1902 Encyclopedia > Landlord and Tenant

Landlord and Tenant




LANDLORD AND TENANT. It has been explained in the article LAND that in the United Kingdom no such thing as the absolute private ownership of land is recognized. The absolute and ultimate owner of all lands is the crown, and the highest interest that a subject can hold therein is a tenancy. The largest estate known to the law, that in fee simple, is after all only a holding in which the owner of the fee stands to the lord in the relation of a tenant. All estates in land would therefore fall under this heading, but on the present occasion, as in common parlance, it is restricted to those holdings which amount to the hiring of land. That tenure has nowhere the same importance as in the British Isles, where practically the whole agricul-tural land of the community is cultivated by persons who merely hire it for a limited time from the owners. The social and political bearing of this fact does not fall within the scope of the present article, but it shows the important application of the rules of law which we proceed to state.

Dismissing the tenant character of the landlord, and regarding him as owner pure and simple, we have to deal with him as contracting to give up the occupation of his land to another person, the tenant, for a consideration. In Roman law, the tenure of emphyteusis (a kind of perpetual lease originally used by corporations but afterwards by private owners), and precarium (or tenancy-at-will) occu-pied to some extent the place of the law of landlord and tenant in our system. The proper contract of letting and hiring (locatio-conductio) as applied to land had the follow-ing incidents. The conductor (tenant) was not technically regarded as possessor; i.e., he had not the aid of the interdicts in case of eviction either by the landlord or by strangers. The locator alone could sue in respect of the land, but the conductor had a personal action against the locator on the contract. The landlord was bound to make delivery to the tenant and permit him to occupy for the term agreed upon, and to keep the premises in proper repair. The landlord was answerable for any injury arising to the tenant from the defective condition of the premises. Finally, " the landlord must permit the tenant to carry away not only movables but even fixtures placed by the tenant, provided the tenant did not injure the house. A tenant of land was entitled to compensation for unexhausted improvements except such as he had specially agreed to execute in consideration of a lower rent" (see Hunter's Introduction to Roman Law, p. 121). On the other hand, the conductor had to pay the rent subject to deductions for the total or partial loss of the crops, to exercise due care during his term, and give up possession at its expiration.

In English law the following terms are of fundamental importance. The landlord so contracting is said to demise his lands, and the instrument by which the contract is expressed would be a demise or lease. The word lease is very generally limited to the writing in which the agree-ment to let is expressed, but any contract of letting is as on the side of the landlord a demise, and as between the parties a lease. A lease or demise means a grant of the exclusive possession of the thing in question for a definite time; permission merely to use the thing for a particular purpose or on a particular occasion is a licence *nd not a lease. A lease further implies that the lessor intends to give up possession to the defendant for a deter-minate time, no matter how it may be expressed, and is so distinguishable from a mere agreement contemplating that the parties shall on some future occasion enter into the relations which a lease creates. The consideration promised by the tenant or lessee is termed the rent. The period of occupation prescribed is the term.

The Statute of Frauds (29 Car. II. c. 3) enacts that "all leases, estates, interests of freehold, or terms of years, not put in writing by the parties so making or creating the same or their agents thereunto lawfully authorized by writing, shall have the effect of leases or estates at will,"— except leases for a term not exceeding three years, whereon the reserved rent amounts to two-thirds of the improved value. When rent is accepted by the landlord, the tenancy-at-will is enlarged into a tenancy from year to year. By a later Act, 8 & 9 Vict. c. 106, a lease required bylaw to be in writing must now be made by deed.

A lease, like other written contracts, should clearly indicate the parties to and the effect of the contract. A date is not necessary, and, in the absence of a date, it will take effect from the day of delivery. But it must contain the names or other sufficient description of the parties, a description of the premises to be demised, words appropri-ately expressing the fact of a present demise (demise or lease being the usual words), the date at which the term is to begin and end, and the rent. The rent or other services created in favour of the landlord by the lease are said to be reserved. And when things that would otherwise belong to the tenant under the lease, as woods, timber, trees, minerals, &c, are expressly withheld, they are said to be excepted. But these expressions do not apply to conditions giving to the landlord the right of shooting, fishing, and so on over the land, or any right of way or other easement thereon. That can be vested in the landlord only by a re-grant from the tenant, no matter by what expression the right is created. Such grant must be by deed; and, where a lease of the land would be effectual without a deed, a reservation of such rights as we have mentioned would not. There is a good deal of misconception on this point, for landlords are not generally understood to hold their right to game on grant from their tenants.

