M IMAGE EVALUATION TEST TARGET (MT-3) V J-/ // SP MP ■<' WJz /<'' %s M ^ &< V f/j fA 1.0 I.I 1.25 "^IIIIIM IIIII2.5 ilM IIIII2.2 li iIlM 2.0 1.8 U IIIIII.6 V. 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 Stre reproduit en ur: seul clichd, il est filmd d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 I Editc THK LAW . OK Landlord and Tenant IN THE PROVINCE OF QUEBEC (ExcIasiTe of Farm Leases) . . BY . . F. LONGUEVILLE SNOW. AT Editor Monthly Law Digest and Reporter; Assistant Editor Abbott's Railway Law ; Collator of the Quebec Consolidated Digest [now in press].) Published by the Author. Printed by JOHN LOVELL &' SON. f-:^. i ■■-J C • Iff J -^ ' i !. i r. ;/. . Entered according to Act of Parliament in the year i896,by F. Longueville ■ Snow, in tlie office of the Minister of Agriculture. I All rights of translation reserved. / I I l^eBERT BAVIDS0N FRe&IBB0N, Esq.. Q.C. In admiration of his ability and qualities as an advocate ; and in acknowledgment of much kindness. THIS >?\rORK IS {with hit permission^ RESPECTFULLY DEDICATED By THE Author. PREFACE. The author believes there is some need in this Province of a ™a„ua, wh,c .i„ aea,, in convenient and easi,, accessib,rforl r H, T" ri-"""' -'' P-=«-l questions relating to the la" of la diord and tenant. I. i. „„,, eleven years since Mr. Lorra ' ce„entn,a„ual was published. A very considerable juri prude" ^accumulated during that period, which, i, „i„ be rea lyad mmed, has thrown ,nuoh ligh. npo„ .He articles of our Codes elattng to the subject, I„ addition to our Jurisprudence a v -.Uelectton has been made from some of the Wcat: [^ While this boolc must necessarily stand entirely on its merits acquired through seven years of very close annl,V .- of its doctrine and jurisprudence T.T "^^^•'"'^°" ^° ^'^^ ^^^^y Ho.e . Mitchen/ofr :;: j^::;:!^^^^^^^^ revised the manuscript. ^ ^ ''^^ °^"' ^"^ Montreal, October 6, 1896. F. L. S. CONTENTS. I. 2. 3- 4. S- Definition of What constitutes. Emphyteutic lease. Form of contract of lease. Proof of. CHAPTER I — CONTRACT OF LEASE. 6. Duration of. 7. Capacity to make. 8. For immoral purposes. 9. The price or rent. CHAPTER n — OBLIGATIONS OF THE LANDLORD. I. 2. I. 2. To deliver the premises leased. To maintain the premises in a fit con- dition for tlie purpose for wliich they were leased. To warrant the tenant against all defects and faults. To warrant the tenant against disturbance. (I.) Disturbiince by thelandlord himself. (2.) Disturbance by the government. (3.) Disturbance by third parties, trespass. (4.) Disturbance caused by one tenant to anotiier. (5.) Judicial disturbance. (6.) Damage caused by neighboring proprietor. CHAPTER III — PRIVILEGE OF THE LANDLORD. Riglit of the landlord to follow and attach in Recaption. 4. Ranking of. I 5. Extinction of. CHAPTER IV — OBLIGATIONS OF THE TENANT. In general. What effects are subject to the privilege. Removal of effects from the premises. To furnish the premises leased. To use the premises as a prudent ad- ministrator, etc. To make certain lesser repairs. To pay the rent and other charges. To preserve the premises and restore them in the condition in which he received them, (l.) General obligations. (2.) Special obligation in the case of destruction by fire. CHAPTER V — RIGHTS OF THE TENANT. To enjoy the thing leased. | 2. Sub-lease or assignment of the lease. CHAPTER VI — TERMINATION OF THE LEASE. In general. Effect of insolvency of the tenant. Effect of alienation of premises. Expiration of term agreed upon — Notice to quit — Delay for removal, etc. Tacit renewal. Confusion or consolidation. 7. Extinction by mutual consent. 8. Destruction of premises. 9. Expropriation. 10. Resolutory clause. 11. Indemnity due the landlord where lease is resiliated for the fault of the tenant. 12. Eviction of the landlord. CHAPTER VII — ACTIONS BETWEEN LA:,0L0RD AND TENANT. Summary procedure. | 2. Jurisdiction. INDEX OF CASES. A. I'AGE Abadie v. Herges 40 Acheson v. Poet 27 , 33 Aimong v. Cassidy 56, 99 Anderson v. Hatlis 5 Anderson v. Conieau 1 12 Archibald v. Sbaw 64, 68 Arnoldi v. Griniard 59 Atkinson v. Naiid 97 Attorney General v. Cot6 71, 134 Auld V. Laurent 63 6. Kagg V. Diichesneau 20, 24 Ball ant ine v. Snowdon 20 Hannerman v. Thompson 1 14 Maitels V. Creditors 12I Baitel if. 1 )esroches 62 Baylis v. Stanton 79, 80, 83 Bazin V. Segura 54 Beaudry V. Bond 108 Beaudry v. Boucherie 1 29 Beaudry v. Champagne 72 Beaudiy v. Dunlup d-^ Lyman. . . 66 Beaudry V. Lafleur 57 Beaudry v. Lupien 18 Belanger v. De Montigny.33, 34, 114 Belanger v. McCarthy 87 Belanger V. Roy 62 Bell V. Court 21 Belleau v. Kegina 5, 23 Benson v. Valli^re 27, 31,33, 34 Bernard v. Cote 42, 77 Berthelet v. Muir 84 Bissonnette v. Guerin 99 Black V. Dorval 72 Black V. Edwards 69 Bogle V. Chinic 79, 1 10 Body A'. Vezina 42 Boisseau v. City of Montreal 126 Bolduc V. Frevost . 30 Bonner v. Hamilton 65 Boucher V Braiilt 29, 33 Boudreau V. Dorais 113, 114 Boulaiiger v. Doutre..28, 29, 33, 34 Boulerisse v. Hubert 132 Bourjjoin v. Montreal Coloniza- tion Ry 125 Boyer V. Mcjver 59 I'AGK Brisson V. Renaud 91, 95 iirodeur v. Rogers 62 j Bro|)hy V. Fitch 62 I 15ro\vn v. Hogan 56 ' Brown V. I,ighthall 20, 24 r>rowne V. Pinsonneault 107 lirunet V. Berthiaume. . . 15, 114, 115 Bruneau v. Berthiaume ....55, 56 , I'ury V. Murray 4 c. Canadian Mutual I'ire Insurance Co. V. Blanchard 109 Catudal v. Cool 53. 59, 63 Cedar Shingle Co. v. Cie. d' Assur- ance de Kimouski 89 Central Vermont v. Cie, d'Assur- ance 92 Chaperon V. Boucher 81 Chaihonneau V, Duval...., 27 Charhonneau v. Houle loo, loi Chausse v. Christin 65 Chauss6 V. Lareau 45 Citd de Montreal v. Mathieu 126 City of Montreal v. Larose 92 Clarke v. Clarke 6 Clarke v. State , 56 Claxton V. Glover 57, 58 Coleman v. Haight 45 Commissaires d'Ecoles v. City of Montreal 112 Compagnied'Imprimerie, etc., du Herald v. Cochenthaler. ...... I03 Crnke V. Royal Insurance Co.. 30 Cordner v. Mitchell 99 Corporation de Dorchester v. Col- let 124 Corporation de St.' Jean v Atlan- tic &= North- West Railway.. 92 Corporation du Comt6 d'Ottawa V. Cie. du Chemin de Fer. . .21, 22 Corriveau V. Pouliot 123 Corse V. Hudson 58 Cowans v. Briere 64 Craihern V. Soeurs de St. Joseph. 37 Credit Foncier Franco Canadian V.Young 3, lol Cuddy V. Kamm 63, 68 Index of Cases. IX D. I'AGK Daigneau V. I.evesque.26, 27, 29, 30 David V. Richter 100 David V. 1 homas 80 Deault V. Ledoux 19, 24 De Hellefeuille v. Desmarteau 66 Decary V. Lafleiir 27, 28 Deguiie v. Marchand 71, 96 Delisle V. Sauvageau 1 16 Deiveccliio v. Joseph 45 Delvecchio v. 1 esage 56 Demeis v. !■ anison 42 Desautels v. Tarker 12, 13 Desjardins v. Gravel 79, no Deslauriers v. Bom que 13 Deslorieis v, Lambert 70 De Sola v. Stephens 26,31, 86 Donaldson v. Charles 80, 84 Dorion v. Haltzley 99 Donohue v. De La Higne . .69, 70, 79' So Doutre v. Walsh 32 Dubuc v. Kidson 6 Duchesneau v. Hlcau 97 Dufa IX V. Morris 52 ' >ufpax V. Roy 01 Diifour v. Roy 4 1 , ; 1 , 9 1 , 95 Diifresne V. Hubert .. 30 Dumas v. Viau 84 Dumphy v. Kelioe 67 Dupras v. Corp. of Ilochelaga. ... 126 Dupuy V. Uordeau 6, no Dupuis v. Bouvier 42, 43 Dupuy V. McClanaghan 79, no E. Eastern Townships Bank v. Bi- shop 127 Eastty V. Fabrique of Montreal 55, 56 Eccl6siastiques de Si. Sulpice de Montreal V. City of Montreal . . 84 Elliott V. Simmons 91, 94 Esciot V. Lavigne loi, 104, 112 Evans v. Champagne 2 Evans v. Moore 20,21, 23 Evans v. Skelton 86, 87 Evans v. Straubenzie 78 P. Fauteux v. Walters 49 Fifle v. Bureau , nc Filibien v. Moir 28 Fitzpatrick v. Darling. 27, 36, 37, 38 Foley V. Charles 5 I'AGK Forget v. Laverdure 47 Foster v. AUis 88 Eraser v. Brunette 3 Fr^res des Ecoles Chrdtiennes v. I lough 97 Fyfe v. Lavallde 33, 34, 81 G. Gadbois V. McPherson 52 Gagnon v. Hayes 49, 82 Gagnon v. Mc Leish 65 Gallagher v. Allsop 46 Gareau v. Cinq-Mars 100 ( lart' au v. Paccjuet 70 Garish v. Du val 13 Gerriken V. I'insoniieault 26, 31 Girtbrlv. Harvey 105 GiiJ I eau V. Lachance 28 Gougt • V. Yuile n3, n4 Goodrii h V. Bodley 57 Grange v. McLennan 1 29 'j cat Nn'th Wes '-.n T-jlegraph Co. v. Mo»i*''i.al Telegraph Co. 3.41, 43 Grenier v. City of Montreal. 92, i>7 Guy V. Normandeau 14, 84 H. Hache v. McGauvreau 26 Hamilton v. VaL.de 106 Hanover v. Wilke 5 Harris v Fontaine 13 Hart V. Bourgette 79, no Hart V. O'Brien 15, n5 Harwood v. Fowler 9, 107 Hayden d-' Bancroft v. The Heirs ofH. M. Shiff 107 Healey V. Labelle,.,.. 52 Ilearn V. McGoldiick 79, 80 Hearn V. Vezina 56 Hebert &> Damare v. Dupaty .... in Heney v. Smith 29, 97 Herron V. Brunette 62 llickey v. E wan n 7 Hodgon V. Evans n9 Holland v. de Gaspe 27, 76 Hough V. Cowan. 98, 99, 100,104, na Houle V. Coudttre 52 Hubert v. Dorion 79 Hudon V. PlimsoH 19, 24 Hudson V. Baynes 73, 77 Hudson V. Russell..,. .73, 77, 93 Mullet V. Wright 12 Huot V. Garneau \i^ Index of Cases. I. PAGE Ireland v. Henry 5^ T. Jacotel V. Gault 26, 45 Jack V. Mitcliie 3^ Jaeger v. Sauv6 20 Jamieson v . Steel ^^7 Jeffrey v . Ferns H 2 fobin V. Morisset 113, I '5 Johnson v. Bonner 65, 68 Johnson v. Ikunelle 24, 25, 27 Jones V. Albert 62 Jones V. Anderson 57 Jones V. Leniesnrier 57 Joseph V. Chouil loll ii7> ''9 Joseph V. Kinghan 7^ Joseph V. Smith S3, 63 Joseph V. St. Germain 72, 99, lot Jutcau V . Major 32, 77 K. Kerr v. Iladrill itH King V. Coip. d'lrlande 124 Kuneman v. Hoisse 96 L. Labbt- V . M iirphy 87 Labelle v. Vilieneuve 11 Lacroixv. Fauteux. 113. 114, 115, X2o Lambert v. Laframboise 18 Lamoureiix v. Molleur 4. Lampson V. Nesbilt 59, 60 Land &" Loan Co. v. Long 130 Langevin v. Seneca) 30 Langlois v. Kocqiic 49 Langhoff v. IJoyer 62 Lanthier v. Thouin 62 Larochelle v. Baxter 28 Latreille v. Charpentier 38, 71 Laurier v. Tuicotte 19 Lawlor v. Cauchon 42 Leblanc v. White. 49, 82 Lee V. L'Assi.'ciation de la Salle de Miisiciue 21, 22 Leger v. Maulils 37 Leniay v, Kandstein 114, 130 Lemoine v. De Bellefeuille 6, 81 Leonard v. Lemieux 118 Lepine v. Bldg Society 3 Letang v. Dnnohiie. 