h'ssor, either to renew or 'f'^^'w or pay for the improvements; and the lessee cannot 1*'''^ *^"^' '"'■ compel specific performance of the contract to re- '"'"\*'- jlQWi nu-nts c'lui- JU)t \h> IlutcJthition V. BouUoH, '6 Chy. 391. tuken from liim. Where a lessee took a lease of premises for two years, and covenanted to leave the premises without ^^*' *''*^*' notice at the end of that time: Held, that on eject- '"^'"""'"^ nient hroiipht by the lessor at the end of the term, ^"^^'^'' the lessee could not set up a former lease to him for a longer period: 1/ t/u//»?'/i V. A'c/U, 5 O. S. 487. ■. CHAPTER VIT. RENT. lOS. Tlio word rent siguifios a compensa- " Rent " tion or return, it being in the nature of an '^^■fi"^'*'- acknowledgment given for th(^ possession of some corporeal inheritance. It is defined to be " a certain profit issuing yearly out of lands and tenements corporeal." 104. It must be a profit; yet there is no occasion for it to be, as it usually is, a sum ^hei,?'" of money : for horses, w^la^at, or other matters, may be, and are frequently, rendered by way IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I m m 12.5 12.2 s: ,d£ 112.0 1.8 • 1.25 1.4 1.6 ".[ ^ 6" — ► v] <^ /}. /a o ^^yJ"./ ^ o 7 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y 14580 (716) 872-4503 v#% :/j \ ^^ m^ mtm 1} ill 72 LANDl.OllD AND TENANT. of rent. It may also consist in services or manual operations, as to plough so many acres of land; which services in the eye of the law are profits. 105. This profit must also be certain; or that which may be reduced to a certainty by eiUier juu'ty. lOtt. It must also issue yearly; thoupjh there is > occasion for it to issue every suc- cessive ;. a''; yet, as it has to be produced out of tlie profits of lands and tenements, as a recompense for beinj? i)ermitted to hold or enjoy them, it ou^ht to be reserved yearly, because those i)rofits do annujilly arise and are annuallv renewed. lOT. It must issue out of the thinp: pranted, and not be part of the land or thinj? itself; wherein it differs from an exception in the jjrant, which is always part of the thinj? jjfi'anted. lOH. It must, lastly, issue out of lands and tenements corporeal, that is, from some inheritance whereunto the owner or jjrantee of the rent may have recourse to distrain. Kinds of 101>. There are at common law three man- rents, ner of rents — rent-service, rent-charj^e and rent-seek. Rent-service is so called because I Ik ^vl f 4^ . , KENT. 73 r it has some corporal service incident to it, ^^}^}\ as by tlie service of ploughing' tlie land and^^^^*^^' five shillings rent. This pecuniary rent being connected with pei'sonal services is, therefore, called rent-service. For such rent, in case it be behind or in arrear at the day appointed, the landlord may distn in of common right, without reserving any special power of dis- tress; provided he has in himself the rever- sion, or future estate of the lands and tene- ments, after the lease or particular estate of the lessc^e or grantee is expired. no. A rent-charge is where the ow^nerRent- of the land has no future interest or rever- charge. sion expectant in the land; as, where a man by deed makes over to others his whole estate in fee simple, with certain rent payable there- out, and adds to the deed a covenant or clause of distress, that if the rent be in arrear or be- hind, it shall be lawful to distrain for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it. 111. Rent-seek (or barren rent) is in effect Rent- nothing more than a rent reserved or granted ^^^ ' by deed, but without any clause of distress. M 74 LANDLORD AND TENANT Rack- rent. No i)r<^- sent (lif- ferf nee . 112. Raek-ivnl is only a rent of the full value of the tenement, or near it. Hit. These are the fi^eneral divisions of rent; but the diti'erenee l)etween them in re- Sject to the remedy tor recovering them is jiow totally abolished, and all persons may have the like remedy by distress for rents- seek as in ease of rents reserved upon lease (4 Geo. II. c. 28). Rent so 114., If a rent of so much "per annum," much" per (jj, an "annual rent" of so much, is reserved (nothing being said about the time or times of ji'iyment) it will be payable once a year, on the anniversary of the commenctement of t(?.nancy. But whert^ a rent was reserved " after the rate of £18 per annum," this was held too indefinite, both as to amount and time of payment. It is usual to make the rent payable either quarterly or half-yearly on specified days. Rent re- Ho. Kent luust b(» reserved to the lessor served to himself, not to a third party. However, a stranger, ^ii^^pg there is a reservation to a stranger, either in a deed or written agreement, al- though the sum reserved is not a rent, pro- perly so called, and cannot b(^ distrained for, it may be recovered by an action on the con- tract. '.w RENT. 75 ill 'J 116. After the death of the original land- l>"*jth <>f lord or lessor, the rent will be payable to his ^•'"'''""'• executors, or to his administrators, if letters of administration were issued to his estate. 117. AYhatever covenants or provisions a Tenant lease or ajjjreement may contain, the tenant "'"'^^ '\*^'*' incurs no liability to pay rent until he ju^j^ i'"'*'^*^'^^'""- been i)ut into possession, or has been tendered and alforded the opportunity of laking pos- session of tlie demised pn^mises. tlH* Should the lease, as is generally the Reentry, case, contain a proviso enabling the landlord to re-enter and recover possession if the rent is not paid on a specified day, then on that day (accoF'Jing to the language of the proviso) the landlord must demand, or the tenant be prepared to tender, such rc^nt on the premises before sunset. (8ee chapter X.) llO. To make a tender good there must Tender, be actual ])roduction of the money due in gold, or in silver if the amount be under ten dollars (copper or bronze, twenty-tive c(Mits) or Do- minion notes. There must also be an uncon- ditional offer of it to the landlord or the bnilitf making the distress. A creditor is not bound to accept a cheque, even a marked cheque, nor is he bound to accept bank notes of any bank. If he does not make objection at the time of the tender of these notes, and w 76 LANDLORD AND TENANT. refuse the money on that ground, and after- wards raises the defence, the Court, while giving effect to it, would probably deprive him of costs, but in law the tender would not be a good tender. i I fe Tender, where to be made. 120. If there is in the lease a covenant for the payment of the rent at a fixed day, then, if no particular place for the payment is mentioned, it is the duty of the covenantor (the tenant) to seek out the person to whom the rent is to be paid, and t pay or tender it upon the appointed day. If this is not done the landlord may forthwith bring an ac- tion for the rent. Payment, to whom to be made. 121. Where the rent is paid in cash the payment must be made in accordance with, and is subject to, the ordinary rules which prevail between debtor and creditor. It may be made either to the landlord or to his authorized agent. And if the landlord have oi'ce authorized the tenant to pay his agent, he cannot by any subsequent revocation of that authority invalidate any payment of rent made by the tenant to the agent before the former has notice of such revocation. A re- mittance by post would be a sufficient and conclusive payment, whether it came to the landlord's hands or not, if sanctioned ex- pressly by the landlord in that particular in- RENT. 77 stance, or implied by the previous usage of the parties. 122. If a tenant, in order to protect him- Payimmt self, pay charges which are, in fact, due from ^y t^'»ant of cli'vrfff.s his landlord, but which are lixed upon the inland. premises he holds, and may be distrained for there, he can, in settling with his landlord, claim to have such payments taken as on ac- count of and in deduction of his rent, and may decline to pay any rent until he is fully re- imbursed. Amongst such payments are ground rents, rent due from the immediate to a supn'ior landlord, when tlie tenant actually in possession is only an under-lessee. The tenant, however, must be careful to de- duct or set off these payments agcainst the next rent that becomes due after they are made. 12J5. It sometimes happens that a person Lease by who has a mere life estate in lands grants 'if^ten- a lease for years. Such a lease determines ^^^^' upon the death of the lessor; but his execu- tors are entitled to recover a portion of the annual rent reserved in proportion to the time which elapsed from the last payment of rent till his death. A similar apportionment is made when a lessee, for a term of vears de- terminable on the falling in of lives, makes an under-lease for a term of years certain, which is still subsisting at the ex])iration of the lease on which it is dependent. M 78 LANDLORD AND TENANT. Ai>iM)r- tionuient of rt'iit. IW 11" (, I'L'' 124. The following are the statutory rules whicL now regulate the apportionment of vtut: Landlord and Tenant Act, R. S. O. c. 14;}, ss. 1 to G: 1. Whoro the words foliowiug occur in the five following sections of this Act, thoy shall bi» construed in the manner hereinafter mentioned, unless a con- trary intention appears: (1) " Rent " shall include rent-servico, rent- charge, and rent-seek, and all periodical payments or renderings in lieu of or in nature of rent. (2) " Annuities." | Omitted (not necessary in (3) " Dividends." J this worli.) 2. All rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instru- ment in writing or otherwise), shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. 3. The apportioned part of such rent, annuity, dividend, or other payment, shall be payable or recoverable in the case of a continuing rent, annuity, or other such payment, wh^n the entire portion of which such apportioned part forms part becomes due and payable, and not before; and in the case of a rent, annuity, or other such payment, determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable if the same had not so determined, and not before. 4. All persons and their respective heirs, execu- tors, administrators and assigns, and also the executors administrators and ascigns, respectively, I •%• UENT. 79 of persons whose interests determine with their own deuths, shall have such, or the samo, remedies for recovering such apportioned parts as aforesaid, when payable (allowing proportionate parts of all just allowances), as they respectively would have had for recovering such entire portions as aforesaid, if entitled thereto respectively. But perscms liable to pay rent reserved out of or chargc^d on lands or other hereditaments of any tenure, and the same lands or other hereditaments shall not be resorted to for any such apportioned part forming part of an entire or continuing rent, as aforesaid specifically, but the entire or continu- ing rent, including such apportioned part, shall bo recovered and received by the heir or other person, who, if the rent had not been apportionable under this Act, or otherwise, would have been entitled to such entire or continuing rent, and such appor- tioned part shall be recoverable by action from such heir or other person by the executors or other per- sons entitled under this Act to the same. 5. Nothing in the preceding provisions of this Act contained shall render apportionable any an- nual sums made payable in policies of assurance of any description. 6. The preceding provisions of this Act shall not extend to any case in which it is expressly stipu- lated that no apportionment shall take place. 125. A tenant from year to year, or a Destmc- lessee who lias covenanted witliont qnalifi- <^'*'" '.'f ration to pay rent dnrinp: liis term, will not ^" ''"'"*'''• be relieved from liability if the honse be wholly destroy(>d by fire. The same liability JjJis been held to continue in the case of a m > 11 1 80 , ■ 1 :*« n LAXDLOltD AND TENANT. tenant from yt'ar to year of a second floor, occupied under a parol aj?reement. And the occupant of furnislied lodgings let quarterly Las been held liable to pay rent, at all events up to the time of the fire. Of course, a tenant frem year to year may relieve himself by givinj? a proper notice to quit, but a lessee for a term certain with a general covenant must pay during the remainder of his term. Even if he have covenanted without any qualification to pay rent, and also have covenanted to re- pair, except in the case of the premises being burnt down, and the buildings are burned, this will make no difference. The landlord may refuse to rebuild, and the tenant ought to have protected himself by an express pro- viso in his lease, that in case of fire the land- lord should rebuild or repair, and that until he did the rent should be suspended or abated.* Assign- ment of interest lessee. 120. Both a lessee under a lease under ^j seal, containing the usual covenant on his part to pay rent, and a tenant from year to year under an agreement, may, in the absence of any stipulation to the contrary in such deed or agreement, assign their interests there- under. * See chapter on Covenants not in Short Form of Leases and Covenant No. (10), Short Form. RENT. 81 IST. A tenant will remain liable for rent, When ten- unless at a time when he is entitled to do so 'i^"i-^y^f^';j. he deliver up the complete possession of the nut premises; or (where there is no covenant), '^^'"^^^• the landlord accept another in his stead; or, after the tenant has abandoned the premises, the landlord let them again. In the latter case, however, the former tenant will be liable for rent up to the time of such letting. or CASES. Where demised property is sold by a prior mort- Appor- gagoe under power of sale, and tlie lease is thereby '^V'""'^'"'^ determined between two gale days, the rent is ap- *' portionable, and the tenant is liable to pay rent up to the day of such determination: Kinnear v, Aspdeii, 18 A. li. 4GB. Rent may be attached, and when it is attached Kent, the legal result is that the collateral remedy of the landlord, the judgment debtor by way of distress, is suspended; and by virtue of R. S. O. c. 143, ss. 2 to 6, a part of such rent may be attached as it accrues de die in diem, though not actually payable till the next gale day: Patterson v. King, 10 C. L. T. 7. Defendant leased to the plaintiff for three years Sureties from the 1st of May; and the plaintiff covenanted for pay - that on or before said 1st of May he would give toiuentuf defendant two sufficient securities for the perform- rear, ance of his covenants in the lease. Held, that the r^''iu>reci giving such security was a condition precedent to the plaintiff's right of possession under the lease: Murphij V. Scarlh, 10 U. C. R. 48. L.T. — 82 LANDLORD AND TKXAN'I In an action of covenan* between the original pai'tlea to the deed, an eviction from part of the premises is a good defence to the acticm. There can be no apportionment of the rent as in debt: Shutllcirorfh v. Shuw, U. C. H. .'i:;*.). If there is an adverse hohling of part of the premises, and plaintiff is excluded therefrom, no legal term is created by the instrument of lease between the parties, and no right to any rent from such part, a* cru«'S, and the rent cannot be appor- tioned because the tenant (the plaint itt) had never been subject to the entire rent by virtue of this demise: Kelly V. Incin, 17 C. P. 351. This case was not followed in llulUtud v. VanHlonc, 27 U. C. R. 15, which ca^e was as follows: Defendant leased to the plaintiff by deed for three years, there being another tenant in posses- sion of part as a monthly tenant, who was suc- ceeded by two others holding under defendant: Held, that the lease to the plaintiff, being under seal, operated as a grant of the reversion (with the rent incident thereto) as to the part thus held, and that defendant, therefore, was entitled to distrain for the whoU» rent in arrear. To.mxa of Where a party, who has held over for a term at 11?.'.!!""'"'*^*'^ certain rent, continues to occupy after the expira- tion of his term, it is presumed, if there is no evi- dence to the contrary, that he holds at the former rent: IlUlhinl v. Gciimcll, 10 O. II. 504. When (locjtors cliffiT, wlio sliall (It'cide ? tenancy, Rent is " tene- ment." Rent issuing out of land is a tenement; it par- takes of the nature of land: Hopkins v. IIopkiiiK, 3 O. R. 223. I I |,»rt£^Ke£^^HUiaiai RENT. 88 Rent to accrue due is not a chose in action, and Rent to a tenant in respect to it may attorn: accmo chir Hams V. Mnjers, 2 Cliy. Cli. 121, chum in Tlie iia.signce of a reversion cannot recover rent ^'^l^^^^l'^ ^^f accrued due before the assignment: usHiKneeof Whitlrock v. HuUimin, 13 U. C. R. 1:55. ignt rtjvorsioii. No occupation rent should be charged against Mistukoof one who has been in occupation of land under mis- title. take of title, in respect of the in( loased value thereof arising from improvements which are not allowed him: HJcGrctjor v. McGretjor, 5 u. R. ni7. Where the landlord had co\encinted to allow the Tenant tenant all reasonable improvements made by him may, if so in the amount of his rent': Held, that the tenant Htipnlated, could deduct the value of (he improver ents f rom ^''^•' ^"* the rent due: nnprove- ujents Wilcoxson V. Palmer, T. T. JJ it 4 Vict. from his nmt. A tenant may by parol bind himEclf to pay rent in advance: Rent in advance. Galbrahh v. Fortune, 10 C. P. 109. A tenant in common, being in actual occupati(m Tenant in of the joint estate, is not chargeable with rent. It common, would bo otherwise if he had been jn the actual re- how far ceipt of rent from third parties: liable for liicc V. Geurji; 20 Chy. 221. rent. 1 1 r. ■ 84 LANDLORD AND TENANT. m I I: \ |:: I CHAPTER YIII. TAXES. General 12S. All taxGs charged upon, or with re- i)iiucii)ie. ferenco to real property, are in the first in- stance payable by the occupici* of land or houses. Any taxes the tenant is wrongfully called upon to pay he may deduct from his rent, and thus throw them ultimately upon the landlord. The short form of lease, as will have been already noticed, contains a cove- nant relating to the liability for taxes as be- tween landlord and tenant, but it is necessary to consider the law where there are no cove- nants or express stipulations on this point, as is generally the case where the tenancy is one from vear to vear.* * 1802. (\msolidated Assessment Act, sec. 24, p. fuG : Any occupant may deduct from his rent any taxes paid by him, if the same could also have been recovered from the owner or pre- vious occupant, unless there is a special agreement between the occuj^ant and tiie owner to the contrary. 181>2. Consolidated Municipal Act, sec. 5G1), subsec. 3 (c) : Any aj?reement on the part of any tenant to ])ay the rates or taxes of the demised property shall not ajjply to or include the chargf^s or assessments for any works \mder this section, unless such agreement in express terms mentions or refers to such charges or assessments, ..nd as payable in respect of drainage works ; but in cases of contracts of purchase, or of leases giving the lessee a right of purchase, the said charges or assessments shall be added to the price, and shall be paid (aa the case may be) by the purchaser or by the lessee, in case he exercises such right of purchase. r ^V ^immmam TAXES. 85 120. There are two kinds of taxes* which are chargeable on land under the law relat- ing to ass(^ssnient and taxes in Ontario : (1) taxation for ordinary municipal and school purposes; (2) speciaf rates for local improve- ments. These latter include drainage im- provements. 1:J0. The provisions of the Assessment Act relating to collection of rates are as fol- lows: (1) The clerk of every local municipality makes a collector's roll containing columns for all the information required by that Act, to be entered by the collectors therein. These rolls must include all rates which are charge- able on the municipality, whether special rates, local rates, public school rates, separate school rates or special rates for school debts, as the case may be. Any provincial taxes authorized by the Provincial Legislature are assessed, levied and collected in the same way a.^ local rates, and are similarly calculated upon the finallv revised assessmiMits, and are also entered in the collector's roll. Non-resident landlords are also included in this roll. When completed the clerk of the municipality hands the? rolls to the collectors. (2) Collectors upon receiving their col lection rolls must proceed to collect taxes * Where lease contained no provision as to the taxes : Held, that the landlord should pay them ; Dove v. Udvc, 18 C. P. 424. Mode of assessment of real liroi)erty. Mode of collection of rates. Collector's roll. Collector s duty. i|i I 86 LANDLORD AND TENANT. 'Iff 1^ \ therein mentioned. In cities and towns a col- lector must call at least once upon the per- son taxed, or at his usual residence or place of business, if within the municipality, and must demand payment of the taxes payable by that person. Or, he shall leave, or cause to be left, with the person taxed, or at his residence or place of business, or on the pre- mises in respect of which the taxes are pay- able, a written notice specifying the amount, and must, at the time of that demand or notice, enter the date on his collection roll opposite the name of the person taxed. In places other than cities or towns he must call at least once on the person taxed, or at the place of his usual residence or place of business, if within the local municipalit}-, and must demand payment of the taxes payable by that person. If empowered by the by-law of the municipality he must leave with the person taxed, or at his residence or place of business, a notice specifying the amount claimed, and must enter the date of so doing opposite the name of the person in the col- lection roll. The notice must have a schedule sj)ecifying the ditYerent rates and the amount on the dollar to be levied for each rate making up the taxes. Lovy for (:^) If a person neglects to pay his taxes taxes. I'^^j, fourteen days after this demand, or after notice served pursuant to municipal by-law I a col- e per- place ', and jable cause t his ? pre- pay- ount, id or roll In Must >r at e of and able ■law the ? of unt •ing^ col- ule int ing :es er iw TAXES. cS7 as above mentioned, or in the case of cities and towns, after a demand or notice as above mentioned, the collector may by himself or his agent levy the taxes with costs by distress of the goods and chattels of the pe:son who ought to pay tliem on all goods or chattels in his possession, wherever the same may be found witliiu the county in which the local municipality lies. The costs cliargeabh^ are those pa3'able to bailiffs under the Division Courts Act. (4) There are the same exemptions as in Exomp- the case of landlord and tenant. (See chapter '^"*"''' on Distress.) (5) The goods and chattels of the ownrr are liable to distress for taxes wlu^tlier the owner is assessed in respect of tlie ])r(Mnise.^ or not. Provided that no goods which are in the possession of tlie person liable to ])ay the taxes for the purpose? only of storing or warehousing them, or of selling theui upon commission, or as agc^it, can l)e levied upon or sold for trixes. Provided also, tliat goods in the hands of an assignee for tho benefit of creditors, or in the hands of a liquidatoi* under a winding-up order, are liabh' only for tlie taxes of the assignor or of the* company being wound up, and the taxes upon tlie premises in which the goods were at the tinn.' of the assignment or winding-up order, and there- owner liable. ,1 iv- 88 LANDLORD AND TENANT. after while the assignee or liquidator occu- pies the premises or tlie goods remain thereon. Persons assessed I (G) In cases of distress for the non-pay- not in pos- uicut of taxcs, where the owner or person session, assesscd is not in possession, the goods and chattels on the premises not belonging to the person liable for the taxes shall not be sub- ject to seizure; but this restriction shall not apply in favour of — A person claiming title under or by virtue of an execution against the person so liable; Or in favour of any person whose title is derived by purchase, gift, transfer or assign- ment from the person so liable, whether abso- lute or in trust, or by way of mortgage or otherwise; Nor to the interest of the person so liable in any goods on the premises belonging to him, or to the possession of which he is en- titled, under a contract for purchase, or by which he may or is to become the owner thereof upon performance of any condition; Nor where goods have been exchanged T^otween two persons so liable by the one bor- rowing or hiring from the other, for the pur- pose of defeating the claim of or the right of distress for the non-payment of taxes; f f TAXES. 89 Nor shall the restriction apply where the property is claimed by the wife, husband, daughter, son, daughter-in-law or son-in-law of the person so liable, or by any other rela- tive of his, in case such relative lives on the premises as a member of the family; and pos- session by the tenant of said goods and chattels shall be sufficient prima facie evi- dence that they belong to him. (7) If, at any time after demand or Removal notice as above described, and before the ex- ^f,^^^.^^ piry of the time for payment of taxes, thehended. collector has good reason to believe that any party by whom taxes are payable is about to remove his goods and chattels out of the municipality before that time has expired, a warrant may be issued to the collector by the head of the municipality or any justice of the peace authorizing the collector to levy for the taxes and costs, although the time for payment may not have expired. To ob- tain this warrant the collector must make an affidavit. (S) Non-residents receive notice bv post ^'""- ^ of the amount of taxes claimed against their property, and entries are made of the trans- mission of such notices on the collectors' rolls. In the case of non-residents the col- lector, if the taxes are not paid after fourteen ;i! ;Hi. Mi 90 LANDLORD AND TENANT. days from the time of the transmission of the demand, may make distress of any goods and chattels which he mav find on the land in the same manner, and subject to the same limi- tations, as in the case of taxes on resident lands. J i \ Procedure (Q) When distraining for taxes the col- or f^rJis^' lector must, by advertisement posted up in tress. at least three public places in the township, village or ward wherein the sale of the dis- trained goods is to be made, give at least six days' public notice of the sale, and the r ime of the person whose property is to be sold. At the time named in the notice the collec- tor sells the goods, or so much as may be necessary. If the property distrained is sold for more than the amount of the taxes and costs, and if no claim to the surplus is made by any other person on the ground that the property sold belonged to him, or that he was otherwise entitled to the surplus, such surplus is returned to the person in whose possession the property was when the distress was made. If a claim is made, and the claim is admftti ', the surplus is paid to the claimant. Ir il* claim is contested the surplus is paid to ih treasurer of the municipality, who retains it until the parties have determined their rights. coTeniWe (^^) ^^ taxes cauuot be recovered in the aaadebt. above manner, they may be recovered with \ TAXES. 91 interest and costs as a debt due to the muni- cipality. (11) Where taxes are due upon any pre- Collector mises occupied by a tenant, who is not liable JJJfj^/^j^j^y. to pay them, the collector may give the tenant ment of notice in writing requiring him to pay the ^^^^ ^" rent on such premises, as it from time to time becomes due, to such collector to the amount of the taxes unpaid and costs. The collector has the same authority to collect rent by dis- tress or otherwise for the amount of these unpaid taxes and costs as the landlord of the premises would have. This right of collect- ing rent and applying it to taxes does not interfere with the other rights of the munici- pality to collect after applying any payments so received. (12) Taxes accruing on any land form aTaxe^ special lien on the land, and have preference Hen (m over any claim, lien, privilege or incumbrance ^"^' of any party except the Crown, and this prefer- ence does not require registration to pre- serve it. 1*$1. Lands may be sold for taxes when Sale for the taxes have been in arrear for three years. <^axej. After sale the owner may redeem them if he tenders the amount of taxes, with interest at 10 per cent., at any time within a year. A tax sale is not liable to question after two i? / 92 LANDLORD AND TENANT. Arrears of taxes. Tenant's right to brin^ action. years. A tax deed must be registered within eighteen months after the sale. 132. A point of considerable interest in reference to taxes is as to the responsibility of an incoming tenant for taxes, which should have been discharged by the previous tenant, but which are left unpaid at the time of his entrance. Arrears of taxes are like ground- rent, or rent due to a superior landlord, recover- able by distress upon the premises whoever may be in occupation. Before a furnished house, therefore, is taken from a previous tenant, it is advisable to ask him for the last receipts for tax<^'s, and if it appears that there are any arrears, it should be seen that they are paid before the agreement is signed or possession Taken. If the landlord is letting the house, the x)erson who ])roposes to become the tenant should satisfy himself by enguiry at the col- lector's whether all taxes have been duly paid, or should require the landlord to indemnify him against arrears. CASES. The provision of the Assessment Act (R. S. O. c. 193), requiring a demand for municipal taxes to be made fourteen days prior to distress, is satisfied by a demand made for the first instalment. The occupant of the premises assessed is not limited to the remedy given him by section 24 of the Act, viz., to deduct from his rent any taxes paid by him, but may bring an action against his landlord i TAXES. 98 to recover dc'images sustained by reason of a dis- tress for taxes upon the premises. Sucli damages are restricted to the amovnt of taxes paid to re- move such distress, and do not include consequential damages. Such distress is not a breach of the covenant for quiet enjoyment in a short form lease, for in dis- training the municipality is not claiming from or under the landlord. Smi'h V. Franklin, 12 C. L. T. 414. The section of the Assessment Act which, in the An unlim- absence of an agreement to the contrary, authorizes ited cove- the tenant to deduct from the rent the taxes paid nant to by him, only does so when he could be compelled V^y rent. to pay the same: Carson v. Veitch, 9 O. R. 706. A tenant who covenants to pay rent without any Tenant deduction therefrom for or by reason of any matter or liable for thing whatsoever, cannot claim a deduction for the taxes by amount of taxes paid by him for the house and pre- reason of raises demised: full word- ing of Ills iiruniham v. Elliott, C O. S. 192. covenant. A tenant occupied a house for some six years, rj r , during which period he paid his landlord's taxes: !:,^,J^\lt Held, that he could not deduct from the last quar- pay an ter's rent the taxes paid, although there was no other agreement as to payment of taxes between him and man's his landlord: taxes. Wade v. Thompson, 8 L. J. 22. Compare also to same effect McAnany \. Tickell, 23 U. C. R. 499. I;' I ;f!r 94 LANDLORD AND TENANT. Covenant Tho words "all rates, etc., which now are," re- to pay fer to the kind or character of the tax assessable taxes, against the land, and the words " or which shall at meaning ^ny time," etc., to any other kind of taxes which • might thereafter be imposed: Nauijhton v. Wigg, 85 U. C. R. 111. These words do not refer to arrears of taxes or taxes due for the year in which the lease is made before its date: See Ilegden v. Castle, 15 O. E. 257, contra. A tenant agreed to pay for certain premises $6 a month and taxes, and for some eighteen years re- not an ac- mained in possession, paying the taxes and nothing I^^J^Y^c^" else. The tenant, after the expiration of this period, gave to his landlord an acknowledgment of in- debtedness for rent for the whole period. Held, that the payment of taxes was not a payment of rent within the meaning of the Real Property Limi- tation Act, and that the tenant, although he had always intended to hold merely as tenant, had ac- quired title by possession, and could not make him- self liable as for rent accruing after he had so acquired possession, by giving to the landlord an acknowledgment of indebtedness in respect of rent: Finch V. GUrny, 1(» A. R. 484, followed in Coffin v. N. A. Land Co., 21 O. R 80. Payment of taxes nient of title. Extent of covenant to pay taxes. Tax pur- chaser. Under this covenant (No. 2 Short Form) defendant held liable for local improvement taxes, and for the additions made under the Assessment Act year by year, to the amount of taxes in arrear or additions made by the municipality: BoiiUon v. Blake, 12 O. R. 552. A tax purchaser could not hold a tax title against his lessors and the plaintiff (a mortgagee), the les- I DISTRESS. 