In point of length of term tenancies are distinguishable as being either at sufferance, or at will, or from year to year, or for a term of years. A tenancy by sufferance exists where a person having obtained possession on a lawful title holds over after the title has determined, e.g., a tenant on lease for a term of years after the expiration of the lease. It has been said that this is not an estate at all but a fiction to prevent the continued possession being regarded as a trespass. It is not created by contract, but arises by implication of law ; it is not assignable ; and possession of the land can be resumed without previous demand to the so-called tenant. A tenancy-at-will exists when the tenant holds by agreement with the landlord, determinable at the will of either. Any signification of a desire to terminate the tenancy, whether expressed as " notice" or not, will bring it to an end. A tenancy from year to year is a tenancy for one year certain, and is determinable only by a six months' notice to quit, such notice terminating on an anniversary of the date of the beginning of the tenancy. A tenancy from year to year must last at least one year, but may be determined then, if a six months' notice have been given; if not so determined it must endure for another year, again determinable in like manner, and it will so endure until terminated by such a notice. Apart from express agreement, it will be implied in law when, for example, the landlord accepts rent yearly or by parts (e.g., quarters) of a year. Similarly monthly tenancies, chiefly of furnished houses or lodgings, would be implied from the fact of rent being paid once a month. But that is a matter of presumption only. If it were proved that the parties agreed to a tenancy-at-will only, payment of rent by the quarter or any other period would not enlarge the nature of the tenancy. Lastly, a lease may be for a specified term, and the tenancy in that case comes to an end by the lapse of time, without notice to quit or any other formality. These are the agreements by which the relations of landlord and tenant, as the phrase is generally understood, are created, and they are the agreements under which most of the buildings and nearly the whole of the agricultural land are held by their occupiers. There are tenancies, however, in which the granter would not be spoken of as the landlord. Such is the position of the person to whom land is granted for his own life, or, it may be, for the life of another, called in technical language tenant for life and tenant pur autre vie. These are not cases of letting and hiring—to which the relation of landlord and tenant is confined—but are modes of holding property. The same may be said of the terms for long periods of years created for carrying out trusts in the settlement of estates. The tenant in such cases is the person who, when we come to the agreement of letting and hiring, stands in the place of the landlord. It may be observed that the law-books dis-tinguish in point of dignity between estates for life, the lowest kind of freehold estates, and estates for any term of years however long, which are only leasehold estates.

Reverting to the agreement of letting and hiring, it may be laid down that any person having an interest in land may, to the extent of that interest, create a valid tenancy. A tenant for years or even from year to year only may stand in his turn as landlord to another tenant. If he profess to create a tenancy for a period longer than that to which his own interest extends, he does not thereby give to his tenant an interest available against the reversioner or remainder man. The subtenant's interest will expire with the interest of the person who created it. But as between the subtenant and his immediate lessor the tenancy will be good ; and, should the interest of that lessor become greater than it was when the subtenancy was created, the subtenant will have the benefit of it. In the same way, as between lessor and lessee—landlord and tenant—the latter has no right to look beyond the grant of the former so as to call in question his title. Be that title what it may, the tenant, by accepting that position, is estopped'hom denying that it is good. It may be notoriously bad, but that is nothing to him. The landlord is not obliged to prove his title as against the tenant or any person claiming through his tenant. In an action of ejectment (for the recovery of land) the person claiming possession must in general prove his own title—mere possession being a prima facie sufficient defence, until a better title be shown. But a landlord seeking to secure possession of land from his tenant is not obliged to prove anything, except his right to resume pos-session under the agreement. The tenant, however, may, without disputing the validity of the title under which he entered, show that it has since been determined by lapse of time or by operation of law.

A large portion of the land of the country being held under settlements whereby the person in possession for the time being had only the legal interest of a tenant for life, there were until recently great difficulties in the way of letting such land advantageously. The Leases and Sales of Settled Estates Act, 1856, now empowers any person entitled to the rents and profits of a settled estate to demise the same by deed for any term not exceeding twenty-one years to take effect in possession and at the best rent obtainable. Settlements containing express directions to the contrary will, however, avoid the statute ; and on the other hand a settlement may contain powers to the tenant for life to grant leases for even longer terms.