11 Leveill^ v. Couillard 63 Leveill^ v. Lal^elle 57 Life Ass'n of Scotland v. Downie. 72 Lockie v. Mullins 81 pagk Longpre v. Cardinal 70 Loranger v. Clement 2, 108, 109 Loranger v. Perrault 23, 81 Luke V. Wicklifte 1 14, M5 Lyman V. McDiarmid 52, 63 Lyman v. Beck ■ . . . . 45 Lynch v. Reeves 69, 70 Mc. MacKenzie v. Bernard 100 McCaw V. Barrington 29 McDougall V. McGreevy. . ,.21, 22 McGee v. I arochelle in Mc jreevy v. Gingras 5^ McLaren v. Kirkwood ...... .79, 1 lo McWilliam v. Osier 66 M. Mailler %•. Richer 84 Mallette v. Patenaude 62 Mann v. Miinro 77 Mann V. Neild 42 Marchand v. Caty 28 Marcile v. Mathieu 27 , 42 Marret v. Robiiaille 3 Martineau v. Breault . 79 Masson v. Masson 18, 30, 32 Mathieii V. Sylves:ie 114 Mathews v. (Creditors 54 Mathewson v. Fletcher H ^L'\yor of Montieal v. Urummond 126 Menard v. Bryson 13 Menard V. Pellelier 106 Methot V.Jacques 73 Michon v. Venne 60 Mignon v. Brunet 26 Miller V. Mi<;haud 97 Minist^re Public v. Fani^re 95 Mireau v. Allan 71, 96 Mitch^son V. Burnett 64 Molleur v. F'avreau 113 Morgan v. Dubois 20 Morgan Ry. Co. in re 127 Morrison V. Langevin 30 Morrison v. Mayor of Montreal. . 126 Morin Y. Hardy ,. . 8£ Motz V. Holiwell 127 Motz V. Houston 32 Mowry v. Bowen 79, 10, 114 Moynr ugh v. Angus 45 Mulcau- V. Jubinville.. 21, 22 Mulhauptv. Enders 23, 8 1 Muller V. Stone 90 Mullin V, ArchambauU II2 Myler v. Styles 17 Index of Cases. XI PACK 70 08, 109 23, til 14, "5 52, 63 . . 45 b9. 70 100 29 21, 22 • ■ III 56 79- no • ■ 66 84 » • • 62 • • • 77 42 • . • 28 27, 42 • • 3 79 30. 32 114 . 54 » • • II md 126 13 . • • lob . • 73 , , 60 . . 26 ' • • 97 , . 95 7'. 96 64 "3 20 . . 127 30 126 f • 8£ 127 • • 32 0, 114 45 !I, 22 '■3, 81 90 • 9 112 • • '7 New Orleans City Ry. Co. v. McClosky 16 O. O'Connor V. Inglis 9 O'Donahue v. Moisan 118 O'Hapan v. St. Pierre 96 O'Halloran V. Kennedy 80 Ouimet v. Robillard 84 Owler V. Moreau 99, 104 P. Pagels V. Murphy 28, 29 Palmer V. Barrett 27,29, 33 Pannt'ton v. Fraser 25, 27,41,45, 46 Paquin v. City of Hull 114 Par6 V. Coghlin 73, 77 Parent v. Gauthier 97 Parent v. Oisel I Parent v. Poivin 87 • Payne v. James vS^ Trager 73 Pearce v. Mayor of Montreal .... 56 Peatman v . Lapierre 18, 32 Peck V. Harris 45 Pelletier v, Lapierrp 82 Ptnn V Kenrney, Hlois &= Co . . . 121 Penny v. Mdiitreil Herald Print- ing' Co 81, 103 Perrault V. I i.e 64 Persillier v. Moietti 99 Phel.in V. Turner 2 Pigeon V. Koussin 42 Pignolet V. llrosseau 38, 73, 96 Pinsonneault v.Gerriken 87 Pinsonneault v. Henderson 84 Pinsonneault v. Hood 26, 31 Pinsonneault v. Ramsay 84 Poitras v. Berger 3, 12 Plamondon v. Lefebvre 97 Plante V. Robitaille I06, 109 Prefontaine v . Fortin 99 President el Syndics, etc., de Laprarie v. Bissonnette 8 Preston v. Paxton 132 Price V. Hall 56 Procureur G6n6ral v. Cote 36 B. Rancour V. Hunt 9tj93> 94 Rasconi v. Poupart 67 Reid V. Baird 78, 94 Reid V. Smith '5j iM? "5 Remillard V. Cowan 36 PAGE Renaud v. Hood 56 Rex V. Smith 24 Rheaume V. Panneton loi, 1 12 Richard v. Fabrique de Notre Dame de Quebec 1 29 Riopel V. St. Amour 20, 21, 23 Ritchie v. VValcott '6, 39, 40 Ritchie V. Wragg 6,13, 14 Robert v. Chateauvert 82 Robitaille V. Bolduc 62 RoUand v. Tiffin 106 Ross V. Lemieux 61 Ross V. Stearns 20, 24 RouiUard V. Duval 97 Roy V. Lefebvre 61 Royal Electric Light Co. v. Waud. 92 Russell V. Clay 45 s Sache v, Courville 27 Samuels v. Rodier 24 Sanarens v. True 58 Sansfa9on v. Boucher 53, 63 Sangster v. Hood 97 Saunders v. Deom 6, 113 Scanlon v. Holmes. . .27, 29, 32, 33 School Commissioners of St. David v. De Varennes 115 Schwersenski v Vineberg 5 Scott v. McCaffrey 80 Seguin V. City ofQuebec 95 Seminary ofQuebec v. Poitras. . 87 Seybold V Evans 106 Seymour v. Smith 33, 34 Shaw V . Laframboise 84 Shaw v. Messier 57. 68 Shepperd V. Samuel 121 Sheridan v. Tolan 56 Short V. Kelly 9 Shuter v. Saunders 19, 81 Simmons v. Gravel . . . 24, 28, 53, 63 Simon V. Larue 35 Smith V. Leclaire 59 Soci6l6 de Construction M6tropo- litaine v. Commissaires tl'Ecoles 79. "o Scours de la Charitc v. Yuile ... 59 Spelman v. Muldoon 28 Stearns V. Ross •... 12 Stephens v. Chauss6 9I St. Jorre v. Morin 109 St. Michelv. Vidler 64 Styles V. Myler 37 Succession of Stone v. Creditors. 54 S wanson v . Defoy .... 22 XII Index of Cases. T. PAGE Tardif v. Cie de I'Hotel Balmoral 27 Tass6 V. Savard go Theberge /. Hunt lol Thibault v. City of Montreal .... 93 'Ibibault V. Par6 • • 33, 34 Thiviergev. Laurenceville 84 Thomas V. Coom be 57 Thompson v. Kennedy 109 Thouin V. Rosaiie 63 Thymeus v. Beautrong 79, 81 Tracey v. Lazure 52 Tremblay v. Filteau 1 19 Tremblay V. Gratton 92 Tylee v. Donegani 34 u. University Publishing Co. v. P'ffet 59 V. Vailed V. Kennedy loi Valli^re V. Bagley 56 Valli^re v. Carrier 57, 58, 66 Vannier v. Larche 90 Viger V . Beliveau 5 Ville de Maisonneuve v. Lapierre 115 Vincent V. Samson 71 PAGB Vincent v, Samson 80 Vineberg v. Barton 57 Vinet V. Corbeil 97 Vinette v. Panneton..52, 53, 59, 58,69,98, 119 Vogel V. Pelletier 9 Voscelles V. Laurier 68 Voyer v. Pichet 65 W. Walker tSr" McVean v. Dohan. .. 102 Walsh V. Howard 6 Walcot V. Ritchie 25 Webster v. Lamontague,. 114, 115 Weippert v. Iffland 23, 81 White V. Norman 79 Williams Mnf . Co. v. Willock 49, 63, 64, 68 Williamson V. Depatie 52 Wilson V. Pariseau 59, 60 Wiseman v. Coultry 30 Wood V. Lamoureux 68 Wright V. Beaudry 100, ro8 right V. Gault 29 Wurtele v. Brazier • . 29, 81 Z. Zeigler v. McMahon.. 69 I CHAPTER I. CONTRACT OF LEASE. I. Definition of. 7. What constitutes. 3. Emphyteutic lease. 4. Fonn of contract 0/ lease, 5. Proof of. 1. Definition of, 6. Duration of. 7. Capacity to make. 8. For immoral purposes. 9. Tlie price or rent . The lease of real estate is a contract by which one of the parties, the landlord, grants to the other, the tenant, the mere enjoyment of certain real estate during a certain time, for a rent or price which the latter obliges himself to pay. (i) 2. What Constitutes. Although three things are requisite to form a valid contract of lease, viz. :— the consent of the parties, the object and the price, yet a valid contract can exist by presumption of law. For instance, a lease is presumed by law to exist where the tenant is occupying the premises by the mere sufferance of the owner, whether express or implied. (2) Such a hold- mg is regarded as an annual lease terminating on the first day of May of each year, in the case of urban property It IS also subject to tacit renewal and to all the rules of law applicable to leases. Persons so holding are liable to eject- ment for non-payment of rent for a period exceeding three months, and for any other cause for which a lease may be rescinded. (3) (1) See An. 1601 C. Code. The present treatise deals with lease of house, warehouses, shops and manufactories, and not with the lease of fl'S and °2S' (2) Parent v. Oisel, S. C. ,883, 9 Q. L. R. 135, confirmed in Review. (3) Art. 1608 C. Code. Landlord and Tenant. A lease is presumed to result where a former lease for a definite period having expired, the tenant remains on the premises without opposition or notice from the landlord, more than eight days after the expiration of the lease. Such a lease is called a tacit renewal, the position and conduct of the parties being regarded as amounting to a consent to a new lease upon the same terms as the old one, excepting that, in regard to duration, the law presumes that the parties do not wish to bind themselves definitely for a longer period than one year, (i) The law relating to promise of sale (2) is also in many respects applicable by analogy to promise of lease. (3) There- fore, a simple promise of lease made in writing by a landlord, but unaccepted by the tenant, is not a lease which can be enforced by the latter. (4) But where an agreement is drawn up and signed by the owner of property, authorizing the other party to the agreement to have a lease drawn up for such owner, and stating the rental, the number of the house and duration of the lease, such agreement is a complete contract of lease, the formal lease to be drawn up and signed later being merely intended to furnish evidence of the con- tract. (5) While a promise of lease accompanied by occu- pancy on the part of the tenant would probably constitute a binding lease, (6) yet, where the tenant remains in occu- pation of the premises after the cancellation of a former lease by insolvency, a new lease would not be constituted by a written promise on the part of the landlord to renew the old lease, where such promise was unaccepted by the tenant. (7) (i> Art. 1609 C. Code; see infra "Termination of the Lease — Tacit Renewal," Ch. VI. ^ 5, as to the nature of leases by tacit renewal. (2) Arts. 1476- 1478 C. Code. (3) Poth. 390 ; I Duv. 43 ; Marc. C. N. Art. 1714 et seq ; i Troplong 123 ; 25 Laurent 40 e( seq. For a case involving the question whether a certain deed constituted a promise of sale or a lease, see Evans v. Champagne, C R. 1895, 7 Que. 189. (4) Art. 1476 C. Code; Loranger?'. Clement, C. R. 1878, I L. N.326. (5) Phelan v. Turner, C. R. 1895, 7 Que. 487 ; i Guillouard No. 41. (6) See Art. 1478 C. Code. (7) Loranger v. Clement, C. R. 1878, i L. N. 326. Contract of Lease. 