05 sees being liable under their covenant to pay the taxes for which the land was sold: Heijden v. Casilc, If, O. 11. 257. An ordinary lease under the Act, containing the Tenant words and " to paj taxes," covers a special rate must ])ay created by a corporatism by-law, as well as all other special taxes: rates. In re Michie and Toronto, 11 C. P. ;i70. See on subject of Taxes, Jfines v. O'Keefe, 20 O. R. 48'J. CflAPTER IX. DISTRESS. 133. Distress, so far as we are concerned "Distress" with it, is the taking by the landlord without defined. any process in Court personal chattels found upon the demised premises for the purpose of obtaining payment of rent due to him and in arrear. 1»54. No more than six years' arrears of Six years' rent are recoverable by distress. The siXcovembi^' years count from whichever is latest, the '"'^''''^ *'* last payment of rent or the time when the tenant gave a written acknowledgment of previous rent being due. Distress may now be made for all kinds of rent. It may even f mi ■]i 'i ^: 'i 9G Effect of taking st'- curity. Tender, when it prevents costs. LANDLORD AND TENANT. bo lovic'd for the rent of furnished apart- meiits, upon Huch goods and chattels of the tenant as may be found there. 185. A bond, bill of exchjinge or promis- sory note j'iven by a tenant, and accepted by a landlord on account of rent, will not sus- pend the rij;ht of the landlord to distrain, un- less he obtain judpnent upon such instru- ment. In that case he loses his rij^ht to distrain for so much of th(» rent as he takes judj^ment for. Hence, although a landlord niay take a security by deed or bill or promis- sory note payable at six months' date, that will not interfere with his right to distrain next day if he chooses. 136. If, when the landlord or his bailiff goes to distrain, the tenant pays or tenders the arrefirs, it must be accepted without costs. If, at any subsequent part of the proceedings before impounding, the tenant tenders the rent with the costs incurred up to that time, he will be entitled to an action against the landlord should the latter choose to proceed with the distress. Bailiff 13T. A warrant of distress confers upon may re- ^j^^ bailiff an authority to receive the rent, ■ and even if the landlord has expressly for- bidden him to do so, this would not deprive the tenant of the benefit of the tender to the bailiff. & i DISTRESS. 97 18». The fact of a tenant having a debt Set-off, due to him from his huidlord to an equal or greater amount than his rent, will not pre- vent the latter distraining.* 139. No distress can be made unless there Requisites is an actual demise or letting at a fixed rent, ^(i'gt"*^,^^*'^* If, for instance, the tenant has entered into t,e made, possession under a mere agreement for a lease, and continues to occupy without having ever paid any rent, or made any admission of a specific Fum being due as rent in respect of such occupation, the landlord has no right to (listrain, but so soon as, by payment of rent or by such' an admission, a tenancy from year to year can be implied, the landlord may dis- • train for all rent subsequently coming due. 140. Where a landlord has given a notice "^^^^ ^^■ to quit, and the tenant holds on after its ex- geqliently piration, the landlord cannot distrain for rent to notice subsequently accruing due, unless something *" ^"*** * Section 29 of the Landlord and Tenant Act provides as follows : A tenant may set-off against the rent due a debt dwe to him by the landlord. The set-otf may be by a notice as fol- lows, and maybe given before or after the seizure. "Take notice that I wish to set-otf against rent due by me to you the debt which you owe tome (stating nature and amount of claim)." Sign the notice, date it and keep a copy of it, and have proof of its delivery ready. In case of such a notice the landlord is en- titled to distrain only for the balance of the rent after deducting any debt justly due by him to the tenant. (R. S. O. c. 143, sec. 29). L.T. —7 98 LANDLORD AND TENANT. I Las been doue to show that a new tenancy has been created, e.g., payment and receipt of rent. Landlord must (>\vn reversion. 141. In order that a hmdlord should with- out expressed agreement have the right to distrain, lie formerly had to be the owner of the immediate reversion in the land — that is, he must be entitled to the land when the ten- ant's interest has been determined either by the expiralion of his term or by notice to quit, but a reversion, however short, is sufficient for this purpose. 142. If a lessor parted with his reversion, though the rent was due before, he could not above (] noted) that the relation of land- lord and tenant was before the passing of the Act of 1805 feudal in its nature, and rested upon the fact that the tenant held the land of or from his landlord; the right of distress? is incident to the reversion, and by reason of the change made by that Act no tenure existed between the parties as between reversioner and tenant, but the relation of landlord and tenant was thereafter to be one of contract. If, therefore, a landlord wished to have a right to distrain he must stipulate for it specially by agreement. This conten- tion w\as ove^'-uled in the case of Harpelle v. Carroll, reported 27 Ontario Reports, 240. The repeal of the 1895 Act renders any further discussion of its particular wording unnecessary. If it was intended to base the right to make a distress upon agreement only, it failed to do so. 145. The new section (189G) omits the 1895 Express w^ords " shall be deemed to be founded on the stipulation express or implied contract of the parties." "er right. It onlv savs that the relation of landlord and v\' 'V\ 100 LANDLORD AND TENANT. tenant is not to depend on tenure, and that a reversion or remainder is not necessary to create that relation, and therefore, apparently, a landlord who has parted with his reversion ought still to be able to distrain for rent due before he parted with such reversion. But this section does not say he can. 140. The last words of the 1896 clause, " nor shall any agreement between the parties be necessary to give to a landlord the right of distress," were inserted to make quite clear what the Court had somewhat doubtfully de- cided in Harpelle v. Carroll. 147. If A. is a landlord, B. his tenant, and C. is B.'s sub-tenant, the new Act does not extend A.'s rights by way of distress over B.'s goods. It does not expressly extend A.'s right as against C. in case of merger or sur render by B, of his term. It is difficult to see of what value the section is. Right of I4S. An assignee of the lessor could not assignee of ^i^train f or rent due before the assignment, reversion to distrain, for there was no privity of estate between him and the lessee. Nor could he sue, because {:ny transfer of the right to sue for the breach of covenant is void on the common law prin- ciple of maintenance, and the statute 32 Hen. YIII. c. 34, does not transfer to him such right. \ DISTRESS. 101 ise icli in- m. ■ch \ 149. It is doubtful whether, under the section of the Ontario Act of 1896, above quoted, the assignee of the reversion can dis- train. If the section meant that he could dis- train it is very obscurely drawn. 150. Where there is no reversion in the person entitled to the rent, the right to dis- train for it may be created by expressed stipu- lation. Thus, if a lessee for years grants an under-lease of all but the last day of his term, or if while assigning the whole of his term on a rent, he expressly reserved the right to dis- train to himself, he will be able to distrain for any rent which he may reserve. A ten- ant from year to year who underlets from year to year has a sufficient reversion to dis- train. In the absence of a reversion or an expressed power of distress, the rent can only be recovered by action. 1»5I. An executor may distrain before a Executor's will is admitted to probate. right to ^ distrain. lf>2. By sections 12 and 13 of the Revised Statute respecting Trustees and Executors (R. S. O. c. 110), the executors or administra- tors of any lessor or landlord may distrain upon the lands demised for any term or at will for the arrearages of rent due to such lessor or landlord in his lifetime, in like :* '3-' s.; if' 102 Mort- gagee's right to distrain. LANDLORD AND TENANT. manner as such lessor or landlord might have done if living. 153. Such arrearages may be distrained for at any time within six months after the determination of the term or lease, and dur- ing the continuance of the possession of the tenant from whom the arrears became due; and all statutory provisions relative to dis- tresses for rent are applicable to such dis- tresses. 154. If a mortgagee gives notice of a mortgage to a tenant in possession under a Itase or letting executed or eft'ected prior to the mortgage, he may distrain for all arrears of rent in the hands of the tenant at the time of the notice, as well as for what accrues sub- sequently to it. A mortgagee, who has the right to enter on the mortgaged premises after default in payment of his interest, has also the right to evict tenants in possession under leases or lettings subsequent to the mortgage. 8uch tenants will be justified under an actual threat of eviction in attorninj]!: to the mort- gagee, that is, acknowledging him as the land- lord and paying rent to him as such, and after that has once been done, the mortgagee may distrain upon them. A mortgagee may insist upon this attornment, but if he is content with the tenant's merely paying over the rent to him without making any acknowledgment, 1 ft P"K,. DISTRESS. 103 I I expressed or implied, of his title as landlord, then he would not be entitled to distrain, though he might evict, and the right to dis- train would remain to the mortgagor. If a tenant pay rent, or any part of it, to the mort- gtigee under a threat of eviction, he would be entitled to have it allowed in account with his landlord, the mortgagor, as money paid under constraint on account of the landlord. The latter could not levy any distress or bring any action for rent so long as the amount due did not exceed the payments thus made on his behalf to the mortgagee. 155. These remarks will still further im- press upon the reader's mind the necessity for searching as to whether there are any mort- gages on premises which he may intend to lease. 156. The general rule with regard to the wiiat may things that might be distrained was that all J.j!^^i||^.j chattels and i)ersonal elfects found on the demised prer'ises might be distrained whether (^pii^ral they belonged to the tenant or to a stranger, rule. This general rule has been practically re- versed by our Legislature, as will be presently Excep- seen. With regard to goods the property of ^.J'J^J'ilJli, the tenant, the goods which at common law law. cannot be distrained are as follows: (1) Fixtures, even although they are what U -it f: ] V -'. 104 LANDLORD AND TENANT. are usually called " tenant's fixtures," that is, such as a tenant could remove when he quits the premises. (2) Things in actual use are also abso- lutely privilej^ed, for instance, the horse on which a man is actually riding, the tools with which a man is actually working, etc. (3) Things in the custody of the law, as goods, chattels, etc., in the pound or taken by and remaining in the possession of a sheriff's officer under an execution. But by 8 Anne, c. 14, s. 1, before goods seized by a sheriff under an execution put in by any other per- son than the landlord himself, can be re- moved, the immediate landlord must be paid, either by the sheriff or the execution creditor, one year's rent, if the property is held on a yearly rental, and so much remains due at the time of the seizure. As soon as a landlord hears that an execution is put in he ought to give notice to the sheriff of liis claim on ac- count of rent; otherwise, unless he can prove that the sheriff was aware of the arrears, he will lose advantage of the Act. If the goods on the premises are not suffi- cient to satisfy a year's rent, the sheriff can- not execute a writ of execution, but must withdraw. (4) Money, unless it is in the bank, and DISTRESS. 105 1 a le d Lc- e I articles of a perishable nature, such as fruit, fresh meat, milk, fish, etc. ^5) Animals in a wild state are not liable to distress. 15T. Besides things which are absolutely Condition- privileged from distress, there are others we"^*" which, in the language of the law, are con- ditionally privileged; that is to say, that they must not be taken if there are other goods on the premises sufficient to satisfy the dis- tress; such are sheep and beasts that gain the land (that is, by which the land is worked)^ the instruments of a man's trade or profes- sion, as the axe of a carpenter, the anvil of a smith, the loom of a weaver, etc., over and iibove the amount of the statutory exemp- tions. 158. By 11 Geo. II. c. 19, ss. 8 and 0, theOroA^ing landlord is empowered to distrain growing ^^^^v^- crops of grain and grass, hops, roots, fruits, pulse, or other products, to gather them when ripe, but not before; to place them in a barn on the premises, jf possible, and if not, as near as may be, and then, after a week's notice to the tenant of the place of deposit and in- tended sale, to sell these as distresses are usu- ally sold. Growing crops seized under an ex- ecution, unlike those seized under distress, may be sold before they are ripe, but so long r H lOG LANDLORD AND TENANT. as they remain on the land for sale, they are liable to be distrained for rent which comes due after the seizure, and sold, provided there is no other sufficient distress. The landlord has in respect of them the same right to a year's rent due before the seizure and sale, as he lias in regard to other chattels under 8 Anne, c. 14. The landlord is not obliged to take them before having resort to the things just mentioned as conditionally privileged. ISO. AVhen growing crops* are seized for rent they may, at the option of the landlord, or upon the request of the tenant, be adver- tised and sold in the same manner as other goods, and it is not necessary for the land- lord to reap, thresh, gather or otherwise n.arket them. (R. S. O. c. 148, s. 32.) KX 'it Any person buying a growing crop at a sale under seizure for rent is liable for the rent of the lands upon which the crop is grow- ing at the time of sale and until the crop is removed, unless the rent is otherwise satis * Growing crops, sown by the person in possession, and intended to be reaped at maturity, being fructus industriales, ai'e chattfls seizablc) inider execution, and the ownership of them is not an interest in land within the 4th section of the Statute of Frauds. Tliey are bound by the delivery to the sheriff of an execution against the owner, and they must equally be bound by the act of the owner. They are not within the Registry Act, because they are cliattels. (Cameron v. Gibson, 17 O. R. 238). DISTRESS. 107 I i fied. The rent is the same as the original tenant would have to have paid. (II. S. O. c. 1J:3, s. 33.) ICO. Gi'owing (Tops, sown by the person in possession, and intended to be reaped at maturity, being fructus industriales, are chattels sei/.able under execution, and the ownership of them is not an interest in land within the 4th section of the Statute of Frauds. They are bound by the delivery to the sheriff of an execution against the owner, and they must equally be bound by the act of the owner. They are not within the Registry Act, because they are chattels. (Cameron v. Gibson, 17 O. R. 238.) ICJI. The rule as to exemptions from dis- ^.^^^^^^^ ^^^^ tress of the property of strangers is now con- irremises tained in the following statutory provisions, ""^ pro- which form section 28 of the Landlord and teiuuit^to Tenant Act (R. S. O. c. 143), as amended to be exempt. date : (1) A landlord shall not distrain for rent on the goods and chattels the property of any person, eyeep*: the tenant or person who is liable for rent, although the same are found on the premises. But this restriction shall not apply in ftivour of a person claiming title under or by virtue of an execution against the tenant, or in favour of any person whose title is derived by purchase, gift, transfer or assign- ment from the tenant, whether absolute or in trust, or by way of mortgage or otherwise. 108 LANDLORD AND TENANT. Nor to the interest of the tenant in any goods on the premises in possession of the tenant under a contract for purchase, or by which he may or is to become the owner thereof upon performance of any condition. Nor where goods have been exchanged between two tenants or persons, by the one borrowing or hiring from the other, for the purpose of defeating the claim of or the right of distress by the landlord. Nor shall the restriction apply where the property is claimed by the wife, husband, daughter, son, daughter-in-law, or son-in-law of the tenant, or by any other relative of his, in case such other relative lives on the premises as a member of the tenant's family. (2) Nothing in this section contained shall exempt from seizure by distress goods or merchandise in a store or shop managed or controlled by an agent or clerk for the owner of such goods or merchandise, when such clerk or agent is also the tenant and in default, and the rent is due in respect of the store or shop and premises rented therewith and thereto be- longing, when such goods would have been liable to seizure but for this Act. (3) The word " tenant " in this section shall ex- tend to and include the sub-tenant, and the assigns of the tenant, and any person in actual occupation of the premises under or with the assent of the tenant during the currency of the lease, or while the rent is due or in arrear, whether he has or has not attorned to or become the tenant of the landlord. ism 16S. The exemptions from the tenant^s own property are laid down in the following section (27) of the Landlord and Tenant Act (K. S. O. c. 143): DISTRESS. 109 The goods and chattels exempt from seizure under execution shall not be liable to seizure by distress by a landlord for rent in respect of a tenancy cre- ated after the 1st day of October, 1887, except as hereinafter provided; nor shall such goods be liable to seizure by a collector of taxes accruing after the said 1st day of October, 1887, unless they are the property of the person actually assessed for the pre- mises, and whose nam© also appears upon the col- lector's roll for the year as liable therefor. (2) The person claiming such exemption shall select and point out the goods and chattels as to which he claims exemption. Provided, that in the case of a monthly tenancy, such exemption shall only apply to two months' arrears of rent. * 103. Sections 1, 3 and 5 of the Execution Exemp- Act (R. S. O. c. 64) specify the exemptions as tions from follows: I ■ 'owrpro- (1) The bed, bedding and bedsteads (including a Vf^^X: cradle) in ordinary use by the debtor and his family. ^^"^^ (2) The necessary and ordinary wearing apparel Apparel, of the debtor and his family. (3) One cooking stove, with pipes and furnishings r^r^iiture cne other heating stove with pipes, one crane and its appendages, one pair of andirons, one set of cook- ing utensils, one pair of tongs and shovel, one coal mg. * This proviso was added in 1892 (chapter 31 of statutes of that year). It means, or ought to mean Ijy correct interpreta- tion of its language, that if there is a monthly tenancy, then up to the amount of two months' arrears the exemptions cannot be touched. If there are more than two months' arrears, then for the surplus over the two months the goods which would otherwise be exempted are liable. • t \ ^i^i ¥V 110 LANDLORD AND TENANT. scuttle, one lamp, one table, six chairs, one wash- stand with furnishings, six towels, one looking glass, one hair brush, one comb, one bureau, one clothes press, one clock, one carpet, one cupboard, one broom, twelve* knives, twelve forks, twelve plates, twelve teacups, twelve saucers, one sugar basin, one milk jug. one tea pot, twelve spoons, two palls, one wash tub, one scrubbing brush, one blacking brush, one washboard, three smoothing irons, all spinning wheels and weaving looms in domestic use, one sew- ing machine and attachments in domestic use, thirty volumes of books, one axe, one saw, one gun, six traps, and such fishing nets and seines as are in common, use, the articles in this subdivision enumerated not exceeding in value the sum of $150. Fuel and (4) All necessary fuel, meat, fish, flour and provisions, vegetables actually provided for family use, not more than sufficient for the ordinary consumption of the debtor and his family for thirty days, and not exceed- ing in value the sum of $40. Animals. (5) One cow, six sheep, four hogs, and twelve hens, in all not exceeding the value of $75, and food therefor for thirty days, and one dog. Tools. Bees. Debtor may take proceeds of sales of imple- ments, etc in money. (6) Tools and implements of, or chattels ordin- arily used in the debtor's occupation to the value of $100. (7) Bees reared and kept in hives to the extent of fifteen hives: The debtor may, in lieu of tools and implements of, or chattels ordinarily used in his occupation, re- ferred to in subdivision six above, elect to receive the proceeds of the sale thereof up to $100, in which case the officer executing the writ shall pay the net proceeds of such sale, if the same shall not exceed $100; or, if the same shall exceed $100, shall pay the sum to the debtor in satisfaction of the debtor's right to exemption uuder said subdivision six, and the sum 1^ S.'tfe IW; DISTRESS. Ill to which a debtor shall bo entitled horeunder shall b** exempt from attachment or sclzuro at tho instance of a. creditor. The debtor, his widow or family, or in the case Tlie debt, of infants, their gnardian, may select out of any or may larger number the several chattels exempt from sei- s«'lect. zure. t of nts re- ive ich net eed the jht im 104. The niO(l(» of proCfMlure for flic claim Procedure iiiff of ox(MU]>t('(l chattels is laid down by see- j'" ^^'"'" lion 'M) of tiu^ Landlord and Tenant Act asticns. follows: (1) A tenant who is in default for non-payment of Tenant rent, and claims the benefit of the exemptions toclaiminj? which he is entitled under this Act, must give up t'xenipti.m possession of the premises forthwith, or be ready and ^^^^^^ ^^'i"- offer to do so. '■^'"'*'^'^' premises. (2) The offer may bo made to the landlord or to his agent, and the person authorized to seize and sell the goods and chattels, or having the custody thereof for the landlord, shall be considered an agent of the landlord for the purpose of the offer and surrender to the landlord of the possession. (3) The surrender of possession in pursuance of the landlord's notice sliall be a determination of the tenancy. (4) Where a landlord desires to seize the exempt- ed goods, he shall, after default has been made in the payment of rent, and before or at the time of seizure, serve the tenant with a notice, which shall inform the tenant what amount is claimed for rent in arrear, and that in default of payment, if he gives up possession of the premises to the landlord after service of the notice, he will be entitled to claim exemption for such of his goods and chattels as are exempt from seizure under execution, but that if he MM f; 112 LANDLORD AND TENANT. y neither pays the rent nor gives up possession, his goods and chattels shall be liable to seizure and will be sold to pay the rent in arrear and costs. (5) The notice may be in the following form, or to the like effect: Take notice, that I claim $ for rent due to me in respect of the premises which you hold as my tenant, namely (here briefly describe them): and unless the said rent is paid I demand from you immediate possession of the Piiid premises, and I am ready to leave in your pes session such of your goods and chattels as in that case only you are entitled to claim exemption for. Talce notice further, 'that if you neither pay the said rent nor give me up possession of the said pre- mises after the service of this notice, I am by law entitled to seize and sell, and I intend to seize and sell, all your goods and chattels, or such part thereof as may be necessary for the payment of the said rent and costs. This notice is given under the Act of the Legisla- ture of Ontario respecting the law of Landlord and Tenant. Dated this day of AD. To C. D. (tenant). (Signed) A. B. (lar.dlord). (6) Service of papers under this Act shall be made either personally or by leaving the same with some grown person being in and apparently residing on the premises occupied by the person to be served. (7) If the tenant cannot be found, and his place of ' abode is either not known, or admission thereto can- not be obtained, the posting up of the paper on some conspicuous part of the premises shall be deemed good service. (8) No proceeding under this section snail be deemed defective or rendered invalid by any objection of form. i"i DISTRESS. 113 n, his id will rm, or I me in tenant, 3SS the aediate ady to Is and tied to »ay th<» id pre- by law ize and thereof id rent .egisla- rd and D. ord). made some ng on ed. ace of can- some eemed ill be any ^1 I 165. No disti-ess can be made until the ^V'^*^" dis- tlay after that on which the rent becomes due, be made. noi between sunset and sunrise, nor after tender of the rent. At common law no dis- tress could have been made after the deter- mination of the lease or tenancy; but now, by S Anne, c. 14, s. 0, if a lease has been deter- mined by lapse of time or by notice to quit, the lancllord may distrain for rent accruing due before within six months after such de- termination, provided his own title to the pro- perty still continues, and the same tenant still remains in possession. 106. The landlord can only distrain for where dis- rent upon the i)remises in respect of w^liich it tress can is payable. To this rule, however, there are ^^"**^^- some excei)tions. If a landlord coming to distrain sees beasts upon the premises, but before he can distrain the tenant drives them otf, the landlord mav follow and take them and by 11 Geo. II. c. 19, if a tenant fraudulently or clandestinelv removes jj^oods from th(^ demised premises to prevent the lessor from distraining them for rent in arrear, tln^ lessor, or his bailiff or agent, may, within .*U) days next after such removal, take and seize them wherever they may be found, unless they have in the meantime been sold bona tide to some person ignorf^nt of the fraud. L.T.-8 114 LANDLORD AND TENANT. i h>' 'I! II Fraudu»_ lent removal. Chattel mort- gagee's claims. 107. This statute does not apply to the case of a removal of a stranger's goods from the premises, nor to the removal of the goods of a tenant which are assigned by one of his credi- tors in satisfaction of a bona fide debt. It will be remembered that we are only speak- ing here of the right to distrain. The re- moval by a creditor might be a breach of the Fraudulent Preferences Act, and the landlord might have his claim to a share of the pro- ceeds of these goods like any other creditor. Nor does the statute apply to the removal of a tenant's goods before the day on which the rent becomes due. If removed on the morn- ing of the day on which the rent becomes due they may be followed and seized under the statute. By section 7 of this Act, when goods are fraudulently removed, and are placed in any house or place, loclted up or otherwise secured, the landlord, or his agent, may, with the assistance of a police ofiScer, and in the case of a dwelling-house, on oath being made before a magistrate of a reasonable ground to suspect that the goods are in it, break open the house in the day time and distrain the goods as if they had been in any open place. The constable to be present may be one speci- ally appointed for the occasion. 16». In practice it is often found that goods thus removed are liable to a chattel mortgage, and the landlord's priority over such fi .^•' 1 DISTRESS. 115 that attel such chattel mortgage ceases as soon as the goods are removed from the demised premises. In taking proceedings under this Act, therefore, the landlord must be careful to ascertain be- fore he incurs any expense whether the goods are covered by a chattel mortgage or not. If he chooses to pay off the chattel mortgage, and take an assignment of it or discharge it, he could then seize the goods, because the ownership would be revested in the tenant. If he sold the goods without refc^^rence to the chattel mortgage he would be liable in dam- ages to the chattel mortgagee. By section 1 of 11 Geo. II. c. 11), the tenant, or any person assisting him in carrying away or concealing goods, has to forfeit to the landlord double the value of such goods, to be recovered, where the goods exceed the value of £50, by action or suit, and where the value ^s below that amount, under section 4, by summary pro- ceedings before two justices. In the latter case the justices have the power to commit for six months if the money is not paid and no sufficient distress can be found. Police magis- trates in cities in Ontario have the same power as two justices of the peace. 160. The landlord must, in the first place. Amount of be careful not to distrain for more rent than distress, is actually due; and, in the second place, to distrain at one time for the whole of that which is due. If, indeed, there has been some 116 LANDLORD AND TENANT. mistake as to the value of the goods, aud the landlord having fairly supi)Osed the first dis- tress to be sufficient to realize the whole rent due, afterwards linds that it will only cover a part, he may then distrain again for the re- mainder; or if, after putting in a distress, he has at the request of the tenant agreed to postpone it and has withdrawn, he may then distrain a second time. m <^ premises distrained upon. Entry into ITO. The outer door of a house, except in the case of goods fraudulently removed, can- not be broken open. It is not a breaking to open it by the usual means adopted by per- sons having access to the building; but when the outer door has once been passed, the inner doors may be forced, and if the landlord or his agent, having been once lawfully in the house, and have begun to make distress, are forcibly ejected, they may then break open the outer door to re-enter. Who may make a distress. IT I. A distress may be made either by the landlord himself or bv an authorized agent, called a bailiff. To justify a landlord in calling in a policeman, it must be shown that his presence was rendered necessary by violence or threats. Warrant IT 2. The authority is usually given to a of distress. |3jj|]iJY jjj writing by what is called a warrant of distress, but if a landlord's agent distrain DISTRESS. 117 by without his orders, subsequent ratification of his acts is as effectual as a previous direction. 173. The usual mode of making a distress j^f^de of is for tlie landlord or his bailiff, having nuiking a entered, to lay liis hand upon and take hold *^'^"^•^^• of some article of furniture or other chattel, and declare that he seizes it as a distress in the name of all the goods in the house; but it will be quite sufficient if, after entry, he announces his intention to take the whole or certain articles named as the distress. IT4. When the seizure has been thus Inventory. made, the next thing is to draw up an inven- tory of as many goods as are sufficient to cover the rent distrained for, and also the costs of the distress. A copy of the inventory must then be made, and this, with the notice usu- ally written at the foot of the inventory, of the fact of the distress having been made and the goods contained in the inventory having been taken, of the rent distrained for, and of the date on which the rent and costs must be paid or the goods replevied, must be served upon the tenant, either personally or by leaving it for him at his house, or if there is no house, on the premises, or if no person is tliere with whom the notice can be left, then by sticking it up in some prominent place on the fence. A witness should be present to prove the regularity of the proceedings. 11 118 Removal of goods. Pounding cattle . 1^ LANDLORD AND TENANT. 175. When the distress has been made and the inventory drawn up, the landlord may then remove the goods off the premises to any convenient place of security, of which the tenant must have notice, with the inventory, and where they are impounded. 176. If, however, cattle are seized, they must ir e driven out of the municipality in whi = t<.