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LANDLORD AND TENANT,
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Section I. Introductory Observations on Leases in general.
T~\EFINITION ofa Lease.—A lease is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent or other income on the other; or it is a conveyance of lands and tenements to a person for life, or years, or at will, in consideration of a return of rent or other recompense. The party letting the land is called the lessor or landlord, and the party to whom the lease is made, the lessee or tenant.
Antiquity of Leases, §c.—It has generally been supposed, that the connection between landlord and tenant has gradually improved from that of master and slave into a state of total independence, and mutual interest in the soil. In support of this opinion, we are told (a) that lands were originally occupied by bondmen; but as these men derived no profit from their labour, and had consequently no interest in being industrious, it became necessary to have a free man to manage the farm, who probably at first had some acres set apart to him for his maintenance and wages. In progress of time, it was found more politic to give him an interest in the produce, first, by allowing him a certain proportion in place of wages, and ultimately, by reserving to the master a yearly quantity certain, and permitting
(a J Kaims' Hist. Law Trac.
the servant to retain the overplus. One further step, necessary to bring this contract to its due perfection, was to give the servant a lease for years, without which he was not secure that his industry would turn to his own profit. By a contract in these terms he acquired the name of tenant, because he was entitled to hold the possession for years certain.
But the notion that the cultivation of the ground was formerly carried on by slaves alone, is contradicted by the evidence afforded by the records and monuments of the middle ages (a), which prove, that while slavery existed in this country, there were also tenants and free labourers of the ground, who held their lands under lease. It appears that the practice of letting lands was known among the antient British: a proprietor of lands being permitted to let them for a year at his pleasure, though he could not alien or charge them (b). Those who formerly held large districts and tracts of land being unacquainted with the arts of husbandry and tillage, found it their interest to lease out their demesnes, which, for want of care and cultivation, lay waste, and afforded them little or no profit. These leases were granted for years; this mode of letting being thought best to answer the designs and intentions of the lord, as well as the expectations of the tenant: for if they had let them for life, this had given the tenants too great a power over the lord, because then they would have had a property in the freehold, and by suffering disseisins or feigned recoveries to be had against themselves, might have shaken or endangered the inheritance of the owner; and on the other side, if they had leased their land only at will, few would have chosen to bestow any great pains or industry upon so precarious a possession, which the arbitary will and pleasure of a peevish lord might have defeated (c).
(d) Thus, these estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords; but in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. Their possession, however, was esteemed of so little consequence, that they were rather considered as bailiffs or servants who were to receive and account for the profits at a settled price, than as having any property of their own; they were, therefore, not allowed to have a freehold estate, but their interest, such as it was, vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors,
(n) See Bell on Leases, Ch. I. I (c) Bac. Abr. tit. Leases.
(4) 1 Whit. Mancli. s. i.p. 377. | (rf) 2 Bh Com. 141.
and were entitled to the stock upon the farm. The lessee's estate might also, by the antient law, be at any time defeated by a common recovery suffered by the tenant of the freehold; which annihilated all leases for years then subsisting, unless afterwards renewed by the recoverer, whose title was supposed to be superior to his by whom those leases were granted.
While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and, indeed, we are told that, by the antient law (a), no leases for more than forty years were allowable, because any longer possession, (especially when given without any livery declaring the nature and duration of the estate,) might tend to defeat the inheritance. Besides, such leases were only made to serve the occasions and exigencies of the lord in cultivating and improving his demesnes (6); not to borrow money upon, or to raise portions for daughters, or such other uses as are now made thereof: therefore there was no need to extend them to any great length of time, since they might be renewed as often as occasion required; the lessees likewise, if they were evicted, being only to recover damages, it would have been fruitless to prolong leases for the term of a thousand years, when the persons who would have to possess under such leases had no remedy for their damages, but by recourse to the representatives of the original lessor. The law, however, that restricted the duration of leases for years to forty years, if it ever existed, was soon antiquated (a): for we may observe in Madox's Collection of Antient Instruments, some leases for years of an early date, which considerably exceed that period; and long terms for three hundred years, or a thousand, were certainly in use in the time of Edward III, and probably of Edward I. But undoubtedly when by the statute 21 H. 8. c. 15. the termor (that is, he who is entitled to the term for years) was protected against these fictitious recoveries, and his interest was rendered secure and permanent, long terms began to be more frequent than before; and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages.