3. Emphyteutic Lease- Although it is not intended to treat in this work of em- phyteusis, yet as it is sometimes difficult to distinguish when a lease is emphyteutic or not, it will be necessary to point out the chief grounds of distinction. Emphyteusis, or emphyteutic lease, is a contract by which the proprietor of an immoveable conveys it for a time to another, the tenant subjecting himself to make improvements^ to pay the landlord an annual rent, and to such other charges as may be agreed upon, (i) The duration of emphyteusis cannot exceed ninety-nine years and must be for more than nine. {2) Therefore, if a lease be for a period of more than nine years, in order to determine whether it be emphyteutic or not, the principal test will be — does it contain a stipulation obliging the tenant to improve the property leased ^ If it does not the proba- bility will be that the lease will not be regarded as an em- phyteusis, although there may be some other clauses therein that might lend some color to an opposite interpretation. (3) If it does contain such a stipulation the lease will be regarded as an emphyteusis, although it be drawn up in such a way as to give it the appearance of an ordinary lease for a long period. (4) The emphyteutic lease carries with it alienation ; so long as it lasts, the tenant enjoys all the rights attached to the quality of a proprietor. (5). The rights and obligations of the landlord and the tenant (1) Art. 567 C. Code. (2) Art. 568 ib. (3) Credit Fonder Franco-Canadien v. Young, S. C. 1889, 9 Q.L. R. 317. Provided always that the lease has been made since the Code. (4) Fraser v. Brunette, Q.B. 1890, 19 R. L. 306 ; Poitras r. Berger, Q. B. 1879, 10 R L, 214; Lepine v. Bldg. Society, Q.B. 1876, 20 L. C.J. 300. But see G. N. W . Tel. Co. v. Montreal Tel. Co,, M. L. R. 6 Q. B. 257, as to lease of telegraph system for 97 years ; and Marret r. Robitaille, 9 R. L. 420. It is to be noted that in Lepine v. Bldg. Society the lease with promise of sale stipulated for improvements. (5) Art. 569 C. Code. 4 Landlord and Tenant. under an emphyteutic lease are governed by special rules (i), and actions between the parties are not subject to the sum- mary procedure provided by Art. 887 et seq. C. C. P. (2) ; nor has the landlord the privilege for the payment of rent which he has under an ordinary lease. (3) 4. Form of Contract of Lease. A lease may be either verbal (4) or presumed, (5) notarial or by private writing. 6. Proof of. The general rules of evidence are applicable in matters of lease. A notarial lease makes complete proof in itself as to its contents, (6) and can only be set aside on grounds of its falsity. (7) A lease by private writing acknowledged by the party against whom it is set up, or legally held to be acknowledged ■or proved, has the same effect in making proof between the parties thereto as a notarial lease. (8) Testimony cannot in any case, be received to contradict or vary the terms of a valid written instrument, (9) but if such evidence is admitted without objection at the trial, it 172. (1) Arts. 573 to 578 C. Code. (2) Lepine v. Bldg. Society, Q. B. 1876, 20 L, C. J. 300. <3) Elliot V. Eastern Townships Bank, Q. B. 1882, 2 Dorion, Q. B. {4) Art. 1657 C. Code. {5) Arts. 1 608- 1 609 C. Code. <6) Art. 1207 C. Code. (7) Art. 121 1 C. Code. (8) Art. 1222 C. Code. (9) Art. 1234, C. Code. The Supreme Court in Bury v. Murray, 1894, 24 Can. S. C. R., 77, has adopted the opinion laid down by Mr. Langelier in his work on Evidence, viz: — that not even a commencement of proof in writing (provided it does not amount to a full admission) will serve to contradict or vary the terms of a valid written instrument (see discussion on this question in vol i. Revue Legale [new series], pp. 166, 355, 435); but it may be noted that the Supreme Court liad adopted a contrary view on a former occasion (Lamoureux v . Molleur, Supreme Court, 8th March, 1886, Cassel's Dig. 2.nd Edit. p. 74) apparently overlooked in Bury V. Murray. Contract of Lease. cannot subsequently beset aside in a Court of Appeal, (i) Under a notarial lease with clause prohibiting the subletting of the premises without the landlord's consent, nothing short of a commencement of proof in writing will avail to deter- mine whether the landlord had permitted the tenant to sublet. (2) However, in an action for rent due under a notarial lease, the tenant can plead that he had not obtained possession of the premises leased, at the period stated in the lease, and that in consequence he has suffered damages which should be deducted from the rent due his landlord. (3) A verbal lease can only be proved by testimony where the price is less than $50, unless there is some writing in connection therewith which may serve as a commencement of proof, or unless its existence is admitted by the adverse party when examined under oath or interrogated on articu- lated facts. (4) In the case of a person occupying by sufferance of the owner, under Art. 1608 C. Code, proof may be made by tes- timony of the value of the lease, irrespective of the amount involved. (5) Where the landlord alleges in his action a verbal lease, and also use and occupation of the premises by the tenant sued, he can, if he fail to prove the verbal lease, recover the value of the use and occupation. (6) If, however, the tenant, in an action against him by the landlord on a verbal lease, admits in his plea, or otherwise, the existence of a verbal lease and occupation, the landlord can prove by witnesses the value and duration of the occupation. (7) And in an action on (i) Schwersenski y. Vinebeig, Supreme Court, 19 Can. S. C. R. 243. (2) Foley r'. Charles, 15 L. C. R. 248, in the Superior Court ; and see Anderson v. Baths Q. B., 1888, 15 Q. L. R., 196. (3) Belleau v. Regina, 12 L. C. R. 40. (4) Arts. 1233-1246C. Code. (5) Art. 1233 C. Code. (6) Hanover v. Wilke, Q. B. i85s, i L. C. J. 37. Art. 1223 C. Code. (7) Vigert'. Beliveau, Q. B. 1863, 7 L. C. J. 199. 6 Landlord and Tenant. a verbal lease, an admission by one of the parties before wit- nesses of the existence of the lease, the evidence of such wit- nesses not being objected to by him at the trial and its rejection not being demanded at the hearing, will be sufficient to let in proof by testimony in favor of the other party to the lease, (i) A defendant, who in answer to an action on a verbal lease, pleads a claim for damages as set off, admits the existence of the lease. (2) Testimony given by one of the parties to the lease cannot avail in his favor. (3). The notary before whom a lease is passed cannot be examined to ascertain what passed between the parties thereto, nor to vary or contradict it in any way. (4) 6. Duration ot. According to article 1601 C. Code, a lease may be for a certain tinie^ which allows the parties to the lease to stipulate for a period, however restricted or extended. But there is this limitation : the duration of the lease must not extend beyond ninety-nine years, or the lives of three persons con- secutively. (5) (1) Saunders t'. D6om, C. R. 1871, 15 L.C.J. 265. (2) VV.ilshT'. Howard, Q. B. 1886, 12 Q. L. R. 295. (3) Art. 1232 C. Code. (4) Lemoine z'.de Bellefeuille, S.C. 1882, 5 L. N, 426; Dubuc v. Kidson, Supreme Court, 23 June, 1884. Cassel's Dig. 2nd Edit. p. 782. But in Ritchie v. Wragg, the evidence of an advocate in whose office the lease was passed, was held admissible to prove whether the landlord had knowledge or not that the house leased was to be used for immoral purposes (Q. B. 1865, i L. C. L. J. 59). And see Clarke v, Clarke S. C, 185 1, 2 L. C. R. 11. (5) If an emphyteutic lease cannot exceed ninety-nine years (Art. 568 C. Code), rt /(?>/w;t an ordinary lease of real estate cannot exceed that period (3 Mourlon 733 ; i Tioplong, Lounge, 27 ; 25 Laurent 38). Article 389 C. Code provides that ''No ground rent or other rent, affecting real estate, can be created for a period exceeding ninety-nine years, or the lives of hree persons consecutively." The argument from this is irresistible that, where a leaseof real estate exceeds ninety-nine years, and is registered (see Art. 2128), it becomes, as the codifiers have declared it to be (vol. 3, p. 64, Cod. Rep. and seeDupuy v. Bourdeau,S. C. 1881, 6 L. N. 12), "a charge on the immoveable leased, like any other charge," and therefore assimilable to lents under Art. 389 C. Code. The Code expressly provides (Arts. 1593, IS94 and 389 C. Code) that the alienation of real property for an annual rent cannot exceed the Contract of Lease. 7 Where there is occupancy of the premises by the mere sufferance of the owner, this holding is regarded as an annual lease terminating on the first day of May of each year if the property be a house, (i) When the lease of a house omits to specify the time for its duration, it is held to be annual, terminating on the first day of May of each year, when the rent is at so much a year ; for a month, when it is at so much a month ; for a day when it is at so much a day. If the rate of the rent for a certain time be not shown, the duration of the lease is regulated by the usage of the place. (2) 7. Capacity to Make. The capacity to enter into a contract of lease or hire is governed by the general rules relating to capacity to contract. (3) All persons are capable of contracting, except those whose incapacity is expressly declared by law. (4) Those legally incapable of contracting are : 1. Minors in the cases and according to the provisions contained in the Civil Code ; 2. Married women, except in the cases specified by law ; 3. Those who, by special provisions of law, are prohibited from contracting by reason of their relation to each other, or of the object of the contract ; 4. Persons insane or suffering a temporary derangement of intellect arising from disease, accident, drunkenness or period of ninety-nine years or the lives of three persons consecutively; such an alienation is regarded as equivalent to a sale, and it is incontestable that a registered lease in excess of that period, if not regarded as a i-ale, would be very effective in tying-up the property leased for a long period. This result would be directly in opposition to one of the fundamental principles of our law (see Art. 932 C. Code " Substitutions created by will or by gifts inter vivos cannot be extended to more than two degrees, exclusive of the institute.") (1) Art. 1608 C. Cede. (2) Art. 1642 C Code ; see chapter VI " Termination of the lease — Notice to quit " (3) Art. 1604 C. Code. (4) \rt. 985 C. Code. 8 Landlord and Tenant. other causes, or who by reason of weakness of understanding are unable to give a valid consent; 5. Persons civilly dead, (i) The incapacity of minors and of persons interdicted for prodigality, is established in their favor. Parties capable of contracting cannot set up the incapacity of the minors or of the interdicted persons with whom they have contracted. (2) A lease for a period exceeding nine years is considered as a species of alienation, consequently, all those who by law have merely the right to administer their property, cannot pass a lease for more than that period. But a lease for less than that period is an act of simple administration, conse- quently, all those who have simply the administration of their property, or the property of others, can lease it for a period of less than nine years, although they cannot alienate it. (3) Trustees cannot evade the law by creating leases for nine years, with a stipulation that the tenant shall have a renewal on certain conditions for nine years longer; such leases are in effect, leases for eighteen years, and ultra vires. 