\^-y are taken, except to an open pound in the same municipality, not more than tiuef^ mlf-^^ from the place of distress. A distress is, tiowever, now hardly ever re- moved from the premises, because by 11 Geo. II. c. 19, it was enacted that it shall be lawful for any person or persons lawfully making any distress for any kind of rent, to impound ir or otherwise secure the distress so made, of whatever nature or kind whatsoever it may be, in such place or in such part of the pre- mises chargeable with the rent as shall be most fit and convenient for the impounding or securing of such distress. Under this sta- tute the landlord may, even without the ten- ant's consent, take such part of the premises, or even the whole, as is necessary for securing the goods, and place a man in possession of them there; but it has been held that, if it is not necessary to use the whole of the pre- mises for the purpose, he must place the goods distrained in one or more rooms, according to the space required, unless the tenant, as he M I DISTRESS. 119 usually does, allow tliera to remain in their ordinary places. No particular form is now required to constitute an impounding. As soon as the distrainor has made out and de- livered to the tenant, or has left upon the premises, an inventory of the goods he has taken, they are impounded, and then, even though no one is left in possession, as soon as this is done they are in the custody of the law, and if the tenant retake them he will be liable to indictment, and also to an action for damages. 1*77. The landlord must not use or con- Landlord sume any animals or things impounded. If must not he does, the tenant will have an action for "ou^^ed damages. To this there is one exception — a things. landlord may milk cows which have been dis- trained, for this is necessary for the preser- vation of the animals. A distrainor is now bound to feed impounded cattle if the owner does not. 178. If a tenant, after he has received Appraise- notice of distress, do not within five days* pay the rent, with the costs of the levying or re- plevying of his goods, the distrainor may, by 2 W. & M. c. 5, s. 3, with the assistance he * The five days are to be calculated inclusive of the last day and exclusive of the date of seizure ; thus, if the distress is taken and notice given on the 1st of March, it will not be lawful to sell until the 7th March. ]20 LANDLORD AND TENANT. ?¥•!' iil ;| ■S'i 'J if of the sheriff of the county or a constable, cause the same to be appraised by two sworn appraisers, Avhom the sheriff or constable are authorized to swear, and after sucli appraise- ment may sell the same, and apply the pro- ceeds to the satisfaction of the rent and the charges of the distress and appraisement, leavinf? the surplus, if any, in the hands of the sheriff or constable for the owner's use. Distrainor 17!l. The distrainor cannot retain posses- re"a?n"p()s- ^^<^^ ^^ ^^^ goods ou the premises of the tenant session of for more than five days, together with such thegood.^. further reasonable time as may be necessary for appraising and selling the same, unless he has the express consent of the tenant for such further retention of the goods and occupation of the premises. A delay of this kind fre- quently takes place when the tenant wishes further time to enable him to raise the money to pay his rent. This consent ought to be in writing for the sake of safety, although it may be legally given by word of mouth. If the bailiff or person actually making the dis- tress on behalf of the landlord acts as one of the appraisers, the distress will be rendered irregular. The appraisers need not be pro- fessional appraisers, but they must be reason- ably competent. They must value every article in the inventory separately, and then indorse the inventory with a signed memo- randum of the total valuation. DISTRESS. 121 be ffh it If dis- one ered pro- ason- jvery then lemo- ISO., The goods may then be put up for "^iilf'* auction, but the appraisers may take them at their own valuation, the hiw presuming that goods sold as appraised are sold at the best prices. The distraining bailiff must sign the receij^t for the money realized at the end of the inventory. If the amount received exceeds that of the rent and costs of distress the surplus must be left in the hands of the sheriff or constable for the tenant. Goods followed and distrained after a fraudulent removal are to be sold in the same manner as if they had been seized on the premises. IHI. 15esides the remedy bv distress the Action for • rent landlord has also the right to bring an action for his rent. If a tenant, having entered into possession of premises on the understanding that he is to make some compensation for their use without any express stipulation for the payment of a rent certain, then no distress can be made, but the landlord may bring an action for reasonable compensation for the occupation. Even if the occupation wen^ that of a squatter or trespasser the landlord could bring such an action. He might, in such a case, eject the party, but he has also the oj)- tion of treating him as a tenant, and compel- ling him to pay for the use of tlie premises. 1S2. It is usual in leases to afford the Power of landlord, if not the remedy for the payment reentry. 122 LANDLORD AND TENANT. j|iw 1^ '.pi seizure of exempted goods. of rent, at least protection against the accu- mulation of arrears, by giving him the power to re-enter and terminate the lease if the rent be not paid within a certain number of days after it has become due. Costs in 1^3. The costs of distress for rent are respect of provided for as follows: First, as to exempted goods (R. S. O. c. 143, s. 34): No costs shall be levied for or in respect of the seizure upon exempted goods when thoy may not be lawfully sold, and when sold no greater sum in all than $2.00 and actual and necessary payments for possession money shall be levied or retained for or in respect of costs and expenses of sale of such exempted goods. charged ^^ 1^4. Second, as to seizure where distress under $80. is f or sums Under |80 (R. S. O. c. 63) : No person making distress for rent or for a penalty, where the sum demanded and due does not exceed $80 in respect of the rent or penalty, and no person employed in making the distress or doing any act in the course of the distress, or for carrying tue same into effect, shall take or receive from any per- son, or out of the produce of the chattels distrained and sold, any other costs in respect of the distress than such as are set forth in Schedule A hereunto annexed, and no person shall make a charge for any- thing mentioned in the said schedule, unless such thing has been really done. If a person offends against any of the provisions ot the preceding section, the party aggrieved may apply to a justice of the peace for the county, city, or town t I DISTRESS. 123 are for a IS not no ^g any Lg cue per- lined stress leunto any- such )ns ot Lpply I town where the offence was committed for the redress of the grievance, whereupon the justice shall summon the person complained of to appear before him at a leasonable time, to be fixed in the summons, and the justice shall examine into and hear the complaint and defence, and if it appears that the person com- plained of has so offended, the justice shall order and adjudge treble the amount of the money unlawfully taken and full c ts to be paid by the offender to the party aggrieved. No person aggrieved by a distress for rent or a penalty, or by any proceeding had In the course thereof, or by any costs or charges levied upon him in respect of the same, shall be barred from any action or remedy which he might have had before the pass- ing of this Act, except so far as any complaint pre- ferred under this Act has been determined by the order and judgment of the justice before whom it has been heard and determined, and in case the matter of the complaint is made the subject of an action the order and judgment may be given in evidence under the defence of not guilty. (Schedule A.) Costs and charges on distress for small rents and penalties: Lrtwying distresses under $80 $1 00 Man keeping possession per diem ... 75 Appraisement whether by one appraiser or more, two cents in the dollar on the value of the goods. If any printed advertisement, not \o ex- ceed in all $1. Catalogues, sale and commission, and delivery of goods — five cents in the dollar on the net produce of the sale. 185 . ThHrd, where the seizure is far distress Fees when for sums over |80 (R. S. O. c. 143, ss. 35 to 40): over " 12t LANDLORD AND TENANT. . I When th« sum to be levied by distress for rent, or for any penalty, exceeds the sum of $80, no further charges shall be made for or in respect of costs or expenses by any person making the distress, im- ployed in doing any act in the course of such a...aes8, than the following, that is to say: — (a) The actual expenses or outlay reasonably in- curred in removing the goods distrained, or part thereof, when such removal is necessary. (h) Advertisement when necessarily published in a newspaper $2.50, but not to exceed $5.00. ((') If any printed advertisement otherwise than in a newspaper $1.00, but not to exceed $3.00. (f/) The sum of $1.00 per day for man keeping possession in lieu of 75c. per day. ((•) When the amount due shall bo satis^ ' in whole or in part after seizure and before sj the bailiff or person seizing shall be entitled to cx.arge and receive but three per cent, on the amount realized in lieu of five per cent, and no more. The person whose goods are distrained, or the per- son authorizing the distress, or any person interestefl, may, upon giving two days' notice in writing, have the costs of the bailiff or other person making the dis- tress, and the disbursements charged, taxed by the clerk of the Division Court within whose division the distress has been made. The bailiff or person so making the said distress shall furnish the clerk with a copy of his costs, charges and disbursements, for taxation at the time mentioned in the notice, or at such other time as the clerk may direct, and in default of his so doing he shall not be entitled to any costs, charges, or dis- bursements whatever. The clerk upon such t«axation shall, amongst other things, consider the reasonableness of any charges for removal, keeping possession, and for advertising, or :t DISTRESS. 125 rent, or further ;ost8 or ;m- ibly in- or part led in a se than keeping sf ^ in { the cxxurge amount he per- irestefl, ;, have :he dis- by the lion the listress costs, le time as the >ing he >r dis- other |ges for ing, or any sums alleged to have been paid tlierefor, and may examine either party on oath touching the same. The person requiring the taxation shall pay the clerk a fee of twenty-five cents therefor. Where that portion of the bill or charges in dis- pute amounts to the sum of $10, either party may on giving two days' notice have the taxation revised by the clerk of the Courty Court. He shall be paid a fe<« of fitly cents for such revision by the person appeal- ing, and it may in the discr(»tion of the clerk be deducted from or added to the bill as finally taxed by him. ISO. l*ei'S()ns ov(n'cluii'ji;'inji- are liable, on iVnalty proceedings beiujjj taken before ti justice (>f [i)^,j '''^"'' the peace, to pay treble ilie amonnt of money actually taken and costs. A landlord can not 1 )e so punislunl unless he personally levied tb(^ distress. This proceeding before a justice is in addition to any right of action there may be for damages. CASES. The plaintiff as landlord distrained the goods of Geneinl his tenant on 16th July, and left them in the custody rules as to of the tenant, who agreed to hold possession and de- conse- liver them up when required. On 10th August ;i4iiP"ceHof chattel mortgagee seized and removed the goods. ^^^^y^' '" In an action for pound breach under 2 W. & M. c.'^*^ 5, s. 4, by the landlord against the chattel mortgagoe and his bailiff: Held, that the landlord had the right to impound and secure the goods on the premises, and at the expiration of five days to sell them, and had a reasonable time after the expiration of the five days to sell which had elapsed in this case; that there was a good distress and a good impounding, and the agreement bound the tenant, but not the mortgagee, n , 126 LANDLORD AND TENANT. who was entitled to have the provisions of the law carried out; and who could, after the expiry of a reasonable time for sale, say the goods are not in the custody of the law, but of the landlord, under an agreement with the tenant, and in taking them under his chattel martgage he did not commit a pound breach: Langtry v. Clark, 16 C. L. T. 109. A bailiff seized certain goods under a landlord's distress warrant for rent in arrear, but did not re- main in possession or take any further steps to execute the warrant, except that, as the jury found, the tenant was constituted the landlord's agent to take possession of the goods for him under the war- rant. After the lapse of more than a month a chattel mortgagee took possession of the goods under his mortgage and removed them: Held, that the land- lord was not entitled to recover them: Roe v. lioper, 23 C. P. 76. Tenant cannot af- fect rights of mort- gagee. Headland- lord seizes goods of person in possession. It is doubtful whether a tenant can waive all statutable formalities as to inventory, etc., as regards the mortgagee: Whimsell v. Gifard, 3 0. E. 1. The plaintiffs were let into possession of certain demised premises by the agent of the tenants, who afterwards repudiated the agent's authority and re- fused to recognize the plaintiffs as sub-tenants. The defendant, who was head landlord, in the meantime distrained the plaintiffs' goods for arrears of rent, and the plaintiffs brought this action to recover damages. Held, that the plaintiffs were in possession within the meaning of ss. 3 of R. S. O. c. 143, s. 28, and the distress was lawful: Farwell v. Jamiefon, 16 C. L. T. 211. i DISTRESS. 127 The plaintiff having remained in possession and A removal paid rent after the expiry of his term, the defendants of goods levied a distress upon plaintiff's goods in the pre- ^'^Jf^^n^d mises situate six miles from Toronto, for two n^o^ths' JJ^^'j^JJ^^j arrears of rent, and removed the goods to Toronto to impound and sell. The plaintiff brought an action ot trespass, claiming that he was not defendant's tenant: Held. 1. That the relationship of landlord and tenant existed at the time of the distress. 2. That the removal to Toronto, unless unneces- sary and unreasonable or malicious, was not a good ground of action: Mucgregor v. Defoe, 14 O. R. 87. On a distress for rent no notice thereof in writing An illegal was given to the lessee, nor a legal appraisement distress, made before sale; and the actual value of the goods sold was much greater than the amount due for rent: Held, that the distress was illegal: IJo'oell V. Listowell, 13 O. R. 476. (See this case also on subject of Tender.) Where a landlord has distrained for arrears of Third rent goods upon the demised premises liable to such party's distress, belonging in part to the tenant and in part right. to a third party, such third party has no right to compel the landlord to sell the part belonging to the tenant before selling the part belonging to such third party: Fefjrj V. Starr, 23 O. R. 83. The withdrawal of a first distress, not being aWith- voluntary one, but under a special arrangement, drawal of did not prevent the landlord from making a second distress, distress. The second distress could be supported by reason of the first distress being withdrawn, through the tenant's fraud. Section 4 of 58 V. c. 26, does not preclude a right of distress, unless there is an ex- 128 LANDLORD AND TENANT. The effect of a taking a note on the right to distrain. Tlireshing grain. Yearly tenancy, distrain- ing forrent under. To justify a distress there must be a dis- tinct re- lationship of landlord and tenant of fixed premises. Requisites for a good tender. press contract therefor contained in the lease; and the section is not retrospective: Harpclle v. Carroll, 10 C. L. T. 118. The mere taking of a note for rent will nc^ tak«^ away the right to distrain, but it is otherwise where in consideration of receiving it the landlord express- ly agrees to wait until it is dishonoured. In this case such an agreement was proved: Simpson v. Hewitt, ?/.) U. C. R. 010. Where a sheriff, acting in good faith for all con cerned, agreed to pay for having grain threshed for the purpose of its better sale, the expenses of such threshing should be allowed him: Gcilhraith v. Fortune, 10 C. P. 109. A letting at an annual rent constitutes a yearly tenancy, which continues at the same rate for the second year as the first, if the tenant remain in possession of the premises, and the landlord may dis- train for the first year's rent at the end of the second year: McClenaphan v. Barher, 1 TJ. C. R. 26. The defendant, who owned the farm, agreed with the plaintiff to work it on shares, each of them supplying one-half of the seed and labour, and to have half the profits, the plaintiff to pay $60 for implements and $160 annually; but the plaintiff was not placed in possession of any distinct portion of the farm, the parties being equally in possession of the whole. Held, tb.Mt th(>re was no lease created between the parties, and that the $160 wns not rent for which the defendanc could distrain: Oberlin v. MGrerior, 26 C. P. 460. In order to constitute a legal tender the money must be produced and shewn to the creditor, or its production expressly or implidly dispensed with. To divest a landlord of his right to distrain a strict legal tender must be shown: Matheson v. Kelhj, 24 C. P. 598. FORFEITURE AND RE-ENTRY. 129 CHAPTER X. FORFEITURE AND RE-ENTRY. 18T. The short form of lease, and, In Right of fact, almost all leases contain a condition entry, or proviso whereby it is declared that the lease shall be forfeited, and that the lessor shall have a right to re-enter and repossess himself of the premises, if the tenant commits a breach of some or anv of the covenants of the lease; for instance, for non-payment of rent, for non-repairing, for waste, for not insuring, for carrying on prohibited trades, etc. In nearly all these cases it is obvious enough when a prohibited act has been com- mitted and a forfeiture incurred. money or its th. To strict 188. Formerly, if the rent were not paid Former when du(.» and demanded, a demand of the requisites tor TG- precise rent due (after all deductions) had to be entry. made by the landlord or his agent on the day on which it was due and payable — before sun- set — at the place, if any, fixed for payment, and if no place was fixed, then upon the demised premises. If the tenant did not then pay the rent, the landlord could immediately bring an action of ejectment and turn him out. Very frequently, however, the proviso relieved the L.T.— 9 180 LANDLOllD AND TENANT. hi ' I Right must be reserved. landlord from the necessity of demanding the rent, and in that case the tenant incurred a forfeiture if he did not himself, go and pay or tender his rent on the appointed day. And however the proviso was worded in this re- spect, if half a year's rent were in arrear, and no suflicient distress found on the premises, the landlord might forthwith bring ejectment. If the tenant, by fastening the outer door, hindered the landlorcl from distraining, this rendered it unnecessary to prove that there was no " suflicient distress " on the premises. But the forfeiture could be waived by the landlord's putting a distress into the premises, or by his accepting rent which became due subsequently to the alleged forfeiture. ISO. The necessity for the proviso arose from the fact that mere non-payment of rent or breach of covenant by the tenant does not determine the lease, unless there be a right reserved to the landlord to re-enter thereon; and even then, so much does the law lean against forfeiture, that to determine a lease for forfeiture for non-payment of rent, great nicety, as above stated, formerly existed, un- less, as became usual, the proviso for re-entry dispensed therewith. The form of proviso in- cluded in the Short Forms Act, it will be seen, does dispense with the demand for rent. So, whenever that form is used, there is not much dilficultv. But in cases where the short FORFEITURE AND RE-ENTRY. \'M ;• the ed a pay And LS re- , and nises, inent. door, , this there mises. 3y the imises, le due arose )f rent )es not I right lereon ; \v lean a U^ase ^ great ed, un- -e-entry viso in- 3e seen, at. So, is not 10 short form of lease was not used the difficulty continued, therefore the Legislature provided as in tlie two sections now next followmg. 190. Section 9 of the Landlord and Tenant Act (R. S. O. c. 143) : In every demise made or entered into after the j^jo-ht of 25th day of March, 1886, whether by parol or itignfry. writing, unless it shall be otherwise agreed, there shall be deemed to be included an agreement that if the rent reserved, or any part thereof, shall remain unpaid for fifteen days after any of the days on which the same ought to have been paid, although no formal demand shall have been made thereof, it shall be lawful for the landlord at any time there- after into and upon the demised premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess and enjoy, as of his former estate. lOl. Section 31 of the Landlord and Ten- ant Act [It, S. O. c. 143): Where a landlord has by law a right to enter for non-payment of rent, it shall not be necessary to demand the rent on the day when due, or with the strictness required at common law, and a demand of rent shall suffice notwithstanding more or less than the amount really due is demanded, and notwith- standing other requisites of the common law are not complied with; provided that unless the premises are vacant, the demand be made fifteen days at least be- fore entry, such demand to be made on the tenant personally anywhere, or on his wife, or some Ocuer grown up member of his family on the premises. Common law strict demand of rent dis- pensed with when landland entitled to re-enter. 132 LANDLORD AND TENANT. Where I02. Before these two last sections were rent m ^"^ ^ passed the strictness of entry required at arrear. conimon law had, as also above stated, been dispensed with in cases where half a year's rent was in arrear, and no sufficient distress was to be found on the premises counter- vailing the arrears then due, and the lessor had power to re-enter for non-payment. The following are the provisions of the Landlord and Tenant Act relating to this point. They form sections 17 and 22, inclusive, of the Land- lord and Tenant Act: Landlord ^^ ^^^ cases between landlord and tenant, as often having ^^ it happens that one-half year's rent is in arrear power to and the landlord or lessor to whom the same is due has re-enter the right by law to re-enter for non-payment there- for non- of, such landlord or lessor may, without any formal payment demand or re-entry, serve a writ for the recovery of the demised premises; or in case the same cannot be legally served, or no tenant is in actual possession of the premises, then the landlord or lessor may affix a copy thereof upon the door of any demised messuage; or in case the action is not for the re- covery of any messuage, then upon some notorious place, of the lands, tenements, or hereditaments, com - prised in the writ; and such affixing shall be good service thereof, and shall stand instead of a demand and re-entry. How such In case of judgment against the defendant for non- right shall appearance, if it is shown by affidavit to the Court, be exer- or is proved upon the trial, in case the defendant appears, that half a year's rent was due before the writ w^as served, and that no suf.icient distress was to be found on the demised premises countervailing the arrears then due, and that the lessor had power to re- enter, the lessor shall recover judgment, and have cised. FORFEITURE AND RE-ENTRY. 183 svere i at been ear's tress nter- essor The dlord They Land- s often arrear iue has ; there- fcrmal very of anot be Vision of ay affix iemised the re- otorious ts, com- be good demand for non- Le Court, efendant i the -writ ms to be iling the ver to re- ind have t -^ execution in the same manner as if the rent in arrear had bten demanded and re-entry made. In case the lessee or his assignee, or other person Conse- claiming or deriving title under the lease, permits quences of and suffers judgment to be had on such trial and exercising execution to be executed thereon without paying the^^li^^i rent and arrears, together with full costs and without "Kht. proceeding for equitable relief within six months after execution executed, then and in every case the lessee and his assignee, and all other persons claim- ing and deriving under the lease, shall be barred and foreclosed from all relief or remedy, other than by proceedings by way of appeal from the judgment, and the landlord or lessor shall from thenceforth hold the demised premises discharged from the lease. Nothing hereinbefore contained shall bar the right As to of any mortgagee of such lease, or any part thereof , mort- who is not in possession, if the mortgagee, within pagees of six months after such judgment obtained and execu- lease, tion executed, pays all rent in arrear, and all costs and damages sustained by the lessor or person entitled to the remainder or reversion, and performs all covenants and agreements which on the part and behalf of the first lessee are to be or ought to be performed. In case the lessee, his assignee or other person, Proceed- claiming any right, title or interest of. in or to the ings if the lease, proceeds for equitable relief within the time'^nant aforesaid, such person shall not be entitled to a stay ^'J^'S;**^^ of the proceedings unless within forty days next after ^^<^Hj an application for a stay of the proceedings, he brings r^j^gf^ into Court and lodges with the proper officer such sum of money as the lessor or landlord swears to be due and in arrear, over and above all just allow- ances, and also the costs taxed in the said action, there to remain until the hearing of the application for equitable relief, or to be pnid ouc to the lessor or landlord on good security, subject to the judgment or m IVA LANDLORD AND TENANT. If such proceed- ings be after ex- ecution executed. Discon- tinuance if tenant pays ar- rears of rent and costs be- fore trial, etc. order of the Court; and in case such proceedings for equitable relief are taken within the time aforesaid, and after execution has been executed, the lessor or landlord shall be accountable only for so much as he really and bona fide, without fraud, deceit, or wilful neglect, has made of the demised premises from ...e time of his entering into the actual possession there- of, and if what he has so made is less than the rent reserved on the lease, then the lessee or his assignee, before being restored to his possession, shall pay the lessor or landlord what the money so by him made fell short of the reserved rent for the time the lessor or landlord held the lands. If the tenant or his assignee at any time before the trial in the action pays or tenders to the lessor or landlord, or to his solicitor in the cause, or pays into Court, all the rent and arrears together with the costs, all further proceedings in the action shall cease; and if the lessee or his assigns, upon such pro- ceeding as aforesaid, obtains equitable relief, he and they shall have, hold, and enjoy the demised lands according to the lease thereof made without any new lease. Forfeiture lO*5. Besides re-entry or forfeiture for non- perfoiTO- P^y^^Jit of rent, there may be also forfeiture anceof for non-perfomiance of covenants, as will be covenants, j^een by ai^ain referring to the form of proviso furnislied bv the Act. With reference to such • ■ a right of re-entry or forfeiture the Legisla- ture has enacted as follows, being section 11 of the Landlord and Tenant Act : (1) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be en- forceable by action or otherwise, unless and until FORFEITURE AND RE-ENTRY 135 ;s for esaid. 5or or as he m — e there- e rent ir his L, shall )y him aie the before 5 lessor Dr pays nth the a shall ich pro- he and d lands my now or non- feiture will be proviso to snch Legisla- tion 11 nder any ch of any ot be en- land until the lessor serves on the lessee a notice specifying the Restriu- pt'rticular breach complained of, and if tlio breach istioiiHon capable of remedy, requiring the lessee to remedy the'^"^'/^^'*^^ breach, and in any case x*eqiiiring the lessee to mako*j?«'J'J!^^ _^ compensation in money for the breach, and the lessee ^^^j'j^*.^^^"^'*'* fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor for the breach. (2) Where a lessor is proceeding by action or other- wise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any. or in any action brought by himself, apply to the Court for relief, and the Court may grant or refuse re- lief, as the Court, having regard 1o the* prooo'^dings and conduct of the parties under the foregoing pro- visions of this section, and to all the other circum- stances, thiiiks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court in the circumstances of each case thinks fit. (3) For the purposes of this section a lease in- cludes an original or derivative under-lease, also a grant at a Tee farm rent, or securing a rent by con- dition; and a lessee includes an original or deriva- tive under-lessee, and the heirs, executors, adminis- trators and assigns of a lessee, also a grantee under such a grant ns aforesaid, his heirs and assigns; and a lessor includes an original or derivative unuer- lessor, and the heirs, executors, administrators and assigns of a lessor, also a grantor, as aforesaid, and his heirs and assigns. (4) This section applies, although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease. In pur- suance of the directions of any Act of Parliament or of this Legislature. m li irn LANDLOHI) AND TENANT. (5) For the purposes of this section, n leaso limited to continue as long only jis the lessee abstains from committing a breach of covenant shall be and take effect as a lease, to continue for any- longer term for which it could subsist, but determin- able by a proviso for "e-' ntry on such n breach. (6) This section does not extend: (a) To a covenant or condition against the assigning, under-letting, parting with the possession, or disposing of the land leased, or to a condition for forfeiture on the bank- ruptcy of the lessee, or on the taking in i execution of the lessee's interest; or, (h) In case of a iiiining lease, to a covenant or condition for allowing the lessor to have access to, or inspect books, accounts, record*?, weighing machines, or other things, or to enter or inspect the mine or the workings thereof. ' A " mining lease " is a lease for mining pur- ' poses, that is, the searching for, working. getting, making merchantable, carrying away, or disposing of mines and minerals, i or purposes connected therewith, and includes a grant or license for mining purposes. (7) This section shall not affect the law relating to re-entry or forfeiture, or relief in cases of non- payment of rent. (8) This section applies to leases made either before or after the 25th day of March, 1886, and shall have effect notwithstanding any stipulation to the contrary. * As to rights of entry wli^re tliero lias boon a transmission of interest, see the chapter on Tran.smission of Interest later, •T . I FOllFKITlHi: AM) |{K-K\TUV. 187 leaso csseo shall any rmin- t the 1 the eased, hank- ing in J ant or have gcords, or to )rkingg g Pi^r- orkine" nQ,„„.^>,^^i]i a leaso the Court will, since the .Tiidicature Act, dia- if possible pose of quoslions in their equitable rather than their relieve legal aspect in all cases where, under the former aprain.st a practice the Court of Chancery would have relieved forfeiture, against the forfeiture. Thus, where the plaintui! claimed to recover possession of certain hmds leased by her to the defendant on ground of breach of the covenant for the payment of taxes, which broach the defendant afterwards remedied before statement of claim filed: Held, that the action could not succeed, the breach being no more than the omission of a mere money payment: Bucldey v. Benjle, 8 (). R. 85. Where a. covenant, accompanit^d by a right of re- Rjgi^t (,f entry on breach, is so expressed that its meaning isi^i-entry doubtful, and the tenant in good faith has d(me what not en- he supposed to be a performance of it, forfeiture will forced if not be enforced; the difficulty in construing the cove- covenant nant is a special circumstance entitling the deftind- ^'*"^^f"^- ant to relief: McLaren v. Kerr, 30 U. C. R. u07. Plaintiff leased to defendant for twenty-one years Receipt of with a covenant by defendant to erect within four rent a years a house, etc., which covenant was broken, uut waiver of the lessor received rent to a period subsequent to the "fe'^^t ^'^ i'*'- time of the alleged forfeiture: Held, a waiver of the ^•"*^^'^'- right of entry for breach of the covenant: Roe V. Southard 10 C. P. 488. Where a tenant holds over after the expiration of It sadan- his lease, a landlord has a right to take possession of gerous the premises if he can without a breach of the peace: thing to Boidton V. Murjihy, 5 0. S. Tlil attempt. 