« SebelumnyaLanjutkan »
to advert to a few such cases as have arisen and been decided on the subject of implied covenants.
It has been held by the supreme court that there is no implied covenant or warranty on the part of the lessor of a dwelling house that the premises are tenantable. (Cleves v. Willoughby, 7 Hill, 83.) The learned judge who delivered the opinion in this case took a distinction between a lease of a house for years and a demise of ready furnished lodgings. With respect to the quality or condition of property, he said that the maxim of caveat emptor applied; and that, therefore, the purchaser took the risk of its quality and condition unless he protected himself by an express agreement on the subject. He mentioned as the only exception to that rule the sale of provisions for domestic use; (Van Vranklin v. Fonda, 12 John. 468;) and a demise of ready furnished lodgings. (Smith v. Marrable, 1 C. & Mas. 479.) To these he said the law implied a warranty that the former are wholesome, and the latter free from nuisance.
There is no implied covenant in a demise for years that the landlord shall repair. The tenant, when there are no covenants on the subject, takes the premises for better or worse, and cannot involve his landlord in expense for repairs without his consent. If through default of repairs a municipal penalty is incurred, it falls upon the tenant. (Mumford v. Brown, 6 Cowen, 475. The Mayor dc. v. Corliss, 2 Sandf. 301.)
The fact that none, or very few covenants, are ever implied in a lease, renders it expedient that the parties should provide, by express covenant, for such contingencies as may reasonably be anticipated. These express covenants are extremely numerous. The first and most important is that for the payment of rent. The words yielding and paying, &c. constitute a covenant for the payment of rent, (De Lancy v. Ganong, 5 Seld. 9,) and this covenant runs with the land, whether the lease be for years or in fee; and if it be inserted in a lease, and be not qualified by any exception or condition, it formerly bound the tenant to pay rent during the continuance of the term, notwithstanding the premises were destroyed by fire, after the commencement of the tenancy. (Hallett v. Wylie, 3 John. 44.) This was the well settled doctrine of the common law. (3 Burr. 1638, per Lord Mansfield. Doe v. Sandham, 1 T. R. 705.) This doctrine led to the insertion of covenants in leases, as to the party who should be required to repair in such cases, and to exceptions or conditions qualifying the covenant to pay rent, and making suitable provision for this contingency. The legislature, by the act of April 13, 1860, ch. 345, provided for some of the cases which may arise. By that statute it is enacted, that the lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant. And the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied. This is merely making provision by general law for a contingency which could be sufficiently guarded against by proper stipulations in the lease. In well considered leases of buildings there is usually a covenant on the part of the lessor, that in case the premises shall be partially damaged by fire, the same shall be repaired as speedily as possible, at the expense of the landlord; that in case the damage shall be so extensive as to render the premises untenantable, the rent shall cease until such time as the same shall be put in complete repair; but in case of the total destruction of the premises by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth the lease shall, at the option of the tenant, cease and come to an end. [See the forms in the Appendix.]
The covenants for rebuilding and repairing run with the land, and are obligatory not only upon the lessor but upon his assigns. Of course the landlord, whoever he may be, is bound by it. In Allen v. Culver, (supra,) the lease contained a covenant that in case of damage to the buildings on the demised premises by fire rendering the same untenantable, the lessor would repair. It was held that the grantee of the reversion was bound to rebuild houses which were wholly destroyed by fire. In that case, too, the lease embraced premises on which there were several buildings, and it contained in addition to the covenant last mentioned, a provision that the rent should cease for such part of the buildings as should be rendered untenantable on account of injury by fire, while they should remain untenantable, and a part of the buildings were destroyed by fire, and the landlord neglected to rebuild; it was held that the covenants to pay rent and to repair were independent, and that the Jessee was bound to pay a proportionate part of the rent on account of the buildings left uninjured, notwithstanding the default in rebuilding. The act of 1860, had it been in force at the time the case of Allen v. Culver arose, would not have aided the tenant; for the statute extends only to cases where the whole premises are destroyed, and does not seem to contemplate a case of a destruction of one out of several buildings included in the same lease, when the others are left uninjured, and the lease provides for a stoppage of the rent only as to those which are destroyed.
The covenant to keep the buildings in repair is usually inserted in such form as to bind the lessee and his assigns to that duty. And the latter is frequently bound by covenant to yield up the premises at the end of the term in good repair. If the covenant be that the tenant shall keep the premises in repair during the term, and at the expiration thereof yield them up in like condition, and the tenant permits them to go to decay, and omits to make necessary repairs, the lessor or his assigns may bring an action forthwith, and is not bound to wait until the expiration of the term. If the covenant was merely to leave the premises in good repair, probably no action could be maintained till the expiration of the term. (Schieffelin v. Carpenter, 15 Wend. 400.)
Sometimes the lessor binds himself and his heirs to pay to the tenant, at the end of the term, on his surrendering the same in good condition, for such buildings as he shall have erected on the same premises, or for such as may remain thereon at that time. Such a covenant does not bind the landlord to pay for ordinary repairs, but only for buildings erected by the tenant. This covenant runs with the land, and enures to the benefit of the assignee of the lessee, and enables the latter, at the end of the term, to recover for erections made by a previous tenant. (Lametti v. Anderson, 6 Cowen, 302. Van Rensselaer v. Penniman, 6 Wend. 569.)