4) An emancipated minor may without assistance grant leases for terms not exceeding nine years ; (5) he may also hire a house, and the contract will not be reduced unless the price is excessive, the courts taking into consideration the fortune of the minor, the good or bad faith of the persons who have contracted with him, or the utility or inutility of the expenditure. (6) A minor engaged in trade is reputed of full age for all acts relating to such trade. (7) Therefore, when a minor leases a (1) Art. 986 C.Code. (2) Art. 987 C. Code. (3) I Guillouard p. 56; Pothier, Louage, Nos. 4 and 5. Arts. 322, 319, 568 C. Code ; 5 Laurent, p. 456. (4) President et Syndics, etc., de Laprairie v. Bissonneite, C. R. 1888; M. L. R. 4 S. C. 414. (5) Art. 319 C. Code. (6) Art. 322 ; l Troplong 147. (7) Art. 323. Contract of Lease. shop for the purpose of carrying on his trade as barber therein, he will, in that case, be regarded as an adult, and can be sued for rental of the premises, (i) A person to whom a judicial adviser has been appointed, can also pass leases not exceeding nine years, unless the judgment appointing the judicial adviser has specially dele- gated to him the leasing of such person's property. (2) A married woman, separate as to property, whether such separation exist by virtue of a marriage contract or by judi- cial decree, has a right to administer her property ; she can, therefore, pass a lease for a period not exceeding nine years without the authorization of her husband, (3) and can also hire a house under the same conditions. (4) Viut a married woman not separate as to property — whe- ther there be community or exclusion of community — cannot bind herself by lease without authorization, the administra- tion of her property being with her husband. (5) If, however, her husband is absent, or in other exceptional cases, (6) a married woman may take the lease of a house as a habitation for herself and family, the rental of which must be propor- tionate to her means and station. (7) The administration of (U Vogel V. Pelletier, Mag. Ct. 1889, 13 L. N. 107. (2) Art. 351 C. Code, i Troplong 148; 2 Touillier N. 1378; 3 Duranton 7995 8 Demolombe 743 ; i Aubry (S^ Rau, § 140, p. 572; 5 Laurent 370 ; I Guillouard 58 ; Cass. 14 July, 1875 i S. 75-I-463 (3) C. Code, Arts. 177, 131S; I Guillouard 59; 17 Duranton 33; 3 Duvergier 37 ; i Troplong 149; 3 Mourlon 196 ; (4) I Troplong 149. Where a property is occupied by a husband (vvhoie wife is separate as to property) by the tolerance of the owner, in the absence of a special agreement, the wife cannot be held responsible for rent of the property occupied by the family during the insolvency of the husband (Harwood v. Fowler, C. R. 1889 ; M. L. R., 7 S. C. 363 ; and see Bordeaux, 22 June, 1849 ; J. P- 1851, Vol. 2, p 466. (5) Arts. 1292, 1416, C. Code; 2 Bourjon,lib. 4, tit. 4, ch. i, sec. i, No. 3. If in a notarial lease a married woman qualifies herself as separate as to property, she can nevertheless, when sued in the lease, plead that she is common as to property. O'Connor v Inglis Q. U : 1891, 21 R. L. 315; I Troplong 149. (6) Short z'. Kelly, S. C. 1879 ; 2 L. N. 284. (7) I Guillouard 59 ; i Troplong 149. 10 Landlord and Tenant. the wife's personal property being with the husband (i) in the case we are treating of, it follows that even he cannot alone pnss a lease of such property for a period longer than nine years, (2) for the law considers such leases to be a species of alienation of the property. But leases made by the husband alone of his wife's pro- perty, which exceed nine years, are not void ; on the contrary, so Ion <^ as the community exists, the lease in excess of nine years will be allowed to run its full length ; but if the com- munity cease to exist during the period of such overtime lease, whether by the death of the husband or the separation of property of the wife, then she can demand the reduction of the lease to the period allowed bylaw. The tenant can- not demand the reduction; the r'ght exists only in favor of the wife or her heirs. (3) Leases of property of the wife, for nine years or a shorter term, which have been made or renewed by the husband alone more than a year in advance of the expiration of the pending lease, do not bind the wife, unless they come into operation before ihe dissolution of the community, (4) and the same applies to such leases made by the husband in fraud of the wife's rights. (5) What has been said above as to leases by a husband of the property of his wife, of which he has the administration, is applicable to leases made by all persons who have the administration of the property of others. (6) For instance, leases of a minor's property for more than nine years, passed by his tutor, are not binding on the minor after the cessation of the curatorship ; those for less than nine years, which have (i) All. 1298 C. Code. (2) Art. 1299 C. Code. (3) Art. 1299 C. Code ; 2 Bourgon, lib. 4, tit. 4, ch. i, sec. i, Nos. 8 and 9 ; Ferri^re, Cout. de Paris, Art. 227 ; Guyot vo, Man, p. 332. (4) I3C0 C. Code. (5) Pothier, Puissance Maritalt, 92 to 95 ; I Troplong 151 f^ s:q. (6) Bourjon, vol. 2, p. 37, 4 et seq ; 4 Pothier, No. 44; 3 Duvergier 39, 40, 41 ; I Troplong 149 et seq ; Agnel, 27 ; I Mourlon 421 ; 3 Mourlon 148, 149 ; 25 Laurent 47 et seq ; I Guillouard, p. 5S. Contract (^k Lease. II been made or renewed by the curator in anticipation, do not bind the minor unless they come into operation bcforr the expiration of the tutorship, (i) And so in the case of leases made by curators to interdicted persons (2) and to vacant suc- cessions; (3) by those put in provisio \t1 possession of an absentee's estate ; (4) by beneficiary heirs. (5) A married woman, who has been either expressly or im- pliedly authorized to become a public trader, may, without the authorization of her husband, obligate herself for all that relates to her commerce, and in such case she also binds her husband, if there be community between them ; she can there- fore validly hire a shop or premises for the purpose of carry- ing on her business therein. (6) Che usufructuary may lease his right of usufruct, but the lease expires with his usufruct ; nevertheless, the tenant has a right, and may be compelled to continue his enjoyment dur- ing the rest of the year which had begun before the usufruct expired, subject to the payment of the rent to the pro- prietor. (7) And the foregoing is also applicable to dow- agers. (8) The relation of landlord and tenant can arise between the usufructuary and a person holding real property by his sufTe- rance, the word "owner " in Art. 1608 of the Civil Code being interpreted as the person who has the right to the use of the property. (9) Where a person leases property of which he is not the (1) I Guillouard, p. 58. (2) Art. 343 Civ. Code. (3) Arts. 90, 91 Civ. Code. (4) Art 96 C. Code. (5) Art. 672. (6) Art. 179 C. Code. Where an action was taken by a wife on lease of pro- perty belonging to her, but the lease proved to be made in the name of the hus- band ;—.A^*?/,/, good. Mathewson v. Fletcher, S.C. 1882,5 L. M. 131. (7) Art. 457, and see Labellez/. Villeneuve, C. Ct. 187a, 28 L. C. J. 254. (8) Art. 1457 C. Code. (9) Letang v. Donohue, S.C. 1895, 8 Que. 497 ; this case is now in Review. 12 Landlord and Tenant. iiii owner and in which he has no right, but of which he has the apparent possession, to a party in good faith, the lease is valid, at least to this extent : that the landlord is bound to warrant the tenant in his possession, or in the event of his eviction by the real owner, to indemnify him for the damages thereby suffered, and so long as the tenant is in undisturbed possession, he is bound to pay the rental to the person with whom he made the lease. { i ) One of the joint owners of an undivided property cannot lease it, nor even his share of it, without the consent of the other joint owners. (2) If he should lease such property, the other joint owners could demand the cancellation of the lease, but the tenant could demand damages against the joint owner who leased to him. (3) But on the principle stated in the preceding paragraph, the lease could only be cancelled upon action taken to that effect by the other joint owners ; so long as they did not interfere, the lease would be valid. (4) Things sequestered cannot be leased directly or indirectly to any of the parties in the contest concerning it. (5) Although contracts between husband and wife after mar- (1) PoirrasT'. Berber, Q. B, 1879,2 L. N. 390, 10 R. L. 214 ; Pothier, No. 20 ; Merlin, vo. Bail § 2, No. 7 ; Agnel, No. 47 ; Domat, Louage^i&c. i. No. 6 ; I Guillouai(1, pp. 65, 66 ; Art. 2682 C. Code Louisiana ; Hullet v. Wright, K. B. 1817, 2 R. cleL. 59. Mr. Troplong [Louage, No. 98 et seg.') goes still farther, and holds that in such case the tenant cannot be evicted by the real owner, even where the lease is for more than nine years, but the contrary has been held in our courts in Desaiitels V. Parker, S. C. 1894, 6 Que. 419, confirmed in Review (unanimously), 9 Feb., 1895. See under chapter" Termination of the lease — Eviction of the landlord," infra, ch. VI, § 6. A person who oh\.a\n^ & conditional promise of sale followed by possession, and who has not complied with the conditions before the time fixed by the con- tract, ceases to have any right in the property, and is therefore unable to give a tenant any right therein as against the real owner. Desaulels v. I'arker, S. C. 1894, 6 Que. 419. (2) Stearns v. Ross, Q. B. 1 885, M. L. R., 2 Q. B. 379 ; confirming S. C, M. L. R., I S. C. 448, (3) I Guillouard 54; 2 Bourjon, lib. 4, tit. 4, ch. i, sec. 3 j 17 Dur. 35; 3 Duv. 87 ; I Troplong loo ; 25 Laurent 44. (4) I Guillouard 54, and see I Troplong loo ; Contra 25 Laurent 44. (5) Art. 1826 C. Code. Contract of Lease. 