Observation and take a lease upon the terms aforesaid, and, in the mean time and until such lease should be made and executed, to pay the rents as aforesaid, and to hold the premises subject to the covenants above mentioned; and the said B. further agreed to put the premises into good tenantable repair at his own expence, and to complete all such repairs forthwith; with power of re-entry for non-payment of rent, or non-performance of covenants, before the lease should be made and executed." The court held that this instrument amounted to a present demise.(x) (r) It was observed by the court, in this last case, that, although there by the court were conflictory expressions, it clearly was the permanent intention of in the case the parties that the instrument should operate as a lease; for that the deof Pinero v. fendant was to hold, according to covenants, some of which were inconJudson. agreement sistent with a tenancy from year to year, as, that to paint once in three years, and that for putting the premises in repair before he commenced his occupation, and that there could be no doubt it was meant that there should be a former lease, but that the tenant should hold in the mean time under a demise upon the same terms as if the lease had been executed. -Pinero v. Judson, 6 Bing. 206. Other cases An agreement" between A. B. and C. D." by which "A. B. agrees to where the pay C. D. £140 a year, in quarterly payments," for a house, garden, &c. (describing the situation,) for the term of seven, fourteen, or twenty-one years, at the option of the tenant; the rent to commence from the first of January, &c. is a lease, and not merely an agreement for one.-Wright v. Trevezant, 3 C. P. 441. was construed leases. as In the following case the words were, "G. F. does this day agree to let Stainforth v. to J. S. three cottages for ten years; he further agrees to build a brew. Fox, 7 Bing. house, and make a cellar, at the rent of £35; he agrees to pay the ground 590. rent, and has this day received £4 from J. S. in earnest." Held an actual demise, and not an agreement for a lease.-Stainforth v. Fox, 7 Bing. 590. 5 M. and P. 589. Wilson v. Chisolm, 2 Also, where A. agreed to let premises to B. " on lease," for a certain term, at a certain rent, "subject to the stipulations and covenants in the original lease, under which he holds," and "to keep the said stipulations in every respect, until the said lease shall be granted, which lease, when required by B., is to be prepared by A.'s solicitor, but at B.'s expense," is a lease, and not an agreement for one only.-Wilson v. Chisolm, 2 C. and P. 474. Doe d. Pear- And, where the instrument ran thus:-"K. agrees to let, and P. to son v. Ries, take, a house in its unfinished state, for the term of sixty years, being the 8 Bing. 178. whole term that K. has the same leased to him, at the rent of £526, payable quarterly, the first payment for the half quarter at Christmas next. P. to insure the premises, and to have the benefit of an insurance lately paid; a lease and counterpart to be prepared at the expense of P., and to contain all the clauses, covenants, and agreements, that K. entered into in the lease granted to him. Held an actual demise, and not an agreement for a lease.-Doe d. Pearson v. Ries, 8 Bing. 178. 1 M. and Scott, Hancock v. 259. And also, where the defendant held premises under 'a lease from one Caffyn, 1 M. J. P. at a certain rent, and entered into an agreement with one N. for the sale of furniture, on the premises, for a certain sum, payable by instalments; covenanting, that on payment of the whole of the purchase money, to demise the premises to N. for twenty-five years, the lease to & S. 521. nant is let an agree. lease. If, under a mere agreement for a lease at a cer- When tetain rent, the tenant is let into possession before the into possesdeed is executed, the lessor cannot distrain during sion under the first year, for there is in that case no actual de- ment for & mise, either express or implied. (y) The mere act of taking possession under an agreement, renders the party tenant at will; and, while that relation subsists, no distress can be made; as soon as rent is paid under the agreement, then the occupier becomes tenant, under an implied demise, from year to year, according to the provisions of that agreement, and continues so until an actual lease is executed.