§ 1237. There is no obligation upon a landlord, in the absence of express contract to that effect, to do substantial repairs,2 but the duty to make repairs devolves upon the tenant;3 but what those repairs should be must depend upon the nature and extent of his covenants and the terms of his lease. If he be a lessee for years, in the absence of any covenant to repair, he is bound to make fair and tenantable repairs, such as putting in windows or doors that have been broken by him, or repairing fences and highways,4 and keeping the premises wind and water tight, so as to prevent obvious waste and decay. But he is not bound to make lasting and general repairs, such as putting a new roof into an old worn-out house,5 or building new fences.6
§ 1238. The extent to which he is bound to repair in the absence of any covenant is not very definitely limited: but he seems not to be bound to make good such deteriorations as arise from necessary wear and tear, incidental to a proper use, or for injuries resulting from inevitable accident,7 unless they can be remedied at slight expense, and would otherwise occasion serious damage. But whatever injuries are occasioned by his voluntary negligence he is bound to repair. An outgoing tenant, however, not under any covenant to repair, is only bound to leave the house wind and water tight.1 But he is not bound to supply or maintain any thing in the nature of ornament, such as painting, whitewashing, or papering, unless it be necessary in order to preserve exposed timber from decay. And this rule prevails, even though the tenant be under a covenant to leave the premises "in good and sufficient repair, order, and condition."2
1 Bacon, Abr. Waste, C. 2; Vavasor's Case, 2 Leon. 222; Moyle v. Mayle, Owen, 66; Com. Dig. Waste, D. 3.
2 Gott v. Gandy, 2 El. & B. 845; 22 Eng. Law & Eq. 173. A cove-. nant to repair by a landlord does not require him to remove accumulations of mud caused by a piece of ornamental water in the grounds. Bird v. Elwes, Law R. 3 Exch. 225 (1868).
3 Long v. Fitzimmons, 1 Watts & Serg. 530; Phillips v. Monges, 4 Whart. 226; Libbey v. Tolford, 48 Me. 316. If the landlord, after the lease is entered into, and being under no legal obligation to make repairs, promises to make them, the promise is without consideration, and will not support an action. Libbey v. Tolford, supra.
4 Cheetham v. Hampson, 4 T. R. 318.
5 Ferguson v.--------, 2 Esp. 589; Com. Dig. Estate, H. 5; Horsefall v. Mather, Holt, N. P. 7.
6 Torriano v. Young, 6 C. & P. 8.
7 Ibid.; Ferguson v.--------, 2 Esp. 590; Colley v. Streeton, 2 B. & C. 273; Woodfall on Landlord and Tenant, by Harrison, 398, 2d ed.; Auworth v. Johnson, 5 C. & P. 239.
§ 1239. If the tenant covenant to repair generally, he will be bound to restore the building in as good a state as it was when he entered it, to make good all deteriorations arising from natural decay, and all injuries resulting from inevitable accident.3 Thus, if a house be consumed by fire, he is bound to rebuild it within reasonable time. So, also, a general covenant to repair extends to all buildings erected during the term, as well as to the buildings existing on the land when it is demised.4
§ 1240. But a tenant is not liable for acts or omissions which would be breaches of his covenants before the time of the execution of the lease, although the habendum of the lease state the premises to be held from a day prior to its execution.5 And where a tenant for years agrees to keep the premises in repair during his tenancy, and before the expiration of his term an action is brought against him for breach of this agreement, the landlord is only entitled to recover nominal damages.6
1 Leach v. Thomas, 7 C. & P. 328; Auworth v. Johnson, 5 Ib. 239.
2 Wise v. Metcalfe, 10 B. & C. 299.
3 Paradine v. Jane, Aleyn, 27; Bullock v. Dommitt, 6 T. R. 650; Brecknock Co. v. Pritchard, 6 T. R. 750; Chesterfield v. Bolton, 2 Comyns, 627; M'Kenzie v. M'Leod, 4 M. & S. 249; 10 Bing. 385; Fowler v. Bott, 6 Mass. 63; Phillips v. Stevens, 16 Mass. 238.