138 LANDLORD AND TENANT. Forfeiture Rent under n lease made piirsnnnt to the " Short Forms Act " becoming in arrear, the landlord served Wliat will ^^^ statutory notice of forfeiture, and brought an Hni('unt to ''action against the tenants both for the recovery of waiver of the demised premises and for the arrears of rent. Be- right to fore the action came to trial the defendants paid the re-enter, arrears and costs: Held, that the bringing of the r-ction wps an election on the part of the landlord to forfeit the lease which could not be retracted by him ; to enable him to get rid of the forfeiture there must have been a request on the part of the tenants, either express or implied, to be relieved from the for- feiture; and the mere payment, after the forfeiture of rent which accrued due before, would not amount to such a request. The effect of such a payment depends upon the intention of the party paying; and the payment of the rent and costs in this case could not operate by force of R. S. O. c. 143, ss. 17-22, to permit the land- lord to retract his forfeiture, without regard to tlie intention of the tenants, and without any request on their part to be relieved from the forfeiture. These sections are applicable simply to an action for the recovery of the demised premises; had the action been brought for that alone, an implication might have arisen from the payment of rent and costs that the tenant intended to seek to be relieved from the forfeiture; more especially as the demisefl premises were vacant land, the tenants not being in actual possession. Held, further, that the landlord could not ii * rid of the forfeiture unless both tenant; cpucurred in seeking relief from it: Denhon v. Mmtland, 22 O. R. 166. Form of A notice of forfeiture of a lease under Tl, S. O. c. notice. 143, s. 11, s.s. 1, given in the words: " You have broken the covenant as to cutting timber, etc.," without more particularly specifying the breach and claiming com- pensation, is sufficient. After an action of ejectment FOUFEITUHE AND HE-ENTRY. IRO was commenced for the forfeiture of the lease, the landlord distrained for and received rent subsequent- ly accruing due: Held, that such course did not per se set up a former tenancy, which ended on the elec- tion to forfeit manifested by the issue of the writ, but might be evidence for the jury of a now tenancy on the same terms from year to year: McMiil en v. Vauuatto, 24 O. K. iVl'i. The Cou.'t will not make a declarntion relieving j^,, relief m against forfeiture of a lease for non-payment of rent asof riglit. ^ when the trial of the action for that relief takes j^ place after th" term has expired by effluxion of time, p| even though the lease gives the option of purchase, to be exercised during thi» term which the lessei'S had attempted to exercise under a forfeiture. The lessee is not entitled as a right to relief against forfeiture for non-payment of rent: that relief may be refused on collateral equitable grounds* Coventrtj v. McLaa, 2L A. R. 170. The provisions of s. 11, R. S. O. c. 143, do not extend to a forfeiture of the term under a stipula- tion in the lease that if the lessees should make any assignment for the benefit of creditors the term should immediately become forfeited, and such for- feiture 1<3, therefore, enforceable without notice served upon the lessees: Anjles v. McMath, 2G O. R. 224. Mere knowledge or acquiescence in an act con- Waiver, stituting a forfeiture does not amount to a waiver; there must be some expenditure of money in improvements, or some positive act of waiver, such as receipt of rent: McLaren v. Kerr, 39 U. C. R. 507. Breaches of a covenant in a farm lease to keep Riglit to the fences in repair, and to keep eighteen acres in re-enter meadow during the term, are continuing breaches. ^^^ con- HSSH imm 140 LANDLORD AND TENANT. tinning breaches of covenants not waived by receipt of rent. Forfeiture by non- payment of rent. and the right to re-enter for them Is not waived by acceptance of rent: Ainley v. Bahdeii, U IT. C. R. 535. In an action for posser.sion, by reason of a for- feiture for non-payment of rent, the plaintiff must prove, if proceeding under 4 Geo. IL c. 28, that there was not sufficient distress on the premises; and if at common law, that the rent was demanded in proper time by a person duly authorized: Cubitt V. McLeod, M. T. 4 Vict. Action No notice or demand is necessary before action ui>on a for- upon a forfeiture where there is a power of entry in feiture no a lease upon breach of a covenant to repair, or not demand to under-let: necessary. Connell v. Potver, 13 C. P. 91. CHAPTER XL TRANSMISSI^^N OF INTEREST. Change in persons who are landlord or tenant. 104. It now becomes necessary briefly to mention some of the principal consequences which result from any change in the parties who, at the granting of a lease, or the com- mencement of a tenancy, stood towards each other in the relation of landlord and tenant. Such a change may be effected either by the landlord assigning his reversion (i.e., his in- terest in and ownership of the property subject FORB'EITUIIE AND RE-ENTRY. 141 waived by of a for- Ltiff must hat there and if at in proper ►re action I entry in ir, or not r. iriefly to ^quences parties the com- rds each I tenant, r by the ., his in- y subject to the term of years, or other tenancy, held by the tenant), or by the tenant assigning his interest. Sucli assignments are invalid unless inade by deed, but under some circumstances the Courts will treat an invalid assignment as an agreement for a valid one, and compel the assignor to execute a deed. The conse- quences of an assignment for benefit of credi- tors and the effect of the death of r ther party must also be considered. First, of assign- ments by either party. 1S>5. Now, when a lessee assigns the term Liability of vears created bv the lease under w^hich he "" cove- holds it, it would be obviously unjust if he lessee. ' could discharge himself from liability upon the covenants into which by that lease he By land- entered with his landlord. He, therefore, re- ^or^- mains liable upon all during the whole con- tinuance of the term; and, in addition to that, the person to whom he assigns is also liable — until he in turn assigns to some third party — upon all the covenants in the lease, wiiicli, according to the technical phrase, '^ run with the land." The assignee luis also a right to insist on the performance of covenants of the same class, which are to be fulfilled by the I'^dlord. 106. It becomes necessary to consider how far the liability on covenants in leases ex- tends. Iir:: 142 LANDLORD AND TENANT. Express covenants control implied. Implied 197*. There are, apart l*om express cove- covenants. j^j^j^^g ^y ^|^^ parties, coveiiants by implica- tion of law. Thus, a covenant would be im- plied after entry from the words '^ yielding and paying " on the part of the lessee and his assigns to pay rent to the reversioner. 1!I8. Covenants implied by law are con- trolled by express covenants between the parties on the same subject matter. No cove- nant will arise by implication of law on any matter as to which the parties have them- selves expressly provided. Privit'of l^-^' Implied covenants are binding be- e/tate,^ ° tweeu the parties by reason of the privity of estate between them, and are binding only so long as that privity of estate exists. Thus, on the implied covenant to pay rent to farm in a husband-like manner and use the premises in a tenant-like manner, which are covenants the law will imply, the lessee continues liable only so long as his privity of estate continues, that is, so long as he is lessee; for, if he assign, the privitj^ of estate between him and his landlord ceases, and he is no longer liable. The privity of estate after assignment exists between the landlord and the assignee, and the assignee becomes liable in his turn during its continuance to the landlord on the implied covenants. On his assigning, he ceases to bo liable, and so on through all assignments. FORFEITURE AND UE-ENTRV 148 :press cove- by implica- ould be im- 8 '^yieldinj^ 3see and his mer. w are con- etween the ^ No cove- law on any have them- blnding be- e privity of [ing only so ists. Thus, ent to farm be premises e covenants inues liable e continues, for, if he len him and mger liable, ment exists signee, and turn during the implied ceases to be ssignments. In other words, implied covenants always ".R""ning " run with the Umd," as the technical expres- i^^lld.*''^ sion is, and tlie party wlio takes the estate, takes, during the time he holds such estate, the burden and the benefit of the implied cove- no .^s which go with the land. 200. The original lessee cannot, by destroy- Liability ing the privity of estate between him and^^ ongimii his landlord, escape liability on his implied covenant to pay rent, without his lessor's assent, which assent may be expressed or im- plied. Keceipt of rent from the assignee by the lessor implies assent to the assignment. But no assent of the lessor is requisite to any assignment by an assignee, though such as- signee be a pauper. 20 1. The lessor, on his part, is liable on Liability the implied covenant for quiet enjoyment of lessor. arising from the word " demise " (in the ab- sence of an express covenant), but his liability ceases on his r;i'siguing his reversion, which destroys the privity of estate between him and his lessee. So also, it ceases with the deter- mination of his estate in reversion; as where a tenant for life demises for a term and dies before its expiry, no action lies against his executors on the implied covenant. 202. From what has been said as to the Express cesser of tlie liabilitv of the lessee, as soon as^^^^®"^"** 144 LANDLORD AND TENANT. his estate ceases on his assigning with his kssor's consent, it became important for the lessor to have express covenants under which the lessee sliould continue liabU? notwith- standing and after assignment. To these it became usual to add, as additional security, a Clause of clause of re-eutrv bv the lessor and his assigns re-entry. ^^^^ breacll.^^" ' ' ; 1 ^^r^llltL. 303. Lxpress coveimnts are sometimes on expre.ss i j • i i i • ^ • • i j covenants, termed covenants m deed, as distinguished from implied covenants or covenants in law. The liability on express covenants arises out of privity of contract, as distinguished from the liability on implied contracts arising out ol" xH'ivity of estate. How far assignee of . es S04. Any lawful contract may be the sub- tate"of"' ject of express covenant, but there is some- covenantor times great difficulty in determining how far, bound. ^^^ .j^ what particulars, an assignee of the estate of a covenantor is bound by, or entitled to the benefit of, a covennnt; and how far covenants rim with the land. How far 205. There are three heads under which assignees bound by the Subject can be considered: (1) Where assigns are within the covenants express covenants running with the I land. *See the chapter on Right of Entry, whicli deals with that subject as between parties where no assignment intervenes. rFORFErrUUK AND RE-ENTRY. 1J5 with his it for the [ier which notwith- 3 these it lecurity, a lis assigns sometimes inguished ts in law. arises out shed from rising out le the sub- i is some- r how far, ee of the :)r entitled how far iler which covenants t>als with that, itervenes. though not named. In order to make a cove nt nt run strictly with the land, so as to bind the assignee, or give him the benetit without his being named, it must relate directly to the land or to a thing in existence, parcel of the demise. Illustrations: Covenants to pay rent, to keep existing buildings and fences in repair, to observe particular modes of culture on the lessee's part, and the covenant for quiet enjoyment on the lessor's part. (2) Where assigns are only within the cove- nants because thev are named. AVliere the t covenant respects a thing not in existence at the time, but which, when it comers into ex- istence, will be annexed to the land, the cove- nant may be made to bind the assigns by naming them, but will not bind them unless named. Illustrations: Covenants to erect buildings or to plant trees on the premises. (.*>) Where assigns are not within the cove- nants though named. When a covenant re- spects a thing not annexed, nor to be annexed, to the land, or a thing collateral, or in its nature merely personal, the covenant will not run, that is it will not bind the assignee nor pass to him, even though he is named. Illustrations: Covenants to repair or build a house off the premises. SOO. As regards both the burden and bene- fit to assignees on these express covenants L.T.— 10 1-16 LANI^LOllD AND TENANT. running with the land, tliey depend on the I>rivity of estate, and they continue only so long as that privity continues. If a breach have happened during the existence of the privity of estate, its subsequent determina- tion will not destroy the liability for the breach. As be- tween !307* As between lessor and lessee there is lessor and pi'ivity botli of coutract and of estate. The lessee. lessee is liable on the demise to him which creates the privity of estate, and he is liable on his covenant to pay rent, which creates the privity of contract. When lessee as- signs. 20S. When a lessee, having covenanted to l)ay rent, assigns his term, his liability on his covenants continues, for the privity of con- tract is not destroj^ed by the assignment. The i)rivity of estate exists thenceforth be- tween the lessor and the assignee, and each will be liable to the other on the covenants in the lease. Thus, the lessee will remain liable for rent under his covenant, and the assignee will be liable for such rent as may fall du(* while (but only while) he is assignee by virtu?' of the junvity of estate. When 200. >Tow^, supposo the landlord assign lessor as- j^s reversion, what is the consequence? signs. ^ FORFEITURE AND RE-ENTRY. ^47 i-J: id on the e only so a breixcli ice of the letermina- V for tbe iee there is ;tate. The liim which le is liable creates the enanted to ility on his ty of con- issignment. ceforth be- and each ovenants in main liabh^ he assignee ay fall du(^ ee bv virtue lord assign uence? 210. At common law a right of entry forRi&ntof breach of condition subsequent* could only ^.J)J;i;^ ^^^^^ be reserv(^d to the grantor and his heirs, and formerly not to a stranger. When reserved it could J^''^^'*'^*'^'^'^' not be assigned, the simplicity of the common ^.tnn.i^ai. law requiring that every man should assert, his own right of entry or action. The con- sequence was that in the case of a right of re-entry reserved to a lessor and his heirs for non-payment of rent, or other cause, the assignee of the lessor could take no advan- tage of the clause of re-entry. This difficulty was remedied, so far as regards grantees of reversions, by ^2 Hen. VIII. c. 34, under which Renindicd they have the same benefit of a condition inby:i2Hrn. case of a breach subsequent to the grant to^^^^^- ^'• them, as their grantors would have had pro- vided it relate to the payment of rent, the restriction of waste or other like object tend- ing to the benefit of the reversionary estate.f Sll. As regards conditions of re-entry by Effect of the reversioner on breach of covenants by the •^^'^^""^ ^'^ •^ non-ob- servance of * Conditions subsequent are such by the faihire or non-per- covenants, formance of which an estate already vested may be defeated. fBy R. S. 0. c. 100, s. 9, "a right of entry, whether im- mediate or future, and whether vested or contingent into or upon land, maybe disposed of by deed." The rigiit of entry referred to in this statute is not a right of entry for condition -br'>ken, and therefore tiie right of an assigrnee to enter for con- dition broken still rests on the Statute of Henry. Where privity of contract and ritrht of action are thus transferred the correla- tive rights and li;ibilities last only during the continuance of the respective assignees* interests. 1^:8 LANDLORD AND TENANT. Waiver not to ex- tend fur- ther than to tlie particular instance mentioned tenant, much caution was formerly requisite in giving" assent to the non-observance of the covenants, for, if once assent was given, the right of re-entry was gone forever, and no advantage could be taken of it on a subse- quent breach; the principle being that every condition of re-entry was considered entire and indivisible, and if once it was waived it could not again be enforced. To meet this difficulty the following section of the Land- lord and Tenant Act was passed (section 14): Where an actual waiver of the benefit of a cove- nant or condition in a lease, on the part of a lessor or his heirs, executors, administrators or assigns, is proved to have taken place after the 18th day of September, 1865, in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance, or any breach of covcnani or condition, other than that to which such waiver specially relates, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect appears. Implied waiver. 212. The waiver mentioned in this section is an actual or express waiver. There may be also an implied waiver, such as receipt witli notice of the forfeiture of after-accrued rent 8uch implied waivers are not provided for by this clause. Therefore, a landlord should in sist on the forfeiture, or else if he does not insist on it, and afterwards receives subse quent rent, he will lose the right of re-enti'T on any subsequent breach of the same cove nant. H'. y requisite nice of the given, the er, and no ,11 a subse- that every Bred entire 3 waived it ► meet this : the Land- section U): ^fit of a cove- irt of a lessor or assigns, is e 18th day of liar instance, led or deemed ih. of covcnani. 1 such waiver waiver of the ion, unless an I this section There may 3 receipt witli iccrued rent. )vided for hy rd should in he does not ceives subse it of re-entry ,e same cove FORFEITURE ANT) RE-ENTRY. 213. There is a difference between forgiv- ing a man the consequence of an act after he has committed it, whicli is waiver, and giving him permission or license to do some thing before hc» commits it. Formerly wlien in a lease a right of re-entry was reserved to the lessor on the lessee assigning without license, r»nd the lessor granted a license in any one particular case, that licens(^ covered the con- dition entirely, so that afterwards an assign ment might be made without license, and no forfeiture could be incurred. This defect was remedied by the following section of the Landlord and Tenant Act (section 12): Where a license to do any act which, without such license, would create a forfeiture, or give a right to re-enter, under a. condition or power reserved in a lease heretofore granted, or to be hereafter granted, has been, at any time since the ISth day of Septem- ber, 1865, given to a lessee or his assigns, every such license shall, unless (stherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant made, or to be made, or to the actual assignment, under-lease, or other matter hereby specifically authorized to be done, but not so as to prevent a proceeding for nny subsequent breach (unless otherwise specified in such license); and all rights under covenants and powers of forfeiture and re-entry, in the lease contained. shall remain in full force and virtue, and shall be available as against any subsequent breach of cove- nant or condition, assignment, under-lease, or other matter not ppecificially authorized, or made dis- punishable by such license, in the same manner as If no such license had been given; and the condition or right of re-entry shall be, and remain in all 149 License to do an act. Resiric- tion on effect of license under })ower con- tained in l«a.se, etc. 150 LANDLORD AND TENANT. respects, as if such license hnd not been given, ex- cept in respect of the particular matter authorized to be done. License to 214. Further, if a reversioner licensecl one one of Qf several lessees to assiiijn his interest In severiil sub-lessees whole, this license dispensed with the condi- tion as to all. This anomaly was remedied by the following; section, which it will be noticed extends only to a permission to do an act, and not to a license to omit to do an act, the non-performance of which would cause a forfeiture. The section in question is section l'> of the Landlord and Tenant Act, and reads as follows: licenses. Restricted Where in a lease heretofore granted, or to be oiHitition hereafter granted, there is a power or condition of k!..^!^:.^.^^ re-entry on assigning or under-letting, or doing anj' other specified act, without license, and at any time since the 18th day of September, 1865, a license has been or is given to one of several lessees or co- owners, to assign or under-let his share or interest, or to do any other act prohibited to be done without license, or has been or is given to a lessee or owner, or any other of several lessees or owners, to assign or under-let part only of the property, or to do any other such act as aforesaid in respect of part only of such property, such license shall not operate to destroy or extinguish the right of re-entry, in case of any breach of the covennnt or condition by the co-lessee or co-lessees, or owner or owners of the other shares or interests in the property (as the case may be) over or in respect of such shares or interests or remaining property, but such right of re-entry shall remain in full force over or in respect of the FOHFEITIJHK AND UE-ENTllY 151 n given, ex- authorized [ ceil seel one interest In the condi- s remedied it will be Qn to do an ) do an act, iild cause a u is section t, and reads eel, or to be • condition of or doing any 1 at any time a license has lessees or co- re or interest, done without 3see or owner, lers, to assign or to do any t of part only lot operate to entry, in case idition by the owners of the :y (as the case ■es or interests at of re-entry respect of the Bharea or interests or property not the subject of such license. 215. If a lessee sublet, then, as the sub- if lessee lessee has not the whole estate which the ^^^"^^ j^^' lessee had, there will be no privity of estate between the lessor and sublessee, and because there is no privity of contract neither could formerly sue the other. 210. Thus, if A., seized in fee, hnve de- Former mised to 1>. for a term, and l*. have sublet to ^^^• C. for part of the term, here A. at common law could never sue C. for the rent reserved, or on the covenants contained in the sub- lease. There is neither privity of contract nor estate between A. and C, which subsists only between r>. and C If 15. assi«;n(Ml his rever- sion to D., the latter (D.) would, as assiijfnee of B.'s reversion, be in privity with (\, both as to estate and contract, and so entitled to sue C. both for rent and on the covenants of the sul)lease, which we have just seen abov(^ A. could not do. Now if r»., instead of trans- ferrinij^ his reversion to D., conv(\ved it to A. (his own lessor), by the doctrine of merj2^er that reversion would be lost in A.'s j]^reater estate, and would cease to exist. The result was, then, that A. could not, even after pjettingf this assij2:nment from B., sue 0. by reason of want of any privity between them. The same consequences followed if B. purchased from 1.52 LAXDI.OIU) AND TENANT. A. his (A.'s) reversion, for then A.'s groator estate equally met and nierpjed the lesser estale of I>., which thencefortli ceased. Appor- tionment of con- dition of cases. Present 2lT. l?oth of tliese inconveniences are now if^w. remedied bv the following? sections (7 and K) of the Landlord and Tenant Act (K. S. (). c. 143): Where the reversion upon a lease is severed, nnd the rent or other reservation is legally npportioncH, the assignee of each part of the reversion shall, in . respect of the apportioned rent or other reservation re-entry in allotted or belonging to him, have and be entitled to cei am ^^^ benefit of all conditions or powers of re-entry for non-payment of the original rent, or other reserva- tion, in like mnnner as if such conditions or powers had been reserved to him as incident to his pnrt of the reversion in respect of the apportioned rent, or other reservation allotted or belonging to him. Where the reversion exp^^ctant on a lease of land merges or is surrendered, the estate which, for the time being, confers as against the tenant under the same lease, the next vested right to the same lanrl shall, to the extent of and for preserving such incidents to and obligations on the same reversion, but for the surrender or merger thereof would hav<> subsisted, be deemed the reversion expectant on ilv sam-e lease. Effect of surrender or merger of rever- sion expec- tant on a lease in cer- tain cases. 21 S. Section 7, above quoted, provides for severance of the reversion where the rent oi' other reservation has been apportioned, and gives the benefit of conditions or powers of reentry for non-payment of original rent or olher reservation, but does not extend to oi' R)IU'eiti:ri: and uk-knthv i53 the It'ssin* I sod. OS are now ^ (7 and 8) K. S. (). e. sovored, nnrl npportioncf^, ion shall, in ? roscrvntion 36 entitled to ro-entry for ther resorvji- ns or powers his pnrt of )ned rent, or to him. lease of land hich, for the nt under the le same land serving such me reversion, f would hav<> ectant on tho provides for the rent or 'tioned, and • powers of nal rent or xtend to or provide for re-entry in caHe of severance of the reversion for condition broken by a ssi fin- ing' or snbh'ttinj,^ witliout h'ave, nv olherwise Ihan by non-payment of the original reni or otlier reservalion. Tliere is an Knj^lish A el. wliicli covers tliis point (Conveyjinciiij;" Act of 1881), but tliere is no Ontario statute to meet it. Tlierefore, if in Ontario a reversion is severed tliere can be no entry for anything except non-payment of rent. 210. It will be seen from what we have Necessity said above, as to the continuing liability of f""" caution the original lessee, and of his executors after i"g*ip!^^"' his deatli, upon all the covenants contained in a l(»as(^ to which he is a party, even al- though he has assigned ovi^r, that a lessee should be very cautious not to assign his lease to any but a responsible ])erson, who is likely to ])e]'form the conditions of the lease. He should also be c(U'tain that he is thoroughly able to indemnify him against any future breaches of covenant which mav be com- mitted, and should obtain an indemnity in writing. 220. A tenant from year to year may, like Assign- a lessee, assign his interest. Ibit he must re- ^®"J^^^y collect that he will be liable for the rent; and from year also for any waste which the person whom he *« ye*r« thus substitutes as tenant may commit. Un- less he make a profit rent by sub-letting, he 151 LANDLORD AND TENANT. had iiuicli better, if po^^sible, get the hmdlord to discharge him from his tenancy, and to accept the new tenant in h;s place. This arrangement, for the safety of all parties, should be rednced to writing. Assign- ment for benefit of ci"editor.s. 2*il. Where there is an assignment for the benefit of creditors the following provisions have been passed (Ontario Acts, 181)ij, page ]7(>) as to the liability of the insolvent estate to the landlord: Lien of l.'Ui'lk rd for rent .ifrer as- for beiiflit rnonths following the execution of such assignment, ofcredi- and from thence so long as the assignee shall retain tors. possession of the premises leased. In case of an assignment for the general benefit of creditors the preferentifii lien of the landlord for rent is restricted to the arrears of rent due during the period of one year last previous to and for three Assignee may retniii possession for re- Notwithstanding any provision, stipulation or ngreemcnt in any lease or agreement contained, in cMPe of ;in Jissignment for the general benefil of crediiors, or in case an order is made for the wind- niainder of ing up of :in incorporated company being lessees, th<' term. assignee or liquidator shall be at liberty, within one month from the execution of such assignment or the making of such winding up order, by notice in writ- ing under his hand given to the lessor, to elect to retain the premises occupied by Ihe assignor or com- pany as aforesaid, at the time of such assignment or winding up, for the unexpired term of any lease un- der which the said premises were held, or for Buch portion of the said term as he shall pee fit, upon the terms of such lease, and paying the rent therefor provided by said lease. This section shall apply to assignments made after 16th April, 1895. e landlord J, and to ace. This il parties, nt for the provisions 805, page ?nt estate ;ral boiK^fit mdlord for liie during d for threo ssignment, hall retain iiation or contained, al benefit the wind- essees, the kVithin one ent or thr e in wrjt- o elect to )r or com- ?nment or lease nn- ' for snrh upon th<^ : therefor apply to FORFEITURE AND RE-ENTRY. 155 322. Under this section the assignee is given the right to retain the demised premises upon mailing his election in the prescribed manner, and the question of the right of for- feiture is not of mucli importance. 22iS. Most written leases contain the sta-Etfectof tutory covenant that the lessee " will not f^!^|^|^^^^^' assign or sublet without leave,- ' and the pro- le.i^e on vision that, '' if the term hereby granted shall i"«'jlv. Tf a tenant has been guilty of breaches of covenant, it will be difficult for tho landlord to recover under the case of Grant V. ^yest, 23 A. R. 53.3, which decides that claims for damages cannot be made against an F01;FEITL'RE AND RE-EXTUV. J 57 "nment ke ad- lessee ;signee gilt of pential of dis- ? upon ndlord istress a dls- [liglier made s, the id the 11 not V of Dr tlie Gri'nnt that 1st an assignee under the Assignments and Prefer- ences Act. Where valuable premises are lefised, landlords had better require security from tenants, to provide for satisfaction for damage done to the premises in case an assignment should be made. 230. On the death of a tenant his interest Effect of as such, whether he is a lessee or only a ten-d^^^^of ant from year to year, passes to his executor *^"^" ' or administrator, who mav at once be sued in his representative capacity for any rent that is due, or any breaches of covenant that may have been committed. If he has never entered into possession, or dealt with the pre- mises in any way, he can discharge himself of i'll liability by sliowing (if such is the case) that the testator's estate did not yield sufti- cient assets to satisfy the demand. If, how- ever, he have once taken possession, his ijosi- tion is much less favourable. He mav then be sued in his personal capacity as an as- signee. And if an action is brought against him for rent, he mu-st apply the whole profits of the premises to meet the deTmmd. If, how- ever, they proauc(^ no profit, or less than the rent due, and he have no other assets of the testator, hr sliould offer to surrender the lease, and if he do so, he may, it would seem, protect himself. P.ut if he be sued on any of the other covenants, it seems very doubtful 158 LANDLORD AND TENANT. whether he can save himself from personal liability, if he have ever taken the premises. Before he does so, therefore, he should make very careful enquiry into their value, and its sufficiency to protect him from all liability. If II Marriage 231. Marriage of landlord or tenant has on tenancy 110 result on their liability as such. Inter- 2J$2. The Judicature Act (Ontario Statutes, te-riant ^^ 1895, c. 12, s. 53, s.-s. 5), is as follows: In case of pn assignment of a debt or other chose in action, if the debtor, trustee, or other per- son liable vi respect of thC3 debt or chose in action, shall have liad notice that such assignment is dis- puted by the assignor, or anyone claiming under him, or any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons mak- ing claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court under and in conformity with the pro- visions of law for the relief of trustees. Rent to accrue due will not be within this section; rent overdue wall be within it. When, therefore, a tenant has to deal with two claimants for overdue rent he can pay it into Court ander this section, and let them fight out their respective rights there. FORFElTUllE AND RE-ENTRY. 