13 riage are rarely valid, (i) yet a husband can lease property to his wife in payment of her claim upon the community pro- perty, arising out of a judicial separation of property. (2) There are other instances where the law, though not affect- ing the party's capacity to contract, yet requires the fulfil- ment of certain formalities on his part before he can give a valid lease of property. Thus a person who holds real property under a promise of sale cannot validly lease the same until his title has been registered and the tax under 55 and 56 Vic, ch. 17, on transfers of real estate has been paid. (3) 8. For Immoral Purposes. It Is the policy of our law not to uphold a contract the consideration for which is unlawful ; (4) and the consideration is unlawful when it is prohibited by law, or is contrary to good morals or public order. (5) Therefore, where a house is leased expressly for the purpose of prostitution, the land- lord cannot recover rent therefor. (6) In one curious case in this Province, it was sought to impute to the landlord know- ledge of the purpose for which the premises were leased, because the tenant's wife told him, at the time the lease was made, that it was^^necessary to have twelve bedrooms ; but the Court did not consider that in itself was evidence that the house was to be used for immoral purposes. (J) It has been recently held by our Court of Appeal (8) that in an action by a landlord to have the lease of a house resiliated on the (1) Art. 1265 C. Code; Art. 1483 C. Code. (2) Deslauriers r'. Hourque, Q. B. 1870, 15 L. C. J. 72. (3' Desautels v. Parker, S. C. 1894, 6 Que. 419, confirmed in Review 9th Feb., 1895. (4) An. 989 C. Code. (5) Art. 990 C. Code. (6) Garish v. Duval, S. C. 1854, 7 L. C. J. 127 ; Harris z*. Fontaine, C. Ct. 1869, 13 L. C. J. 336. (7) Ritchie V. Wragg, Q. B. 1865, I L. C. L. J. 59. (8) Menard f. Bryson, Q. B. 1892, I Que. 154. 14 Landlord and Tenant. ground that it was used for immoral purposes, the tenant might prove that the landlord himself leased some of his rooms to prostitutes, and this being done, the action was dismissed. But, in an earlier case, (i) decided by the Court of Appeal, Duval, Chief Justice, remarked that he would hesitate before he allowed a person to plead his own infamy, for Pothier (2) said it was no answer to the action. And these views of the Chief Justice had been sustained in a case decided only the year before. (3) It may be said, in addi- tion, that it is an offence under the Montreal city by-laws for a proprietor or usufructuary to knowingly lease premises for purposes of prostitution. The penalty for such offence is a fine not exceeding $200, or imprisonment not exceeding six months. 9. The Price or Rent. The price or rent is essential to the contract of lease and hire. (4) If premises were leased to a tenant without any stipulation as to rent, this would amount to a mere loan for use {commodatimt). (5) But where a person holds real property by the sufferance of the owner, without lease, the law pre- sumes a lease, and therefore requires the occupant to pay the annual value of the property. (6) The rent usually consists of a sum of money. If otherwise, such as by personal services rendered, the contract, though not strictly speaking one of lease, is so closely assimilated thereto as to render applicable the law of landlord and tenant. For instance, where a gardener was engaged at S30 per month, with the right of occupying a tenement free from rent as long as he should continue to hold the situation, on condition that (1) Ritchie v. Wragg, Q. B. 1865, i L. C. L. J. 59. (2) Nos. 24, 25. (3) Guy V. Goudreault, S. C. 1864, 14 L. C. R. 225. (4) I Giiillouard 62 ; Poth. 32 ; 3 Duv. 93J; I Troplong 3. (5) And therefore governed by Art. 1763 et seq. C. C. (6) Art. 1 60S C. Code. Contract of Lease. 15 he should be subject to dismissal at a month's notice to quit, it was held by the Court that the relation of lessor and lessee existed so as to bring the parties within the scope of the Lessors' and Lessees' Act for the purposes of ejectment, (i) And again, where the owner of property permits another to occupy the premises in consideration of his guardianship, and to manage the mills thereon, and lodge the owner and h?s family from time to time, this is a contract which, although not strictly a lease, sufficiently resembles one to render applicable thereto the laws of landlord and tenant, and the tenant would be entitled to a three months' notice to quit the premises before being evicted therefrom. (2) The price or rent (which must be agreed upon) (3) must also be an actual one, and not fictitious ; if it were otherwise, or if it were agreed that the landlord should remit the rent, the contract would only be one of loan for use, and governed by the laws appertaining thereto. (4) But once the price is an actual one, it is of not much account that it is shown to be insignificant, viewed in its relation to the property leased. This would certainly not be ground for revocation of the lease in favor of the landlord, nor would it avail the creditors, hypothecary or otherwise, to that end. Actual fraud must he/>rovcdir\ such case, in order that the lease may be vitiated. (5) (1) Hart V. O'Brien, C. R. 1866, 2 L. C. L. J. 187 ; Pothier No. 38 ; i Guil- louard 62. (2) Brunei T'. Berthiaume, S. C. 1892, 2 Que. 416. Dismissal from service without notice does not terminate lease of house. Notice required. Keid z'. Smith, C. R. 1872, 6 Q. L. R. 367. (3) I Guillouard 65. (4) 4 Pothier 33 to 36 ; i Troplong No. 3 ; 3 Duvergier No. loi ; i Guillouard 63- (5) I Guillouard 64. ':! imm» maa i6 Landlord and Tenant. CHAPTER II. OBLIGATIONS OF THE LANDLORD. 1. To deliver the premises leased. 2. To maintain the premises in a fit condition for the use for which they were leased. 3. To warrant the tenant against all defects and faults. 4. To warrant the tenant against disturbance, (ist.) Disturbance by the landlord himself. {2nd.) Disturbance by the Gov- ernment, whether municipal or parliamentary. (3rd.) Disturbance by third parties — Trespass. (4lh.) Disturbance caused by co- tenants . (5th.) Judicial disturbance. (6th.) Damage caused by neigh- boring proprietor. 1. To deliver the premises leased. The landlord is obliged to deliver the building leased (i) with all the accessories (2) naturally belonging to it ; and if these are not stated in the lease, they must be determined by usage. (3) The use of a common yard in the rear of a house must be regarded as being always accessible to the tenant whether by foot or by vehicle. (4) A machine shop or manu- facturing establishment, if leased as such, must be delivered over with all its accessories adapted to and necessary for the (i) Art. 1612 C. Code. (2) Art. 1499 C. Code. (3) Dalloz, 1856-2-75 and Note. (4) il) :— And see Ritchie v. Walcott, S. C. 1889, 15 Q. L. R. at p. 166. A tenant, like the owner of enclaved property, has a right of way of ingress and egress to and from the spot leased. An injunction does not lie to prevent the tenant from using a wagon for the conveyance of his goods and effects, where it is shown that such use is almost indispensable and does not prove injurious to the landlord or of others having a right otherwise to complain. The case would be different should the tenant misuse or abuse the privilege. New Orleans City Ry. Co. v, McCloskey, Supreme Ct. Louisiana 188^, 35 La. Ann. 786. Okligations of the Landlord. 17 carrying on of the particular enterprise for which it is leased. (i) Wherea tenant leased buildings in course of construction, and on taking possession of the same also occupied and used, without objection on the part of the landlord, during nearly four years, a small shed in the rear of the leased pre- mises, the shed, though not mentioned in the lease, nor shown on the architect's plans of the buildings, was consi- dered by the court as an accessory of the premises leased ; and that the landlord, by acquiescing for so long a period in the tenant's occupation without claiming rent, had placed that construction upon the contract. (2) As already remarked, (3) the law relating to sale is also applicable by analogy, in many cases, to lease ; (4) therefore, unless the lease contains stipulations to the con- trary, moveable things which a proprietor has placed on his real property for n permanency, or which he has incorporated therewith, are immoveable by their destination as long as they remain there, and go with the premises. Thus, within these restrictions, the following and other like objects are immoveable: (5) 1. Presses, boilers, stills, vats and tuns ; 2. All utensils necessary for working forges, paper-mills and other manufactories. Those things are considered as being attached for a per- manency which are placed by the proprietor and fastened with iron and nails, imbedded in plaster, lime or cement, or which cannot be removed without breakage, or without des- troying or deteriorating that part of the property to which they are attached. Mirrors, pictures and other ornaments are considered to have been placed permanently when with- !iJl y\) I Troplong 160 ; 25 Laurent 104 ; 4 Pothier, No. 54 ; i Guillouard 88. 