The legal rights and duties of landlord and tenant respectively are in most cases defined by the contract of tenancy. The policy of the law has hitherto been to allow the landlord, who is virtually if not technically absolute owner of the land, to do as he pleases with it. The contract of tenancy has hitherto been a free contract, and, although in the absence of contract the law itself defines the rights of the parties, there is hardly one of these which may not be displaced or modified by the agreement. This, it may be said in passing, is the seat of the very widespread dissatisfaction that exists in all the three kingdoms with what are vaguely termed the land laws. A small class has been allowed to acquire absolute dominion over the land of the country, and may impose what terms it pleases on the rest of the community for the right to use the land. The law governing the devolution of land is intricate and per-plexing no doubt, and by making conveyances expensive hinders the free distribution of the land among a larger class of owners. But that is not the real root of the present discontent. Its real root is the absolute dominion of the class of owners who are not cultivators, but who, having the monopoly of the land, may load the cultivators with what burdens they please. As for the law of laud-lord and tenant, it is still greater misconception to suppose that to be in fault. It is what the landlord or tenant choose to make it. There is very little of it, independently of contract, and what little there is may be altered as the parties please. No law can be better than one which allows men to make their own contracts and limits itself to enforcing them. That is what the law of landlord and tenant does. If its effects are bad, it must be because the original conditions of the contracting parties are other than they ought to be. We shall have to show that practical evils have led to a demand for an alteration on the law of landlord and tenant in the direction of limiting the power of the landlord to impose terms on the tenant.

One privilege imposed by the law on the landlord must be excepted from what has just been said. The right to distrain for rent is a special interference of the law for the protection of the landlord. Besides suing for his rent as a man may for any other right, besides taking advantage of whatever covenants he may have made for entry on default of payment, a landlord may enter upon the demise premises and help himself to whatever articles of personal property he may find there, to an amount sufficient to satisfy his claim. Distress as a general rule extends to all movable property found on the premises, whether belonging to the tenant or not; but there are certain well-defined exemptions, as, for example, goods sent to a man publicly carrying on a trade to be worked at or dealt with in the" way of his trade. And some things have the benefit of a conditional exemption, as horses employed to work the ground, which should not be taken so long as there is any other property to satisfy the distress. This privilege is an injurious interference with the property and rights of third persons. It exposes persons dealing with the tenant to the danger of losing whatever property of their own they may permit to be on his premises, and of having their claims against him postponed to those of the landlord. This is a wide departure from the general principle of the law, which is to leave the parties alone; but even here the right to distress may be expressly abolished in the contract of tenancy if the parties please.





Again, the land, on the expiration of the tenancy, becomes the absolute property of the landlord, no matter" how it may have been altered or improved during the occupation. In certain cases the law has discriminated between the contending claims of landlord and tenant. (1) In respect of fixtures (which may be shortly defined as movables so affixed to the soil as to become part thereof), the tenant may sometimes remove them, e.g., when they have been brought on the premises for the purpose of being used in business. This, it is said, is done by way of encouraging trade, but it is curious that no similar principle has been admitted for the encouragement of agriculture. (2) In respect of emblements, i.e., the profits of sown land, a tenant may be. entitled to these whose term comes to an end by the happening of an uncertain contin-gency. (3) A similar right is very generally recognized by custom in tenants whose term expires in the ordinary way. The custom of the district, in the absence of stipulations between the parties, would be imported into their contract —the tenant going out on the same conditions as he came in. But with these exceptions the land in its improved condition passes over to the landlord. The tenant may have added to its value by buildings, by labour applied to the land, or by the use of fertilizing manures, but, whatever be the amount of the additional value, he is not entitled to any compensation whatever. This again is a matter which the parties may, if they please, regulate for themselves. As a matter of fact, landlords never allow a compensa-tion clause to be inserted in their leases.

The Agricultural Holdings Act, 1875, attempts to remedy this injustice by enacting that compensation shall be paid to tenants for improvements the benefit of which has not been exhausted at the end of the lease. These are of three classes:—(1) Drainage of land, erection or enlargement of buildings, laying down permanent pasture, making and planting osier beds, making water meadows or works of irrigation, making gardens, roads, or bridges, water-courses, ponds, wells, or reservoirs, making fences, planting hops, planting orchards, reclaiming waste lands, and warping land. The tenant to establish a claim for compensation must have the landlord's consent in writing to the improvements. The compensation is a sum equal to the amount originally expended, less one-twentieth for every year that has elapsed since, and the whole benefit of the improvement is taken to be exhausted in twenty years. (2) Boning lands with undissolved bones, chalking land, clay burning, claying, liming, and marling land, after notice in writing given to the landlord. They are deemed to be exhausted at the end of seven years, and the compensation is the sum expended, less one-seventh for every year. (3) Artificial or other purchased manure applied to the land, and cake or other feeding stuff consumed thereon by cattle, &c. Exhausted in two years, compensation to be a sum representing its fair value to an incoming tenant. The Act, however, has no application if the parties agree in writing, either on the contract of tenancy or otherwise, that it shall not apply. In point of fact, landlords insist upon the renunciation of the Act as a condition of granting a lease. The Act has accordingly been a dead letter.