(z) executory It seems the best course to be pursued in prepar- The plan of ing executory agreements for leases, when the term preparing is to exceed three years, is, to add a provision that, agreements. in the mean time, and until a lease shall be executed in pursuance thereof, the tenant shall enter and occupy from a certain day, as tenant from year, and under the rents, covenants, and agreements, stipulated to be inserted in the lease; but the agreement must not be under seal, for, in that case, it will require a deed stamp. (a) The general form of an agreement for a lease of Form of an a house is, first, a stipulation on the part of the in- agreement contain the like covenants on the part of N. as were contained in the lease under which the defendant held. The agreement also contained a covenant that N. should, in the mean time, and until such lease should be granted, pay the rent, and perform all the covenants which would be to be performed by him, in case the lease was actually granted, with a power of distress for non-payment of the rent. N. was let into immediate possession under this agreement, and paid rent. Held that the agreement amounted to a present demise.-Hancock v. Caffyn, 1 M. and Scott, 521. 8 Bing. 358. for a lease. A memorandum of agreement to let, which contains words of present Warman v. demise, and ascertains the terms of the intended tenancy, will operate as Faithful, 3 a present demise, although it provides for the preparation of a future Nev. & M. lease.-Warman v. Faithful, 3 Nev. and Man. 137. 5 Barn. and Ald. 137. 1042. A memorandum having a lease stamp, by which A. agrees to let B. cer- Pearce tain lands, mentioned in an annexed abandoned lease, from A. to C. upon Cheslyn, 5 the conditions, agreements, &c. contained in the same lease, and by which Nev & M. A. and B. bind themselves to execute a lease, similar to such abandoned 652. lease, is itself a valid lease.-Pearce v. Cheslyn, 5 Nev. and Man. 652. (y) Hegan v. Johnson, 2 Taunt. 141. (2) Hammerton v. Steed, 3 B. and C. 478. (a) Clayton v. Burtenshaw, 5 Barn. and Cres. 41. 6 T. R. 317, see pp. 55 and 56, and note a. E Parties. lations. tended lessor to demise the premises by indenture, to hold for a certain term, at a specified rent, payable yearly, half yearly, or quarterly, with stipulations on the part of the intended lessee, that the lease shall contain certain covenants on his part, such as payment of rent and taxes, and to repair the premises, "with all other usual covenants;" (b) and, if it be intended that he shall not assign or underlet, with an express stipulation to be inserted for preventing the same, as also to prevent noxious trades being carried on in the premises; and, that the said lease shall also contain the usual proviso for re-entry on non-payment of rent, or non-performance of the covenants; and the landlord stipulates to covenant for quiet enjoyment by the lessee, and with full stipulations between the parties as to the execution of the lease and counterpart, and by whom the expense of the agreement and also the lease and counterpart shall be borne. (1.) Agreement for the Lease of a House. ARTICLES of agreement made and entered into the day of, &c. BETWEEN A. B. of, &c. for himself, his heirs, (c) executors, and administrators, of Usual stipu- (b) If the agreement be for the lease of a farm, the stipulations should be framed according to the custom of the country; the following are usually inserted in such leases, and to follow after the covenant for payment of rent and taxes:-For tenant to repair, landlord finding rough timber, &c. with permission for landlord to view the state and condition of the premises;-not to plough meadow or pasture land not broken for fifty years past;-not to carry off the premises any hay or fodder;-to spread the dung on the premises;-to manage the lands in a husbandlike manner, and to leave the dung of the last year on the premises;-not to cut hedges under a certain growth, and to cleanse the ditches adjoining thereto, and to preserve the hedges when plashed from injury by cattle;-to prepare for seed fallow land in the summer preceding quitting, and lay down with clover seed and rye grass part of the arable land then in tillage-with a proviso for re-entry by landlord, in case of non-payment of rent, or nonperformance of covenants :--and also covenants by landlord for quietly enjoying;-and further, to provide timber for repairs;-and for tenant to have the use of the barn, and room for servants, for threshing the last year's crop, leaving the straw for manure on the premises. (c) When the word heirs is mentioned, the agreement will require a deed stamp of £1 15s. and must be under seal if the same is intended to be binding on the heirs.