When the lessee covenants to surrender up the possession of the premises at the expiration of the lease, in the same condition they are in at the date of the lease, natural wear and tear excepted, but there is no covenant to repair or rebuild; and the buildings are destroyed by fire, the tenant is not bound to put up new buildings in the place of those destroyed. If there be, in such a case, any fixtures attached to, and forming a part of, the demised premises; and they become recovered by the fire, they do not thus lose their identity; but are the property of the landlord, and the tenant is liable to an action if he carries them away. (Warrier v. Hitchins, 5 Barb. 666.)
In some cases the lessor and lessee agree for a valuation of the improvements at the end of the term, by persons to be nominated by them. Both parties must concur in the appointment of the appraisers to make it obligatory; and if the lessor refuses to join in the appointment, the lessee alone cannot appoint them, and his only remedy is by action to recover their value, which in such case must be estimated by the jury. (Holliday v. Marshall, 7 John. 211.)
A covenant to renew the lease at the end of the term is a covenant, we have seen, that runs with the land; but it does not require that the renewed lease should contain a similar covenant. (Piggot v. Mason, 1 Paige, 412.) A covenant to renew a lease implies the same term and the same rent, but it does not necessarily imply that the renewed lease should contain the same covenants as in the original lease. The covenants are not indispensable to a lease. And hence, when parties stipulate for a renewal of the lease, they should specify in their covenant not only the duration of the term and the amount of rent, but also what covenants should be contained in the renewed lease. (Rutgers v. Hunter, 6 John. Ch. 218.)
The payment of taxes and other assessments should, in general, be provided for in the lease. This burden is usually assumed by the tenant, and it is, therefore, taken into consideration in fixing the amount of the rent. Sometimes the lessor himself assumes that burden; but in either case, the lease itself should contain the agreement of the parties on the subject. The lessee's covenant to pay assessments runs with the land, and binds the assignee of the term. If the covenant was on the part of the lessor, the same consequences follow. A covenant to pay all assessments for which the premises shall be liable, includes an assessment imposed for opening a street, although it was not authorized by any law existing at the time of the demise. (Post v. Kearny, 2 Comst. 394. Oswald v. Gilfert, 11 John. 443. Corporation of N. Y. v. Cushman, 10 id. 96. Bleeker v. Ballou, 3 Wend. 263.)
The usual covenant for quiet enjoyment should be inserted; at least until it is settled that such covenant can be implied in a lease for years, notwithstanding the statute abolishing implied covenants. (See Kinney v. Watts, supra, and Tone v. Brace, supra.)
A covenant on the part of the lessee not to assign or underlet the whole or any part of the demised premises during the term or any part thereof, without the consent in writing of the lessor or his assigns, is frequently inserted in leases. If the lease be by its terms assignable only with the consent of the lessor, an assignment of a part of the premises with the consent of the landlord is not a surrender; and the lessee remains liable for any act of the assignee which amounts to a breach of any of the covenants in the lease. (Jackson v. Brownson, 7 John. 227.)
To constitute an assignee of the lease, the assignment must be of the whole term and estate, though it may be of but part of the premises. (Van Rensselaer v. Gallup, 5 Denio, 454.) One who takes a conveyance of the whole term in any part of the premises, or in an undivided part of any portion of the premises, is an assignee, and liable to a portion of the rent. (Childs v. Clark, 3 Barb. Ch. 52.) The purchaser under a mortgage of all the estate of a lessee, is an assignee. (Kearney v. Post, 1 Sandf. 105.)
The covenants in a lease are sometimes protected by a condition, avoiding the estate and working a forfeiture in case of a breach by
The breach of such condition makes the estate voidable at the election of the lessor or his assigns. The condition of forfeiture may be inserted for the non-payment of rent, or for any other default, or improper conduct of the tenant. And an estate becomes forfeited by breach of a condition subsequent by a grantee, though the grantee be an infant or feme covert. (Norman v. Wells, 17 Wend. 136. Clark v. Jones, 1 Den. 516. Garret v. Scouter, 3 id. 334.)
Covenants and conditions in restraint of alienation could at common law only be imposed by persons having at least a reversion, or possibility of reversion, therein. A reservation in a conveyance in fee, of a pre-emptive right of purchase by the grantor or his heirs, &c., and the reservation by the grantor of a right to a portion of the sale money on each sale by the grantee, &c., are void as repugnant to the estate granted, and as illegal restraints upon the power of alienation. These principles apply as well to leases in fee, reserving rent, as to absolute conveyances. (DePeyster v. Michael, 2 Seld. 467.) But the right of re-entry for non-payment of rent may be reserved upon a conveyance in fee. (Van Rensselaer v. Ball, 5 Smith, 100. Same v. Hays, Id. 68.)
There are various other covenants and conditions inserted in leases, according to the agreements of the parties. Enough has