121 Myler?'. Styles, Q. B. 1888, M. L. K., 4 Q. B. 113. (31 Supra p 2. <4) And see Art. 1599 C. Code. (5) Art. 379 C. Code. B II i8 Landlord and Tenant. out them the part of the room they cover would remain in- complete or imperfect, (i) And not only must the premises be delivered over to the tenant with all the accessories which exist at the moment of delivery, but those which are wanting and which the law requires should be extant, must be supplied. (2) Therefore, a dwelling house delivered without a privy, especially where its absence would je a contravention of the city's by-laws, will be a ground for cancellation of the lease. (3) But in regard to other accessories, the absence of which would not render the premises unfit for occupation, the con- tinued occupancy by the tenant without complaint would be equivalent to his acc^uiescence in the existing state of affairs. (4) Although the Code declares that the landlord is not obliged to warrant the tenant against disturbance by the mere trespass of a third party, (5) this only applies during the course of the lease, and not to what occurs prior thereto; nor is there any distinction in this respect between disturb- ance by mere trespass and disturbance in consequence of a claim concerning the right of the property, or other right in and upon the thing leased. (6) The landlord is obliged, says the Code, (7) to deliver to the lessee the thing leased, and where any disturbance of a third person results which (i) Alt. 380 C. Code. (2) Art. 1614 C. Code states that •' The lessor is obliged to warrant the lessee against all defects and faults in the thing leased, which prei'ent or diminish its use, whether known to the lessor or not." And by Art. 1612 : "to maintain the thing in a lit condition for the use for which it has been leased." And see I Guillouard 88 ; Sirey 76-2-40. (3) Lambert 7'. Laframboise, C. Ct. i860, ii L. C. R. 16; Beaudry v, Lupien, Q. B. 1881, Mont., Sept. 23. (4) Cassation, Sirey, 58-1-728; i Guillouard 94; and see Peatman r. La- pierre, S. C. 1889, 18 R. L. 35 ; Masson v. Masson, S. C. 1894, 7 Que. 5. (5) Art. 1 616 Civ. Code. (6) Art. 1618, which only applies after delivery of the premise:?. (7) Art. 161 2. Obligations of the Landlord. 19 prevents the tenant's occupation of the premises, the landlord will have defaulted in his obligation, (i) The premises must be delivered in a good state of repair in all respects, (2) and, whereas, during the pendency of the lease* two kinds of repairs are distinguished by the Code, (3) this distinction does not exist at the moment of entering into possession by the tenant, for the premises, in the language of the Code, " must be delivered in a good state of repairs/// all respects." (4) This phrase must be held to include the sanitary condition of the premises, irrespective of the construction of the house. For instance, a tenant is not obliged to enter into possession of premises which have just been occupied by a person suffering from a virulent infectious disease, such as typhoid fever, where the landlord refuses to have the premises properly disinfected. (5) The tenant would, doubtless, be equally justified in such a course, were the house to be in- fested with vermin to such an extent as to render the pre- mises uninhabitable to cleanly people. (6) The phrase would necessarily include the unsanitary condition of the premises arising from a defective construction of the drainage. Thus, wheie, on the day before entering the premises, the sanitary inspector had reported that they were not in good sanitary condition, it was held that the tenant was not bound to receive them under the agreement. (7) It is quite lawful for the parties to the lease to stipulate therein that any repairs which the premises might need at the date of delivery shall be made by the tenant, (8) although even such a stipulation would not absolve the landlord from (1) Cassation, Sirey 37-1970; 3 Duvergier 277; i Troplong 262; 4 Aubry &' Rau, pp. 473 474 ; 25 Laurent 105 ; i tJuillouarcl 89. (2) Art. 161 3 C. Code. (3) y^.;— and Art. 1635. (4) I Guillouard 93 ; 3 Duvergier 278 ; 25 Laurent 107 ; i Troplong 164, (5) Laurier :■. Turcotte, C. R. 1896, 9 Que. 86. (6) Bordeaux, 29 May, 1879, Sirey, 80-2-4. (7) Shuter r. Saunders, S. C. 1880, 3 L. N. 134. (8) Hudon V. Plimsoil, C. Ct. 1886, 9 L. N. 322 ; Deault v, Ledoux, C. R. 1894, 5 Que. 293. 'M I III '-''1 II :k^, 20 Landlord and Tknant. his obligation where the premises become totally uninhabit- able owing to their unsanitary condition, (i) nor where it is a question rather of constructing a new roof than of repairing an old one. (2) Unless the le.ise contains such a stipulation, nothing short of occupation of the premises by the tenant, with know- ledge of the defects for a certain period, without complain- ing, will absolve the landlord from theobligation of delivering them in a good condition /// all respects. (3) The mere enter- ing into possession will not be construed into acquiescence, on the part of the tenant. (4) But if the defects h.nve been known to him, a very short period of occupancy will be con- strued into acquiescence, provided always, as stated above, that such defects do not radically affect the habitability of the premises. (5) If the landlord refuse to deliver the premises leased by him and it be in his power to do so, he can either be compelled by the tenant to specifically perform his contract, (6) or to have the lease cancelled. (7) If specific performance is required by the tenant, and the landlord who occupies the premises himself refuses to comply, the Court will order him, within three clear days' delay, to vacate the premises, in default of which his household effects will be ejected therefrom and the plaintiff put in possession by the officers of the Court. (8) (1) Bagg 7'. Duchesneau, C. R. 1892, 2 Que. 350. (2) Rossr'. Stearns, S.C. 18S5 ! M- L. R., i S. C. 44.8, confirmed in appeal, M. L. R., 2 Q. B. 379 ; and see Biown r. Lighthall, C. Ct. iS88, 15 R. L. 694 ; Deault ?'• Ledoux, C. R. 1894, 5 Que- 293. (3) I Giullouard94. Cassation, Sirey 58-' 728 ; Ballantine z'. Snovvdon, Q. B. Montreal, June, 1894. (4) I Guillouard 94; Caen, 30 Aug., 1862, Rec. dc.Caen, 63, p. 58; 17 Dur- anton No. 61 ; 3 Duvergier, No. 278: Troplong, No. 164 et seq. (5) If'- (6) Art. 1065 C. Code ; i Guillouard 95. (7) Evans v. Moore, Q. B. 1888, 16 R. L, 668 ; Riopel v. St. Amour, C. R. 1892, I Que. 238. (8) Morgan 7.'. Dubois, C. R. 1888, 32 L. C. J. 204 ; Jaeger v. Sauvd, vS. C. j878,iL. N.139. Obligations ok the Landlord. 21 If the premises are not ready for occupation at the time stipulated, the tenant is justified in refusing to take possession, and is not liable for rent under the contract, although the house was in course of construction when the lease was made, (i) And to his principal action the tenant can join a demand of damages, or he may sue in damages only. (2). The landlord would not be held liable for failure to deliver, where such failure is caused by a fortuitous event or by irre- sistible force, without any fault on his part, unless he has spe- cially obliged himself by the terms of the contract. (3) But where the landlord fails to deliver the premises through his fault, proximate or remote, he is only liable for the damages which have been foreseen or might have been at the time of making the lease. (4) And even where his refusal or inability to deliver them arises from his fraudulent act, the damages com- prise only that which is an immediate and direct consequence of his inexecution. (5) For instance, a tenant cannot recover damages for the profit he might have made by leasing a theatre promised to him, to the government at an extra profit, the government buildings having been burnt down, although the refusal of the landlord was wilful and fraudulent. (6) Even where no special damages have been proved by the tenant, and there was no malicious withholding on the part of the landlord, the Court will award nominal damages for the breach of obligation. (7) But the term " vindictive " is sometimes misapplied to (i) Riopel r. St. Amour, C. R 1892, I Que. 238; Evans -•. Moore, Q. B. ■ 16 R. L. 668. (2) Evans r. Moore, Q. B. 1888, 16 K. L. 668. (3) Arts. 1072, 1200 C. Code. (4) Art. 1074 C. Code. (5) Art. 1075 C. Code; Bell t. Court, Q. B. 1886, M. L. R., 2 Q. B. 80 ; Leer'. L' Association de la Salle de Musique, S. C. 1855, 5 L. C R. 134; Evans 7\ Moore, Q. B. 1888, 16 R. L. 668. (6) Lee r. L'Association de la Salle de Musique, S. C. 1855, 5 L. C. R. 134- (7) Mulcair v. Jubinville, C. R. 1878, 23 L. C. J. 165 ; Lee '■. L'Associa- tion de la Salle de la Musique, S. C. 1855, 5 L. C. R. 134 ; and see Corpora- tion du Comi6 d'Ottawa z'. Cie. du Ch. de Fer, Supreme Ct. 1885, 14 Can. S. C. R. 193 ; but see McDougall ;•. McGreevy, P. C. 1889, '^ L. N. 379. i m m li!l III ■m m 33 Landloro and Tenant. " nominal " or presumed damag'es, and vice versa. For in- stance, in the case cited above, (i) nominal damages of $ioo were allowed, although none were proved, and the judge admitted that there was no malice or fraud on the part of the landlord. This sum was awarded in virtue of the discretion allowed our judges in assessing damages. On the other hand, in an earlier case, (2) vindictive damages to the same amount were awarded, no actual damage being proved, on the ground that the landlord had deliberately leased and given possession of the property to another tenant on account of the better price received. But regarding the matter from a practical