The mutual rights of the parties are, as we have already said, regulated to a large extent by special provisions or covenants in the lease. The most usual of these are the following:—(1) The landlord covenants that the tenant shall have quiet enjoyment of the premises for the time agreed upon, and in the absence of such a proviso a covenant to this effect will be implied from the fact of letting. The obligation makes the landlord responsible for any lawful eviction of the tenant during the term, but not for wrongful eviction unless he is himself the wrongdoer, or has expressly made himself responsible for evictions of all kinds. (2) The tenant is presumed to undertake to use the property in a reasonable manner according to the purposes for which it was let, and to do reasonable repairs. The landlord is not presumed to have undertaken to put the premises in repair, nor to execute repairs. But the respective obligations of parties where repairs are, as they always are in leases for years, the subject of express covenant may vary indefinitely. The obligation is generally imposed on the tenant to keep the premises in "good con-dition " or " tenant-like repair," and it will be construed with reference to the character of the premises demised, their age, and their condition. A covenant to repair, unless limited specially, makes the tenant liable to rebuild houses destroyed by accident. A covenant to keep in repair requires the tenant to put the premises in repair if they are out of repair, and to maintain them in that condition up to and at the end of the tenancy. A breach of the covenant gives the landlord an action for damages, which will be measured by estimated injury to the reversion if the action be brought during the tenancy, and by the sum necessary to execute the repairs if the action be brought later. (3) The improper user of the premises to the injury of the reversioner is waste. Voluntary waste is when the tenant by some positive act of his own has injured the pre-mises ; permissive waste is when the injury is caused by some omission. Tenants-at-will or from j7ear to year are not liable for the latter. What is or is not waste is in some instances dependent on the custom of the country, but in general anything which damages the freehold or alters its nature is waste. Even the erection of new buildings would, strictly speaking, be waste unless the lease could be construed as authorizing them. Besides these general conditions implied in law, the use of the premises may be restricted indefinitely by special provisos. Covenants against using the premises for the carrying on of particular trades or businesses are the most usual. In this category may be placed the rules as to cultivation to be found in agricultural leases, in which also an obligation to cultivate in conformity with the custom of the district would be implied. (4) Covenants by the tenant to insure and keep insured the premises are also common, and if the premises are left uninsured for the smallest portion of the term, although there may be no damage by fire, the covenant is broken. (5) The rates and taxes are generally the subject of special covenants. One tax, the property tax, is specially excepted. It must be paid by the landlord, and if the tenant should pay it the landlord must deduct it from the rent. The parties cannot by contract make any different arrangement. Another charge on lands—the rent-charge fixed under the Tithe Commutation Acts in lieu of tithes —is not a personal charge against either landlord or tenant, but is leviable by distress. Apart from agreement, the charge, if paid by the tenant, may be deducted from the rent. Other rates and charges, whether primarily imposed on landlord or tenant, may be imposed by the contract upon one or other as the parties may agree. (6) The incidents of rent—its amount, whether fixed or fluctu-ating, its nature, whether in money or otherwise, time and mode of payment, &c-—are fixed by the agreement of the parties. When the land has been occupied without a letting, the owner has an action against the occupier for compensation for use and occupation, an undertaking to pay being implied from the fact of occupation. But in other cases the rent due is a matter of agreement between the parties, the law interpreting the terms when necessary. Thus an agreement to pay a rent of £100, no times of payment being mentioned, would be construed as an agree-ment to pay that rent annually. Rent is said to be due at the first moment of the day appointed for payment, and in arrear at the first moment of the day following. It has already been said that, in addition to the right of action as for an ordinary debt, the landlord has a special right of distress. The covenant may also give him the right to enter and eject the tenant on non-payment.

Covenants are said to "run with the land" when the liabilities and rights created by them pass to the assignees of the original parties. At common law it was said that covenants " ran with the land " but not with the reversion, the assignee of the reversioner not having the rights of the original lessor. But the assignees of both parties have been on the same footing since the statute 32 Henry VIII. c. 34. The following covenants "run with the land ":— (1) all implied covenants ; (2) all express covenants con-cerning something in being at the time of the covenant and "parcel of the demise"; (3) covenants relating to things not in being but to be built or done on the premises, if the covenant be for the covenantor himself and "his assigns." But things merely collateral do not bind the assigns even if they be named.

