pulsory powers (f), or passes to executors (g) or administrators (g), no forfeiture is incurred (usually there is an express proviso for forfeiture on bankruptcy or on the term being taken in execution (h)). But if the taking in execution of the term has been intentionally brought about by the tenant for the purpose of effecting an alienation, that is a breach of the covenant (i). So also is an assignment for the benefit of creditors generally, unless avoided as an act of bankruptcy (k). Compulsory alienation does not entirely destroy the condition not to alienate, and subsequent voluntary assigns are bound by it (l). If the covenant or proviso extends in terms to the lessee only, assigns by operation of law are not bound by it, and may assign without incurring a forfeiture (m). If executors or administrators are expressly named, they are bound (n); they are also included in the word " assigns" (o). If" assigns" are named, then assigns by operation of law are bound (p), unless they are compelled to alienate by order of court (q), or by statute (r). (f) Slipper v. Tottenham Ry. Co. 4 Eq. 112; Baily v. De Crespigny, L. R. 4 Q. B. 180; see Doe v. Rugeley, 6 Q. B. 107. (g) Doe v. Bevan, 3 M. & S. 353; Roe v. Harrison, 2 T. R. 425; Philpot v. Hoare, 2 Atk. 219; Fox v. Swann, Styles 482; Berry v. Taunton, Cro. Eliz. 331; Dumpor's case, Cro. Eliz. 816; Shep. Touch. 144. (h) See post, p. 100. (i) Doe v. Carter, 8 T. R. 57, 301; Doe v. Hawke, 2 East, 481. (k) Holland v. Cole, 1 H. & C. 67. (1) Winter v. Dumergue, 14 W. R. 281, 699. (m) Seers v. Hind, 1 Ves. 294; Cox v. Brown, Cha. Rep. 170; Doe v. Smith, 5 Taunt. 795; Philpot v. Hoare, 2 Atk. 219, note. (n) Roe v. Harrison, 2 T. R. 425. (0) Wollaston v. Hakewill, 3 M. & Gr. 297; Smallpiece v. Evans, 1 Anders. 123; Buckley v. Pirk, 1 Salk. 316. (p) Philpot v. Hoare, 2 Atk. 219; More's case, Cro. Eliz. 26; Goring v. Warner, 7 Vin. 85. (q) Doe v. Bevan, 3 M. & S. 353. (r) Doe v. Carter, 8 T. R. 57, 301. How far assigns by operation of bound. law are W.Y.E. G Meaning of covenant to repair. Effect. Extent of liability. 3. Covenant to Repair. The covenant to repair is an agreement, between landlord and tenant, that the tenant shall do all repairs which are requisite during the continuance of the tenancy, which otherwise would have to be done by the landlord, if done at all (8). This covenant is, in different leases, expressed in many different ways, but the effect seems to be generally the same, whatever form of words may be used. Covenants "to repair," "to repair and keep in repair," to keep in good," "sufficient," "habitable," " tenantable," or "necessary" repair, all have the same effect, that is, they oblige the tenant to do all requisite repairs having first put the premises in repair (t). The tenant is bound, under his general covenant to repair, to put the premises in repair, whether he has so expressly agreed or not (u). Having regard to the age, class, general condition, and locality of the premises at the time of the demise the tenant is bound to keep them in such a state of repair that they may be used and dwelt in, not only in safety, but also with reasonable comfort by the class of persons by whom, and for the sort of purposes for which, they were to be occupied (x). (s) Truscott v. Diamond Co., 20 Ch. D. 251. (t) Gutteridge v. Munyard, 1 (u) Payne v. Haine, 16 M. & Q. B. D. 42; but see Shaw v. (x) Johnson v. Hereford, 4 A. & E. 520; Stanley v. Towgood, 3 B. N. C. 4; Mantz v. Goring, 4 B. N. C. 451; Scales v. Lawrence, 2 F. & F. 289; Woolcock v. Dew, 1 F. & F. 337; Burdett v. Withers, 7 A. & E. 136; Walker v. Hatton, 10 M. & W. 249; Cooke v. Cholmondeley, 4 Drew. 326; Haldane v. Newcomb, 12 W. R. 135; ings. Old buildings must be kept in repair as old buildings, Age of buildand the tenant is not bound to do them up like new buildings (y). The tenant is not bound to make good any decay of the general structure caused by the operation of time and nature (≈); he is only bound, by seasonable applications of time and labour, to keep the premises as nearly as possible in the same condition as when they were demised (2). This is the rule, although he may have covenanted to keep them in as good plight as they were at the time of the demise (a). If, however, he has agreed to repair and to rebuild, if necessary, he is bound to keep the premises in perfect repair during the whole term, whatever may have been their age and general condition at the time of the demise (b). The class to which the premises belong must be con- Class. sidered, for premises usually occupied by one class of tenants may not require the same character of repairs as those usually occupied by a different class (c). Also the General general condition of the premises at the time of the demise condition. must be looked at (d), not taking into account any particular defects of repair existing at that time (e). Payne v. Haine, 16 M. & W. (y) Gutteridge v. Munyard, 1 Moo. & R. 334; Scales v. Lawrence, supra; Harris v. Jones, 1 Moo. & R. 173; Lister v. Lane, [1893] 2 Q. B. 212. (z) Gutteridge v. Munyard, supra; Proudfoot v. Hart, 25 Q. B. D. 42 ; Lister v. Lane, supra. (a) Fitz. Abr. tit. Covenant fol. 4; Shep. Touch. 