buildings to be thereafter erected on the premises, covenant it will, in this case, comprehend buildings let into to repair buildings and fixed in the soil and freehold (z); but buildings not erected resting upon blocks or pattens, being mere chattels, will are not comprised in such a covenant (a). include. covenant When the lease is granted, there are frequently old Where buildings standing, which have to be pulled down there is a before the new buildings are erected, in which case it to pull is necessary that the covenant to repair, and deliver down and up in repair, should be carefully framed so as to rebuild. comprise all the houses to be newly erected, which, in some instances may exceed the number of the old buildings. Where a lease was made of three houses, and the lessee covenanted to pull them down, and to build three others in the same place; and also, during the term, to repair all the houses so agreed to be rebuilt, and to deliver up at the end of the term the said demised premises thereafter to be erected and built well and sufficiently repaired; and, instead of three, he built four houses; the Court was of opinion, that the covenant to leave in repair extended to the fourth house; for, although, by the first covenant, the lessee was bound to repair the houses agreed to be built, which were three, yet the covenant to deliver up, which the Court considered distinct, extended to "the said premises so thereafter to be erected and built," in general, and was not confined to the houses "agreed to be built" (b). In another case, however, a lessee covenanted to lay out a certain sum within fifteen years, in erecting and rebuilding some houses; and to repair them when erected, with all such other houses, &c., as should at any (2) See Penry v. Brown, 2 Stark. 403, as to a verandah West v. Blakeway, 3 Scott, N. R. 199, 218; S. C. 2 M. & G. 729, as to a greenhouse. If erections are built, and used for the purposes of trade, the covenant does not in certain instances extend to them. See Woodfall, L. & T. (11th ed.) 581, 587, Sect. 8 (a), (b). See Naylor v. Collinge, 1 Taunt. 19: Thresher v. The East London Waterworks Co., 2 B. & C. 608; S. C. 4 Dow. & Ry. 62: Dean v. Allalley, 3 Esp. 11. (a) Ibid.: Davis v. Jones, 2 B. & Ald. 165. (b) Douse v. Cale, supra: S. C. nom. Douse v. Earle, supra. Rokeby thought that the two parts of the sentence constituted but one covenant, 2 Vent. 128. See Nouaille v. Flight, supra, ante, p. 223. time thereafter be erected, and to deliver up the said demised premises, with all such other houses, &c., so well repaired. It appeared that, after the expiration of the fifteen years, during which time no new buildings had been erected, the premises became vested in the defendant; and the question was, whether the buildings on the premises at the time of the demise were subject to the operation of the covenant. The Court held that not only the words of the covenant, but also the intent of the parties, manifestly showed that it was not meant that any of the money should be laid out on the old buildings; but that they were to be pulled down; and that whatever the lessee should erect with the sum of money named, or otherwise for his own convenience, should be kept in repair (c). Where the lessee covenanted to put the premises in repair, within the first two years of the term, and to keep and deliver them up in repair, and further, within the first fifty years of the term, to take down the four houses as occasion might require, and in their place erect not less than four other good and substantial brick houses, in the same uniform manner as the adjoining houses the Court considered that, if the lessor had the original houses substantially as good as new in the course of the fifty years, the covenant would be satisfied, and the lessor have all he was entitled to, and there would be no occasion to build new houses (d). But where certain premises, consisting of several old houses in a state of dilapidation, were demised to the defendant for sixty-one years, under a covenant to new-build the brick houses on the premises within three years, it was held, that the lease was a building lease; and that the new-building of two houses, and the making of extensive repairs in the others, by pulling down and (c) Lant v. Norris, 1 Burr. 287. See Thresher v. East London Waterworks Co., 2 B. & C. 608; S. C. 4 Dow. & Ry. 62: Foley v. Addenbrooke, 13 M. & W. 174. (d) Evelyn v. Raddish, 7 Taunt. 