-See Clayton v. Burtenshaw, 5 Barn. and Cres. the one part, and C. D. of, &c. for himself, his heirs, executors, and administrators, of the other part, as follows. for the lease. The said A. B. doth hereby covenant, promise, Agreement and agree, to and with the said C. D., that he the said A. B. shall and will, within the space of three months, now next ensuing, (or say on or before theday of, &c. next,) well and effectually, by indenture, demise, lease, and set unto the said C. D. ALL that messuage, tenement, or dwelling- Subject of house, situate, &c. and late in the occupation of, &c. ment. the agree together with the rights, members, and appurte- Term and nances thereto belonging; TO HOLD the same unto the said C. D. for the term of twenty-one years, at and under the yearly rent of £50, payable half-yearly, clear from all taxes, rates, and assessments, whatsoever, (except the land tax,) the first payment thereof rent. tobe inserted to be made on the- -day of, &c. AND it is hereby Covenants also agreed, by and between the said parties to these in the lease. presents, that, in such indenture of lease, there shall be contained the following covenants on the part of the said C. D. (that is to say): For payment of the rent, half-yearly, as afore- Payment of said. rent. And to keep the said messuage and premises in To repair. good repair, and to yield up the same in as good condition as they now are in, together with the several fixtures to the premises belonging, at the end or other sooner determination of the said term, (reasonable use and wear thereof only excepted). sign or un And not to assign or underlet the said premises, Not to asor any part thereof, to any person or persons whom- derlet. soever, without the consent, in writing, of the said A. B., first had and obtained for that purpose. (d) And not to use, exercise, or permit, or suffer, any Not to suffer 41. 6 T. R. 317. But if under hand only, it is termed parol, and binding on the personal representative, aud requiring only an agreement stamp. Wilson e. Knubley, 7 East. 128. (d) This covenant must be expressly stipulated for in the agreement, and the same will not be implied under the terms usual covenants.-Henderson v. Hay, 3 Barn. and Cres. 632. Vere v. Loveden, 12 Ves. 179. Church v. Brown, 15 Ves. 258. trade. any noisome person or persons whomsoever, to carry on or exercise any noisome or offensive trade or business whatsoever, in or upon the said messuage and premises, or any part thereof. Proviso for re-entry, and And in the said indenture shall be contained a other usual proviso for re-entry on the premises on non-paycovenants. ment of the said rent, by the space of For quiet days next after the same shall become due; or, on nonperformance of any of the covenants to be contained in the said intended lease, on the part of the said C. D. to be performed, and also with all other usual and reasonable covenants. And it is also agreed, that the said intended lease enjoyment. shall contain a covenant, on the part of the said A. B., for quiet enjoyment by the said C. D. of the said messuage and premises, during the said term, upon payment of the said rent, and performance and observance of the covenants in such lease to be contained, and to be performed and kept. Stipulations accept lease. And that the said C. D. further agrees with the by C. D. to said A. B. to accept such lease upon the terms and conditions aforesaid, and to execute a counterpart thereof, and also shall and will bear and pay the charges and expenses of these presents, and of such lease and counterpart thereof. In witness, &c. Agreement. (2.) Another Form including the Use of Furniture. MEMORANDUM of an agreement made and entered into this 5th day of November, 1838, BETWEEN Parties. A. B. of, &c. maltster, and C. D. of, &c. mercer, as follows; the said A. B. agrees by indenture of lease, to be executed on or before the 25th day of December next ensuing, to demise and let unto the said C. D. for the term of seven years, commencing, &c. ALL that messuage, tenement, or dwelling-house, situate, &c. together with the use of the furniture in and belonging to the said messuage, tenement, or dwelling-house, and which are particularised in the schedule or inventory hereunder written, (or Premises. |