The Law and Rent - Covenants - When a Covenant is Illegal and Impossible - Implied Covenants The Landlord and Repairs rent accruing due has often to be ap-portioned both in respect of time and in respect of estate. Apportionment in respect of time is entirely the creation of statute; at common law rent being in this respect unapportionable. Thus where a tenant for life who had demised died, no rent for the period which elapsed between the last rent day and the time of such death was payable at all. Or, to give another example, where rent fell due at fixed periods, as on the ordinary quarter days, and the tenancy was determined in the middle of the quarter, the rent for such quarter was altogether lost.
When rent has to be apportioned in respect of estate, the basis of the apportionment should be one of value; it may arise either by the act of the parties or by act of law. Where the lessor grants away part of his reversion, an apportionment of the rent is made, for Tent being incident to the reversion a proportionate part of it immediately passes with the grant, even though there be no mention of it therein. In the same way, if the lessee lose the possession of a portion of the demised lands by surrender or forfeiture, the rent will be apportioned.
If the owner of lands in fee and lands for a term of years make a lease of both at an entire rent, upon his death the rent is apportioned between his real and personal representatives, according to the annual values of the two kinds of land respectively.
When lands and goods are let together at a single rent, and the tenant is evicted from the lands, no apportionment will be made with regard to the goods, because the rent issues out of the lands only. Where, however, the mortgagor of a house let it furnished, and the tenant upon receipt of notice from the mortgagee paid the whole rent to him. it was held that the mortgagor might still recover for the use of the furniture, on the ground that either the rent might be apportioned or that a new agreement might be implied to take the house at a reasonable rent from the mortgagee, and pay a reasonable amount to the mortgagee for the use of his furniture.
Any words in a lease which show an agreement to do a thing, or a promise that something is done already, make a covenant; the use of the word is not restricted to a demise or lease under seal, and no special form is necessary. But to certain words a certain value is attached-for instance, the words "yielding and paying" amount of themselves to a covenant to pay rent; the words "at or under" a certain rent in a document not under seal, amount to an agreement to pay it; and the words "and the lessee shall repair," to a covenant to repair. From the use of the words "provided always and it is hereby agreed" a covenant is to be inferred.
It must be clear, however, that the words are meant to operate as an agreement, and not merely as words of qualification, and if this is the case, it matters not in what part
Law of the lease the covenant may be found. In an undertaking by the tenant to do certain repairs, the premises "being previously put in repair and kept in repair " by the lessor, it was held that there was an absolute covenant to repair by the landlord. But a covenant by the tenant to repair, "provided that the lessor finds timber," does not amount to a covenant by the latter to supply the timber; nor does a covenant by the lessee not to assign without the lessor's consent, "such consent not being arbitrarily withheld," amount to a covenant by the lessor not arbitrarily to withhold his consent.
In construing a covenant, if the words are doubtful, the construction to be taken is that which is most strong against the covenantor. Where there is more than one lessee, the covenants are joint or several. If the words are expressly joint-that is to say, if the lessees covenant generally for themselves, or that they or one of them will do what is agreed-the covenant is joint, although they are described as tenants in common and not as joint tenants. On the other hand, if the words are not expressly joint, whether the covenant is joint or several will depend upon the interests of the parties concerned.
When two or more covenants in a lease are set out together, the question whether liability in respect to one of them is contingent upon the performance of the other must be gathered from the whole document. A covenant by the landlord to renew the lease at the end of the term, "upon the lessee paying the rent and performing the covenants of the present lease," was held to be dependent upon such payment and performance. But if one party covenant generally to do one thing, the other party doing another, the covenants are independent. For instance, in a covenant by the lessor to give quiet enjoyment, the lessee paying the rent reserved by the lease, the payment of the rent is not a condition precedent to the landlord's liability for "quiet enjoyment."
Impossible and illegal
A covenant in a lease to do something which is impossible by law is void, or becomes void when its performance becomes impossible. Where performance by the lessee of the covenant in the lease has become impossible through the act of the lessor, the latter cannot sue for a breach of which his own act has been the immediate cause. If a lease is made for the purpose of carrying out an object which is illegal, all the covenants in it are void. But a lease may be valid and contain a particular covenant which is void on the ground of illegality-as for instance, one which operates in general restraint of trade.
The performance by the lessee of the covenants of a lease is sometimes secured by a bond or a penalty. The landlord may in such case either sue for the penalty, or, disregarding the penalty, proceed upon the breach of covenant. In either case, he can only recover the damages actually sustained, though, if he elect to sue for the penalty, he can obtain judgment for the whole amount, which remains as a security against further breaches. Actions or covenants are brought either to recover damages for a breach, or to obtain an injunction against its continuance. Where the owners of a block of buildings let out as residential flats undertook to employ a resident porter to render certain specified services to the tenants, and failed to do so, it was held that one of their tenants was entitled to damages, but not to an injunction to restrain the continuance of their neglecting to engage a porter. But where, in the lease of rooms in a flat, the tenant agreed to pay the gas rate, it was held, on a dispute between the landlords and the tenant as to the price of the gas, that, though the former might sue the tenant for what had been paid in respect of the gas on his behalf, the latter was entitled to an injunction restraining the landlords from interfering with the supply by disconnecting the pipe.
An express covenant always restrains and overrides an implied one to the same effect; but, in the absence of express covenants in a demise, certain covenants are implied in law from the use of words such as " let" or "demise."
Implied covenants on the part of the lessor or landlord are for quiet enjoyment, covenant for title, and for fitness. A covenant for quiet enjoyment is implied in leases whether by deed or not, and also in an agreement which operates as a present demise. It applies only to the lawful and not the wrongful acts of strangers, but extends to the acts of all persons and not merely of those claiming under the lessor.
Covenant for Title
This covenant is implied in the case of a demise by deed, but not in a demise by parol. In an agreement for to grant a lease, an undertaking will be implied at law on the part of the lessor that he has a good title to let at the time the lease is to take effect. But no implied covenant for title or for quiet enjoyment is to be made when the lessor stipulates that the letting is subject to the terms under which he himself holds from his own landlord.
Covenant for Fitness
The general rule in leases and agreements is that no covenant will be implied on the part of the landlord to do repairs of any kind. There is no implied obligation upon him to rebuild the premises in case of fire, even if he have expressly covenanted for quiet enjoyment, or even if the tenant's covenant to repair contain an express exception in case of fire. Nor does he undertake that the premises will receive proper support, or last during the term, or that they are fit for occupation, or for the purpose for which they are intended to be used.