169; Johnson v. Hereford, 4 A. & E. 520. (b) Doe v. Rowlands, 9 C. & P. 734; Doe v. Withers, 2 B. & Ad. 896; Loader v. Kemp, 5 C. & P. 375; Truscott v. Diamond Co., 20 Ch. D. 251. (c) Belcher v. McIntosh, 8 C. & P. 720; Saner v. Bilton, 7 Ch. D. 815; Proudfoot v. Hart, 25 Q. B. D. 42. (d) Burdett v. Withers, 7 A. & E. 136; Walker v. Hatton, 12 M. & W. 249. (e) Mantz v. Goring, 4 B. N. C. 451. Performance of the cove. nant. Time to be allowed. Premises destroyed by fire, &c. The covenant to repair is performed if the tenant keeps the premises substantially in repair, and does all that he reasonably ought to do in performance of his covenant (ƒ); it is always a question of fact whether he has done so (g). Even if the tenant has agreed to repair to the satisfaction of the landlord's surveyor, the jury may find that the state of repair ought to have satisfied the surveyor (h). It is not sufficient for the tenant to have employed competent persons to do the repairs if they have not in fact executed them properly (i). If the premises are out of repair at any time during the term the covenant is broken (k). A tenant must, however, be allowed a reasonable time to put the premises into repair at the commencement of the tenancy (1), even if he has covenanted to do so "forthwith" (m), or "immediately" (m); and also to execute repairs during the tenancy, unless they are rendered necessary by his own default. If the tenant positively refuses to repair the landlord may proceed to enforce the forfeiture without waiting for such reasonable time to elapse (n). A tenant is bound by his covenant to repair though the premises are burnt down by accident or negligence (0), or (f) Evelyn v. Raddish, 7 Taunt. 411; Harris v. Jones, 1 Moo. & R. 173; Stanley v. Towgood, 3 B. N. C. 4 ; Doe v. Sutton, 9 C. & P. 706. (g) Doe v. Sutton, supra. (h) Doe v. Jones, 2 C. & K. 743; Parson v. Sexton, 4 C. B. 899, 909; Moore v. Woolsey, 4 E. & B. 243, 252, 256. (i) Nokes v. Gibbon, 3 Drew. 681. (k) Luxmore v. Robson, B. & Ald. 584. (1) Green v. Eales, 2 Q. B. 225; Coward v. Gregory, L. R. 2 C. P. 153. (m) Doe v. Sutton, 9 C. & P. 706; Burgess v. Bætifeur, 7 M. & Gr. 481, 494; Roberts v. Brett, 11 H. L. C. 337. (n) Green v. Eales, 2 Q. B. 225. (0) Bullock v. Dommitt, 6 T. R. 650; Chesterfield v. Bolton, 2 Comyn. 627; Digby v. Atkinson, 4 Camp. 275; Clark Glasgow Co., 1 Macq. 668; Gregg v. Coates, 23 Beav. 33. blown down by a tempest (oo), or destroyed by other inevitable accident (p), unless the covenant contains an exception in those cases (q). The fact that the landlord has insured and received compensation does not release the tenant from such liability (r). Non-repair caused, not by the acts or neglect of the Non-repair caused by tenant but by other persons in pursuance of statutory third person. powers, is not a breach of the covenant to repair (s). The tenant is, however, liable for the acts of a third having statutory powers (†). person not erected It is often a difficult question to decide whether a cove- Subsequently nant to repair extends to buildings which have been erected buildings. upon the premises subsequently to the demise. No general rule can be laid down, but the question must be determined upon the particular words of each covenant. The authorities seem to establish these rules, that where there is a perfectly general covenant to repair and keep in repair the inference is that the tenant covenants to repair subsequently erected buildings (u); but that, where the tenant covenants to repair and keep in repair the demised premises (x), no such liability arises (u). Sometimes there is a condition precedent to be performed before the tenant becomes liable under a covenant to repair. In those cases there can be no breach by the tenant until the condition has been performed. For (00) See note (o) previous page. (p) Shep. Touch. 173. (1) Saner v. Bilton, 7 Ch. D. 815; Manchester Co. v. Carr, 5 C. P. D. 507; Meath v. Cuthbert, Ir. R. 10 C. L. 395. (r) Leeds v. Cheetham, 1 Sim. 146; Lofft v. Dennis, 1 E. & E. 474. (s) Moore v. Clark, 5 Taunt. 90; Green v. Eales, 2 Q. B. 225. (t) Borgnis v. Edwards, 2 F. & F. 111. (u) Cornish v. Cleife, 5 H. & C. 446; Hudson v. Williams, 39 L. T. 632; White v. Wakley, 26 Beav. 16; Doe v. Rowlands, 9 C. & P. 734; Douse v. Earle, 3 Lev. 264; Penry v. Brown, 2 Stark. 403; Beaufort v. Bates, 3 De G. F. & J. 381. (x) Cornish v. Cleife, supra. Conditions precedent to liability. |