159 rsonal imises. make Liid its at has atutes, ' other lor per- action, is dis- under lims to itled, if s mak- Q same, ato the he pro- n this in it. 1 with pay it thorn iife CASES. Whore a lease containing a covenant against as- Assign- signment without the consent of the lessors is so inent of assigned, the assignment containing a covenant by tlie Ifiis^f. assignee to pay the rent and indemnify the assignor, and the assign«^e goes into possession of the mort- gaged premises, he is liable, although the consent of the lessors may not have been procured, to pay to the assignor rent accruing due after the assignment, which the latter has been obliged to p:ty: I.iie be taken version : ntioning on the and the iiist the It of tiie A covenant by the U'ssor in a lens(^ of a parcel C.vcu.nit of land covered by water to pay at the end of the to i my for term for "the buildings and erections that shall or '>"d '"j^ ^'^ may then be on the demised premises," does not bind ^^'•^^'''' ^''^' him to pay for crib work and (>arth filling done upon the parcel in rtuestion, by which it was niised to the level of the adjoining dry land and made available as a site for warehouses: Ailaiiu-o)i V. lloficrs, '22 A. E. -115. rnder 68 V. c. 2G, s. 8 (s-ss. 4 and 5), the preferen- tial lien for rent extends not only to a year's nmt prior to the assignment for creditors, but to three months' rent thereafter, whether the assignee re- tains possession or not; and in case the assignee elects to retain possession, the liindlord's lien extends for such further time after the three months as the assignee may so retain possession: Clarke v. lieid, 10 C. L. T. 2{VA. The goods in possession of an assignee, under an Assignee assignment for benefit of creditors, are not in the can be dis- custody of the law so as to protect them from dis- trained on. tress: Linton v. The Imperial Hotel Co., T() A. E. 837. In this case the clause was as follows: Provided, if the term hereby demised or the goods on the de- mised premises shall at any time be seized or taken in execution or in attachm.ent by any creditor of the said lessee, or if the said lessee shall make any as- signment for the benefit of his creditors, or being in- solvent, shall take the benefit of any Act that may be in force for bankrupt or insolv'enr. debtors, or in cnse a default be mad(» by the said lessee in any of the covenants or conditions tlierein, the then current yearV rent shall immediately become due and pay- able, and may be distrnined for; but in other re- L.T. -11 i 1G2 LANDLORD AXD TENANT. Bpects the said term shall immediately become for- feited and at an end, and the said lessors shall thereupon be entitled into and upon the said pre- mises, or any part th(!reof, in the name of the whole to re-enter, and the same to have again, repossess and enjoy, as if these presents had not been executed. And it is hereby declared that the provisions of the Statute of Ontario, 50 V. c. 23, intituled an Act respecting Distress for Rent and Taxes, shall not apply to this lease. Default was made in the quarterly payments of rent in advance, as also by an assignment, and the landlord then distrained. His action was upheld, because he had only taken steps to claim rent, not to claim possession. Where the term has been de- termined in consequence of a forfeiture and not by effluxion of time, the Statute of Anne is inapplicable. If the term is gone, the landlord being unable to distrain as at common law or by virtue of the sta- tute, the power of distress can only be regarded as a personal license to be executed on iiie tenant's own goods, and not upon property which has passed to the assignee. The clause is divisible, and the lessor may distrain for the rent so long as he has not elected to forfeit the term. If he elects to do that he loses his remedy by distress, and is perforce driven to recover the rent in some other manner. WASTK l(;:i ecome for- isors shall ! said pre- the wholo , repossess ri execiitod. ions of the d an Act shall not ayments of it, and the as upheld. 1 rent, not s been de- md not by lapplicable. ; unable to of the sta- [arded as a lant's own passed to the lessor no has rot do that he rce driven i-j'^a CHAPTER XII. WASTE. *2*»ti. The respective rights and liabilities Topiovcnt of laudloi'd and tenant in respect to the re- ^v^jtc, pairing of the premises, or to the commission l^[i\l^!l f,^'- ol' what the law terms waste, that is, the ])]i(d or ant doing injnry or damage, or permitting injury ^^''^'"jj,^^*'^'" or damage to accrue to the estate, depend either u])on the implied obligation which the law casts upon them when there are no cove- nants or agreements on the subject in the lease or other instrument by which the property is let, or upon the true ineaning and construc- tion of such covenants when they exist. I shall, therefore, consider this question with reference to these two states of circumstances. 2tli. First, wbere there is no express cove- impiipfUm nant or agreement. In sui-li a case The land- p^^it of 1111 lord is under no obligation whatever to repair '''^"''^^^*^'- the house, although its state may be wucli that the tenant can have no beneficial occupation of it, and even if it sliould fall a.nd destroy the furniture in it, the landlord will not only be irresponsible for the danuige thus sustained by the occupier, but will be entitled while the house is down, and whether he receive it or not, to insist upon being paid his rent to the 1()4 LANDLORD AND TENANT. end of the term, if there is a lease; or if there is not, until the tenancy is determined by a pi'oper notice to quit. AVith respect 1o lessee or tenant, the question is not quite so simple. The law implies on the part of every tenant j^,,",J|;*,'"^ "^ ])roniises or en^jjgemenis (i) to use the pro- perty he occupies in a tenant-like and proper manner, {2} to take reasonable care of it. The liist of these enj»ag'eiuents may be violated by doin^i^ actual injury to the premises, and this the law calls voluntary waste, v/hile the sec- ond will not be fullilled if the tenant remains the passive spectator of decay and ruin, al- tVi0u<»h doing nothing to accelerate it: yet, oii the other hand, making no eflort to retard the decay. Sucli absence of reasonable care, or, in othcn' words, such neglect to do proper repairs, the law designates permissive waste. I / Voluntary o» waste 3»>. (1) As to voluntary waste: It will be voluntary waste if a tenant pulls down any part of the premises which he occupies; de- stroys any of the v/alls; removes or injures wainscotting, or destroys chimncw-pieces, stoves or bells, or any of the landlord's fix- tures; opens new windows or doors, or other- wise changes the form and arrangement of the house witliout the consent of the owner; nor must he, although it might improve the value of the premises, convert one species of edifice into another, as a dwelling-house into a shop, a watermill into a windmill, etc., etc. If he WASTK. 1()5 do those oi* siinilni' acts lie ^vill be liable, whether he Ik/UIs luulei' a lease for a term of years or from year to yetir, to an aclioii tor damages at the suit of the landlord, lie y»ill also be I'estrained by nijnnclion from proeeed- inj^ with any sncli ailei'a.lions. No altera- tions slionld, therefore, be made by a tenant ^yitlunlt the ex])ress, and if il ean be obtained, tlie Wi-it ten consent of tlie Ijtndlord. (2) .\s to permissive wasiite, or the omis- ivnui. sioii to make^ })roper repairs. vaste. *, considerable din'cr- ♦•^"•^"f'^^""'' enee between ter.ants for years and t<'nantH ^*'"^' from year to yea.r. It is not easy to say hov; far the liability of the fust class (tenants for years) extends in the absence of any express agreenn^nt on tlie subject. The bettf^r o] union seems to be that such tenants sliould he obliged to do all tlie rei)airs, both substantial and ordina/i'V, ^vhich. may become necessary during their term.* SJ^T. .V tenant from year to year, on the Tenant other hand, is not bound to do more than keep l!**!!',,?'!'^^' ^ LO \ K ill ■ * Substantial re]'>airi!'. nre those *' to the main walls and other essential parts of orlificos and the roplaeinjr of b-^'ainM, jifirders, roofs and other main constructive timbcr^i." Ordinary vepr.irs are "common reparation to windows, hfh utters, doors, and the like." ^" A . The liabilily of the lessee upon a Liability covenant, that he w1 i well and sufficiently ^'fi^''^««'«t'n repair and maintain tlie demised premises during his term, and deliver them up at the expiration thereof in good repair and condi- tion, will depend upon the age and general condition of the house at the c(mimencement of the t(Mijincy. The jury must say wh(^ther or not the lessee has done what was reason- ably to be expected of him, looking to the age of the premises on the one hand, and to the words of the covenants wliich he has chosen to enter into on the other; but where th(' tenant covenants to keep the premises in good repair, he is bound to put them into good re- pair, their age and the chiss of buiUling being considered, and is not justified in allowing them to remain in bad repair for their age and class, because he has found them in tliat condition. 240. This state of the hiw suggests the Tns])ecti()n advisability of having the premises insi)ected J^f'^'^y^^'^y and reported upon by a competent surveyor n,iserrie. before the lease is signed, so that the best ^^i' able. evidence may be forthcoming at the end of the term, if there is an}- dispute as to the ex- t( nt of the dilapidation and the tenant's lia- m '^ ir* 168 LAiNDLORD AND TENANT. bility to make it good. If it is possible, it i:-; well to have a joint survey on behalf of the lessor, and then if the result be put into writing, and its correctness assented to by both parties, the document embodying it may be used in evidence at any subsequen^^ time. repan"^ ' 241. When the tenant agrees to put or keep premises in habitable repair, he must put and keep them in such a state that they are reasonably fit for the occupation of a class of persons likely to occupy them. covenant^ 242. A covenant to repair applies not only to repair, to buildings iu existence when the lease was made, but to all erections made upon the pre- mises during th(» tenancy. Destruc- tion of premises. 24^. lender a general covenant to r<'pair and leave in rej)air, a lessee, or tlie ]>ers()n to whom he assigns his interest, will be obliged to rebuild the house in case it should be totally dest^royed by i]vi\ Hood, or tempest. What is more, he must ])ay rent, though he has lost the enjoymiMit of the premises. To avoid this hardship it is usual to introduce into the covenant to repair an express excep- tion with respect to making good damage done by lire, flood or tempest. It is not un- common also to stii)ulat(^ for the insurance of the premise s by the lessee, and to j)rovide for 'a- WASTE. 160 ble, it of the t into to l)V n^ it qiient ut or must t they of a t only 3 was e pre- 'p.nu* on to >li^ed (I be post, he To cluce f^oep- nage un- ^e of for the application of the money received from the insurance othce to the rebuildinji: of the premises, and also for the cession or abate- ment of the rent until that is completed. In Ontario the lessor j;en(M*ally insures the build- in j:>s. (8ee on this subject chapter VI. above.) 344. With rejijird to remedies in cases of Liaiiiiity waste or non-repair, a person who fails or J"^ '^^j^'^'" neji,'lects his duty is liable to an action for^gel "' damaj^es. If there is an express covenant to repair by either lessor or lessee, he will be liable to an action, which may be brou<»h( if tlu^ ])rei.iises are out of repair at any tinu' dur- ing the term. 3t5. The landlord has no rij;]ii, however, Ri^rht df in the absence of any sti})ulation, to jjjo upon !'">*'^<;^*^t" tin* premises to inspect them and see their "*'''"^ ' state. Hence, it is usual in leases expressly to jiive him the power to do so on a limited num- ber of davs in the course of the vear, or anv time on j^ivinp," reasonable notice. It must b(» distinctly Itorne in mind that if the landlord ajiree to do repairs, his nej^lect to do them, into whatever state the house mav fall, will not entitle the tenant to quit without notice before the expiration of his term; his only remedy is by action. f 111 i i t'l "• ' ^i 170 Proviso for re-entry. Use oi I)rt'iTiises. LANDLORD AND TENANT. 216. It is usual to insert in the lease a proviso rendering it void in case the lessee should not i)orform covenants to repair. 247. If a tenant is known to be about to commit seiions waste, as, for instance, to pull down the house or convert it into a sliop, the Court, if notitied, will interfere by injunction to restrain him. If the party has already com- menced operations, in this case also an in- ' junction will be granted, jjr ding the decision of an action for damages, which the plaintiff may institute at the same time as his appli- cation for an injunction. CASES. Collecting A tenant who, for the purpose of rendering the stones, hind more fit for cultivation collects the stones therefrom, has the property in the stones, and the landlord has no interest in them, and is liable for their value if he disposes of them: I^ewiH V. Gmlson, 15 O. K. 2')2, A lease was silent as to any right of the lessee to bore for oil. Held, that prima facie the lessee had not the right to bore for oil: Taiucij v. Johnston, 29 Cli. G7. You must In an action by reversioner against tenant for not clear :x injury to the reversion caused by cutting down and mans land ^.-jj,j,yjj^g away trees and underwood, defendant his consent P^^^^*^^^ his tenancy under a demise from D. for 19 years, that it was wild land, and that he cleared it, and thereby improved its value. Held, no defence: P/afce V. fF/V/^ts 22 C. P. 341. WASTE. 171 ease a lessee i\ ►out to to pull )p, the inction y com- an in- ecision laintiff appli- mg the stones md the ible for 3ssee to 586 had nt for 5vn and endant for 19 ired it, efence: Effect of removal of fonco by plaintiff, with de- Removal fendant's consent or direction: of fence. PicUard v. Wixon, 24 U. C. l\, 41G. It is a question for the jury whether the tapping Taj.ping of of trees for sugar-making has the effect of destroy- tret-.s. ing the trees, or of shortening their life, or injuring them for timber purposes; and, if so found, a cove- nant noi to cut down timber, except for the lesse<''s use or for purposes of improvement on the premises, will be broken by such tapping: Cuutphi'U V. ShivliU, 41 U. C. R. 440. By a lease under seal the defendant rented from injunction the plaintiff certain premises for three months. The to jirevent lease contained a covenant that the lessee was not waste, to use the premises for any purpose but that of a private .'welling and " gents' furnishing store." Held, that the carrying on by the lessee of auction sales of his stock on the premises wjis a breach of the covenant, restrainable by injunction: Cockburn v. Quinn, 20 O. R. old. A lessee covenanted to use upon the demised pre- mises all the straw and dung which should be made thereupon. Held, that the lessor was entitled to re- cover for manure removed from the premises; which was there at the expiry of the term, but not for manure made thereafter while the tenant was over- holding: KlUvtl V. KUiotf, 20 O. R. 181. r r t t n iL } 1 i} s| i 'II • ; Kl : ., ,V»i 250. Now, the size, weight or character of the thing does not affect the question, for In one case it was held that a granary resting ^. le froe- ric of a it, .and s eallod fixtures s which ise, but and ro- d them, out the When to the ceases of the s itsdf I"? for B thine:, chattel, ds and cter of for In resting i FIXTURES AND EMBLEMENTS. 178 by its mere weight upon pilhirs built into the hind, was not a fixture, but a mere chattel. To consliluie a fixture, ii is necessary (hat the substance sliouhl bi' let into the soil or the fabric of the house. A sli^lit fastening will not sufiice. Whether there is sucli an annexati(>n to the? freehold as to dei>riv(^ it of the character of a movable cluittel, dei)ends principally on two considerations: first, the mode of annexation to th(» soil or fabric of the house, the extent to which it is united to them, and wliether it can easily be removed without injury to itself or the fabrie of the building; and, secondly, on tla^ object and purpose of the annexation, whether it was for the permanent and substantial imjjrovement of the dwelling or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel. 251. But sup[)OS(» an ariicle has been un- Tonant's questionably annexed to the freeliold by the *''''^"'^^'*- tenant, undcn* what circumstances is it remov- able by him? is it, in fact, a '^tenant's fix- ture"? Tenants' fixtures an^ of two kinds, namelv, irremovable fixtures and rt^movable fixtures. It seems to b(^ a eontradiction of terms that a thing can be a fixture and yet be removable, but it is one of those contra- dictions which are more apparent than real. While it was on the premises it was a fixture, when it is taken away it is a fixture no longer. PTT ■I ■'It 174 I ire mo V able fix- tures. «t V.i t LANDLORD AND TENANT. Itmll. The first class of fixtures comprises all such tilings as may be allixed to the free- hold, the property iu wliich passes to the land- lord immediately ujmn Iheir beinj^ affixed, and at the same time the tenant ceases to have any property in them, such, for example, as doors and windows; and all such things as may be placed on the freehold though not affixed to it save by their own weight, the property in which passes to the landlord im- mediately upon their being so placed, and the tenant at the same time ceases to have any ])roperty in them, such, for example, as ordin- ary rail fences. AI(jval)le fixtures. I 25!l. The latter class comprises all such things as may be affixed to the freehold for the purposes of trade or of domestic conveni- ence or ornament, a qualitied property in which remains in the tenant, and which are neither lands under the 4th section nor goods t:nder the 17th section of the Statute of Frauds,* but may be sold under execution, and which the tenant may remove at any time during his term, or, it may be, within a rea- sonable time after its expiration ; and all such things as may be affixed to the freehold for merely a temporary purpose, or for the more complete enjoyment and use of them as chat- tels, the absolute property in which remains • Lee V. Gaskell, 1 Q. B. D. 700. FIXTUllFS AM) EM15I-KMI:N'TS. in the tenant, and wliioli remain tliattcls, and may be removed by tlie tenant at any time. 254: These two classes are qnite distinct, and the term '' lixtnres " is i>ro|)( rly ai»plicabh' to the first class, for the lixtnres in that class are fixtures in the primary sense of the term. 175 [•<» 2»"55. Tlie fixtures in the second class art fixtures only in a s(M*ondarv sense of tlie term; but they have acquired, thou«;h not exclu- sively, the name of fixtures, although it can hardly be said to be an appropriate name for them. 2*10. The term "fixtures," as used in the rixturon covenants to re])air, and to leave the premises ^^ "*^<'*' •» in good repair, in the short forms of leases, is ],\l^l^^ used only in the primary sense of the term, Cuvtnant. and includes, therefore, only lixlures of the first class, and does not include any fixtures of the second class. 25 T. Tlu' Lejj;islature, in prescribing^' a form of lease for general use, did not intend to pro- vide that where a tenant affixed things to the freehold for the purposes of trade or of do- mestic convenience or ornament, or for their temporary or more convenient use, he should keep such fixtures in repair, and should sur- render them to the landlord at the end of the term. ^ 17H LAXDLOin) A\n TENANT. 258. Any doubt iliore may have been as to the extent over lixtures of tlie cov(»nants to repair, and to k^avt* Ihe jireniiHes in j^ood re- jiair, has been removed in all leases aeeordinj? to the short form executed after the lOtli April, 181)5, as will be S(»en by reference to the amended form already printed. 251>. It will still be necessary to distin- jjjuish what articles the term tenant's lixtures includes. A list could be furnished of the articles which have been held to be, or not to be, removable tixUires. Uui such a list is of doubtful utility, because* in many cases the decisions whicli are applicable to' one man's advantaj?e are not so to another. Shrubs, 260. Thus, if a private person plant any plants, trees, shrubs, box borders, or flowers in his coZi^an^^' oi'chard or j^arden, they immediately become nexed to. annexed to the freehold, and are thenceforth irremovable. On the other hand, the same things planted for sale by a nurseryman in the course of his business may be taken and sold. 1 leave, therefore, the general principles above stated in the reader's hands as sufli- cient. If there is a dispute worth fighting over, which he cannot satisfactorily and justly settle by appeal to these principles, he must consult a solicitor. Covenants 201. We have hitherto considered the re- ^ *" spective rights of the landlord and tenant as xtures. ^^^^ stand in the absence of any agreement V I X T L' H KS A N I) i: M I J L K M I-: N TS. 177 en tas nts to 0(1 rt*- )r(ling i Kith to the distiu- xtiires of the not to t is of ;es the man's nt any in his )ecome [^eforth same nan in en and nciples s sufli- ig;htinp: justly e mnst I the re- lant as leement 5 on the subject of lixtiires, but, of course, they nuiy be varied by any inii»li('d ji^ii'eeiucnt, jiiid still nuu'e by any express ji^^i'eenient, either in a covenant of a Ieas(» or otherwise; and this, too, }iltlion«;ii tiiey are not lueiitioiHMl by name. For instance, a peison wlio lovenants to kee]) in repair al! ererti(/i. •; *' Iniiit and thei*e- after t<) be erectetl and bnili,'- cannot reniove even trade fixtni'es. AtmI where a pjnty cove- nanted to leave a wat<'r miil with "all lixtiires, fastenings and iniju'oveiiu »,is.'- these words were iield to include a pair of new mill stones which he set up ; and I took nee it ntend erect- U^ft, le see- 1 (the that n. If ^ ten- )f the I illiiucd to rt'iiiaiii on preiii i>r«;. FIXTURES AN'l) EMIiLEMENTS. 17<) landlord, lie niav n «(»vcr back nnv uioncN lie has paid for ihcni. ti<»5. WluMi piTuiiscs aiT ]v\'i vacant it rixmr sometimes happens that the out.i^oinj^' Icnniil obtains permission from the hindlor*! to leave his lixtures in order, if possible, to sell ihem to llie incoming' tenanl, when sm-li shall bi' fonnd. (li'eat cantiiai is, howcvei*, re((uisll(^ ia such an ai'i'an«i('ment. for il' the landloi'd were to let ;5 new lenaat into the premises b'cforc^ he had purchasiMl the lixtures the latter njiiJilit alierwards insist on retaininj*" them, sinc(^ neither the old ten;!nt nor the lantUord would then have llu' ri-ilit to enter (Ui the pre- mises in (U'der to r( move tiiem. '401ft. Where ira' It ilioval to make ^vood any damai;e sustained by the pr(-- i.c nuuU; niises from llu^ act of ]-emo\al. and where a ^''""*- tixtiirc* has \)vrn juit uj) in sutistit ntion for an aiticle existinii" at the tim(> the tenancy com- nsenced. Ili(> tenant, on lakim!: down his own fixtures, is bound to restore the former article or re}>lace it by one -ajj:ee. ^fvS. The remody for llie im])roper removal Remody of fixtures by the tenant, or the im[)roper de- foi' imrio- tention by the iaudlord, is by action, either in jilovai. TT 'ii: 180 LANDLORD AND TENANT. the Superior or County Court, according to the damage claimed. Emble- ments. I j W liat cov 'ered bv. !30t>. The tenant's right to emblements is the right which the law gives to the tenant if lands let for the purpose of cultivation, either for an uncertain term or for a term which unexpectedlv came to an end by the cessation of the interest of his superior landlord, to take away the crops (yielding an annual return, as wheat, barley, etc.), which were growing on the land at tlie end of his tenancy. Most farm leases are drawn to provide that the ten- ancy commences either at the end or the be- ginning of the agrieultural season, or, if there is no lease, tlie doctrine of emblements ap- plies. 270. The doctrine of emblements extends not only to corn sown, but to roots ijlanced, or other annual artiiicial prolit; but it is otherwise of fruit trees, grass and the like, which are not planted annually at the expense and labour of tlie tenant, but are either a per- manent or natural prolit of the earth. For when a man plants a tree he cannot be pre- sumed to plant it in contemplation of any present profit, but nunu^ly with a prospect of its being useful to himself in future, and to future successions of tenants. ling to ents is naut if , either wliicli ssation to take return, nng on Most lie ten- tlie bc- f there its ap- xteuds lanced, it IS e like> xpense a per- . For )e pre- 3f any •ect of ind to FIXTlltKS AND EMULEMEXTS. 181 mu'crtaiii. ^71. Where tiie term of tenant for \vi\Vii'l\nu (l(;i)ends ui>on a certainty, as if lie holds from ^'^'^•^'^'"• midsummer for ten years, and in the hist year lie sows a crop of wlieat, and it is not ripe'and (ut before midsummer, the end of liis term, le landlord sliall Iiave it. for the tenant knew llie exinration of liis term, and tlien^fore it Avas Jus own folly to sow what h(> nevtn' could reap the profits of. 2T2, Kut where the lease for v<'a)'s d(^- Term pends uj)on an um-erlainty, as u]M)n the death Of tlie lessor, beino- Inmjself only tenant for life; or if the term of years be determinable on a life or lives; in all these cases the estat(» lor years not beini»- certain to exjnre at a time foreknown, but merely by tln^ act of (Jod, the tenant or his executors shall have tlie (^nble- ments in the same manner that a tenant for life or his executors shall be entitled thereto. Not so if it determuie by tlu^ act of (he })artv himself; as if tenant for years does anvthin^- that amounts to a forfeiture, in which ca.-o t],e emblements shall «io to the h^ssor and not to the lessee, who ha'h determined his estate l)v liis own default. the landlord, before the wheat is ripe, or be- ^^'ill. fore it is reaped, ]»uts him out, yvt tlie tenant . sliall have the emblements and free inoress, egress and regress to cut and carry away the ':■ i 182 LANDLOIH) AND TENANT. profits; and this for the same reason as all emblements turn, viz., the point of uncer- triintj, since the tenant could not possibly know when his landlord would determine his Avill, and thcrefort^ could nuike no ]jrosision a<;ainst it; and liaving sown the land, >vhich is for the .i;ood ol' the public, upon a r( asonable presumption the law Avill not suUer him 1o be a loser by it. I»ut it is oihersvise, and u]»on reason e(iually i^ood, Avhere the tenant himself (h'tcniinus llic will, for in this c;ise the landlord sliall have the profits of the land. Tenant by ^74. Tcnauts bv sulTerauce are not eniitlcd sutfei-cuice. .^ emblements. CASES. . Ill Away p'in;^' crops. Tnule lixturc's. Tenant's fii:tnres. Where there is a stipuhition in a lease for a term certain, thnt the lessee shall deliver up all the lands at the expirntion of the lease, all qiustion as to customary right to the away-going crops is excluded. Apparently, there is no custom of the country as to away-going crops in Ontario: Jturn.irrfi v. ( *,',■/•;;.•?. 'J TI. C. 1\. 28S. Kdui: V. ]nii(<-, ]\) c. P. :}i). An engine Jind boiler put into a carpenter's shop and manufactory of agricultural implements: Held, to be trade fixtures as between landlord and tenant. and to be removable by the tenant: Prniifine;/ v. (itirne;/, 'M V. 1?. C. 'U7. The right of the tenant to erect fixtures is to this extent, viz.: Thai they shall not be such as to •ill FIXTL'KKS AND EMHLEMENTS. 1 SP) diminish the value of the ^^^^^^i^^^^^^^'^^^i^^'. „^,,7,/i' increase the burden of them as against the hmdloid. nor to impair the evidence of title. The term iKtures is u^e.l in tlie extended form cfrixtnro. covenants to repair, and leave premises in good re- jl^dr, in a lease made under the Short Forms Ac includes only irremovable fixtures, which are such things as may be attached to, e.g., doors and win- dows, or placed on, e.g., rail fences, a freehold b> a tenant, the property in which passes to the landlord immediately upon their being so affixed or placed, and in which the tenant at the same time ceases to have any property; and does not include remo^ible fixtures, which are such things which may be amxea to the freehold for the purposes of trade, or ot domestic convenience or ornament, an equitable pro- perty in which remains in the tenant, or such thmgs as may be affixed to the freehold for merely tem- porary purpost^s, or for the more complete enjoyment and use of them as chattels, the absolute property in which remains in the tenant. Where a lessor has elected to re-enter for a for- feiture, the lessee has the right while he remains m possession to remove fixtures put up by him for the purposes of his trade, and has a reasonable time after such election within which to do so: Arahsy. Mc Math, 2{} O. II. 2'2i. Wh^re a trade fixture is attached to the freehold i) becomes part thereof, subject to the right of the tenant to remove it if he does so in proper time; in the meantime it remains part of the fn^ehold: Scaith I't aJ. v. Thf Ontario i\ncor and Flat Co. it ", VI 1; F. ' 1 184 LANDLORD AND TENANT. Premises held for torm cer- tain. iii CHAPTER XIV. Plow A TENANCY MAY BE DETERMINED, AND CONSEQUENCES OF HOLDING OVER. 275. If premises are held on lease for a term certaiu, the tenancy, of course, deter- mines at its expiration without the necessity for any notice to quit or other proc 'dure on either side. And this is also the case where the tenant holds merely under an agreement for a lease, liut besides this regular expira- tion of a tenancy, it may be terminated by some default or misconduct on the part of the tenant; by a voluntary agreement between landlord and tenant; or, if its nature will ad- mit of it, by a regular notice to quit given by either party. We have already seen what is necessary where a power of re-entry for breach of covenant is reserved. Disclaimer 27 G. A tenant will incur a forfev. ,' of his interest, and mav be immediatelv e eted if he denies or '^ disclaims " the title of his landlord, and asserts that the property be- longs either to himself or to strangers. But if the pro})erty changes hands, and then rival claimants appear, and the tenant refuses to pay rent to any unt^il it is settled who is :ii< his DETERMINATION' OF TENANTV. IH'j entitled, tbat will not amount to such a " din- claimer " or denial of the titlt* of tlic; truo owner as will enable him to ejeet the tenant. Kor can a lease for a term of years be forfeited by mere spoken words. And a distress ])ul irto premises for rent whiel) accrued due after an alleged "disclaimer" is consideied to waive it, and to restore tlie tenant to liis former position. ^7V. ^'Surrender'' is wlien tlie tenant Sumnritr. yields up the ])remises to tlie landlord, and the h'ndlord accepts them back from liim. Of course, it is unnecessary to say that tlie land- lord's acceptance is quite optional. A tenancy for a term of more than three years, as it can only be created by a lease under seal (i.e.. a deed), so it can only be surrendered (4tlier ex- pressly by deed, or impliedly by the lessee's acceptinj^ from the landlord a new lease. The rule is less strict as to tenancies not created by deed. But even a tenancy from yaw to year cannot be surrendered and ])ut an end to so as to bind eithei* party, merely by the tenant's verbally stating' his readiness to quit. and the landlord's verbally giving him leave tu go. The surrender and acce])tance sliould be in writing. Where, indeed, tlun-e was a verbal agreement between the landlord and a tenant from year to year (under a written agreement), that the tenancy should be de- termined; this, follo\yed by the departure of "T" 1 8() J.ANDLOKI) AXi) TENANT. the Iciiaiit, and by the oiitry and possession of the landlord, was held to amount to sur- render by oi)eration of law. And the same has be( 11 also held in ti ease where, under similar circumstances, there was an agreement between the landlord, the tenant and a third party to substitute such third parly as the tenant, and this was carried out by the old tenant quitting and the new one enter- ing. ^Vnd it may be said generally, that where there is an agreement between the landlord, the tenant and a third party, that the tenant shall leave, and that the third party shall c(/me in as the tenant of the landlord, and then the possession of the jjremises is imme- diately clianged in pursuance of the agree- ment; tliis will amount to a surrender of the original holding, and the first tenant will be discharged from liability on account of ro^nt. l>ut, as it will be necessary to make out, both that there was an agreement of the kind we have mentioned, and that there was a change of possession in consequence and in pursuance of it, and as doubts are very likely to arise as to the precise nature of what passed on the occasion of the alleged agreement, parties can- not be too strongly advised not to trust to such loose and irregular modes of putting an end to tenancies, and to adopt the only regular course, and have a proper written memoran- dini drawn up and signed whenever a tenant surrenders his tenancy, or one tenant is, with i PET£ R M [ X Al l( ; N i) 1 • r i; N A N * \ is- session to snr- e same undei' eemciit a third as the by tlio ft enter- ; where ndk)rd, tenant r shall d, and imme- aji;ree- of the will be f rent, t, both ind we L-hanfte sua nee :) arise on the es can- to sucli in end •egular moran- tenant s, with the assent of (he hiiidlord, siibsiiuued for another. Under no other circiinistajiees can a tenant fe<'l perfecllv safe tliat, on jii^'in^;- up I lie premises. Ik* is releast'd from responsibility lO his hmdiord. 2T8. >'o notice to fjuit is necessary where x,,ticT t<. premises are ht for a term certain, expiriii. The law in respect to notices to (luit Xoticc to is now as well seilied in the case of tenants q'lit in . , ,, , , ' .