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Leases may be renewed without surrender of underleases.

Tenant holding over after demand of

possession to pay double

of premises.

and will be freed and discharged from the rent and covenants (if any) contained in the underlease. If, on the other hand, he declines to take a vesting order, his mortgage or underlease will cease altogether.

The stat. 4 Geo. 2, c. 28, s. 6, enables leases to be renewed without the surrender of any underleases derived out of the old lease, and saves to the lessee under the new lease and to the underlessees the same mutual rights and remedies as if the old lease had been still in existence.

By the same stat., s. 1, it is enacted that "if any tenant for life or lives, or years, holds over any lands, &c., after the determination of his estate, after deannual value mand made and notice in writing given, for delivering the possession thereof, by the landlord, &c., or his agent thereunto lawfully authorized, such tenant so holding over shall pay to the person so kept out of possession at the rate of double the yearly value of the lands so detained for so long a time as the same Tenant hold shall be detained." And by stat. 11 Geo. 2, c. 19, s. 18, it is enacted that "in case any tenant shall give notice of his intention to quit the premises, and shall not accordingly deliver up the possession thereof at the time in such notice mentioned, the said tenant shall thenceforth pay to the landlord double the rent which he should otherwise have paid."

ing over after

expiration of his notice to quit, to pay double rent.

Holding over must be contumacious.

To enable a landlord to recover double value under the 4 Geo. 2, c. 28, the holding over by the tenant must be contumacious. Thus in a recent case A., a tenant of B., after the death of B. accepted a fresh term from his devisee. He afterwards found that the heir of B. disputed the will, and from the circumstances of the case he reasonably and bona fide believed that the devisee had no title, and that the land belonged to the heir-at-law. A. thereupon refused to pay rent to the devisee, who gave him notice to quit. As A. did not quit at the expiration of the notice, the devisee, who had established her title, brought an action against him for the double value for wilfully holding over. It was held that the action was not maintainable, as to come within the Act the holding over must be with

the consciousness on the part of the tenant that he has no right to retain possession (p).

damages

against tenant

In a recent case, a landlord, after giving a yearly What tenant notice to quit at the end of his year, agreed to may be let the land to A. from the end of the year, and recovered informed the tenant that he had done so, but the holding over. tenant nevertheless held the premises over for another quarter. It was held that the landlord might recover against the tenant as damages the amount of the ordinary damages which he had had to pay in an action brought against him by A. for not giving him possession at the time agreed on and the cost of such action. It was also held that the fact of the landlord having received from the tenant rent for the quarter during which he held over did not preclude him from bringing the action (7).

Where a lease or tenancy is for an uncertain period, Emblements. and determines after the crops are sown and before harvest, the tenant is as a general rule entitled to the crops, or (as they are usually called) to emblements; but if the lease is for a term certain, the tenant has no such right (in the absence of special custom), for it is his own fault if, under such circumstances, he sows the crops.

On death of entitled for life, tenancy

landlord

continues up

current

It is now provided by the 14 & 15 Vict. c. 25, s. 1, that where a lease held by a tenant at rack rent shall determine by the death or the cesser of the estate of the landlord entitled for his life, or any other uncer- to end of tain interest, instead of emblements the tenant shall year. continue to hold and occupy the lands until the expiration of the then current year of his tenancy, and shall then quit upon the terms of his lease or holding in the same manner as if such lease or tenancy were determined by effluxion of time or other lawful means during the continuance of the landlord's estate; and the succeeding landlord or owner is empowered to receive and recover from the tenant a due proportion of the rent for the period which shall have elapsed

(p) Swinfen v. Bacon, 30 L. J. Ex. 33, 368.

(9) Bramley v. Chesterton, 2 C. B. (N. S.) 592; 27 L. J. C. P. 23.

Law of emble

from the death or cesser of the estate of the previous landlord or owner.

The above Act applies to all tenancies in respect of which there may be a claim to emblements (r).

The right to emblements is not confined to the case ments applies of landlord and tenant. Thus if a tenant in fee dies

between

heir and

executors.

Fixtures, general law as to.

before harvest, the then growing crops will go to his executors, though if he has devised the land, the devisee will be entitled to the crops as against the executor (s). And where the estates of persons having only limited interests determine by their deaths before harvest, the emblements will go to their personal representatives.

The general law as to things annexed to the freehold is that they become part of it and cannot be severed by a tenant without the consent of the landException in lord. But an exception to this general law has long

case of trade

and orna

mental fixtures.

Agricultural fixtures.

been established in the case of fixtures set up for the purposes of trade (f), or for purposes of ornament or convenience; as, for example, marble, or other ornamental chimney-pieces, marble slabs, grates, or stoves, or the like, provided that they can be separated from the freehold without any material injury (u).

