196

LEASES UNDER POWERS: TAXES.

a proper rent, because in the choice of a tenant there are many things to be regarded besides the mere amount of the rent offered. There should, however, be some strong prudential reason to induce you to grant a lease to one at a lower rent than is offered by another.

You may exercise a power of leasing for your own benefit. For this purpose you must procure some person as your trustee to become bound for the rent, &c. For if a proper person is legally bound to pay the rent and perform the covenants, it is unimportant to the person succeeding to the estate that the beneficial interest belongs to another. The person to whom the lease is granted should execute a deed, declaring him to be a trustee for you.

Careful provision should be made as to the taxes, &c. to be borne by the tenant. Where the rent was to be paid "free of all outgoings," the tenant was held liable to the land-tax and the tithe rent-charge; but where there was no stipulation on the subject, the payment of the tithe rent-charge was thrown on the landlord.

I have only one other caution to give you as to leases. Carefully avoid comprising in the same lease, at an entire rent, property, some your own, and some over which you have merely a power; such a lease would be void as to the property comprised in the power.

A court of equity will, by force of its own jurisdiction, support a bona fide lease granted under a power which is merely erroneous in form or ceremonies. And the Legislature has recently carried the right to relief much further; * for now where, in an intended exercise of a power of leasing, a lease has been, or shall be granted, which, by reason of any deviation from the terms of the power, shall be invalid against the re* 12 & 13 Vict., c. 26; 13 & 14 Vict., c. 17.

EQUITABLE RELIEF TO A LESSEE.

197

mainder-man, and the lessee has entered under it, it is to be considered as a contract for a lease, with such variations as may be necessary in order to comply with the terms of the power; but the tenant cannot obtain any variation of his lease where the person in remainder is willing to confirm the lease without variation; and where any person is competent to confirm an invalid lease without variation, the lessee can be compelled to accept such confirmation. The statutes, however, greatly favour the lessee, for, with the exception above noticed, he can compel a new lease to be granted to him with the necessary variations, whilst the landlord has no power to compel him to accept such a lease.

It is further provided that the acceptance of rent under any such invalid lease shall, as against the person accepting it, amount to a confirmation of the lease; but to bind himself he must, upon or before the acceptance of the rent, sign some receipt, memorandum, or note in writing, confirming such lease, and then the acceptance of the rent will render it complete.

Independently of the statutes, the receipt of rent is a waiver of all breaches of condition which have happened, to the knowledge of the lessor, before the rent became due. Or the knowledge and receipt of rent may in time, if necessary, authorise a jury to presume a licence, and so prevent a forfeiture. You cannot safely, under such circumstances, receive the rent, although under a protest. But receipt of rent has not the powerful effect which distress for rent has in affirmance of a tenancy existing at the time. The mere receipt of rent after a forfeiture, but which was due before the forfeiture, will not, it seems, operate as a waiver. To have that operation, the rent received must be a receipt of rent due on a day subsequently to the forfeiture. Where there is what is termed a continuing breach-for ex

198 ACCEPTANCE OF RENT.-LEASE IN ANTICIPATION.

ample, a covenant to keep insured and a continuing default-a receipt of rent operating as a waiver of the previous forfeiture would not prevent the lessor from taking advantage the very next day of a continuing breach by non-insurance. I have already pointed out to you in my 9th Letter the legislative provision enabling equity to relieve lessors from a breach of a covenant to insure upon certain conditions, and the provision in favour of purchasers of leaseholds, not having notice of any previous breach of covenant to insure. The same Act, as I have mentioned to you, contains other important provisions between landlords and tenants, restricting the operation of licences to alien, and giving to an assignee of the reversion of part of the property where the rent is legally apportioned, the benefit of a power of re-entry for a breach, and enabling the assignment by any person of leaseholds and other personal property to himself and another.* These provisions I cannot undertake to explain to you; but your solicitor will do so when necessary, and they will save to most persons of property both expense and vexation.+

It sometimes happens that, under a misapprehension, a tenant for life grants a lease by virtue of a power before he is properly in possession as tenant for life, and the statute before referred to renders such a lease valid, if the person granting it shall continue to be entitled to the estate after the time when he might have granted such a lease.

* This provision renders two deeds no longer necessary in many cases. The solicitor of the Equitable Assurance Society wrote me word that the clause would save that Society alone £200 a-year.

+22 & 23 Vict., c. 35, s. 1-9.

COURT OF CHANCERY MAY AUTHORISE LEASES. 199

LETTER XX.

WHERE powers beneficial to all persons who could claim under a settlement were not contained in the deed or will strictly settling the estate, Parliament was in the habit, but with great caution, of supplying the omission; but now, to save the expense and delay of resorting to the Legislature, provisions have been made which ought to be known by every owner of a settled estate in the kingdom. The provisions apply to Ireland as well as to England. You must be content with an outline of them. The Court of Chancery is empowered from time to time to authorise leases of the whole or any part of any settled estates, or of any rights over or affecting them for any purpose whatsoever, whether involving waste or not, upon the conditions imposed by the Act-viz.,

1

Every lease is to take effect in possession, or within year, and for terms not exceeding

21 years for an agricultural or occupation lease. 40 years for water, water-mills, way-leaves, &c., or other easements, or, if authorised by custom and beneficial to the inheritance, for a longer term. 99 years for a building lease, which includes a repairing lease, or, if authorised by custom and beneficial to the inheritance, for a longer term; but not exceeding 60 years for a repairing lease. The best rent, without a fine, is to be reserved halfyearly, or oftener, with special provisions as to minerals and the interests therein of remainder-men.

* 19 & 20 Vict., c. 120; 21 & 22 Vict., c. 77; 27 & 23 Vict., c. 45.

200

POWER TO LEASE FOR TWENTY-ONE YEARS.

The lease is not to authorise the felling of trees except where necessary for the buildings or works authorised by the lease.

The lease is to be by deed, and the lessee is to execute a counterpart; and there is to be a condition for reentry if the rent is 28 days in arrear, and such other covenants as the Court shall direct.

The Court may authorise preliminary contracts, and the terms may be varied in the leases.

The lessees may surrender leases, whether granted under the Act or otherwise, and new leases may be granted of the property surrendered.

The Court is to direct who are to be the lessors.

The powers include powers to Lords of settled manors to give licences to grant leases, to the same extent and for the same purposes as leases may be granted of freeholds.*

The Act then provides by whom application may be made to the Court, and with whose consent, with other important provisions; but most of these provisions apply equally to sales under the Act, to which I shall call your attention in my next Letter, and I do not therefore add them here. I will affix an asterisk to such of them as refer to leases, and thus put you in possession whilst I avoid a repetition of them. You should keep this in mind.

The Act, then, provides that every person in possession of any settled estate for his life, or years determinable with his life, or for any greater interest in his own right or in right of his wife (unless there is an express declaration to the contrary in the settlement), and also any person entitled in possession to any unsettled estate as tenant by the curtesy, or in dower, or in right of a wife seised in fee, without any application to the Court * 21 & 22 Vict., c. 77, s. 3. Turn to p. 212.