^ i e case i ti lor periods ot less ihaii a year, as in tliat oi ^veekiy or yearly tenants. In (lu* latter case the law, in monthi;, the absence of an JLU-reement to tlu* contrary, t«^»^^"'"'^- ns just stated, implies an aii'reement for six months' notic(\ In the forriU'r case, at com- mon law, it wa^' doubtful whether the law would imply an agreement for any notice at all, but by statute of the I'royiiice of Ontarii*.* *In case of t<-nancies fvoia work to week and from month to month, a week's notice to (luit and a montlfs notice to (piit re- spectively, endinj? with the week or the mi)nth, as the case may be, shallbe deemed sufficient notice? to determine re_speetive]y tj. weekly or monthly tenancy : K. S. O. c. 143, st-c. 1.). 188 I. A X D L( H U ) A N I ) 'I' !•: N A XT. Tenant liolding over. if the liii'iuj;- bo troin lialf year to lialf year, a lialf year's notice? iiiusl bo j;ivoii; if from (piartor to (|iiarloi% a quarter's notioo; if from month to moiitl), a month's notice, and if from woolv to woi'k, a week's notice. If a lodger quits his jiromisos without j;ivinjj;' notice, ho must ])ay from six months' to a week's rent, according to his liiring. No notice is required where the tenant or k)dj^er takes tlio premises for a term certain, and quits at the expiration tliereof. On the otlier hand, there is no ques- tion that a party wlio enters for a month, week, etc., will be bound to remain until the termination of it, or, at any rate, to pay for it. 2HO. If a tenant liolds over after tlie ex- })iration of his tenancy, payin"' double rent, under 11 Geo. II. c. 19, no notice to quit is necessary on either side. Nor need a mort- f;agee give notice to quit to any tenant who became such without his consent subsequently to the mortgage; but he may at once proceed to bring an action for possession of the land. It is not necessary that a notice to quit should be in writing, unless the parties have expressly stipulated that it should be so. A landlord, however, who has given notice to his tenant, will not be able to claim double rent from him unless such notice was a written one. And there can be no doubt that the notice should in all cases be a written one, so that its con- tents may be readily proved, and their suffici- ency established. i DETERMINATION OF TENANCY. 189 f from f from f from lodger ce, ho s rout, qui rod omisos i ration quos- I noil til, til the for it. lie ex- e rent, quit L mort- it who luentlv roceed 3 land, should grossly idlord, enant, m him And should ts con- sufficl- ftHl' An agent merely emploj-ed to receive A cr<'ntpriv- rents has no implied auliiorilv from his i)rin- '"" '"'^'c* cipal to j::ive a notice to (luit; but an ajjjent eiitruste(l with tlie ji^eneral mana<;ement and lettinjj; of the pre};vrly has. He must have authority at tlic tiim^ \W notice was j;ivcn; for ,1 subsequent ratilication by the landh^rd will not make valid a notii-e orij»inally given without authority. A notice to quit signed b}^ one of several i)artuers, wlio are either landloi'ds or tenants, will be snlticient; but it would be betti'r that it should, if possible, be signed by all. 2H2. A notice to quit must be clear and ij.c^uisit.s peremptory in its km-uis. If it is optional, f^^' "^'ti^'*- giving the tenant the clioice of going or of i)ay- ing an increased rent, as, '' 1 desire you to quit or else that you agree to ])ay double rent," it: would be iusuHicient. Uut if the notice holds out the i)aymeut of double rent, not as an alternative, l)ut as a pc^ial conse(|uence, whicli under certain statutes will attend the tenant's holding over, such a notice will be good. 2S;?. A notice to a t(Miant to "quit all the t;^,^^.j^,,, ,,f property you hold of me," is a sutl[ici«nit de- notice. scription of the demised ])i'emises; and any general description jipplicable to the whole of the property will suffice. Even a description to a certain extent erroneous will not vitiate a notice if it do not mislead the party to whom it is given. •I: !?! I no I in ''i vol (> LANDLOUI) AM) TKNANT. 284. If a notice is iunulvd to the tonnnl liimseir, il is not iiecossMiy tliat it should have ji. wi'itlcii (liri'clion oi* aihlrcss; ami if a notice is (lirecled to the tenant l>y a wron^- Christian name, and lie keep it and d() not send it l)ack, he will he held to have waived the niisdirec- tion, and the lessor may enlcMce the n(»tice, if there was no other tenant of the same name. A notice addressed to, and served npon, a tenant in actnal possession will he snlticienl. Hut where I he ])erson in i)ossession is a nn re servant of the true tenant, aMhon;.'li the notice may l)e left with the servant, it must he ad- dressed t(> the maslei'. And if tin* notice he ^iven to snch sci'vant, er if it l>e h^ft, as it may, with a servant of tln^ tenant at his dwell- iiij;-honse, the [)erson mnst he ex]>ressly t(dwn that it had come \o the hands of the tenant liefoi'e the time at whicli it was n(M?essary that it slionld he j^iv(^n, it was held that a sulhcicnt si rvice was proved. If a ten- ant pve his landlord too short a notice to quit, the landlord. althonp,h he at first acqni- esces in it, may ultimately refuse to accept it. ^S5. If a tenant's rent is alw^ays paid at a quarter, half y<^ar or yeai*, the notice to quit *)«, DK'rKIlM I NATION' <>I' 'I'KN ANr'V. I'.ll (on nil I: Id Iiavo notice I'islijin I hack-, son, a ncifjil. I ni( !'<• not ice hr ad- ice be as il dwrll- V (oIn tlie annivci'sni-v <>f ilir dav on wliicli lie entered. 2.HI5. \\ |n«Miiises aiM- h*; on an a^rc'enuMit tliat either parly may delerniine lln' fnanry by a < •■'^''','|'''|;['''' is known lliat it must eml on one (d* \\\o or j'/.'" •Ill three days, a notice nmy l)e ^iven t<> leave on (l(.iii>itul. snch a day of the two or three (nannnj;- tluMn) as the tenancy ends, taking- ejire (hat tln^ notice is ^iven six nH)ntlis beCere the first, and tln'n after the last day lunned, if the tennnt liave nol (piilted, the landlord will be jiistiticd in talir.'ition of ihe yviw of liio tenancy which will <'A|>ir(^ next after half a year from the time of the service of this notice.'- will be perfectly liood. P.nt, if nothirij-' is known as to the iime at which a tenancy commenced, it will not be safe to take any proceedinjjs to. 192 LANDLORD AND TENANT. if t recover possession until the expiration of a year from the day on which the notice is served — for it is obvious that the tenancy miglit liave commenced on the very day of the year on which the notice was served; and upon that supposition — which is the most un- favourable for the landlord that can be made — it would terminate on the anniversary of the service. Tenant ^^H. If, liowevcr, wlicre the commence- bound by ment of the tenancy is uncertain, the landlord repHes" {U>pli<^s ^<^> ^1^^^ tenant for information, the latter will be bound bv his answer, and if he name a day, and a notice to ipiit is given ac- cordingly, he cannot afterwards be permitted to show tluit his holding did, in fact, begin on a ditl'erent da v. Wh en liouse am land let from urate 2HU. AVlien a house and laud are let to- gether at ou(^ vent, but a:'(^ to be entered upon Sep- at various limes, then (as diif event notices dates (.jij^^jQf 1)^. given for 8e])arate poi-tions of pre- mises held a( one rent) flu- notice to quit must (in the absence^ of any express agreemeut) ex- pire ou Hie day u{)ou whicli the tenant entered OTi tliat ])art of ^tie premises wiiicli forms the principal subject of the letling: and it is a question for the jury which is the principal subject. DETERMINATION OF TENANCY. 193 on of a otice is tenancy ,y of the ?d ; and nest iin- be made L'y of the mmence- landlord ion, tlie ind if lie tviven ac- >ermitted begin on 'e let to- 'ved upon t notices IS of pre- quit must inent) ex- it entered forius the id it is a principal 890. If a landlord should accept rent ac- Accept- cruiiig due after the expiration of his notice ''"^^"^ to quit, this will be treated as a waiver of the''"'' notice, unless the landlord at the time declare, or circumstances then occurriug show, that he did not intend it to operate as such, or unless |K fraud or contri>'ance were practised upon him by the tenant in nuikin<>: the payment. 2?>l. But if the landlord distrain for rent Distrain- j;ccruing due subsequently, that will be an '^'^ ^''^' absolute waiver of the notice, and set up the ^®"'* tenancy again. 292. A second notice to quit is a waiver of Second the first; unless, indeed, it is merely a warn- 'i^^tice to ing given after the expiration of a proper ^"'^• ii otice, that if the tenant do not quit forth- with, or in so many days, he will be called upon for louble value. on 293. And if a tenant retain possession of Retentiu the premises after tlie expiration of a notice (»f posses' t) quit given by him, such retention of the ^^'^"• possession will in general amount to a waiver of his notice. Tlu^ landlord may, however, compel him to adhere to his notice, or pay double rent. 294. In actions for possession of land it is Tenant at often necessary to determine wlu^tlier the de- wiiiorten- fendant is tenant at will or by sufferance. ^\"^g^j.^^(,g L.T. — IB 194 LANDLORD AND TENANT. When a man is tenant at will he cannot be ejected without a determination of the tenancy by notice to quit, or demand of possession, or other act sufiicient for that purpose. If he is a tenant by sufferance there is no necessity for such steps prior to the action. Peaceable 205. At the expiration of a tenancy, or delivery jts determination by notice to quit, the tenant required, ^^yg^ peaceably deliver up to the landlord the premises which had been let or leased to him. If he do not, his full responsibilities as tenant will continue; measures may be taken for his expulsion; and he will also be liable — as a penalty for holding over — to the payment of double value or double rent, so long as he con- tinues in possession. Double value. 296. By the 4 Geo. II. c. 28, s. 1, it is enacted that if anv tenant or tenants for lives or years, or any person or persons coming in under or in collusion with them, hold over any lands, tenements or hereditaments, after the determination of tlieir estates, and after demand made, and notice in w^riting given for the delivery of the possession thereof by the landlord, or the person having the reversion of or remainder therein, or the agent there- unto lawfully authorized, such tenant or ten- ants so holding over shall pay to tlie person so kept out of possession, at the rate of double the yearly value of the lands, tenements, ov Qnot be tenancy ision, or If he is lecessity mcy, or B tenant lord the . to him. s tenant 1 for his le — as a ment of s he con- . 1, it is for lives 5 coming lold over its, after md after given for )f by the reversion nt there- it or ten- le person of double iients, ov DETERMINATION OF TENANCY. hereditaments so detained, for so long a time a.s the same are detained. 195 207. This Act, as it will be seen, applies Act applies only where notice to quit is given by tlie land- <>"ly \\t'«'if^ lord. Xow the regular and ordinary notice to ,','111^8^*' quit will, in the case of a tenancy from yearJ^^i^^"- to year, operate as a notice and demand under this Act. But a notice is requisite to enabh? the landlord to avail himself of the Act, eveu where the tenant holds for a term of yenrs. ^uch notice may be given at any tiiiu^ either before or after the end of the term ([)rovided tliat the landlord has not, by receipt of rent or otherwise, recognized a new^ tenancy from year to year). In the first case it will o])erat..' (in case there is any holding over) directly th<' term expires; in the second from the time it is swerved on the tenant. 2UH. The Act does not ai)ply to tenancies for a shorter term than from year to year ; nor to instances in which the tenant retains pos session under a fair claim of right. 300. The double value cannot be recovered * bv distress, but it mav bv au action in the High Court or (if the amount claiuied be not too large) in the County Court. Tlie tcmnnt cannot deprive the latter Courls froui jurisdic- tion by merely alleging that he hns some claim to the premises, if it can be proved that h(^ 196 LANDLORD AND TENANT. M i. has admitted that he was tenant at the time the holding over commenced. Doiible 300. Another statute applies where the tenant himself gives notice and then holds over. By the 11 Geo. 11. c. 19, s. 18, it is enacted that in case any tenant or tenants shall give notice of his or their intention to quit the premises, and shall not accordingly deliver up the possession thereof at the time in such notice contained, then the said tenants or tenant, his or their executors or administra- tors, shall from thenceforth pay to the land- lord double the rent, or a sum which he, she or they should otherwise have paid. This statute only applies to cases where a tenant has, from the nature of his holding, the power U) give a notice to quit, and where he has, in fact, given a valid notice. It does not, like the 4 Geo. II. c. 28, render a notice in writing necessary. And also, unlike that, it appa- rently extends to the case of weekly, monthly and quarterly tenancies. How re- jj^i rpj double rent pavable under this coverable. . ^ _ j i j- \ n Act may be recovered by distress, as well as by action in the High Court or County Court. 302. A tenant who holds over for a year after the expiration of a notice to quit — pay- ii g double rent — may then leave without giving a new notice. Jpv DETERMINATION OF TENANCY. 197 e time re the holds5 ], it is tenants tion to rdingly time in tenants inistra- e land- he, she This tenant 3 i)0\ver has, in ot, like writing- t appa- aionthly icr this well as y Court. [» a year lit— pay- without ance trans- action. CASES. The surrender of a term must, under the Statute Requisites of Frauds, he in writing, signed by the party surren- fur a dering, or by operation of law. surrender. The giving up and cancelling the leasts by the ^ , tenant, though not of itself a surrender of the term, of [, a"e is yet a strong circumstance to be considered: may be Burr V. Denhon, 8 U. C. H. 185. implied. A conveyance in fee from a lessor to his lessee An unex- during the term, though made to defraud creditors, pected re- is, as betv.^n the lessor and lessee, a surrender of -^'dt of a the term, and (among other consequences) entitles a f«"»^'»dulent purchaser at sheriff's sale of the lessor's estate in the ^^.'"^'^Z: land to immediate possession: McPhcraon v. Hunter, 4 U. C. R. 440. Where a tenant, with the knowledge and consent Another of his landlord, takes a lease from another to whom instance of the landlord has transferred his reversion, this ^ «"rren- amounts to a surrender in law, and the right to dis- ^^'^^ "^ ^''^^• train is gone: Lewis V. Brooks, 8 U. C. R. 570. For detailed circumstances (even giving up the Nq key) which were held not to be a surrender in law: surrender. See Carpenter v. Hall, 10 C. P. 90. Acts relied on as shewing the acceptance by the No landlord of the surrender of a lease, and as effecting surrender. a surrender by operation of law, must be such as are not consistent with the continuance of the term; and using the key left by the tenants at the landlord's ofRce, putting up a notice that the premises are to let, making some trifling repairs, and cleaning the premises, are ambiguous acts, which are not sufficient for this purpose: Ontario v. O'Bea 22 A. R. 349. 198 LANDLORD AND TENANT. Surr(-nder, A diH- claiiricr by tenant of land lord '8 title ends liis ten- ancy. Denial of landlord's title. The doctrine of surrender, by act and operation of law, applies as well to a term created by deed as to one created by parol: Gault V. Shcpard, 14 A. R. 203. A disclaimer by a tenant of his landlord's title at once puts an end to an existing tenancy, and an action for possession of the property may be at once maintained without notice to quit: CUuiH V. Stewart, 1 U. C. E. 512; Nugent v. Ilessell, 2 U. C. R. 194. See Danieb v. Weese, 5 V. C. R. 569'; lioiiter v. Fra- ser, 4 O. S. 80 ; Peer>i v. Byron, 28 C. P. 250. But he may dispute title on ground of fraud or misrepresentation : Lynett v. Parkinson, 1 C. P. 144. In an action for possession by a landlord against a tenant whose term had expired: Held, that the de- fendant was not precluded from letting up that the plaintiff's title expired, or was put an end to, during the term; and to raise such defence it was not necessary for the tenant to go out of and then resume possession: Kelly V. Wolf, 12 P. R. 234. 1:1 TENANTS REMEDIES. 190 ition of d as to title at ind an at once Ilessell, r V. Fra- lO. raud or against , the de- that tlie ,, during jvas not nd then CHAPTER XV. TENANT'S REMEDY FOR WRONGFUL OR IRREGULAR DISTRESS. 303. If a distress is improperly or wrong- Tenant's fully made a tenant has several remedies. As remedy. tliey vary according to the nature of the wrong committed, it is convenient to discuss them under the three heads: 1. Irregular distress. 2. Excessive distress. 3. Illegal distress. 304. Irregular distress. This is where, irreguhir although the right to distrain exists, the dis- distress. trainor lias been guilty of irregularity in taking such things as are not lawfully subject to distress, or in not conducting himself with propriety in his subsequent disposition of tJiem or conduct respecting them. For in- stance, if emblements are taken; if growing crops are sold before they are ripe; if goods liable to seizure are sold without appraise- ment; if a landlord, having distrained sulti cient to satisfy the arrears of rent, abandon the distress, and afterwads distrain again for the same rent; if a landlord sells goods aftt^ m^ n: 200 LANDLORD AND TENANT. replevin by the clainidnt, of wliieli he has had notice; if he turns the tenant or his faniilv out of possession, and retains possession of the premises in which the j^oods are im- pounded for an unreasonable time, all these are irregularities for which a tenant who is aggrieved may bring an action in either the County Court or the High Court of Justice, Ttccording to the damages claimed. The dam- ages will be confined to the actual injury suffered, and if an action is brought for an iiregularit}- from which no real inconvenience or loss has resulted, not only will the jury be directed to return only nominal damages, but the plaintiff will very probably be refused his costs. Further, if adequate amounts have, in the opinion of the jury, been tendered before action brought, it will not lie at all, and the plaintiff will have to pay the costs. Landlord's 305. Even when an irregularity has been bUity^for Committed in levying the distress, it does not acts of follow that an action can be brought against bailiff. ijjg landlord. He is not responsible for the acts of a bailiff' or agent, who has clearly ex- ceeded or ij.eparted from his authority, unless the landlord has subsequently ratified the very acts done. Excessive 30G. Excessive distress. This is where the distress, landlord has distrained the goods and chattels of the tenant to an amount beyond what is tenant's remedies. 201 as had I'amilv ion of i*e im- tliese who is er the iistice, 'i dam- injury for an nience ury be es, but sed his ave, in before nd the s been >es not ij^ainst 'or the rly ex- unless 3d the ere the battels That is fairly necessary to cover the rent in arrear and tlie costs of levying the distress. To make a distress excessive a landlord must have an opportunity of levyinjii^ on j?oods, the value of which is about the amount of the rent in arrear, and therefore, if there is only one article on the premises, the landlord may safely take it. However small his demand and however valu- able the article, it will not be excessive dis- tress if its value be nearer than that of any other article there to the sum in arrears. Xeither will an action for excessive distress lie where the excess is trifling. It must be something substantial and obvious. If there has been, however, such an excessive distress, an action will lie in which the tenant may recover as damages the value of his goods, less the amount of rent due. In considering whether the distress was excessive the jury will be told to consider what the goods seized would have sold for under execution on bailiff's sale. No action will lie merely on the ground of a landlord or bailiff having claimed more rent than was actually due, unless the goods taken and sold in regard to the real value, or unless some specific damage resulted from the exorbitant nature of the claim made, as, for instance, if it could be proved that it deterred the tenant's friends from joining with him as sureties on a replevin bond. fi'-- 202 Illegal distress. LANJ)LOUI) AND TENANT. 307. Ill(^f?al disdrss. A distross will be illegal if there was no right at all to make any distress whatever; for instance, if there was no tenancy between the distrainor and the person distrained upon; it* there was a tf nancy, but upon no certain rent; if the ten- ant was holding over .after the expiration of notice to quit on the landlord's i)art; if the landlord's title had expired before the rent became due ; if no rent was in arrear, or if the landlord's title to it had beeii barred by the Statute of Limitations; if the tenant has paid the rent, either on account of taxes which he was not liable to pay under his covenant, or under compulsion, to a superior landlord or to a mortgagee, for any of these causes, a distress will be wholly and absolutely illegal. If a tender is made after a distress has been taken, but before it is impounded, that makes an} subsequent detention illegal. When the goods have once been impounded a tender will have no efi'ect, and a landlord may proceed to sell without rendering himself liable to any action. Tenant may recover double the value of goods sold. 308. If an illegal distress has been taken, and the goods sold, the tenant may either bring an action against the landlord to recover the receipts of the sale, or he may bring an action of trespass, under which, if it is pro- perly brought on the statute 2 W. & ^I. c. TENANTS REMEDIES. 203 ill be make tliero r and was a le ten- ion of if the 2 rent , or if by the s paid ich he mt, 01' i or to i stress If a taken, ?s anv 11 the er will ;eed to to any taken, either ecover ing an is pro- M. c. 5, s. 4, he may, if no rent was in arrear or due, recover double llie value of the j^oods sold. 5JOO. When an ilh\t»nl distress has taken Replevin, place, the remedy m(»st freijuently resortcnl to is an nction of re])levin, because by having' recourse to that the t(Miant both recovers his own floods or previ^nls them from \mu^ taken away, and also obtains damaj^es for any in- convenience or loss to which he may have been put in consequence of the distress havinj? been levied on his premises, or his goods having been detained from him. Under the common law there was no power to sell the distress — it was a mere pledge in the hands of the land- lord to secure his rent, and so long as he had security that his claim, if legal, would be duly paid, he had no right to more. The tenant was, therefore, permitted to take back his goods, on giving security to the sheriff of the county either to prosecute successfully an action against the distrainor for the unlawful tfiking, or in case the judgment was against him, to pay the rent. This wns called replevy- ing the goods, that is, substituting one pledge for another. 310. An action of replevin was formerly Action, special and complicated in its procedure. It procedure is now begun like any other action by a writ "'• of summons. It was formerly confined to cases of recovery of goods wrongfully taken ir ' If.' 1 204 LANDLORD AND TENANT. by distress, but is now extended to all cases of wronf^ful taking. The rules of the Supreme Court of Judieature rej^ulalinpj the procedure in actions of replevin are 1098 to 1111. Affidavit f(^r order. 311. When a party desires to obtain his goods by this method ui procedure, he must, after issue of a writ, apply on affidavit for an order of replevin. Tliis order is issued on demand on filing an aflidavit stating: (1) That the person claiming the property is the owner thereof, or that he is lawfully entitled to the possession thereof, describing the property in the affidavit. (2) The value thereof to the best of his belief. (3) That the property was taken under colour of a distress for rent. Order. 3 12. An order is then issued which must state that the defendant has taken and un- justly detains the property under colour of a distress for rent. 313. The order directs the sheriff to take without delay the security required by law, and to cause to be replevied to the plainti.T the property as described and valued by the affidavit, and to return his proceedings to the Court. 1- ., TENANT S REMEDIES. 205 I cases iprome cedurc \\n his must, for an lod on operty wfully bribing of his under L must nd un- our of take y law, laintiiT by the to the 814. The shei'ilT then, before acting undei' l^''"^. the ord( i', must lake a bond lioni the plaiutiil' with two ssullicient sureties in treble the vahie of tlie properly lo be rephnied, as staled in Ihe allidavit, which bond is assignable to the defendant. 315. The condition of Ihe bond so taken is that if the plaintil! prosecutes his suit with effect and without delay against the defend- ant for tlie taking and unjustly detaining his cattle, goods and chattels, and returns the ].roperty, if a return is adjudged, and also pays any damages which the defendant may sustain hy the issuing of the writ of replevin; if the ])laintiif fails to recover judgment in his suit, and also that if the plaint i IT observes, keeps and performs all rules or orders nuide by the Court in the suit, then the bond is void, (•Iherwise the plaintiff ( ome defendant the sheritT. le pli liable in damages to the sheriff or tin; if the bond is to him assigned by 810. In cases of replevin, where th(^ goods Costs, have been distrained for rent the bond does not cover costs which are not taxable as be- tween solicitor and client. Only taxable costs are recoverable, that is, those payable as be- tween party and party. ^ m 206 LANDLORD AND TENANT. 317. The sheriff then takes the goods, de- livers them to the phiintiff, and returns the order to the Court on or before the tenth day after its service. Judgment. SlH. If the phiintiff signs judgment by de- fault, he is at liberty to sign final judgment for the sum of five dollars and his costs. He ciinnot get any larger sum for damages, except when it is granted by a Judge or jury, or upon filing a written consent of the defendant or his solicitor, verified by aflSdavit of execu- tion. Action on bund. 319. The suit, if defended, must proceed, the bond being the security of the defendant iiiJL-tead of the goods. An action on this bond will lie {!) for not prosecuting the action with effect, which means not successfully; (2) for delay; (8) for not returning the goods. CASES. Act) ( for Action for double value under 2 W. & M. c. 5, s. 5 doublj The fifth section of the statute does not extend to value. a holding of laud \vhere there is no rent reserved : McCaskell v. liodd, U O. 11. 282. Distress. In an action for wrongful distress for rent before it was due, there was no allegation in the statement of claim that the action was brought upon 2 W. & M. c. 5, s. 5, nor that the goods distrained were sold, but merely an allegation that the defendant sold and car- ried away the same and converted and disposed THE RECOVERY OF TENEMENTS. 207 thereof to his own use, nor was a claim made for Damages. double the value of the goods distrained and sold within the terms of the statute. Held, the action was an ordinary action for con- version, and that the value, and not the double value, of the goods distrained was recoverable. CHAPTER XVI. THE RECOVERY OF TENEMENTS. 320. After the expiration of a term of Limdicni .years, or at the eud of a notice to quit in tlie "^J:.^^"','']^'' case of a tenancy thus determinable, a land- I'n'try.^ lord may enter upon, and obtain possession of, the demised premises if they are vacant, or if he can do so peaceably. If at the time they are left locked up, and deserted byth(^ tenant, he may break in. But if anyone opposes him he has no right to make a forcible entry; and even if he p:ets in j)eaceably, he must not turn the inmates out forcibly. If he does, lu^ will, unquestionably, be liable to an indictment; and he may also be liable to an action for assault at the suit of the parties. A pro- viso for re-entrv mav, indeed, be framed to 208 LANDLORD AND TENANT. give the lessor the right of forcible ejectment, and to protect him from an action, as between himself and the lessee; but that will not take away the indictable offence. If the landlord desire to be perfectly safe he must resort to one or the other of the various methods of obtaining possession by legal proceedings. Modes of H21. Where the landlord has a right to possession ^^^^^ ^^ cousequencc of the determination of bylaw. the tenancy by one of the means to which I have referred in a former chapter, he may pro- ceed, according to circumstances, to recover possession either by application to the County Judge under the Overholding Tenants' Act, or in the County Court if the value of the land does not exceed $200, or in the High Court of Justice. Overbold- 323 The first mode of regaining posses- am'^Act. ^^^^ ^^ under the Overholding Tenants' Act. Si^'i Formerly it was very difficult for a landlord to succeed under this statute, because the Judges refused to interfere whenever a tenant could shew a " colour of title." It was often easy for a tenant to set up some defence* which the Judge had to take into account and dismiss the application. Now the Act is much wider, and the " colour of right " ground for resistance to the application will be of no 209 !tment. etween Dt take udlord sort to lods of ings. ght to tion of t^hich I ay pro- [•ecover County Act, or le land ourt of posses- Act. : for a ecaiise ever a was efenci* nt and J much nd for of no Ai)plica- tiun to be made to the County Judge against overhold- ing tenant upon affi- davit. THE RECOVERY OF TENEMENTS. avail. The main clauses ol* the Act, as amended in 1895 and 189(3, are the following: In case a tenant, after his lease c'r right of oc- cupation, whether created by writing or bv verbal agreement, has expired or been determined either by the landlord or the tenant by a notice to quit, or notice pursuant to a proviso, in any lease or agreement in that behalf, or has been determined by any other acs whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses upon demand made in writing to go out of posses- sion of the land demised to him, or which he has been permitted to occupy, his landlord, or the agent of his landlord, may apply to the County Judge of the county, or union of counties, in which the land lies, and wherever such Judge then i.^. And such Judge shall appoint a time and place at which he will enquire and determine whether the person complained of was tenant to the complainant for a term or period which has expired, or has been determined by a notice to quit, or for default in pay- ment of rent, or otherwise, and whether the tenant holds the possession against the right of the land- lord, and whether the tenant does wrongfully refuse to go out of possession, having no right to continue in possession, or how otherwise. Notice in writino; of the time and place so ap- Tv^^.^jigp pointed for holding such inquiry, md stating briefly thereof to the principal facts alle^>e(l by the landlord to en- i^e served title him to possession shall be served by the land-ontlie lord upon the tenant, or left at his place of abode tenant, at least three days before the day so appointed, if the place so appointed is not more than twenty miles from the tenant's place of abode; and one day in ad- dition for every twenty miles above the first twenty, reckoning any broken number above the first tw«mty as twenty miles; to which notice shall be annexed a copy of the aflldavit on which the appointment waa obtained and of the papers attached thereto. L,T. — 14 Judge to appoint time and jjlace for determin- ing matter :v- ■ - 210 LANDLORD AND TENANT. Sec. 5. If at the time and place appointed as aforesaid, the tenant, having been duly notifled as above provided, fails to appear, the Judge, if it ap- pears to him that the tenant wrongfully holds, may order a writ to issue to the sheriff in the Queen's name commanding him forthwith to place the land- lord in possession of the premises in question; but if the tenant appears at such time and place, the Judge shall in a summary manner hear the parties and examine into the matter, and shall administer an oath or affirmation to the witnesses adduced by either party and shall examine them; and if, after such hearing and examination, it appears to the Judge that the case is clearly one coming under the true intent and meaning of section 2 of this Act, and that the tenant wrongfully holds against the right of the landlord, then he shall order the issue of such writ as aforesaid, otherwise he shall dismiss the case, and the proceedings in any such case shall form part of the records of the County Court. Proceed- ^^^' ^^' '^^^ proceedings under this Act shall be inffs how ^^ititled in the County Court of the county, or union entitled. '^^ counties, in which the premises in question are situate and shall be styled: In the matter of (giving the name of the party complaining), landlora, against (giving the name of the party complained against), tenant. County :524. Actions in tlie County Court for risdiction. recoTerj of land are restricted to cases where the value of the land is under |200. Proceed- ings in de- fault of appear- ance. In case of appear- ance. Proceed- ing to form part of the I'ecords of the Court, High 8*J»5.In the Hip:h Court of Justice the jwsL°^ practice in actions for the recovery of posses- sion of land is now assimilated to that of all other actions. Justice. ^ THE RECOVERY OF TENEMENTS. 