surrender of the reversion expectant on a lease, the estate conferring, as against the tenant under the same lease, the next vested right to the same hereditament, shall for the purpose of preserving the incidents to such extinguished reversion, be deemed the reversion expectant on the lease. to covenants after assignbe sued by grantee of ment, and may reversion. It will be borne in mind that a lessee who has Original lessee entered into covenants with his lessor remains liable remains liable to those covenants after he has assigned the lease to another, and the right to sue the original lessee in such a case passes to a grantee of the reversion by virtue of 32 Hen. 8, c. 34, where the lease is by deed; but not in the case of a tenancy from year to year created by an instrument not under seal (t). It is apprehended, however, that sect. 10 of the Conveyancing Act applies to leases by mere writing where the law does not require a deed, e. g., a lease from year to year, as well as to leases by deed. VII. By what modes, otherwise than by forfeiture, a tenancy may be determined; and the rights of the parties at the determination thereof, as regards emblements, fixtures, compensation for improvements and other matters. A lease for a term certain of course determines at Lease for term determines by the expiration of the term, and no notice to quit is effluxion of necessary. time. determine tenancy from necessary to year to year. It has been before observed that (except in cases Notice to quit within section 33 of the Agricultural Holdings Act, 1883) a tenancy from year to y car continues until it is put an end to by a half-year's notice to quit from one of the parties, and that such notice must expire at the period of the year at which the tenancy commenced. And if a tenancy from year to year has arisen from the tenant having held over on the expiration of his lease or original tenancy, the general rule is that the notice must expire at the period of the year at which (t) Standen . Christmas, 10 Q. B. R. 135; 16 L. J. Q. B. 265; Allcock v. Moorhouse, 9 Q. B. D. tenant entitled to notice to Executors of the original term commenced (u). If the tenant dies during the tenancy, his executor or administrator has the same interest in the land as the deceased had, and the same notice to quit is therefore necessary (x). quit. Notice to quit prima facie waived by demand of rent. A half-year's notice to quit is necessary whether the rent be reserved half-yearly or quarterly (y). An acceptance of rent due after the expiration of a notice to quit is a prima facie waiver of the notice, as acceptance or it shows the intention of both parties to continue the tenancy; so, also, if the landlord distrains for or demands the rent, he primâ facie affirms the continuance of the tenancy; but the presumption of waiver may be rebutted, and it is a question for the jury, and not for the Court, whether, under the circumstances of the case, the notice has been waived (2). What notice necessary under Agricultural Hold ings Act." Tenancy at will, how determined. Tenancy on Section 33 of the Agricultural Holdings Act, 1883 (a), provides that where a half-year's notice to quite expiring with a year of tenancy is by law necessary and sufficient for the determination of a tenancy from year to year, a year's notice so expiring is to be necessary and sufficient, unless the landlord and tenant, by writing under their hands, agree that the section shall not apply, in which case a half-year's notice shall continue to be sufficient, but the section does not extend to a case where the tenant is adjudged bankrupt, or has filed a petition for composition or arrangement with his creditors. Nor does the section apply to a yearly tenancy which by express agreement of the parties is determinable by six months' notice to quit (b). A tenancy at will may be determined at any time by the tenant delivering up possession, or by the landlord demanding such possession, and no notice to quit is necessary (c). A tenant on sufferance is a mere trespasser, and the (u) Doe d. Collins v. Weller, 7 (x) Doe d. Shore v. Porter, 2 (y) Spirley v. Newman, 1 Esp. 266. (z) Blyth v. Bennett, 13 C. B. 178. (a) 46 & 47 Vict. c. 61. Wilkinson v. Calvert, 3 C. P. D. 360; Barlow v. Teal, 15 Q. B. D. 403. (c) Right d. Lewis v. Beard, 13 East, 210. how deter landlord may at any time enter and put an end to the sufferance, tenancy without making any previous demand. mined. Express A lease or tenancy may be determined by an express Surrender. surrender, or by a surrender by act and operation of surrender must law. An express surrender requires a deed, unless the be by deed. estate surrendered is one that can be created by parol (d). law. A surrender by act and operation of law arises Surrender at (1) where the lessee gives up, and the lessor resumes, possession in pursuance of an agreement between the parties that the lease shall come to an end (e); or, (2) where a lessee accepts a new lease commencing immediately, or which is otherwise inconsistent with the continuance of the first lease, even though the second lease may be of shorter duration than the first (f); or, (3) where a new lease is made to a third party, with the assent of the original tenant, who gives up possession (g). plied. The consent of the original tenant may be implied Consent of from the circumstances. Thus, in a case where a original tenant bishop's lease had been granted to A., and at the may be imaccustomed period a new lease was granted to B., the consent of A. was presumed from the fact that at the time of the renewal B. was in possession of the property and also of the old lease, and that the old lease was, in accordance with the usage at the bishop's office, given up by him to be cancelled (h). But it is apprehended that there can be no implied surrender by the original lessee unless he gives up actual possession. If, therefore, A., a