411; S. C. Holt's N. P. C. 543. See Bennett v. Herring, 3 C. B. N. S. 370. rebuilding the fore and back fronts, were not a performance of the covenant (e). The building sublease should contain an ex- Covenants press covenant by the sublessee to perform all the in a building undercovenants in the original building lease, except lease. such of them as the lessee himself is to continue to perform; and it is not advisable, as is done in the preparation of some subleases, that the covenants in the original lease should be repeated verbatim, since the legal effect of the two sets of covenants will be. different, owing to the different dates at which the two tenancies commenced (f). As no privity exists between the under-lessee and the original lessor, the covenants entered into between the latter and the original lessee, though they be covenants which run with the and, cannot affect, either by way of right or liability, the underlessee personally (g); but the original lessor may distrain for rent, or evict the sublessee, if the rent be in arrear, or a forfeiture be incurred (h); and he may obtain an injunction to restrain a breach of a covenant in the original lease by the sublessee (i). feiture in Provisoes for re-entry in leases are conditions Proviso for annexed to the term, and are to be construed, like re-entry other contracts, according to the intent of the and for parties, to be collected from the words used, and not building with the strictness of conditions at common law; leases. therefore the lessor, and not the lessee, has the option of determining a building lease upon a breach made within the proviso (j). A proviso, in an agreement of demise, that the tenant should within a certain time build a house, and that, if he did not. do so, it should be lawful for the landlord to re-take (e) City of London v. Nash, 3 Atk. 512; S. C. 1 Ves. Sen. 12. And see Doe d. Dymoke v. Withers, 2 B. & Ad. 896. (f) Woodfall (11th ed.), p. 11: Penley v. Watts, 7 M. & W. 601: Walker v. Hatton, 10 M. & W. 249, 258: Doughty v. Bowman (in error), 11 Q. B. 454: Piggott v. Stratton, 29 L. J. Ch. 1, 7. (g) Holford v. Hatch, 1 Doug. 183: Doe d. Wyatt v. Byron, 1 C. B. 623, 626. (h) Arnsby v. Woodward, 6 B. & C. 519. (i) See Parker v. Whyte, 1 H. & M. 167; 32 L. J. Ch. 520; and sce ante, p. 184, and p. 216, et seq. (j) Doe d. Daris v. Elsam, Moo. & M. 189. See Woodfall, 285, generally as to the construction of provisoes for re-entry. Restric tions upon under the Conveyancing and possession of the premises, and the agreement should be null and void, makes it a lease voidable only at the election of the lessor (k). It seems that the omission of the words "to re-enter," in a proviso that, if certain buildings should not be completed by a fixed day, "it should be lawful for the lessors into the demised premises or any part thereof in the name of the whole and repossess, &c.," would not prevent a right of re-entry being - exercised (1). In many instances, the proviso for re-entry was, with certain exceptions, enforceable for any breach of covenant whatever; but, in building leases, it has often been qualified, and a proviso inserted restricting the exercise of the right, except with regard to certain covenants, unless or until the lessor should have given a notice in writing of the intention to re-enter, and of the specific breach or breaches in respect of which the re-entry is intended to be made (m); or limited to breaches causing a specified amount of damage to the reversion and inheritance (n); or, sometimes, a proviso has been inserted to the effect that no breach of the covenants (except of the covenants for the payment of rent, or for insurance against fire) should give the lessor any right of re-entry, unless or until judgment should have been obtained in an action for such breach, and the damages and costs have remained unpaid for a specified time after such judgment. But it is now enacted by the Conveyancing and Law of Property Act, 1881 (0), as follows:-(1.) "A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable, by action or otherwise, unless and until the lessor (k) Doe d. Nash v. Birch, 1 M. & W. 402. See Hayne v. Cummings, 16 C. B. N. S. 421. See Hunt v. Remnant, 9 Exch. 635; 23 L. J. Ex. 135, as to right of re-entry for condition broken being capable of passing by assignment. (l) Hunt v. Bishop, 8 Exch. 675. (m) Doe d. Rankin v. Brindley, 4 B. & Ad. 84. (n) Doe d. Earl of Darlington v. Bond, 5 B. & C. 855 ; Cole, Ejec. (0) 44 & 45 Vict. c. 41, s. 14 serves on the lessee a notice specifying the par- Law of ticular breach complained of and, if the breach is Property capable of remedy, requiring the lessee to remedy Act, 1881. the breach, and in any case requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach." (2.) "Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, apply to the Court for relief; and the Court may grant or refuse relief as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit." This section does not extend to a covenant or condition against the assigning, underletting, parting with the possession, or disposing of the land leased; or to a condition for forfeiture on the bankruptcy of the lessee, or on the taking in execution of the lessee's interest (p); and is not to affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent (r). It is important to observe that this section applies to leases made either before or after the commencement of this Act, and has effect notwithstanding any stipulation to the contrary (s). (p) Sub-s. 6. (r) Sub-s. 8. (8) Sub-s. 9. The following are the other sub-sections of s. 14 relating to this subject :- (3.) For the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition; and a lessee includes an original or derivative |