211 inted as titled as if it ap- Ids, may- Queen's he land- ion; but lace, the 3 parties [minister luced by if, after tie Judge the true and that tit of the uch writ ;ase, and I part of shall be or union jtion are he party name of art for s where ice the possea- t of all ^26. Any account of the proceedings in an riactice. ordinary action for the recovery of possession of premises is entirely foreign to the object of this boolv. Solicitors know where to find the necessary information in books on prac- tice. If persons who are not solicitors wish to manage their litigation for themselves they will find m the same books the requisite in- lormation. 327. Perhaps enougli has been said to sliew that though the law on the subject of landlord and tenant has been simplified on many points, It IS still in the main complex. It must always be so, and all that can be done bv the Legislature and by the Courts is to reduce as far as possible, the opportunities for diiler- ences. 1 i^^^; 'L*'^''^ ^''^ ^ ^^^^ sections of the Land- Special lord and Tenant Act which require reproduc- provisions tion. They relate to the recoverv of premises by landlords where a lease is determined and the tenant refuses to go out. (R. S. O. c. 143, ss. 23-26.) ' In case (1) the form or interest of any tenant of t. any land, tenements or hereditaments, holding the ^'''''^^'','^" same under a lense or agreement in writing for any !"^%^-^^" term or number of yenrs certain, or from year to y'ar " ,vS expires, or is determined either by the landlord o^am'lnant lnw?nl ^L'n'l. ^^'. ^^*^'^ t« ^V^t; nnd (2) in case a Sds th^ lawful demand of possession in writing, made and lauds 212 LANDLORD AND TENANT. leased has expired and the tenant re- fuses to de- liver pos- session after notice. Circum- stances un- der which landlord may give notice to tenant to find secur- ity. signed by the landlord or his agent, is served per- sonally upon the tenant, or any person holding or claiming under him, or is left at the dwelling house or usual place of abode of such tenant or person; and (3) ill case such tenant or person refuses to deliver up possession accordingly, and the landlord there- upon proceeds by action for recovery of possession, he may at the foot of the writ of summons address a notice to such tenant or person requiring him to finr^ 7ch security, if ordered by the Court or a Ji3 , nd for such purposes as are hereinafter next Upon the appearance of the party, or in case of non-i»i. ^eaic^je, then, on malting and filing an affi- davit of service of the writ and notice, and on the landlord's producing the lease or agreement, or some counterpart or duplicate thereof, and proving the execution of the same by affidavit; and upon affida- vit that the premises have been actually enjoyed un- der such lease or agreement, and that the interest of the tenant has expired or been determined by regu- lar notice to quit (as the case may be); and that possession has been lawfully demanded in manner aforesaid, the landlord may apply to the Court or a Judge for a rule or summons for such tenant or per- son to show cause within a time to be fixed by the Court or Judge, on a consideration of the situation of the premises, why such tenant or person should not enter into a bond by himself and two sufficient sureties in a reasonable sum, conditioned to pay the costs and damages, which may be recovered by the plaintiff in the action, and the Court or Judge, upon cause shown, or upon affidavit of the service of the rule or summons in case no cause is shown, may make the same absolute in whole or in part, and order such tenant or person within a time to be fixed, upon a consideration of all the circumstances, to give such bond to the plaintiff, with such conditions and in such manner as may be specified in the said rule or summons, or the part of the same so made absolute. ( b If THE RECOVERY OF TENEMENTS. 213 3d per- ling or ; house 3n; and deliver there- jession, iddress him to t or a 3r next case of in affl- on the )r some ng the affida- '^ed un- ;rest of f regu- Ld that nanner rt or a or per- by the tuation should ifRcient )ay the by the s, upon of the i make I order d, upon 7e such and in rule or )solute. In case the party neglects or refuses to comply if not with such rule or order, and gives no ground to in -given duce the Court or Judge to enlarge the time for obev- when or- ing the same, then the lessor or landlord, upon f^^'^'^'f^ filing an affidavit that such rule or order has been J^f^Kment made and served and not complied with, may sign 'V'^y ^« judgment for the recovery of possession and costs of -^ff"^'^- suit. No action or other proceeding shall be com- Limitation m«nced upon the bond after six months from the of action time when the possession of the premises, or any upon bond part thereof, has been actually delivered to the land- lord. > 320. A very important section of the Landlord and Tenant Act (section 10) is as follows: Every tenant to whom a writ in an action forp^^^j^it^ the recovery of land has been delivered, or to whose f,,r tenant knowledge it comes, shall forthwith give notice receiving thereof to his landlord, or to his bailiff or receiver, writ for and if he omits to do so he shall forfeit to the per- I't'^-'overy son of whom he holds the value of three years' im- ^'^ ''"^^ '>"n there- for. or occupiers of lands bordering upon any public high- way to take down, alti>r or renn)ve any fence found to cause an accumulation of snow or drift as to impede or obstruct the travol on the puu^.v. high- way or any part thereof; and where such power is exercised, they shall make such compensation to the owners or occupants for tho t.-iking down, alteration or removal of such fence, and for th(> construction of somo other description of fence approved of by the council in lieu of the one so required to be taken down, altered or removed, as may bi» mutually agreed upon; and if the council and the owners or occupants cannot agree in respect to the compensa- tion to be paid by the council, then the same shall be settled by arbitration in the manner provided by the Municipal Act, and the award so made shall be binding upon all parties. Power in fence .is directed (2) In case the owner or occupant shaL iise or case of ueglect to take down, alter or remove the fence, nVirleet or '^^^d to construct such other fence as required by th<; refusal to council, the co\mcil may, after the expiration of two construct months from tho time the compensation to be paid by the council has been agreed upon or settled by arbitration. proc(>ed to take down, alter or remove the old fence, and construct the other description of fence which has been approved of by the council; and the amount of all costs and charges thereby in- curred by the council, over and above the amount of compensation agreed upon or settled by arbitration, may immediately be recovered from such owner or occupier by action in any Division Court having juris- diction in the locality; and the amount of the judg- ment in favor of the municipality obtained in such Court shall, if not sooner paid, be by the clerk of the municipality placed upon the next collector's mil as taxes against the lands upon or along the boun- daries of which the fence is situate; and after being placed upon the collector's roll shall bf^ collected a^d treated in all respects as other taxes Imposed by MISCELLANEOUS STATUTORY DIUECTIOXS. 219 )lic hlgh- Lco found as to ..^ high- power 1:3 )n to th(} Llt(>rati()n uction of C by the be taken mutually wners or jmpensa- me shall ivided by shall be cise or le fenco, d by th(> n of two • be paid L^ttled by ' remove iption of council; ereby in- mount of bitration, Dwner or ng juris- :he judg- in such 'rk of the s roll as he boun- ter being loted arid posed by by-laws of the municipality; when a tenant or oc- cupant, other than the owner, shall be required to pay the aforesaid sum, or any part thereof, the ten- ant or occupant may deduct the same, and any costs paid by him from the rent payable by him, or may otherwise recover the same, unless the tenant or occupant shar luive agreed with the landlord to pay the same. 8»0. 1894.— Ditches and Watercourses Act (section 15): (1) Notices under the provisions of this Act shall Mode of be served personally, or by leaving the same at th.'Sfrving place of abode of the jwner or occupant with a notices. grown-up person residing thereat; and in case of ncm-residents, then upon the agent of the owni^r, or by registered letter addressed to the owner at *he post-office nearest to his last known place of resi- dence; and where ihis is not known, then he may be served in such manner as the Judge may direct. (2) Any occupant, not the owaier of land, notified Occupant in the manner provided by this Act, shall immedi- to notify ately notify the owner thereof, and shall, if he neg- owner, lects to do so, be liable for all damages suffered by such owner by reason of such neglect. s. 340. 1887.— Line 5): Fences (R. S. O. c. 219, An occupant, not the owner of land, notified in Duty and the manner above mentioned, shall immediately liability of notify the ownt-r, and if he neglects so to do, shall occupants be liable for neglect all damage caused to the owner by such ns to noti- fying owners. The notification referred to is that of in- tention to brine: in fence-viewers. 220 Recovery of costs and ex- penses of execution of provis- ions rela- ting to nuisances. fs '■. r I ' I LANDLORD AND TENANT. 341. 1887.— Act respecting Public Health (R. S. O. c. 205, s. 104) : Any costs or expenses recoverable from an owner of premises under this Act, or under any pro- vision of law in respect of the abatement of nui- sances, may be recovered from the occupier for the time being of such premises; and the owner shall allow such occupier to deduct any moneys which he pays under this enactment, out of the rent from time to time becoming due in respect of said premises, as if the same had actually been paid to such owner as part of said rent: Provided that no such occupier shall be required to pay any further sum than the amount of rent for the time being due from him, or which, after demand of such costs or expenses from such occuDier, and after notice not to pay his land- lord any rent without first deducting the amount of such costs or expenses, becomes payable by such occupier unless he refuses truly to disclose the amount of hfs rent and the name and address of the person to whom rent is payable; but the burden of proof that the sum demanded from such occupier is greater than the rent due by him at the time of such notice, or which has since accrued, shall be on such occupier. (2) Nothing in this section contained shall affect any contract between any owner or occupier of any house, building or other property, whereby it is or may be agreed that the occupier shall pay or dis- charge all rates and dues and sums of money pay- able in respect of such house, building or other pro- perty, or affect any contract whatever between land- lord and tenant, 'i ' c Health from an r any pro- at of nui- er for the vner shall which he from time emises, as owner as 1 occupier than the m him, or nses from his land- imount of by such close the ess of the e burden L occupier e time of lall be on lall affect er of any J it is or y or dis- mey pay- tther pro- een land- FORMS.* WAIVER OF EXEMPTIONS. The said lessee do hereby, for heirs, executors, administrators and assigns, hereby cove- nant promise and agree with the said lessor heirs and assigns, as follows: That in con- sideration of the premises, and of the leasing and letting by the said lessor to the said lessee of the lands and premises above named for the term *Tho forms here given are based on the use, which is almost universal in Ontario, of the short form, as provided by the Short Forms of Leases Act. The covenants printed in this appendix are in addition to those contained in the short form. In drawing a lease it is well to use that form ; if any particular covenant requires alteration, strike it out of the short form and write what you consider you require as an additional covenant. The effect of the short form is now well understood by our peo[)le, and the covenants it contains fairly carry out the average intentions of lessor and lessee. English conveyancers prefer to use the long covenants although the short form was authorized by Imperial Stotute. ■ ;) i 22^2 LANDLORD AND TENANT. kereby created (and it is upon that express under- standing that these presents are entered into) that, notwithstanding anything contained in section twenty-seven of chapter one huna.red and forty- three of the l^ev.scd Statiues oi Ontario, 1BS7, or any other section of said Act, as amended by statute of the Province of Ontario, that none of the goods, or chattels of the said lessee at any time during w \^" e *^® continuance of the term hereby created, on said emptlons^ demised premises, shall be exempt from levy by distress for rent in arrear by said lessee as pro- vided for by said section of said Act above named, and that upon any claim being made for such exemption by said lessiee or on distress being being made by the said lessor this covenant and agreement may be pleaded as an estoppel against said lessee in any action brought to test the right to the levying upon any such goods as are numed as exempted in said section. Said lessiec waiving, as he hereby does, all and every benefit that could or might have accrued to him under and by virtue of the said xVct, but for the above cove- nant. ACCELERATION CLAUSE. Current rent be- comes due. And also, that if the term hereby granted shall be at any time seized or taken in execution, or in attachment, by any creditor of the said lessee or if the said lessee shall make any assignment for the benefit of creditors, or becoming bankrupt or irEOlvent, shall take the benefit of any Act that may be in force for bankrupt or insolvent debtors, the then current rent sliall immediately become due and payable, and the said term shall immediately be- come forfeited and void. Mmmmt/mmmmmmmm FORMS. 223 ss under- nto) that, section. Qd forty- 1887, ou )y statute he goods . le during I, on said levy, by as pro- e named, for such ss being aant and against • test the Is as are d lessee V benefit ider and 've cove- ed shall n, or in ee or nent for rupt or tiat may Drs, the Dnjc due itely be- FURTIIER COVENANTS APPROPRIATE FOR A FARM LEASE TO BE ADDED TO COVE- NANTS IN SHORT FORM LEASE. And the said lessee do hereby, for heirs, executors, administrators and assigns, cove- nant, promise and agree, to and with the snid les- sor heirs and assigns, in manner following, that is to say: x\nd that the said lessee will dui'ng the said faerm cultivate, till, manure, and employ such pnrt of said demised premises as is now, or shall here- after be brought under cultivation, in a good husband-like and proper manner, so as not to im- poverish or injure the soil, and plough said land in each year during said term inches deep, and at the end of said term will leave the said land so manured as aforesaid. And will crop the same during the said term by a regular rotation of crops in a proper farmer-like manner, so as not to impoverish or injure the soil of the said land, and will use his best and earnest endeavours to rid said land of all docks, wild mustard, red roots, Canada thistles, and other noxious weeds. And will preserve all orchard and fruit trees (if any) on the said pre- mises from waste, damage or destruction; and will spend, use and emjploy, in a husband-like manner, upon the said premises, all the straw and dung which shall grow, arise, renew, or be made there- upon; and will allow any incoming tenant to plough the said land after harvest in the last year of the said term, and to have stabling for two horses and bed room for one man. And will leave at least acres seeded down with timothy and clover seed. (Instead of Short Form covenant number 5). And shall not nor will during the said term cut any standing timber upon the said lands, except for rails or for buildings upon the said demised pre- mlseg, or for firewood upon the premises, and shall Good hus- bandry. Rotation of crops. Fruit. Manure. Seeding down. WTfl f> 224 LANDLORD AND TENANT. not allow any timber to be removed from off the said premises. , (Instead of Short Form covenant number 3). And also, shall and will, at the costs and charges of the said lessee well and sufficiently repair and keep repaired the erections and buildings, fences and gates erected or to be erected upon the said pre- mises. ijii OPTION TO LESSEE TO PURCHASE FREEHOLD. Set out terms of purchase as fully as in any other agreement And it is hereby agreed, on the part of the said part of the first part heirs, executors, administrators and assigns, that if at any time with- in the said term of the said part of the second part heirs, executors, administra- tors, or assigns, shall desire to purchase the fee simple of the lands hereby demised, shall be al- lowed to do so by paying the sum of of lawful money of Canada [set out terms], provided the said rent shall have been regularly paid up to the time when may so desire to purchase; and also, provided that the rent accruing, or to accrue, due for the remain- der of the term above created, then unexpired, shall also have been paid, but the said part of the first part shall not be bound to give covenants or assurances for title other than for and in respect to his own acts. And it is hereby declared and mutually agreed, by and between the parties hereto, that time in the payment by the said part of the second part, heirs, executors, or assigns, to the said part of the first part, heirs, execu- tors, or assigns, of the said sum of under the proviso or agreement above set forth in that be- half, and within the period of above limited ,■■.. . ^.^^T■.■T\^J:<^ FORMS. 225 off the p 3). charges )air and ices and aid pre- 3H0LD. he said ecutors, le with- of the inistra- the fee I be al- lawful he said le time rovided remain- i, shall of the ints or pect to agreed, In the d part, le said execii- under lat be- iimited therefor, as the purchase money for the premises, shall be strictly the essence of this contract, and that default in payment by the said pcvrt of the second part, of the said sum, within the said time or period of from the date hereof above limited, over, above and in addition to all rents above reserved, shall render absolutely null and void so much of these presents as relates to the sale by the part of the first part; or purchase by the part hereto of the second part of the premises above mentioned, and the jurisdiction of the several Courts of this Province in reference thereto shall be wholly barred, and the said part of the first part shall be absolutely released and discharged from the performance or execution of the said agreement, and the said part of the second part shall be deprived of all right to enforce the same, notwith- standing any rule (if such there be) that time can- not be made of the essence of a contract, or any other rule or maxim whatsoever. In witness, etc. Signed, sealed, etc. COVENANT TO BUILD. And the said lessee do hereby, for execu- tors, administrators and assigns, covenant, promise and agree, to and with the said lessor heirs, executors, administrators and assigns, that he the said lessee executors, administrators, or nssigns, shall and will within months nfter the date of these presents, at and costs and charges, erect, construct, build and finish, fit for habitation, on the said land hereby demised, and upon that part thereof designated on the said plan of building lots now filed in good and substantial messuage or dwelling house , with L.T.— 15 frn — 1 226 LANDLORD AND TENANT. suitable out-buildings, all of brick or stone material, to cost at least dollars of law- ful money of Canada, which messuage or dwelling house and out-building shall be of brick or stone . ,. material, and, in so far as the elevations thereof are to^Srcmn? concerned, be built in accordance with the plans stances of hereunto annexed; and the said elevations of the* case. said messuage or dwelling house shall be faced with stone or white brick, or with red pressed brick, such red pressed brick facing to have also cut stone or white pressed brick dressings, but no common red brick, or field or lake stone, shall be used for facing the walls of any building of any description to be erected on the said demised premises (or, as the case may be). COVENANT TO REINSTATE. Notice, plans re- quired. Also, that if at any time during the said term the said dwelling house and buildings, or any of them, shall be injured, damaged, or destroyed, whether by fire, wind, tempest, invasion of enemies of the Province, or otherwise howsoever, the said lessee executors, administrators, or assigns, shall and will at or costs and charges within months after the same shall be so injured, damaged or destroyed, repair, rebuild, or reinstate the said dwelling house and buildings, in accordance with the said plans hereunto annexed, or any improved or substituted plans, which may be approved of by the said lessor, heirs, executors, administrators, or assigns; but it is hereby provided, that the yearly rent hereby reserved, and every part thereof, shall be paid as hereinbefore provided, not- withstanding any such injury or damage to or de- struction of the said dwelling house and^^build- ings as aforesaid. FORMS. 227 naterial, ; of law- dwelling or stone >reof are 16 plans '< of the led with ck, such jtone or Hon red r facing •n to be the case arm the any of stroyed, memies le said issigns, ihargos 1 be so lild, or Idings, mexed, nay be cutors, )vided, part not- or de- biiild- 1, COVENANTS APPROPRIATE FOR LEASE OF LAND LET FOR PURPOSES OF BUILDING DWELLINGS. And the said lessee do hereby, for executors, administrators and assigns, covenant, promise and agree with and to the said lessor heirs, executors, administrators and assigns, that the said lessee executors, administra- tors, or assigns, shall not nor will erect, or suffer or permit to be erected, put or placed upon the said demised premises any building or buildings what- soever, other than those hereinbefore mentioned and diescribod, and that if and when, and so often jis any such building or buildings, other than those hereinbefore mentioned and described, shall during the said term be erected, put or placed upon the said demised premises, or any part thereof, then the said lessee executors, administrators, or assigns, shall and will, at or costs and charges, upon being notified so to do by the said lessor heirs, executors, administrators or assigns, immediately pull down, demolish, or remove the same, and within months thereafter, at or costs and charges, erect, construct, build and finish fit for habitation other buildings instead thereof, in accordance with the said plans hereunto annexed. And alsD, that the said les- see executors, administrators, or assigns, shall and will, within the said period of months from the date hereof, at or coats and charges, erect, construct and place a fence in front of the said demised premises, Notice, which fence shall be of such materials, and T>1ans re- shall be erected in accordance with such plans asMii'Jfd. the said lessor heirs, executors, administrators, or nssigns, shall approve of fo. that purpose. And also, that he the said executors, administrators, or assigns, or the occupant or occupants, tenant or 228 LANDLORD AND TENANT tenants, of the said demised premises from time to time, shall not nor will, at any time during the said term, carry on, or permit or suffer to be carried on, within the said messuage dwelling house or tenements, so to he erected as aforesaid, or on any part of the same, any trade or business whatsoever, or convert the said dwelling fiouse or tenements, or any part thereof, into a shop or shops, warehouse, or storehouse, or otherwise attempt to carry on any trade or business on the said demised land, or any ^ . part thereof, or suffer or permit the said lands or forbidden ^^il^i^S® ^^ be occupied or used for any object or purpose whatever, other than for said dwelling house and premises, or for any purpose which shall in any way be deemed a nuisance, or which shall prejudici- ally affect the value of the same, or that of the sur- rounding or neighbouring lands and buildings. COVENANT FOR PERPETUAL RENEWAL. Provided always, and it is hereby agreed by and between the said lessor and lessee that at the expiration of the said term of years, the said lessee executors, administrators, or assigns, shall have the privilege of receiving a re- newal of this lease for the further period of year SI longer, and so on for every years perpetually, the rent to be payable for the said demised premises during any such renewal term of years to be such as the said lesson heirs, executors, administrators, or assigns, and the said lessee executors, administrators, or assigns, shall agree upon; but in the event of their not being able to agree upon the amount of such rent, then the same shall be determined by two arbitra- tors, one to be chosen by each party, who if they cannot agree shall appoint a third arbitrator, and the award in writing of the majority of the said FORMS. 229 time to the said rried on, 56 or on any itsoever, lents, or rehouse, on any or any ands or bject or ig house 1 in any rejudici- the sur- gs. 7'AL. by and t at the irs, the tors, or g a re- tor the •enewal le said issigns, ;ors, or >f their !h rent, irbitra- if they )r, and le said arbitrators (which shall be made and published within one calendar month from the date of the appointment of the arbitrator last appointed), fixing the amount of the said rent for the then next ensuing period of years, shall be binding and conclusive on all parties, the costs of such arbi- tration to be borne by both parties in equal shares; and in case either of the said parties shall neglect or refuse for the space of fourteen days after being thereunto required in writing by the other party to nominate an arbitrator, then the arbitrator nomi- nated by the party not so neglecting or refusing shall alone determine the said rent, and his award in writing (to be made and published within two calendar months from the date of his appointment) shall be binding on both parties; but in the valuation and appraisement of the said rent for any such re- newal term, the same shall be calculated as ground rent of a block or parcel of land situated as the said demised premises are situated, without reference to any buildings, tenements, houses, or erections thereon. And the said renewal lease shall be drawn and prepared at the cost and charges of the said les- see executors, administrators, or assigns, and shall Remember contain the like covenants, provisos, and agreements ^ ^j|^^^*^ as are herein contained, including this present ^^^^.^jg"^^ agreement for renewal, and the plans hereto annexed, or exact copies thereof, or other improved or substituted plans, approved of by the said les- sor heirs, executors, administrators or aassigns, shall be annexed to the said lease. COVENANT FOR RENEWAL. Another Form. And also that immediately after the expiration of the said term of years, the said part of '2P,0 LANDLORD AND TENANT. the first part, heirs and assigns, shall and will grant another loase of the said hereby demised pre- mises, with the appurtenances, containing the like covenants, conditions, provisos, and agreements as are in this lease contained and expressed, and at and under a certain yearly rent, payable in quarterly payments, the amount whereof to be ascertained in manner following, that is to say: To be fixed on, and determined upon, and declared by two appraisers, to be named and appointed, one of them by the said part of the first part, heirs and assigns, the other by the other part of the second part, executors, administrators and assigns, with power to them, the said appraisers, to name and call in a third if they cannot agree; and in such valuation and Valuation appraisement the amount of such rent shall be cal- by ap- culated altogether as ground rent of a block or parcel praisenient of land situated as the said premises are situated, —not by and the value of any buildings, tenements, houses aroitration qj, erections thereon, is not to be considered in any wise in making such appraisement; such appraise- ment to be made within fourteen days after the end of the term hereby granted. Such rent to be payable in quarterly payments as aforesaid, and to commence from and immediately after the termina- tion of the term; or, if the said part of the first part, heirs and assigns, decline making such re- newal for a second term, — which it shall be optional for him or them to do or make (but of which inten- tion to decline, the said part of the first part, heirs or assigns, shall give to the said part of the second part executors, administrators or assigns, or leave at his or their last known place of abode, a notice, in writing, at least three calendar months be- fore the expiration of the said term of years hereby granted, or any future term to be granted as hereby provided, — then it is hereby expressly cove- nanted, declared and agreed upon, by and between the parties hereto and their respective representatives, that all the buildingj, houses and erections, placed, ~:i::^-*!r^-rr.tn'srzcs£rsas!! FORMS. 2B1 and win sed pre- the like ents as I at and iiarterly ined in on, and •raisers, he said nis, the 3wer to ill in a ion and be cal- parcel tuated, houses in any praise- er the to be md to rmina- e first ch re- >tionaI inten- irt. of the signs. 3de, a IS be- yea r 3 ed as cove- ween tives, aced, \y' '* them, will second part, erected and being on said premises at the expiration of the first term of years, by the said part of the second part, executors, administrators or assigns, shall be duly valued and appraised, by ap- praisers named and appointed on behalf of each party, as above particularly mentioned, with power to them to name, refer to and call in a third person, should they not agree as above mentioned — such ap- praisement to be made within fourteen days from and after the determination of the said first term hereby demised — who shall fix on the value under the con- ditions aforesaid: And the said part of the first pan, hereby for heirs, and assigns, covenant, promise and agree, to and with the said part o| the second part, executors, administrators and assigns, that he or they, or some one r* pay to the said part of the executors, administrators and assigns, the full sum of money so to be fixed by the said appraisers, or their referee, as the value of or compensation for said houses, buildings and erections, on the said hereby demised premises then standing and being, within one calendar month after such value is ascertained and declared as aforesaid, a renewal for a second term having been declined to be made by him or them as aforesaid: And also, that if any such renewal of a second term be granted as aforesaid, under the terms and conditions herein pro- vided for granting the same, by the said part of the first part, heirs or assigns, to the said part of the second part, executors, administrators and assigns, that at the end of such renewed term, so to be granted as aforesaid, the said part of the first part, heirs and assigns, shall and will grant a further renewed lease to the said part of the second part, executors, administrators and Further assigns, of a further term of years, precisely ^^^^^^ "^\*i on the same terms and conditions as hereinbefore "^^cessaniy provided for the first renewal thereof, the amount of rent payable quarterly to be ascertained by ap- perpetual. 