The right of the tenant to assign his lease—as well as his right to make an underlease—may itself be restricted by agreement, and covenants to that effect are not un-common. Sometimes the tenant covenants not to assign or underlet without consent, and it may be provided that such consent will not be refused except on reasonable grounds. The lessee is not discharged from liability by the assignment unless the landlord accepts the assignee as his tenant, and even then the original lessor will remain liable on his own express covenants.

The term may be forfeited either for breach of some condition on which the lease was granted, or in virtue of a specific provision for re-entry on breach of any covenant. Such a proviso is generally attached to the covenants, and the effect of a breach of a covenant so protected is to make the lease voidable at the option of the landlord. The tenant cannot take advantage of his own default to terminate the tenancy. The landlord must signify his intention to avoid the lease by some specific act. If he accepts rent, or, it seems, if he even asks for it after notice of an act of forfeiture, he waives any breach of covenant up to that time, but not forfeiture for future or continuing breaches. The condition of forfeiture on breach may be attached to any covenants the parties choose to make, and may therefore in many cases press hardly on the tenant, who for a trifling default may lose the whole value of his term. The courts in some few instances will relieve a tenant from forfeiture. Thus they may relieve once against a forfeiture for breach of covenant to insure, when no damage has occurred and an insurance is in effect at the time of application. Relief will also be given for forfeiture by non-payment of rent, if the arrears be paid up. And on the ground of fraud, accident, or mistake forfeitures may be relieved against in other cases. The determination of a lease by forfeiture has the same effect as its determina-tion in any other way, in destroying subtenancies or other rights created under it.

It will be seen that with a few insignificant exceptions the contract is left by law to be regulated by the parties. In one particular an important change has been made by a recent Act. The right to the game, as we have already pointed out, can only be taken out of the tenant by an express grant made by him. The Ground Game Act, 1880, enacts that " any occupier of land shall have as incident to and inseparable from his occupation of the land the right to kill and take ground game thereon, concur-rently with any other person who may be entitled to kill and take ground game on the same land,"—subject to certain conditions which need not be recounted here. And " every agreement, condition, or arrangement which purports to divest or alienate the right of the occupier, so declared, given, and reserved to him by this Act, or which gives to such occupier any advantage in consideration of his forbearing to exercise such right, or imposes upon him any disadvantage in consequence of his exercising such right, shall be void." Another clause provides that, when the right to kill and take ground game is at the passing of the Act vested in any person other than the occupier, under a bona fide contract, the occupier's rights under the Act shall not come into existence until the determination of that contract. "Groundgame" means "hares and rabbits."

Scotland.—In Scotch law, "the contract of location is consensual and in its own nature merely personal; but by statute it is made real against singular successors " [i.e., purchasers). A lease for any greater term than one year must be in writing. The lessor and his representatives are bound by a written lease which is '' authenti-cated in terms of the statutes and delivered, or fortified by rei in-terventusf or sanctioned by homologation," or which is an offer, followed by real evidence of acceptance, or written articles or conditions proved by written evidence to have been adopted by the parties, or even a written obligation to grant a lease. The singular successors of the lessor will be bound where he is bound, provided (1) that the lease is definite as to subject, rent, and term of duration, and (2) that possession shall have followed as a badge of real right under the statute (1449, c. 17). Thus, while a lease of any duration will be good against the lessor and his heirs, as against singular successors it must in general have a definite term of dura-tion, unless it be specially warranted and homologated. The usual term in agricultural leases is nineteen years, and longer terms are common for building and mining leases, but there appears to be some uncertainty as to whether any and what limit must be imposed on the length of a term. So, as to rent, it may be as against the grantor a merely nominal sum> or may be retained by the lessee for debt; but as against singular successors it must stand payable. Kent, it is said, may be either in money, grain, or service, but it must not be elusory. Rent in money is generally payable at the '' legal terms " Whitsunday and Martinmas. The obligation to pay rent is extinguished by the destruction of the subject, and this principle appears to have been applied to the partial destruction of the subject occasioned by the disastrous failure of a particular season. " When the destruction is partial, the point is more doubtful; and the distinction seems to be that, if it be permanent though partial, ' the failure of the subject let will give relief by entitling the tenant to renounce the lease unless a deduction be allowed, but, that if it be merely temporary and occasional, it will not entitle the tenant to relief. In the decisions, however, relief has been given to a : greater extent than that distinction would authorize ; thus devasta-tion of the crop by storms, &c, if plus quam tolcrabilc, has been ! admitted as aground of abatement; but as the tenant takes the risk of the seasons it must at least be some extraordinary event that will ; justify such a decision " (Bell's Principles). And it would appear that the tenant has no relief against such partial destruction oi the subject let as may be occasioned by a subsequent law, as for ex-ample in the case of a fishing lease, by an Act extending the close time. Rent may be recovered either by personal action or by the equivalent of distress, viz., hypothec. (But see HYPOTHEC.) In Scotch law there is not, as in English, a prima facie right in the tenant to assign the lease or sublet the premises. On the principle i of delectus personal, the landlord is presumed to have excluded all save those whom he has expressly admitted, at least in ordinary leases, though a different rule prevails in longer leases. Even the heirs of tenants were at one time excluded, but they now succeed to the lease. The obligations of the parties as to mode of cultiva-tion, amount of rent, length of term, repair, and so on are for the most part regulated as in England by the express provisions of the lease. The tenant is bound to give up the premises at the expira-tion of the term without compensation for any permanent or unex-hausted improvement thereon. "It is implied," says Bell, "in the contract of lease that any buildings, fences, or improvements which the tenant may spontaneously make are made in contemplation of his own interest and for his own use only. And so he has no claim for such meliorations at the end of his lease without special stipulation. But, if the tenant's possession be terminated abruptly and prematurely, he ought in equity to be entitled to recompense."