point of view, it is solely within the discretion of the judge to award damages for breach of contract, even where no damage has been proved and whether the breach was wilful or not. In illustration of this, it may be mentioned that the Supreme Court has decided that where a party has suffered wrong, and is unable to prove the damages sustained by that wrong, the Court should not dismiss his action, but give him reason- able damages. (3) And the Court in this case allowed $100. But the Privy Council, in a later case, decided that though a person wilfully refuse to perform his part of an obligation, yet he will not be liable in damages, where it is clear that the other party has not suffered any. (4) Therefore each case must be decided, in this respect, according to its particular circumstances. It is no defence for a landlord to set up that he was pre- vented from delivering the premises owing to the refusal of his former tenant to quit ; he will still be liable, provided the tenant's right of enjoyment had commenced ; (5) and, it may (i) Mulcair v. Jubinville, C. R. 1878, 23 L, C. J. 165; and see Swanson v. Defoy, Q. B., 2 R. de Leg. 167, (2) Lee V. L'Association de la Salle de Musique, 5 L. C. R. 134 (1S55). (3) Corporation of the County of Ottawa v. Montreal, Ottawa &= Western Ry. , Supreme Ct. 1886, 14 Can. S. C. R. 193, in appeal from Ct. of Appeal P. g. (4) McDougall V. McGreevy, P. C. 1889, 12 L. N. 379, in appeal from P. Q. (5) Swanson v. Defoy, Q. B. 1847, ^ R- de L. 167. Obligations of thI' Landlord. 23 be remarked here, that wliere the faikireto deliver, on the part of the landlord, is caused by the forcible opposition of a third party, such act occurring before the occupancy of the tenant, the latter is not bound under Art. 1616 of the Civil Code to look to the third party for redress, (i) The landlord is obliged to deliver the thing leased, (2"! or pay the penalty. If the tenant is only enabled to, and does take possession of the premises considerably after the date stipulated for, in conse- quence of the landlord's delay in getting them ready, he is entitled to set off the damages suffered, in consequence, from the rent due under the lease in an action therefor by the land- lord. (3) If the tenant [)refer to have his lease cancelled rather than wait for the premises until they are ready, — and he has his option in this respect, (4) — the damages allowed him will be those incurred preparatory to moving from his old premises, and for the deprivation of the new premises leased to him from the date they should have been delivered, to that of taking action to resiliate the lease. (5) If the premises are delivered to the tenant in bad repair, under such circumstances as to make the remedying of the defects devolve upon the landlord, the tenant cannot retain an amount of rent proportionate to the damage suffered. (6) 2. Oblig^ation to Maintain the Premises in a iit Condition tor the Use for which they were Leased. The lease of a house is a contract by which the landlord grants to the tenant the oijoyment of the premises leased (1) 11'. (2) An. 1612 C. Code. (3) Belleau 7'. Kegina, (^. B. 1861, 12 L. C. R. 40. (4) Riopel 7'. St Amour, C. K. i!''q2, i Que. 238; Evans 7'. Moore, (^. B. 1888, 16 R, L. 668. (5) Evans 7'. Moore, Q. B. 1S88, 16 R. L. 668. (6) Weippert 7'. Iffland, K. B. 1820, 2 R. de 1.. 441 ; Loraiiyer 7. Perrault, S. C. 1854, Ramsay's C'cndensed Reports, p. 61. See Mulhaupt r. Enders, 38 La. Ann. 744 in same sense. But in France a contrary doctrine prevails under the particular circumstances above stated ; 1 Guillouard 101 ; 4 Aubry k Rau, p. 474 ; Cass, Sirey, 531-361 ; Cass, Sirey, Sl-l-170; Douai, Sirey, 57-2-209 ; but see 25 Laurent loy. I|| n 24 Landlord and Tenant. during a certain time, etc., (i) and this involves, on the part of the landlord, the maintenance of the premises in a fit con- dition for the use for which they have been leased. (2) As it is of the nature of the contract of lease that the land- lord shall maintain the premises in a fit condition for the use for which they have been leased, nothing short of an express clause in the contract will absolve him from that obligation. (3) And even where there is an undertaking on the part of the tenant that all repairs to the premises that may be necessary, whether "grosses " or " weunes," shall be made by him, this will not absolve the landlord from his obligation to make such re- pairs as would amount to a reconstruction of part of the pre- mises, such as the making of a new roof rather than the repair- ing of an old one (4) ; or where, through some cause beyond the control of the tenant, the premises become so insalubrious as to be totally uninhabitable ; (5) or where the premises are seriously damaged by fire ; (6) but the effect of such a clause will be to disentitle the tenant to any reduction of rent, by way of damages, while repairs are being made. (7) The express renunciation by the tenant, of his right to have such obligation performed, so far as the Court will con- strue it, is perfectly valid, and is not contrary to public order (8), the obligation, though being of the nature of the contract, is not of its essence. (9) The Code expressly declares (10) that the landlord is obliged* (i) Art. 1 60 1 C. Code. (2) Art. 1612 ib. (3) I Guillouard 103; 17 Duraiitoo, N', 61 ; 3 Diivergier, No. 27S ; Tiop- long, Nos. 164 et seq ; Johnson r'. Hn.ne!'e, S. C. 1S86, 14 R. L. 219. (4) Rots T'. Stearns, S. C. 1885, M. L. R., I S. C. 448; confirmed in appeal M. L. R., 2 Q. B. 379; Brown t\ Liyhth.ill, C. Ct. 1888, 15 R. h. 694. (5) Bagg t'. Duchesneau, ('. R. 1892, 2 Que. 350 ; but see Deault t\ [^edoux, C. R. 1894, 5 Que. 293 ; and Simmons 7\ Ciravel, C. Ct. , 13 Q. L. R. 263. (6) Samuels -■. Rodier, Q. B. 1867, 2 L. C. L. J. 272. (7) Rex 7'. Sn-ith, K. B. 1817, 2 Rev. de Leg. 440. (8) See \vt. 990 C. C ode. (9) Deault 7'. Ledou.x, C. R. 1894,5 '.?"^* 293; Hudon r'. Plimsoll, C. Ct. 18S6, 9 L. N. 322. (10) Art. 1613. Obligations ok ihe Landlord. «5 during the lease, to make all necessary repairs, but, referring to a subsequent article, (i) it excepts those ofa minor impor- tance, and which, as a reference to some of the instances enumerated in that article will show, arc of such a nature that they might naturally be presumed to arise through the fault of the tenant or his family, or to result from the ordinary use of the premises. (2) That this presumption is the basis of the tenant's obligation to make the lesser repairs, is evident from the succeed ing article of the Code, (3) which absolves the tenant from thi.s obligation when the repairs are rendered necessary by age or by irresistible force. The burden of pn ving that such repairs are necessitated by those causes devolves upon the tenant. (4) With the exception, therefore, of lesser repairs under excep- tional circumstances, the making of all other kinds devolves upon the landlord, even where the tenant receives the pre- mises in bad condition, without complaint ; but in this case, the lesser repairs will devolve upon the tenant, from whatever cause they may arise, except that of irresistible force. (5) But Art. 1660 of the Civil Code provides that, if during the lease the premises be wholly destroyed by irresistible force, or a fortuitous event, or be taken for purposes of public utility, the lease is dissolved of course. It also provides that^ if the premises be destroyed or taken in part only, the tenant may, according to circumstances, obtain a reduction of rent or the dissolution of the lease ; but in either case he has no claim for damages against the landlord. (6) In the happening of the latter event, the Code makes no provision for restoring (1) Art. 1635. (2) I Guillouard 104. (The distinction between these two kinds of repairs.viz., landlord's repairs and tenant's repairs, will be treated of in a subsequent chapter.) (3) Art. 1636. (4) I Guillouard 104 ; Art. 1627 C. Code. (5) Johnson v. Brunelle, !?. C. 1886, 14 R. L. 219. (6) A tenant cannot demand lesiliation of the lease where he is disturbed in his enjoyment of the premises by the legitimate acts of the Government ; he can only demand a diminution of rent. Walcot v. Ritchie, S. C. 1889. 15 Q. L. K. 165. Nor can he demand damages from the landlord in such ca^e {ib). As to damages, see Panneton v, Fraser, S. C. 1893, 4 Q"^- 355- 26 Landlord and Tenant. the premises, but it is the better opinion that the landlord cannot be compelled to reconstruct where there has been a partial /-ws of the i)remises, but that anything in the nature of repairs necessitated by a fortuitous event will devolve upon him, if demanded, (i) when the lease is not cancelled, and it is merely a question of reduction of rent. The demolition of the side wall of a house is a sufficient ground for the resiliation of the lease. (2) So is the use by the landlord, in making repairs, of material which emits a disagreeable odor, and damages the stock of the tenant, a grocer .; (3) and in such case the damages sustained can also be recovered. (4) The tenant can also recover damages against the contractor for negligently executing repairs for the landlord. (5) Where premises leased for manufacturing purposes were damaged by fire, and subsequently the tenant visited the premises daily during two or three weeks while repairs were in progress, and the repairs were fully completed about a month after the fire, and the tenant did not protest for resiliation of the lease until fourteen days after the fire ; it was decided by the Court that he was not entitled to obtain the dissolution of the lease, more especially as the legal pre- sumption stood against him that the fire was due to his fault Csee Art. 1629 C. Code) or the carelessness of his watchman, who was proved to have been drunk at the time it occurred. (6)But where a b irbv:;r, who combined with his business the sell- ing of cigars, rented a shop in a hotel, with the exclusive privi- lege of selling cigars therein, and the hotel was burnt and ♦•he (1) 1 Guillouard 107: Pont in 3 Rev. Crit. (1853), p. 282; Maicade, Art. 1/22: 4 Aubry et Rau, p. 474; 25 Laurent HI ; see II R. L. at p. 608, Troplong holds that the landlord would be bound to reconstruct the thing par- tially lost: see i Loiiage No. 220. (2) Jacotel r. Gault, S. C. 1889, M. L. R., 5 S. C. 60. (■3) Daigneau .