232 LANDLORD AND TENANT. praisers In the manner and form above provided and set forth, or shall and will pay for all buildings and erections then being on said premises (should such renewal be refused or declined, and of which notice shall have been given as aforesaid), at a rate to be ascertained by appraisement as aforesaid, and with- in the time, and according to the terms, conditions and agreements above mentioned and expressed; and so on at the end of every renewed term; it being the true intent and meaning of these presents, and it is hereby expressly covenanted and agreed upon, by and between the said parties thereto, heirs, ex- ecutors, administrators and assigns, that at the end of the hereby granted term of years, and also at the end of every renewed term of years, so to be granted as aforesaid, the said part of the first part, heirs and assigns, shall grant a re- newed term or lease of years of the said hereby demised premises, and so on for ever, ascer- How rent taining the amount of rent to be paid during such ascer- renewed term by appraisement, as hereinbefore provided, and always estimating the amount of said rent as ground rent, and exclusive and independent of all buildings and improvements thereon erected, put, placed and being, until the said part of the first part, heirs or assigns, elect to determine these presents, and all further renewal or renewals of the hereby demised premises, and of which notice shall be given as aforesaid, by paying within the term above limited at the expiration of rar^h ^^^ni, for all such buildings, erections and iin^ i-ovements as may be put, placed, erected and t^ ring the^e on, by the part of the second p; executors, administrators or assigns, the nppraised value, to be ascertained and estimated b^ referees in manner hereinbefore provided. And it is hereby further covenanted and agreed upon, by and be- tween the said parties of the first and second parts, for themselves and their respective legal representa- tives, that all dower and all charges and costs tained. ^Ided and ings and uld such 3h notice ite to be nd with- mditions sed; and it being s, and it ipon, by ^irs, ex- the end md also years, of the nt a re- he said , ascer- ig such nbefore of said )endent Jrected, of the ermine newals notice lin the fluents there raised sferees lereby d be- parts, 3enta- costs FORMS. 233 4 arising from the demand of the same, that may hereafter be mado, and that may bo chargeable on the said premises, and legally and lawfully demanded therefor, shall be deducted from the rent reserved or to be hereafter reserved, ns aforesaid, for the said premises, such dower being limited to the ground (and not to apply to the im- provements thereon), and the rents, issues and pro- fits thereof, it being hereby clearly admitted and understood that the buildings and improvements to be made and erected on said premises will be made and erected by the said part of the second part, executors, administrators and assigns, and that the said part of the second part, execu- tors, administrators and assigns, shall be answer- able only for the balance of such rent, nfter deduct- ing such dower and> the charges accruing from de- manding or enforcing the same, anything herein con- tained to the contrary thereof in anywise notwith- standing. And also that if the said part of the first part, heirs, executors, administrators or assigns, do and shall, at any time hereafter, neglect, decline or refuse to pay to the said part of the Money to second part, executors, administrators or as- Repaid, signs, the full sum of money so to be fixed and de- ^he"' termined by the said appraisers, or their referee, as the value or compensation for the said houses, buildings and erections on the said hereby demised premises then standing and being (upon being law- fully demanded), for the space of one calendar month after such value is ascertained, declared and de- manded as aforesaid (a renewal for a second, or for any subsequent term, having been declined to be made by him or them, and notice given as aforesaid), or if he or they refuse or neglect to name and a p. point an appraiser, for the purpose of ascertaining and determining such value, within the period above fixed and prescribed, then, in either such case, the said part of the second part. executors, ad- ministrators and assigns, shall hold and enjoy the i>M LANDLORD AND TENANT. Refusal to apiK)int appraiser. said premises, for tlie furthor term of years, reckoned from the expiratioQ of the preceding term, subject to the same ter.ns, conditions, rents and agreements contained aud provided for the term then last expired and ended; nevertlieless, subject, after the termination of the term so created, to all the conditions, provisos and agreements contained in and by these presents for the renewal of any term, or for the purchase of the buildings and im- provements as aforesaid: It being clearly and fully understood and agreed upon, by and between the said parties to these presents and their legal repre- £< ntatives, that the neglect or refusal to appoint an appraiser, on the part of the lessor, to estimate the value of the improvements as aforesaid, or the neg- lect or refusal of payment, after notice as afore- said, for the value thereof, for the space of time above provided and mentioned (after due demand as aforesaid), shall, at all times hereafter, entitle and authorize the said lessee and representatives to hold, own and enjoy the said premises for another term of years, upon the terms and for the rents provided for in the preceding and then expired or expiring term, so often as payment of the purchase money for the buildings and improvements as afore- said shall be neglect H or refused to be made, or the appointment r. an appraiser, for the pur- poses of ascertaining such value, shall be neg- lected or refused to be made by the said les- sor or legal representatives: and that at the expiration of the term hereby created and provided for under the contingencies aforesaid, the original fend first provisions and conditions con- tained in these presents shall then again operate and be in full force and effect. In witness, etc. Signed, sealed, etc. (Usual AfjiiJuvH of Execution.) FORMS. 235 LEASE OF PART OF A HOUSE. Agreement made the day of , 18 . Between A. B., of and C. D., of, etc.; whereby the said A. B. agrees to let, and the said C. D. agrees to take, the rcoms or apartments following, that is to say: being part of a house and premises in which the said A. B. now resides, situate and being No. , in street, in the of To have and to hold the said rooms and apart- ments for and during the term of half a year, to commence from the day of Instant, at and for the yearly rent of lawful money of Canada, payable monthly, by even and equal por- tions, the first payment to be made on the day jf .^„„ of next ensuing the date hereof; and it is fur- arrange - ther agreed that, at the expiration of the said term !nent of half a year [the said C. D. may hold, occupy and is made for enjoy the said rooms or apartments from month to further month for so long a time as the said C. D. and A. B. contirma- shall agree, at the rent above specified]; or [that ^'^'"• each party be at liberty to quit possession on giving the other a month's notice in writing], or, as the case may be. And it is also further agreed, that when the said C. D. shall quit the premises, he shall leave them in as good condition and repair as they shall be in on his taking possession thereof, reasonable wear ex- cepted. In witness, etc. Signed, sealed, etc. UNDER-LEASE. This Indenture, made the 18 , Between C. D., of day of , A.D. , of the one part, and f ^ ' ^. 236 LANDLORD AND TENANT. Be very careful in E. F., of , of the other part, witnosseth as lollows: 1. The said C. D. demises to the said E. F., his executors and administrators, the premises described in the first schedule hereto, with their appurtenances, from tho date hereof, for years, except the last three days, at the yearly rent of $ , payable, etc. [as in original lease]. 2. The said E. F., for himself, his heirs, execu- tors and administrators, covenants with the safd C. D., his executors, administrators and assigns using this (hereinafter called " the lessors "), that the said E. form" F., his executors and administrators (hereinafter called " the lessees ") will pay, etc. [follow the terms of the original lease to the end, substituting the as- signor for the lessor, and the assignee for the lessee.] In witness, etc. I.ANDLORD'S INDEMNITY AGAINST RENT AND TAXES. To C. D. In consideration of your becoming tenant of my premises, No. , in street, I agree to in- demnify you against the payment of any rent, taxes or rates chargeable upon the said premises, or upon any person in respect of the occupation thereof, down to the commencement of your tenancy. Dated the day of , A.D. 18 . FORM OF ASSIGNMENT OF LEASE. This Indenture, made the day of one thouaand eight hundred and ninety FORMS. 237 sseth as P.. his [escribed enances, the last payable, , execii- he safd assigns said E. einafter e terms the as- lessee.l r AND of my to in- taxes r upon down Between hereinafter called the assignor of the first part; and hereinafter called the assignee of the second part. Whereas, by an indenture of lease, bearing date the day of one thousand eight hundred and made between Desci'n the said lessor therein named, did demise and ^j^^^^^^^^^^^j lease unto the said lessee therein named, j^ust be executors, administrators, and assigns, inserted all and singular, th certain parcel or tract of for regis- Innd and premises, situate, lying and being in tiation if the, etc. [description]. necessary. To hold the same, with the appurtenances, unto the said lessee executors, administra- tors, and assigns, from the day of one thousand eight hundred and for and during the term of years from thence next ensuing, and fully to be complete and ended, at the yearly rent of dollars, and under and subject to the lessee's covenants and agreements in the said indenture of lease reserved and con- tained. Now this indenture wicnesseth, that in considera- tion of the sum of of lawful money of Canada, now paid by the assignee to the assignor (the receipt whereof is hereby acknow- ledged) the said assignor do hereby grant, bargain, sell, assign, transfer, and set over unto the assignee executors, administrators, and assigns, all and singular, the said parcel or tract of land, and all other the premises comprised in and Covpnauts 2, 3, 4, '5 of Short Forms of Conveyances Act are ininlied by tliis asaig-nment. They are for Right to Convey, Quiet Enjoyment, Free from Incmnbrances, Further Assurance, also for Validity of Lease. If by a trustee, a covenant alsc against such trustee's own acts. m ; 1 238 LANDLORD AND TENANT. demised by the said hereinbefore in part recited indenture of lease, together with the said indenture of lease, and all benefit and advantage to be had or derived therefrom; to have and to hold the same, together with all houses and other buildings, ease- ments, privileges and appurtenances thereunto belonging, or in any wise appertaining unto the said assignee executors, administrators, and assigns, from henceforth for and during all the rtsidue of the said term granted by the said inden- ture of lease, and for all other the estate, term, right of renewal (if any), and other the interests of the assignor therein, subject to the payment of the rent and the observance and performance of the lessee's covenants and agreements in the satd indenture of lease contained. In witness whereof, the said parties hereto have hereunto set their hands and seals. Signed, sealed and delivered in the presence of (Usual Afjidavit of Execution.) \ Recitals. FORM OF MORTGAGE OF LEASE. This Indenture, made the day of one thousand eight hundred and Between hereinafter called the mortgagor of the first part; and hereinafter called the mortgagee of the second part. Whereas, by an indenture of lease bearing date on or about the day of one thousand eight hundred and and made between the lessor and the lessee, the said lessor did demise and lease unto the I FOiniS. '■ recited ndenture * be had he s«ame, ?s, ease- hereunto the said ors, and all the d inden- e, term, ?rests of t of the of the le safd to have ice of ?agor :agee ? date one made the to the 239 said lessee executors, ndministrators and as- signs, the lands hereinafter mentioned, with the np- purtennnces, to hold for and during the term of years, from tlie dny of one thousand (ught hundred and at th«^ ^nhl^^.T^i!* , c^ollMrs, nnd undeV mid subject to the lessee's covenants jukI agreements therein contained. And whereas the said h^asehold lands and term ot years have been assigned to the said mortgagor executors, administrators and assigns Now this indenture witnesseth, that in considera- "^^. ^^ dollars now paid bv the said mortgagee to the said mortgagor (the receipt whereof is hereby acknowledged) he th<' ssid mortgagor do hereby grant, bargain, sell, assign, transfer and set over unto the said mortga- gee executors, administrators and assigns, all .•md singular the said leasehold lands, being that certain parcel of land situate with ,^ ■, the appurtenances, and all other the premises com- ww, l W prised m and demised by the said lease and the ^ ^' unexpired residue of the said term of years (exc(^pt- mg one day thereof), and all other the estate term right of renewal, and other the interest of the said mortgagor therein; to hold unto the said mortgai-'^e executors, administrators and assigns Provided, that if the said mortgagor executors, or administrators, do pay unto the s.-iid mortgagee executors, administrators, or assigns, dollars, with interest at per cent, per annum, as follows: and all rents reserved and payable in respect of the said term of years, and all rates and taxes and charges whatsoever, payable upon or in respect of the said lands, and all premiums of insurance upon the buildings upon the said lands, and all payments which are, or may be, payabh^ in n^spect of or in ccnsequence of anything containc^d in the said lease then these presents shall cease and be void 240 LANDLORD AND TENANT. And the s.iid mortgagor for executors and administrators, covenant with the said mortgagee executors, administrators, and assigns Covenant That the said mortgagor executors to pay. and administrators, will well and truly pay or cause to be paid unto the sjiid mortgagor executors, administrators or assigns, the said principal sum and interest at the times and in manner above provided: and also (unless and until upon default the mort- gagee executors, administrators or assigns, do enter upon, lease or sell the said premises) will well and truly pay the said rents, rates, taxes, charges, premiums of insurance and payments, and perform and observe all the covenants and conditions ex- pressed or implied in or by the said leasi', and in- demnify and save harmless the said mortga- gee executors, administrators and assigns, against payment of any such rents, rates, taxes, charges, premiums of insurance and payments, and against all loss, costs, damages and forfeitures whatsoever occasioned by or by reason of or consequent upon any non-payment, non-performance or non-observ- ance in the premium; and further, that if the mort- gagor executors or administrators, do make default in payment of any such rent, rates, taxes, charges, premiums of insurance or payments, and the mortgagee executors, administrators or assigns, do pay the same, or any part thereof, the mortgagor executors and administrators, will pay to him and them the amount so paid with in- terest at the rate of per cent, per annum, and the said premises shall stand charged therewith upon this security. Lease a And that the said lease is at the time of the seal- erood ing and delivery of these presents a good, valid and security subsisting lepse in the law and not surrendered, for- feited or iDecome void or voidable; and that the rents and covenants therein reserved and contained have been duly paid and performed by the snid mortga- gor up to the day of the date thereof. FORMS. cecutors e said )rs, and secutors or cause ecutors, ,\xm and rovided: e mort- s, do vill well charges, perform )ns ex- and in- mortga- against charges. against atsoevor nt upon -ohserv- le mort- lo make i, taxes, its, and ators or reof, the 3rs, will with in- um, and ith upon he seal- filid and red, for- tie rents ed have mortga- 2^1 And that the said mortgagor now ha in Mort^'agor good right, full power and lawful and absolute au- has power thority to grant, bargain and assign the said lands to assign. and premises in manner aforesaid and according to the true intent and meaning of these presents. And that in case of default in the payment of any Ki^^iit of of the moneys or interest hereby secured, or any entry. part thereof, the said mortgagee executors, administrators or assigns, may enter into and upon and hold and enjoy the said premises for the residue of the stTid term of years and the renewal or re- newals thereof (if any) for their own ust' and benefit, without the let, suit, hindrance, interruption or denial of the said mortgagor executors, administrators or assigns, or any other person whom- soever; and that free and clear and freely and clearly acquitted, exonerated and discharged, or otherwise by and at the expense of the said mortgagor executors and administrators, well and effectually saved, defended and kept harmless, of from and against all former and other gifts, grants, bargains, sales, leases and other incumbrances whatsoever; and that the said^^ortgagor ha not nor has any other person heretofore made, done, committed or suffered any act, deed, matter or thing whereby or by reason whereof the said premises, or any part thereof, have or has been or may be in anywise charged, affected or encumbered. And that the said mortagor executors, administrators and assigns, and all other persons ''"it'icr claiming any interest in the said premises, .'^hall and •'^•'^•^^"'anct'. will from time to time, and at all times hereafter, at the request and costs of the said mortgagee executors, administrators or assigns, make, do and execute, or cause and procure to be made, d^me and executed, all such further acts, de(»ds. assignments and assurances in the law for more effectually assign- ing and according to the true intent and meaning of these presents, as by the said mortgagee executors, administrators and assigns, or his or their L.T.— If) w 242 Insurance. Relief against forfeiture. M(,rt"pfajrep on d««fau]t may enter and sell. LANDLORD AND TENANT. counsel in the law, shall be reasonably advised or required. And also that (unless and until upon default the mcrtgjigee executors, administrators or as- signs, uo enter upon, or lease or soil the said premises) will from time to time insure, and keep insured, the buildings erected, or to be erected, on the said lands, against loss or damage by fire in some insurance office, or offices, to be approved by the mortgagee executors, administra- tors, and assigns, in the full amount of dollars, at the least; and at the expense of the said mortgagor executors, and administra- tors, immediately assign the policy, or policies, of insurance, and all benefits thereof, to the said mortgagee executors, administrators, and assigns, as additional security for the payment of the moneys and interest hereby secured; and that, in default of such insurance, it shall be lawful for the said mortgagee executors, adminis- trators, or assigns, to effect the same; and the moneys so paid, and interest thereon, shall be a charge upon the said lands until repaid. Provided, and it is agreed, that on default of pay- ment of any part of the interest hereby secured, or any part of the said rents, rates, taxes, charges, pre- miums of insurance, or other payments, the principal money hereby secured shall become payable; but that in such case at any time within which by law relief could be obtained, the mortgagor executors, administrators and assigns, shall, on payment of all arrears and costs, be relieved from the consequences of non-payment of so much of the moneys as has not become payable by lapse of time. It is hereby agreed and declared, that in case of default in payment of any of the moneys or interest hereby secured, or any part thereof, and months shall have elapsed without such payment being made (of whicli default, as also of the con- dvised or ^fault the lis or as- the said and keep 'ected, on ►y fire in jroved by [ministra- ' the said ministra- )licies, of the said listrators, payment and that, Eiwful for adminis- and the all be a It of pay- cured, or 'ges, pre- principal hut that by law tiall, on ''ed from !h of the of time. I case of interest payment tlie con- FOIIMS. tinuance of some part of the said moneys or interest on this security, the production of those presents shall be conclusivt; evidence), the mortgagee executors, administrators, or assigns, may, without any further consent or concurrence of the mortgagor executors, administrators, or assigns, enter into possession of the said lands and premises, and receive and take the rents, issues and profits thereof, and whether in or out of possession may make any such lease thereof, or any part thereof, as shall think fit; and also may sell and absolutely dispose of the said lands, and the then unexpired term of years therein, and the right of renewal and premises hereby assigned, or any part or paris thereof, by public auction or private contract, or partly by th(^ one and partly by the other, and may withdraw from sale, or buy in, or re-sell, or vary, or rescind, any contract of sale without being responsible for any loss, costs or deficiency thereby occasioned, and may make such terms and conditions of sale and agreem.ents as to title, price, and all other matters whatsoever, as may deem expedient, and may convey and assure the same when so sold to the purchaser his, her, or their executors, assigns; provided, that the executors, administrators and possessed of the said lands, and '213 and and or purchasers, administrators mortgag(»e assigns, shall stand the rents and profits thereof, until sale, and then of the proceeds of sale in trust, firstly, to pay all costs of getting and keeping possession of the said lands and premises, and of repairs, and of and about the leasing and selling thereof; secondly, to pay all moneys and interest hereby secured; and, lastlj^ to pay the surplus, if any, to the said mortgagor executors, administrators and assigns, and to re-convey to them the said pnmiises, or so much (if any) thereof as shall remain unsold. Provided lastly, that until default in payment of Re-dcini»e some part of the moneys and interest hereby clause, J J' ' 244 LANDLORD AND TENANT. secured, it shall be lawful for the said mortgagor executors, administrators and assigns, to hold, occupy, possess and enjoy the said lands an'd premises hereby assigned, with the appurte- nances, without any molestation, interruption, or dis- turbance, of, from, or by the said mortgagee executors, administrators and assigns, or any other person claiming under them. In witness whereof, the said parties hereto have hereunto set their hands and seals. Sign,ed, sealed and delivered in the presence of (Usual Aftidavit of Ed'ccution.) SURRENDER OP A TENANCY. Agreement made this day of 18 , between A. B., of, etc., of the one part, and C. D. of, etc., of the other part. Whereas the said A. B. has been lately, and up to the date hereof, the occupier of premises, as the tenant of the said C. D., under a lease, dated the day of , 18 [or, as the case may be]. And whereas it has been agreed by and between the said A. B. and C. D. that such tenancy shall be determined forthwith: Now, it is hereby witnessed, that in consideration of being relieved by the said C. D. from the further payment of rent and perform- ance of the stipulations contained in the said lease of the day of , 18 , the said A. B. hereby delivers up and surrenders the said dwelling house, and all his interest therein, under the said agree- ment, to the said C. D. And the said C. D., in con- sideration of such surrender, accepts the same, and releases the said A. B. from any further payment oi rent for the said dwelling house, and hereby dis- charges and exonerates the said A. B. from any fur- FORMS. 245 nortgagor 1 assigns, aid lands appurte- n, or dis- e s, or any them. •eto have ence of thor fulfilment of, or liability on account of, .-.ny of the stipulations or obligations contained in the said agreement, and on the part of the said A. B. to be performed, but without prejudice to the rights and remedies of the said C. D., in respect to any past breaches of such stipulations and obligntions. In witness, etc. Note.— This form will easily be adapted to tlie surrender of a tenancy under a written agreement (not under seal) for three years. If the lease be for a term of more than three years, and by deed, it can only be surrendered by deed. art, and and up , as the ited the nay be]. reen the shall be tnessed, he said lerform- id lease hereby r house, agree- in con- ne, and iient 01 )y dis- ly fur- FORMS USED IN DISTRESS PROCEEDINGS. (See Chapter IX.) •;/i DISTRESS WARRANT. To , my bailiff, Greeting. Distrain the goods and chattels of the tenant in the house he now dwells in or upon the premises in h possession situated for the sum of being the amount of rent due to me on the same, on the day of 18 , and for your so doing this shall be your suffi- cient warrant and authority. Dated the day of A.D. 18 . ^ 246 LANDLORD AND TENANT. UNDERTAKING TO DELIVER GOODS. Wo, the undersigned, acknowledge to have re- ceived from bailiff, the following property, seized under and by virtue of a for against the goods and chattels of at the instance of which said property we under- take to deliver to him, the said bailiff, whenever demanded, in as good a condition as they now are. Witness our hands the day of 18 . Witness: APPRAISEMENT. Memorandum, that on the day of , A.D. 18 , of sworn appraisers, were sworn upon the Holy Evangelists by me of well and truly to appraise the goods and chattels mentioned in the inventory, according to the best of your judgment. Present at the swearing of tbe^ said as - above, and witness thereto, j Constable. I, the above named being sworn upon the Holy Evangelists, by the constable above named, well and truly to appraise the goods and chattels mentioned in this inventory, according to the best of my judgment, and having viewed the said goods and chattels, do appraise the same at the sum of As witness my hand the day of 18 . APPRAISEMENT. i^tHi H t » 1 ? ■ 1 -.■; (Another Form.) We, the above named and gworn on the Holy Evangelists by- being duly constable, DS. ^ave re- property, at the e under- i^henever V are. :8 . t'OlJMS. abovo named wpll nn#i t,..,i,, *. .•md chattels iirention^^^^ i ni^'^^'?*'' ^^''' ^''«^^« lo the bc>st of our nhnhv 1 i ' iv(.ri(.,ry ncconlinf? goods and chattels i^?^;,y^^''^^'"? '^'"''''"'^ ^*^" ^^^'^l at the sum of ••I'Pi''^'^*^ nnd value the same As witness our hands this day of 18 217 day of sworn ngelists ippraise i^entory, table. )on the > above ds and ling to he said tie sum 18 . g duly stable, TENANT'S CONSENT TO LANDLORD CONTINU- ING IN POSSESSION. To A. B. ~~ >•";. distniined f„r ront cUm from mo lo vou in Ihp' Pl.cs who., they .re n.nv lying torV^lZJlt »a„^t,"y^i;rp'orsi;^n^"--' -" ^ - "- ^- Bated the day of A.D. 18 OATH TO BE ADMINISTERED TO APPRAISERS BY CONSTABLE. You and each of you shall well and trulv annniqp eoX't^rfh''i''';'%"^"^^^°^^^ '" this in;';; ; V ncjiding to the best of your judgment, So help yon 248 LANDLORD AND TENANT. MEMORANDUM TO BE INDORSED ON THE INVENTORY. Memorandum: That on the dav of A.D. 18 , of , and of the goods and chattels mentioned in this inventory, were sworn on the Koly Evangelists by me, of constable, truly to appraise according to the best of their judgment. As witness my hand. Present at the swearing of the"! said as I above, and witness thereto, j Constable. r" INVENTORY. An inventory of the several goods and chattels distrained by me the day of , A,D. 18 , in the house, outhouses and lands of situate by authority and on behalf of your landlord, for the sum of being rent due to the said on the day of 18 . In the dwelling-house: On the premises: Mr. Take notice, that as the bailiff to your landlord, I have this day distrained on the premises above mentioned the several goods and chattels specified in the above inventory, for the sum of being rent due to the said the day of 18 f()r the said premises; and that unless you pay the said rent, with the charges of distraining for the same, or replevy within five days from the date hereof, the ON THE (lay and of :s inventory, angelists by to appraise As witness Constable. P0J1M8. ^^ Given under my hand, tiie day of a.D. Witness: BAILIFF'S SALE. olvu/Iii'''N'^^^''^^Y f '''^'^' ^^'^^ ^h^' ^"tlle, goods and chatt^els. distrained for ient on the day of IS by me ^ as bailiff to the landlord of th(> premises of the tenant, will be sold by public auction, on the day of ^l ' '}^ o'clock, which cattle, goods and chatt<^ls are as follows, that is to say (Toronto), day of 18 . 2i9 ind chattels ' of i lands of I on behalf )f on >'OTrci']S. c bailiff to r distrained veral goods ory, for the to the said 18 fo'r ay the said ' the same, hereof, the NOTICE TO QUIT FROM LANDLORD TO YEARLY TENANT. Mr. A. B., ~^ I i)ereby give you notice to quit and deliver un the messuage and premises which you now hold o'f me, situate No. street, in the of on the day ot next. Dated the day of 18 . Yours, etc., CD. L.T.-17 250 LANDLORD AND TENANT. BY AGENT OF THE LANDLORD. Mr. A. B., I do hereby, as the agent for and on behalf of your landlord, Mr. of give you notice to quit and deliver up possession of tl pre- mises, situate at, etc., which you now occupy as his tenant, on the day of next. Dated the day of , 18 . Yours, etc., C. D. NOTICE BY LANDLORD WHERE THE DATE OF COMMENCEMENT OF TENANCY IS UNCERTAIN. Mr. A. B., I hereby give you notice to quit and deliver up the house and premises which you now hold of me, situate, etc., on the day of next, provided that your tenancy originallj'^ commenced on that day of the year and month, or if otherwise, then that you quit and deliver up possession of the premises at the end of the year of your tenancy which shall expire next after the end of one half-year from the time of your being served with this notice. Dated the day of 18 . Yours, etc.. C. D. [If the tennncy is determinnlile at a quarter's no- tice, then sfiy " quarter " instead of " half-year."] )elialf of giv you tl pre- jy as his C. D. DATE OF IS i ;[ FORMS. NOTICE BY TENANT TO DETERMINE A LEASE, The following is a notico by (he lessee; but the form can easily be adapted to the case of a nijtice by the lessor. Mr. A. B. Sir,— I hereby give you notice that on the day of next, the first seven years of the term of twenty-one years (determinable at the end of seven or fourteen years) in the dwelling house and premises situate, etc., demised ])y you to me by in- denture of lease, dated the day of , 18 will expire; and on that day I shall, in virtue of the option and power reserved to me by the said Inden- ture, determine the said term, and quit and deliver up to you the possession of the said messuage and premises, and surrender to you all the residue of my interest in the said term so created as aforesaid. Dated, etc. Yours truly, C. D. '251 u leliver up I)ld of rue, I, provided \ that day [then that premises iich shall from the C. D. Irter's no- -vear "1 'ilt NOTICE TO BE AFFIXED ON DESERTED PREMISES. (Under stat. 11 Geo. II. c. 19. s. IG). A. B., Take notice, thai, on the complaint of C. D., of etc. (iust-xt landlord's residence!, madt' unto us, E. F. and G. H., two of Her Majesty's justices of the peace for the said that you, the said A. B., have deserted the messuage and premises, situated at [insert where premises are] unto you d;miised at rack-rent by the said C. D., and that there is in arrear and due from you, the said A. B., unto the said C. D. >ne-half year's rent for the said demised premises, and that you have left the said premises unoccupied and vacant, so that no sufficient distress can be had to countervail the said arrears of rent, we, the sail justiees (neither of us ha.ing any in- 252 LANDLORD AND TENANT. tcrest in the said demised premises), on the said com- plaint as aforesaid, and at the request of the said C. D., have this day come upon and viewed ilie said demised premises and do find the said complainc to be true; and on the day of this present month of we will return to take a second view thereof; and if, upon such second view, you, or some other person on your behalf, shall not appear and pay the said rent in arrear, or there shall not be sufficient distress on the said premises, that we, the said justices, will put the said C. D, into possession of the said demised premises, according to the form of the statute in such case made and provided. In witness whereof we have put our hands and seals, and havi^ caused this notice to be affixed on the outer door of the dw lling house, the same being the most notori- ous part of the said premises. Dated, etc. (Signed) E. F. (seal) G. K. (seal.) p^ NOTICE BY TENANT TO LANDLORD. Sir, I hereby give you notice that on the day of next, I shall quit and deliver up possession of the house and premises which I now hold of you, situate at, etc. Dated this day of ""*, 18 . Yours, etc.. To Mr. A. B. C. D. 4 lie said com- of the said ved ilie s:iid •omplainc to 3sont month iew thereof; some other nnd pay the be sufficient e, the said 'ssion of the form of the In witness s, and have Iter door of lost notori- F. (seal) K. (seal.) 3RD. day possession old of you, c, C. D.