Ireland.—The law of landlord and tenant has been until recently substantially the same as that which has already been described for England, and it will only be necessary to notice here the more important changes that have been made in Ireland by legislation. It may be pointed out, without touching at all on the vexed Irish land question, that the inconvenience of the situation in which a limited class own the soil, and let it out on hire on what terms they please to cultivators, has been felt with particular force in Ireland. Agriculture is the one industry of the country, and that industry was carried on under conditions which made it all but impossible. The Irish tenant was, equally with the English tenant, at the mercy of his landlord. If he made improvements he did so at the risk of losing them by eviction or by being taxed for them by an in-creased rent. The insecurity of his tenure gave him the alternative of doing nothing to better his farm or bettering his farm without bettering himself. At the same time there existed in Ireland, in consequence of circumstances peculiar to the people, an excessive competition for land such as has never been paralleled in England. The natural outcome of this condition of things was a demand for some change in the law which could give tenants a reasonable security for their industry. And the way was paved for such changes by the existence in Ulster of a local custom having virtually the force of law, which did provide such a security. This was not a custom of which the courts could take judicial notice, and any landlord who chose to do so might insist upon ignoring it in his dealings with his tenants. Nor was the custom in itself everywhere clear or uniform. "It is a strange thing to say," says Mr Butt, "but it would be impossible to frame any statement as to the nature and meaning of the custom which would be universally accepted as a correct description of its char-acter." The Ulster custom had, however, two main features— fixity of tenure, and free right of sale by the tenant of his interest. "So long as the tenant pays his rent the landlord will not use his legal powers to put an end to the tenancy," says Judge Longfield, describing the system, and the same authority adds that "the sale by an ontgoing tenant of his tenant right is to be with the approba-tion of the landlord. This approbation is not to be capriciously refused, but on the other hand the tenant is not at liberty to select any substitute that he thinks proper irrespective of his character and possession of sufficient means for the efficient cultivation of the land." The strength of the custom may be estimated from a state-ment made by one of the witnesses before the Devon commission :— " If systematic attempts were made amongst the proprietors of Ulster to invade tenant right, I do not believe there is a force at the dis-posal of the Horse Guards sufficient to keep the peace of the pro-vince. " And Mr Butt estimates that the sum which tenants under the Ulster custom would receive on the sale of their tenant right would amount to more than £20,000,000.