But though, at this day, terms for years are multiplied to a much longer duration than they were formerly, and there is ample remedy to recover the term itself, yet the succession continues the same (6): for besides the reason already given, it would be inconvenient to have had one rule of property for short terms, and another for those that were longer, being all of the same nature, and still no more than leases for years. The difficulty, also, of fixing the just bounds to any precise determinate number of years occurs, since one or two
(a) 2 Bl. Com. 143. (i) Bach, Abr. tit. Leases.
years, more or less, would have made very little difference in reason, were the bounds affixed to leases of never so long a continuance; and long or short are only terms of comparison, as a lease for forty years is long with respect to one of eight or ten years, and yet short with respect to another of a hundred years; therefore, that there might be an uniformity in the law, all leases for years are held to be of less value than estates for life, as being originally of much shorter duration; and also because they were under the power of the tenant of the freehold to destroy, and therefore are considered only as chattels, and cast upon the executor.
Section II. Of the Requisites to a Lease, and how it may
In every lease it is requisite that there should be, 1. A lessor able to grant it. 2. A lessee capable of accepting it. 3. A subject-matter that is demiseable. 4. There must also be the needful ceremonies, &C. ; as where a freehold estate is created by lease, livery of seisin must be given to the lessee; and where a lease is for a term of years there must be an entry by him.
No lease is good unless it contains a sufficient degree of certainty, as to its beginning and ending; though it may determine prior to the period for which it is granted, in consequence of a proviso or condition; and all modern leases contain a proviso enabling the lessor to re-enter and determine the lease on non-payment of rent, or breach of the covenants (a). It is immaterial whether any rent be reserved upon a lease for life, years, or at will, or not; except only in the cases of leases made by tenant in tail, husband and wife, and ecclesiastical persons: of which hereafter.
By what words made.—The usual words (b), whereby a lease is made, are "demise, grant, and to farm let," and whatsoever words amount to a grant may serve to make a lease. Farm, ferme, fearme, frma, is derived of the Saxon word "feorman," to fee, or relieve; because, in antient time, they reserved upon their leases, cattle and other victual and provision for their sustenance, so that a farmer, ftTnarius, was one who held his lands upon payment of a rent or feorme, though at present, by a gradual departure from the original sense, the word "farm" is brought to signify the very estate or lands so holden upon farm or rent: and this word "farm," in a will is sufficient to pass a leasehold
(o) Cruis. Dig. Lease. (4) Co. Lit. 45. Ibid. 5. 2 Black. 318.
estate, if it appear to have been the testator's intention that it should so pass (a).
Here, it may be laid down for a rule, that whatever words are sufficient to explain the intent of the parties, that the one shall divest himself of the possession and the other come into it, for such a determinate time, whether they run in the form of a licence, covenant, or agreement, are of themselves sufficient, and will, in construction of law, amount to a lease for years as effectually as if the most proper and pertinent words had been made use of for that purpose.
Thus the word "dedi" is said to be a sufficient word to make a lease for years (b).
So, a licence to inhabit amounts to a lease (c).
If therefore one "license" another to enjoy such a house or land from such a time to such a time, it is a lease (d); for it is a certain present interest, and ought to be pleaded as a lease; it may, however, be pleaded as a licence; and if it be pleaded as a lease for years and traversed, the lessee may give the licence in evidence to prove it.
The words "covenant, grant, and agree" that A. shall have the lands for so many years, are apt words to make a lease for years, and enure as a lease (e).
The word "covenant" will make a lease, though the words "grant and agree" be omitted (/).
So, a covenant, "to stand seised" entered into by the owner, is a lease (g).
Covenant and entry amount to a lease: but a lease merely does not vest the estate in the lessee, but only gives him a right to enter and possess it.
A paper-writing was entitled "Memorandum of an Agreement between A. and B. and signed by them, expressing that in consideration of 40/. A. doth agree to let, and B. doth agree to take a messuage, &c. at 40/. per annum rent, and it is further agreed that A. shall not raise the rent nor turn out B. so long as the rent is duly paid quarterly, and he does not sell any article injurious to A. in his business;" though the terms do not exclude the construction of actual demise, yet the import of the whole looking to some future instrument, and a more permanent interest, than from year to year, a demurrer to a bill, for specific performance against A. who had succeeded in an ejectment, was overruled (A).