-. Levesque, Q. B. 1886, M. L. R., 2 (^. B. 205. (4) //'• (5) Mignon r . Briinet, S. (.'. 1895, ^ Q"^- '^o. (6) Pinsonneault t. Hood, S. C 1892. 2 Que. ^^73; and see t> *:ola ?'. Stephens, S. C. 1884, 7 L. N 172, 13 R. L. 472; Hache f. McGat-vreau, 10 R. L. 194; Gerriken 7'. Pinsonneault, Q. ii.,June, 1875. Ol'.LIGATIONS OF THE LANDLORD. 27 sliop damaged by water, thereby requiring three weeks for making repairs to such shop, this would not give rise to the resih'ation of the lease, but the tenant could claim a remission of rental for a certain period to recoup him for damages, (i) Repairs may be legally exacted from the actual proprietor of a property leased b)- a former proprietor. (2) The tenant has a right of action, which he can exercise either by summary proceedings or in the ordinary course of law, to couipi'l the landlord to make the repairs and ameliora- tions stij)ulated in the lease, or to which he is obliged by law ; or to obtain authority to make the same at the expense of the landlord ; or, if the tenant so declare his option, to obtain the rescission of the lease in the event of such repairs or ameliorations not being made. (3) The tenant has also an action of damages for breach of the landlord's obligation in the above respect, (4) provided he fast puts the latter in default by notif3'ing him and making a demand upon him to perform the obligation ; (5) which demand must be made in writing where the lease is a written one. (6) But a verbal notice from the tenant and a written one from the sanitary inspector has been held a sufficient written notice, (7) and even a commencement of proof in (1) 'lardif 7'. Cie. de THotel Balmoral, S. C. 1890, 20 R. I.. 224. (2) Sache r. Courville, (J. B. i86'/, 11 L. C. J. 119. _ 1 . C. L. J. 251. (3) Art. 1 64 I C. Code. (4) il>- (5) Art. 1070 C. Code: Decary :■. I.afleur, Mag. Ct. 1890, 13 L. N. 3r4 ; Benson r. Vallit^ie. S. C'. 1894, 6 (Jue, 245 ; Achesonr'. Poet, S. C. 1SS5. 29 L.C.J. 206 (repudiiiting Scanlan r. Holmes, 2 L. >'. 185); Holland 7'. de Gasp6. C R. 1891, M. L. R.. 7 S. C. 440 ; Johnson v. lirunelle, S. C. 1886) 14 R. L. 219 ; Mnrciie v. Malhieu. S. C. 1883. 7 L. N. 55: Charbonneau r. Duval. C. Ct. 1885, 13 K. L. 309 ; Pannetoii r. Fraser. S. C. 1893, 4 Qne. 353. See especially remarks of Horion. C. J., in Daigneau r . Levesque. (^. B. i!^>e recovered without a putting in default where the landlord especially obliges ' mself in the lease to do a thing. Slrey, 65 -2- 199. 48-2 1S9 ; and see Scan Ian 1, Holmes, 2 L. N. 185, 9 R. L. 557. (6) Art. 1067 C. Code; Marcil v. Mathieu, S. C. 1883, 7 L. N. 55 ; I'it/- palrick v. Darling, S. C. 1896, 9 Que. 247. (7) Palmer v. Barrett, M. L. R., 6 S. C. 44 .. M'f 28 Landlord and Tenant. writing, or an admission, will avail as such, (i) Damages run only from the date the defaulting party is notified. (2) A delay of one day between the putting in default and taking the action is not sufficient. (5) The general rule regarding the proceedings the tenant should adopt, where he seeks either to have repairs made or to have the lease cancelled, may be stated as follows, atten- tion 'first being directed to the fact that the present discussion relates to the repairs, properly so called, and not to defects and faults (vices et defauts) (4) in the premises, which will be dealt with under a subsequent heading. (5) Where the tenant takes possession of the premises leased to him, without complaint (the lease usually containing a declaration to that effect) (6), and such repairs as the law obliges the landlord to make become necessary, the tenant must notify his landlord to that effect, and if the latter fails to attend thereto, the former must, if he wishes to have the repairs made, summon the latter before the Court, and demand that he be ordered to make them, or that he, the tenant, be allowed to make the same at the landlord's expense ; or he may demand that, if the land- lord, after being ordered by the Court to make the repairs, fails to do so, the lease be declared cancelled. (7) There are some exceptions to the above. For instance, where the landlord has obliged himself in the lease, or is by (1) Decary v. Lafleur, Maj^. Ct. 1890, 13 L. N. 314. (2) Filibien :■. Moir, C. R. 1877. (3) ib. (4) See Art. 16 14 C. Cede. (5) See infra, p. 31. (6) And see Ait. 1633 ^- ^oJe (7) Art. 1641 C. Code : Boulanger r' Pagels T. Murphy, (-. K. 18S6, M. L. Ct. 1884, 13 Q. L. W. 263 : SpelinatiT' Ginchereau 7. Lachance, c. Ct. 1S90, S. C. 1879, 23 L. C. J. 259. If the repairs are ordeied ly the tenant, the contractor who made them has his recourse against tlie tenant, and not the landlord ; and where the amount sued for is in excess of $50, Lvideiue is not admissible to prove that the landlord iiad authorized the tenant to have such repairs made. Larochelle r. Haxter. C. Ct. 1891, 21 R. L. 87. , Doutre, S. C. 1851, 4 L. C. R. 170 ; H., 3 S. C. 50 ; Simmons v. Gravel, C. . Muldoon, S. C. 1869, 14 L. C. J. 306; 16 Q. I.. R. 117; Marchand i. Caty, Oi;i.k;ations ov the Landlord. 29 law bound, to put the premises in f:^ood tenantable condition, and he neglects to do so, the tenant may, after putting the landlord in default (i) (if there be time to do so), make such repairs as are urgently needed for the safety and health of the occupants, without having first obtained judicial authority, and may recover the cost of the same from the landlord. (2) Likewise, where the condition of the premises is such as absohilely to prevent the tenant's use and enjoyment, he may abandon them without incurring liability for rent from the day of his departure. (3) The tenant is obliged, during the lease, to allow the land- lord to make such repairs to the premises as are urgent and cannot be deferred, whatever may be the inconvenience caused to him, — in fact, even though he may be deprived, during their progress, of the enjoyment of a part of the pre- mises. But if such repairs became necessary before the making of the lease, (4) he is entitled to a diminution of the rent according to the time and circumstances ; and in any case, if more than forty days be spent in making such repairs, the rent must be diminished in proportion to time and the part of the premises leased of which he has been deprived. If the repairs be of a nature to render the pre- (1) The French authorities hold that damages can be recove^d without put- ting tlie landlord in default where he specially obliges liimb^ :i the lease to do .1 certain Uiin^'. Sirey 65-2-199, 48-2-189 ; I Guillouard 108 ; and see Scan- lau r. Holmes 2 L. X. 185, 9 I-l. L. 537. (2) McCaw ,- . lianington. C. R. 1889, 34 L. C. J. 78 ; confirming S. C. 1888, M. I.. R.. 4 S. C. 210 : Palmer ; . Barrett, S. C. 1890, M. L. R., 6 S. C. at p. 443 : Heney 7'. Smith, C. Ct. 1887, 10 I,. N'. 333 : i Guiilciard 108 ; Sirey 42-2- ^f*' . 4 Pothier 129-131 : 2 Troplong 351 : Marcade. Ar^s. 1730, 1731 ; 4 .\ubry et Rau, p. 475. (31 Wrigiiir'. Gault, S. C. 1883,6 L. N. 42; IJoucher r'. Brault. S. C. 1870, 15 L. C. J. 117: iJaigneault T'. Levesque, n. H. 1886. M. L. R., 2 Q. H. 205. See Pagels 7'. Murphy. C. R. 1886, M. L. R..3 S. C. 50 ; Boulangerr. Doutre, S. C. 1851 ; 4L. C. R. at p. 173; McCaw r. iJarrington, S. C. 18S8, M. L. R., 4 •'^- C at p. 210. Hut see Wuiteie '■, Brazier, 2 R. de. L. 440, as 10 rent accrued durini; occupation ; and see Art. 1660 C. Code in case of partial des- truction. (4) 1 he French version of the Code, Art. «634, has '■' arnnt le fuiil,^' which is the correct one. See 33 L. <.' . J. at p. 167. 1^ 30 Landlord and Tenant. mises uninhabitable for the tenant and his family, he may cause the lease to be rescinded, (i) It is to be noted, however, that although the tenant is obliged to suffer certain repairs to be made, yet the landlord cannot make repairs in general without the former's consent. If the repairs are urgent, and the tenant refuses to give his consent to their being made, the landlord must have recourse to the Courts and obtain an order permitting them. Other- wise the tenant may restrain him by injunction. (2) If the landlord, in making repairs, uses material which emits a strong odor, such as tarred felt for placing under the clapbcardingof a wooden house, he will be liable for damages and to have the 't a?e rescinded, if the premises lepaired, being used for busines-. , ses, and the goods stored therein being of an edible nature, ecome damaged. (3) If the making of urgent rei)airs has occupied less than forty days, the tenant carnot demand any indemnity in the way of reduction of rent, except where, as in the above instance, the landlord has been exceptionally negligent or careless. (4) If the repairs occupy more than forty days, it is the better opinion that such indemnity should be based upon the whole of the period occupied in making them ; r5) (l) Art. 1634 C. Code. Tlie lessor of a building rented for business offices is not liable to tenants for the stoppage of the elevator for some days, owing to its being out of order, and to provide electricity as the motive power, instead ot water, provided the work was done with all possible despatch. Cooke ''. Royal Ins. Co., s. c. 1893, 4 Q"S' 396. A stipulation in the lease, that the tenant shall suffer such large repairs as may be deemed necessary, without demanding reduction of rent, only applies to repairs which may become necessary during the lease, and not to work neces.