The Landlord and Tenant (Ireland) Act, 1870, enacts, sectionl, that "the usages prevalent in the province of Ulster (in this Act intended to be included under the denomination of the Ulster tenant right custom) are hereby declared to be legal, and shall in the case of any holding in the province of Ulster proved to be subject thereto be enforced in the manner provided by this Act." By section 2 like usages elsewhere than in Ulster are in like manner legalized. And a tenant who is not entitled to compensation under sections 1 and 2 is nevertheless declared to be entitled to the following rights:—(1) if holding under a tenancy created after the passing of the Act he is disturbed in his holding by the landlord, he shall be entitled to com-pensation for the loss which the court shall find to have been incurred by him, subject to a scale of maximum amounts varying from seven years' rent on holdings of the annual value of £10 and under to one year's rent on holdings of the value of £100 and over, and in no case exceeding £250 ; and (2) he may, on quitting his hold-ing, claim compensation in respect of improvements made by himself or his predecessors in title, subject to certain considerable excep-tions, as regards tenancies and improvements. The second part of the Act contains clauses to facilitate the purchase by tenants of the fee simple of their holdings, and the third part authorizes the com-missioners of public works in Ireland to advance moneys both to landlords for payment of compensation for improvements and to tenants for the purchase of their holdings. Section 44 enacts that the board, if they are satisfied with the security, may advance to any tenant for the purpose of purchasing his holding, in pursuance of the Act, any sum not exceeding two-thirds of the price of such hold-ing, and upon an order being made by the board such holding shall be deemed to be charged with an annuity of five pounds for every one hundred pounds of such advance, and so in proportion for any less sum, such annuity to be limited in favour of the board, and to be declared to be repayable in the term of thirty-five years. Section 46 requires the Landed Estates Court on the sale of estates to afford as far as may be consistent with the interests of the persons concerned facilities for such purchases by tenants, whether by selling the estate in suitable lots or otherwise. The principle of transfer-ring the occupying tenants into peasant proprietors wdiich these clauses are intended to carry out is associated with the name of Mr Bright. The Bright clauses have not had the practical success that was hoped for,—a result which is attributed to the unfitness of the Landed Estates Court for working them. And it may be added that ttie Act of 1870 failed to satisfy the wishes of the Irish people, rackrenting and eviction being still possible, and the process for obtaining compensation being tedious and expensive.

The Land Law (Ireland) Act, 1881, was accordingly passed. Section 1 provides that the tenant for the time being of every holding not specially excepted may sell his tenancy for the best price that can be obtained, subject to certain conditions and provisions specified in sixteen subsections. A tenant from year to year is not permitted to subdivide or sublet his holding without permission of the landlord. A person to whom a tenant has bequeathed the tenancy is in the same position as a purchaser after sale. When a landlord demands an increase of rent from a present or future tenant, then (1), if the tenant submits, his tenancy shall become a statutory tenancy, sub-ject to statutory conditions for the period of fifteen years ; (2) a future tenant not accepting increase but selling shall be entitled to receive such amount as a court may fix for depreciation of the sell-ing value by the increased rent; (3) a tenant, not accepting but not selling, is entitled to compensation as for disturbance ; (4) and a present tenant may apply to the court to have a rent fixed. A tenant during a statutory term shall not be compelled to pay a higher rent than the rent payable at the commencement, and shall not be compelled to quit except on breach of the statutory conditions, some of which are as follows:—the tenant must pay rent at the appointed time, must not commit persistent waste, must not sub-divide or sublet or erect a dwelling house otherwise than is provided in the Act. Agistment, or letting for pasture, and letting on conacre for growing potatoes or other green crop are not within this pro-hibition. The landlord retains the right to enter for the purpose of taking minerals, stone, timber, making roads, hunting, shooting, fishing, and so on. The tenant may not open a public house without the landlord's consent. The section is not to prejudice any eject-ment for non-payment of rent in respect of rent accrued due for a holding before the commencement of the statutory term.4

Sections 6 and 7 amend the law as to compensation for disturbance and compensation for improvements as contained in the Act of 1870. Section 8 authorizes the court (to be created by the Act) to fix a fair rent on the application of either party, and such judicial rent shall be the rent of the tenancy for the statutory term of fifteen years as above described. The court is to determine what is a fair rent after hearing parties, having a due regard to their respective interests and to the circumstances of the case, holding, and district. A new statu-tory term shall not begin until the expiration of a preceding one, and an alteration of judicial rent shall not take place at less intervals than fifteen years. Two important subsections deserve to be specially noticed. It is provided (subsection 2) that the court may disallow the tenant's application if it be satisfied that '' the per-manent improvements " on the holding, which if executed by the tenant would have entitled him to compensation under the Acts of 1870 and 1881, have been made and maintained by the land-lord and his predecessors in title and not made or acquired by the tenant or his predecessors. On the other hand, no rent shall be allowed or made payable in respect of improvements made by the tenant or his predecessors in title for which, in the opinion of the court, they shall not have been paid by the landlord or his predecessors in title. When application is made to the court to fix a judicial rent on a holding not subject to the Ulster tenant right or other analogous custom, the parties by agreement or the court may fix a value on the tenancy ; and, if during the term the tenant should give notice to the landlord of his intention to sell, the landlord may purchase the tenancy at the value so fixed, subject to addition for subsequent improvements and deduction for dilapi-dations. Subsection 10 provides that "the amount of money or money's worth that may have been paid or given for the tenancy oi any holding by a tenant or his predecessors in title, otherwise than to the landlord or his predecessors in title, shall not of itself, apart from other considerations, be a ground for reducing or increasing the rent of such holding."