Recent statutes have conferred on tenants of farms special rights with regard to what may be called agricultural fixtures. Thus the Act 14 & 15 Vict. c. 25, sect. 3, provides "that if any tenant of a farm or lands shall, with the consent in writing of the landiord, at his own cost and expense, erect any farm-building, either detached or otherwise, or put up any other building, engine, or machinery either for agricultural purposes or for the purposes of trade and agriculture (which shall not have been erected or put up in pursuance of some obligation in that behalf), then all such buildings, engines, and machinery, shall be the

(r) Haines v. Welch, L. R. 4 C. P. 91.

(s) Cooper v. Woolfitt, 2 H. & N. 122; 26 L. J. Ex. 310.

(t) Poole's case, 1 Salk. 368; Lawton v. Lawton, 3 Atk. 13; Dean v. Allaby, 3 Esp. 11; Fitzherbert v.

Shaw, 1 H. Bl. 528.

(u) See Buckland v. Butterfield, 2 B. & B. 75. See generally on the subject of fixtures, Amos & Ferard on Fixtures; also Elwes v. Mawe, 2 Smith, L. C. 99.

property of the tenant, and shall be removable by him, notwithstanding the same may consist of separate buildings, or that the same, or any part thereof, may be built in or permanently fixed to the soil, so as the tenant making any such removal do not in anywise injure the land or buildings belonging to the landlord, or otherwise do put the same in like plight and condition, or as good plight and condition as the same were in before the erection of anything so removed." But the tenant is bound before any such removal to give a month's notice to the landlord or his agent, and the landlord may elect to purchase the matters and things proposed to be removed at a valua

tion.

And the Agricultural Holdings Act, 1883, contains provisions conferring further rights on tenants with regard to fixtures in the case of holdings subject to that Act, which provisions will be mentioned afterwards in connection with the other provisions of that Act.

fixtures,

moved.

As a general rule the tenant must in the absence of Tenant's any express stipulation on the subject, remove fixtures when they during the term, otherwise they belong to the land- must be relord (2); and this rule equally applies, when the tenancy is determined by the lessor re-entering for a breach of covenant (y). If, however, the tenant is allowed to remain in possession after the expiration of the term, it would seem that he may at any time. while so remaining in possession remove fixtures which he might have removed during the term (z). And in Weeton v. Woodcock (a), the rule was thus stated, that the tenant's right to remove fixtures continues during his original term, and during such further period of possession by him, as he holds the premises under a right still to consider himself a tenant (b).

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claimer by trustee of bankrupt as regards right to remove fixtures.

Effect of dis- Under the Bankruptcy Act, 1869 (e), a disclaimer by the trustee operated as a surrender of the lease as from the date of the adjudication, and it was consequently held that a trustee after disclaimer could not remove the fixtures (d), and that if he removed them first and disclaimed afterwards, the landlord might recover against him their value (e). But under the Bankruptcy Act, 1883 (f), a disclaimer by the trustee determines the rights and interests of the bankrupt as from its date only, and will therefore, it is apprehended, not prevent the trustee from removing the fixtures during the interval between the commencement of the bankruptcy and the date of the disclaimer. If the trustee does not remove them before applying for leave to disclaim, the Court will give the landlord the option of taking them at a valuation; and, if he declines, will allow the trustee a reasonable time within which to remove them (g).

Covenants as to fixtures.

Where there is an express covenant as to fixtures, the rights of the parties must of course depend on the terms of the covenant. Thus, if it is provided that a lessee may remove the fixtures at the end of the term, he will be allowed a reasonable time for that purpose (h). On the other hand, if a lessee covenants to deliver up to the landlord, at the expiration of the term, fixtures, which, in the absence of such covenant, he might have removed, he thereby deprives himself of the right of removing them. In a case where the lessee covenanted to surrender the premises at the end of the term, "with all locks, keys, bars, bolts, marble and other chimney-pieces, foot paces, slabs, and other fixtures and articles which shall or may at any time during the term be fixed or fastened to the said demised premises or be thereto belonging," it was held that, as the specific articles were all of the nature of landlord's fixtures, the general words were to be interpreted as referring to articles ejusdem generis, and con

(c) 32 & 33 Vict. c. 71, s. 23.
(d) Ex parte Stephens, 7 Ch. D.

127.

(e) Ex parte Glegg, 19 C. D. 7.
(f) 46 & 47 Vict. c. 52, s. 55.

(g) Re Moser, 13 Q. B. D. 738. (h) Stansfield v. Mayor of Portsmouth, 27 L. J. C. P. 124; Sumner v. Brownlow, 34 L. J. Q. B. 130.

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