lessee, grants an underlease to B., who takes possession, and a new lease is afterwards granted by the superior lessor to C., no evidence of A.'s consent to the new lease will supply the place of a surrender by deed, so as to enable C. to sue B. on the covenants in the underlease (¿). (d) 8 & 9 Vict. c. 106, s. 3. (e) Phené v. Popplewell, 31 L. J. C. P. 235. (f) Hughes v. Rowbotham, Cr. Eliz. 302. (g) Thomas v. Cook, 2 B. & A. 119; Nicholls v. Atherstone, 16 L. J. Q. B. 371; Macdonnell v. Pope, 9 Hare, 705. (h) Walker v. Richardson, 6 L. J. Ex. 229; 2 M. & W. 882; Davison v. Gent, 26 L. J. Ex. 122; 1 H. & N. 744. (i) Lyon v. Reid, 13 L. J. Ex. 377; 13 M. & W. 285. Effect of disclaimer by trustee of bankrupt lessee. Trustee may not disclaim of Court, except in certain cases. By the Bankruptcy Act, 1883 (k), the trustee is authorized to disclaim onerous property (1) at any time within three months after the first appointment of a trustee (m), or if such property shall not have come to the trustee's knowledge within one month after such appointment, then at any time within two months after he first became aware of it. The disclaimer operates to determine as from its date the rights, interests, and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and also discharges the trustee from all personal liability in respect of the property disclaimed as from the date when the property vested in him, but does not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the trustee from liability, affect the rights or liabilities of any other person. A trustee may not disclaim a lease without the leave without leave of the Court except in cases prescribed by general rules (n), and the Court may impose conditions before or on granting leave. Any person interested may by notice require the trustee to decide whether he will disclaim or not, and if he neglects to give notice whether he disclaims or not for twenty-eight days, or for such extended period as may be allowed by the Court, he cannot disclaim afterwards. The Court may, on application by any person interested or under any liability not discharged by the Act in respect of any disclaimed property, make an order vesting it in any such person or in any trustee for him upon such terms Court may vest disclaimed property in any person interested, or under liability in respect of it. In what cases a lease may be disclaimed without leave of the Court. (k) 46 & 47 Vict. c. 52, s. 55. This is not confined to property divisible among the creditors, but extends to any property, as defined by sect. 168, from which no benefit can accrue to the estate. In re Maughan, 14 Q. B. D. 956. (m) The Court can, under sect. 105, sub-s. 4, enlarge the time for disclaimer; but the trustee must show some good reason for the indulgence he asks. Re Price, 13 Q. B. D. 466. (n) By the Bankruptcy Rules, 1883, Kule 232, a lease may be disclaimed without leave of the Court where the bankrupt has not sublet or assigned the lease, or created any mortgage or charge thereon, and (a) the rent reserved and real value of the property leased, as ascertained by the property tax assessment, are less than 207. per annum, or (b) the estate is administered under sect. 121 of the Act, or (c) the trustee serves the lessor with notice of his intention to disclaim, and the lessor does not within seven days after the receipt of such notice give notice to the trustee requiring the matter to be brought before the Court. as it thinks fit, but in the case of leasehold property the Court is not to make a vesting order in favour of any underlessee or mortgagee by demise, except upon the terms of making him subject to the same liabilities and obligations as the bankrupt was subject to at the date of the bankruptcy petition; and any mortgagee or underlessee declining to accept a vesting order upon such terms is to be excluded from all interest in and security upon the property, and if there is no person claiming under the bankrupt willing to accept a vesting order on those terms, the Court may vest the bankrupt's interest in any person liable to perform the lessee's covenants, discharged from all estates, &c., created by the bankrupt. Any person injured by the operation of a disclaimer may prove as a creditor in the bankruptcy. original lessee, the lessee force until an assign, lessor against It will be seen that the above enactment defines the effect of a disclaimer with more precision than was done by the Act of 1869 (0). Its practical operation may be thus stated (1.) When the bankrupt is the When the original lessee, the lessor will be entitled to distrain, bankrupt is the or to prove in the bankruptcy for arrears of rent, and all remedies of also to prove for breaches of covenant up to the date remain in of the disclaimer, subject as to arrears of rent to the disclaimer. operation of section 42. (2.) Where the bankrupt is where the an assign of the original lessee, the disclaimer will not bankrupt is deprive the lessor of any of his remedies against the remedies of original lessee, who will be entitled to prove in the original lessee bankruptcy for any money which he may be compelled force after to pay, and which the bankrupt ought to have paid. disclaimer. He may also apply to the Court for an order vesting the bankrupt's interest in him. (3.) Where the bank- The mortrupt has mortgaged by demise, or granted an under- gagee by lease, the Court will give the mortgagee or underlessee underlessee the option of taking a vesting order of the bankrupt's vesting order; interest. If he consents to take it, he will be liable to clines, mortthe rent and lessee's covenants contained in the original gage or underlease as from the date of the petition in bankruptcy, () As the cases decided under sect. 23 of the Act of 1869 have no application to the cases which will arise under the new Act, they remain in demise or may have a but if he de lease will cease. |