In every lease the time at which it is to commence must be stated with certainty. A lease which merely stated the commencement of the term as on a certain day of a certain month, without specifying the year, was formerly held to be void; although it does not appear that this result would now follow if the omission could be supplied as a matter of reasonable inference. If the date of the lease referred to in the habendum is a sensible one, it means the actual date of the lease; but if it is an impossible one, such as April 31, or dates " from the making thereof," or " from henceforth," or is not set forth at all, the term will commence from the date the lease is delivered.
When no time is fixed for the commencement of the term, as, for instance, where it is simply " to hold for twenty-one years," the term, if the tenancy is created by deed, will commence from the date of the delivery. But if created by an agreement not under seal, it will commence from the date of the agreement; unless it can be shown from the agreement itself, or from parol evidence, that some other time was intended. A lease for years may be made to commence either at a present or a future time, but leases are often expressed to commence from a day which is past, though in that case the lease relates back for purposes of computation only. In such a case the lease takes effect only from the time of delivery, the practical effect of this being that the lessee will not be liable for breaches of covenant committed before that date. The term in a lease only marks the direction of the tenant's interest, and its operation as a grant is merely prospective.
Commencement and Duration of a Lease
Although the commencement of the term. must be certain, it is not necessary that it should be stated expressly, or even that it should be known to the parties at the time the lease is made, but it should be capable of being definitely ascertained at the time the lease takes effect in interest or possession. Thus a lease may be made to commence from such a date as a certain person may name, or as soon as the intended lessee shall pay a given sum of money, or after a life or lives in being, or upon the determination of a term already subsisting in the premises. In this last case, if the term come to an end by surrender or forfeiture, or if there is no such term in existence, or it is void, the lease will commence immediately. Where one parcel of land was demised to one person for ten years, and a second parcel to another person for twenty years, and a lease of both made to a third person for forty years from the end of the previous demises, it was held that the term was granted by the last demise, i.e., the forty years commenced as to the first parcel immediately on the expiration of the ten years, and was not to be deferred until the term for which the second parcel was granted had also come to an end.
The duration as well as the commencement of the term must be stated in the lease if the term be fixed by reference to some collateral matter. Such matter must either be itself certain, as a demise to hold " for as many
Law years as A has in the manor of B," or capable of being rendered so " for as many years as C shall name." Consequently, a lease to endure for "as many years as A shall live " would not be good as a lease for years, although the same result may be arrived at by granting a ninety-nine years' lease to end on A's death.
If a lease for years be made to two persons if they shall so long live, or to one person if he and another should so long live, it will cease at once upon the death of either; but if the proviso is that the lease shall cease if the lessees should die during the term, the lease will not be ended by the death of one of them. Conveyancers cannot be too careful in the drafting, the substitution of " and " for " or " may make a difference which the layman who reads the document may not understand and appreciate. A lease for a given number of years if "A, his wife, or any of their issue should so long live," is one that will survive the death of A and his wife and continue as long as any of their children remain alive; a similar lease "if A and his wife and issue shall so long live " will cease on the death of any of them.
A lease for years from a given day, e.g., March 25, does not end until the last moment of the day in question in the last year of the term. But where a demise for years specifies the day on which it is to commence, the term expires in the year in which it comes to an end, at midnight of the evening before its anniversary.
Rent is a certain profit reserved or arising out of lands or tenements upon which the lessor or landlord may distrain. It is not necessary that the rent should consist of money; it may be rendered in specific articles, such as wine, corn, horses, or by manual services for the lessor's benefit, as by shearing sheep, or cleaning the church, or be paid partly by services and partly by money.
The rent reserved must be certain-that is, the amount must either be certainly mentioned or be such as by reference and something else may be previously ascertained. The time at which it is payable must be certain also. The mere fact of its being fluctuating in amount does not make it uncertain.
The rent must not be reserved to a stranger, but must be reserved to the lessor only. " Rent is something paid by way of retribution for the land, and therefore ought to be made to him from whom the land passes." Hence a reservation of the rent by the lessor to his heir is void, unless the lease is only to commence after his own death. It will, however, always be safe to make the reservation to the lessor, "his heirs, executors, administrators, and assigns," or the rent may be reserved generally, without saying to whom; the law will then make it follow the reversion.
Rent is usually reserved yearly, and in the absence of agreement to the contrary, will be presumed to be reserved every year during the term, however it be made payable. In a lease for years, if rent is made payable by the lessee or tenant yearly or twice a year by even portions during the term, or at the four quarter days, it will be construed to mean a yearly rent payable as stipulated. If the rent reserved be expressed to be a yearly rent, or so much a year, and no time for payment is specified, it will be payable yearly, and cannot be demanded before the end of the year.
Rent which is simply made payable half-yearly or quarterly is not necessarily made payable on " quarter days "; the days of payment may be computed half yearly or quarterly from the making of the tease. Rent may be reserved payable in advance, but this must be clearly stipulated for. Thus, in a reservation of yearly rent to commence at Michaelmas and to be paid three months in advance, such advance to be paid on taking possession, it is held that the stipulation for rent in advance applied only to the first quarter. But a rent payable quarterly, " and always, if required, a quarter in advance," is not always due in advance whether the demand is made or not. Rent, however, is not usually payable in advance, is not due until the day upon which it is payable, and not in arrear until such day has elapsed.
The rent reserved by a lease is payable on the land, and at the most notorious place of it-for example, the front door of a dwelling house. If made on the land the demand is sufficient, though addressed to a person who is a stranger to the lessor-e.g., a sub-tenant; the mere fact of there being no one to whom to address it will not absolve the landlord or his duly authorised agent from making the demand. The agent need not produce his authority, if not requested at the time to do so by the tenant. The demand must be made precisely upon the day when the rent is due and payable by the lessee to save the forfeiture, and at such convenient hour before sunset as will give time enough to count the money before sunset. Thus in one case where a man called at half-past ten in the morning, and in another where the demand was made at one o'clock after midday, it was held that the demand was not a good one, because the tenant in each case having till sunset to pay his rent, the landlord, or his representative, should have waited until that time. The demand must be only of the precise sum due, and must disclose to what rent exactly it relates, and if more than one instalment is due, it must relate only to the last, or it will be altogether bad.
Of course, there may be a proviso in the lease by which the rent is payable at some other specified place, or the proviso may stipulate for a demand of rent, in which case an ordinary demand, without the above formalities, will be sufficient; or there may be an express stipulation for a re-entry on non-payment without any demand or without any "legal or formal " demand.