The Act may be excluded by agreement as follows. The landlord and tenant may agree to a "judicial lease " for thirty-one years and upwards, which if approved by the court will take effect, and the holding wdllbe regulated by the lease and not be deemed subject to the Act. The parties may agree to a "fixed tenancy," which shall not be deemed subject to the Act, wdiich shall be held upon such condi-tions as parties may agree upon, and with reference to which the court shall consider the interest of persons entitled to an estate or interest after a present limited owner. In such a case the tenant shall pay a fee farm rent, which may or may not be subject to revaluation by the court, and shall not be compelled to quit his holding except on breach of some of the conditions previously declared to be statutory.

* The right of ejectment for non-payment of rent was conferred on landlords by special legislation. It is unknown to English law, where non-payment only gives a right of re-entry if protected by a special proviso to that effect i* the lease.

These are the main provisions of the Act, establishing more or less completely what are known as the three F's—" fair rents," "fixed tenure," and "free sale." Miscellaneous provisions supple-mental to these can only be briefly noticed. Section 20 enacts that the " tenancies to which the Act applies shall be deemed to have determined whenever the landlord has resumed possession of the hold-ing either on the occasion of a purchase by him of the tenancy of default of the tenant in selling, or by operation of law or reverter or otherwise." But a tenant holding under an Ulster or other analo-gous custom shall be entitled to the benefit of such custom, notwith-standing the determination of his tenancy by breach of a statu-tory condition. Section 21 deals with existing leases, which are to remain in force, but at the expiration of such leases the tenants shall be deemed to be tenants of "present ordinary tenancies from year to year," and therefore subject to the Act. Section 22 allows a tenant whose holding is of the annual value of £150 to contract himself out of this or the previous Act, and there is a special clause dealing with the case in which a landlord has before the Act purchased the Ulster tenant right ; but otherwise any provision contained in any lease or contract of tenancy inconsistent with the provisions of the Act shall be void. Part 5 relates to the acquisition of land by tenants, reclamation of land, and emigration.

Part 6 describes the form of proceedings to be taken under the Act. In addition to the civil bill court of the county which has jurisdiction in respect of all disputes arising between landlord and tenant under the Act," a special land commission has been constituted, in which proceedings may be commenced or to which if commenced in the civil bill court they may be transferred. Three commissioners are named in the Act, and an indefinite number of assistant commissioners is authorized. The land commission is vested with the general powers of the Act; but it is directed to grant an appeal to the court of appeal, in proper cases, not including decisions as to fair rent or other matters left to the discretion of the commissioners. (E. R.)


Footnotes

In the United States the law is substantially the same as in Eng-land. The remedy by distress is said to be " becoming unpopular in the United States, as giving an undue advantage to landlords over other creditors. In New England the law of attachment on mesne process has superseded the law of distress. In New York, North Carolina, Georgia, Ohio, Alabama, Tennessee, Mississippi, and Louisiana, it is modified or abolished(see Bouvier's Law Dictionary, art. "Distress"). On the other hand, a speedier remedy than ejectment has been provided for landlords, by which they may be '' reinstated, upon notice of a day or two, in cases where a tenant abandons the premises before the end of the term without surrendering the lease, leaving rent in arrear, continues to hold over after the expiration of his term, or has become unable or unwilling to pay for the use of the premises " (BouvUr, art. " Landlord and Tenant ").

1 This is inferred from the fact that the grantor has knowingly permitted acts "not unimportant to be done by the lessor on the faith of the contract."

Practical Treatise on the Law of Compensation to Tenants in Ireland, by Isaac Butt, Q.C., Dublin, 1871.
An excellent account of the origin and results of the Ulster custom will be found in The Irish Land Question from 1829 to 1869, by E. Barry O'Brien, London, I860.
See O'Brien's Irish Land Question, chap. vii.



The above article was written by Edmund Robertson.



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