4 Douse v. Earle, 3 Lev. 261; s. c. 2 Vent. 126; Thresher v. East London Water Works, 2 B. & C. 608.
5 Shaw v. Kay, 1 Exch. 412.
6 Marriott v. Cotton, 2 C. & K. 553.
§1241. Under a general covenant to repair, however, the tenant is not bound to restore the tenement in a better state than it was when he entered it.1 Thus, he has been held not to be bound to lay down new floors on an improved plan.2 So, where a very old house was demised, with the usual covenants to repair, the tenant was held not to be bound to restore it in an improved state, nor to avert the consequences of the elements, but only to keep it in the state in which it was at the time of the demise, by the timely expenditure of money and care.3
§ 1242. Under a covenant by a lessee to repair and leave the premises "in the same state as he found them," he is not bound to make good natural and unavoidable decay. Nor will he be liable for any injury not occasioned by his negligence or default which is not capable of restoration; as if the trees be blown down "by tempest.4 But if he agree to deliver up the premises "in good repair " at the end of his term, he is bound to put them in good repair, with reference to the class to which they belong; and it is not sufficient for him to deliver them up in as good condition as when he took them if they were not then in good repair.5
§ 1243. If the tenant violate his covenant or agreement to repair, the landlord may, after due notice to the tenant,6 enter and repair without the lessee's assent; and the lessee will be liable for any sum reasonably expended in making the necessary and proper repairs.1 If the landlord omit or refuse to repair according to his agreement, the tenant may avail-himself of such breach by way of recoupment upon an action of assumpsit to recover the rent of him.2 The tenant, however, cannot quit the premises, and avoid a payment of the rent, upon failure of the landlord to repair according to his agreement, but he is put to his remedy against the landlord.3
1 See Standen v. Chrismas, 10 Q. B. 135; Bears v. Ambler, 9 Barr, 193; Shaw v. Kay, 1 Exch. 412.
2 Soward v. Leggatt, 7 C. & P. 613.
3 Gutteridge v. Munyard, 7 C. & P. 129; 1 Mood. & R. 334.
4 Shep. Touchstone, 173.
5 Payne v Haine, 16 M. & W. 511.
6 An indenture of lease, with a clause for re-entry, contained a general covenant on the part of the lessee to keep the premises in repair, and a further covenant that he would, within three months after notice being given to him by the landlord, repair all defects specified in the notice. The premises being out of repair, the landlord gave the lessee notice to repair, "in accordance with the covenants" of the lease. Before the expiration of three months, ejectment was brought. Held, that the notice was not a waiver of the forfeiture incurred by the breach of the general covenant to repair, and that the action was maintainable. Few v. Perkins, Law R. 2 Exch. 92 (1867).
§ 1244. So-, also, if a tenant who is bound to repair, leave, and at the end of the tenancy the premises be out of repair, the jury may give the landlord not only the amount of the expenses actually incurred in repairing, but may also allow damages for the loss of the use of the premises while such repairs were making;4 and the general state of the premises at the commencement of the tenancy may be taken into consideration in assessing them.5 If the tenant covenant to repair, with an express exception of casualties by fire, he is bound to pay rent, although the premises be burnt down, and be not rebuilt by the lessor after notice;6 nor in such case will he be relieved in equity.7
§ 1245. Tenants sometimes covenant to pay all taxes assessed during the term. But where in a lease for ninety-five years the lessee covenanted, "that he would pay, or cause to be paid, all taxes and assessments that might at any time during the term be assessed upon said lot or its appurtenances," it was held that the covenant did not extend to a city assessment upon the landlord for benefits derived to his reversion from the laying out of a new street contiguous to the lot, for which improvement the tenant, according to his interest, was also assessed; inasmuch as the assessment was made under an act not in existence at the time of the execution of the lease, was novel and extraordinary in its character, and could not have been in the contemplation of the parties when the covenant was made.1 A lessee's covenant "to pay all taxes or duties levied or to be levied " on the premises during the term does not bind him to repay the expenses of paving the sidewalk in front of the premises required of the lessor by the town under authority of a statute.2 In a recent case a lessee covenanted that he would "pay and discharge all taxes, rates, assessments, and impositions whatsoever (except property tax) which during the term should become payable in respect of the demised premises." The street on which the premises were situated was sewered and paved under an act which authorized the council to do the work if the owner neglected to do it, and assess the expense on the owner. The lessor neglected to do the work, and it was done by the council, and the expense assessed on him. In an action by the lessor against the lessee to recover for this assessment, it was held that it was not an assessment in respect of the demised premises, but a sum recovered of him for the breach of a duty imposed on him by act of Parliament.3 A covenant by a lessee to pay "all taxes, rates, duties, and assessments whatsoever which during the continuance of the demise should be taxed, assessed, or imposed on the tenant or landlord of the premises demised in respect thereof" compels the lessee to pay to the landlord the sum assessed or imposed upon the owner in respect of the premises for his part of the expense of paving the street before the house.4
1 Colley v. Streeton, 2 B. & C. 273; 3 D. & By. 522.
2 Whitbeck v. Skinner, 7 Hill, 53.
3 Surplice v. Farnsworth, 7 M. & G. 584.
4 Woods v. Pope, 1 Scott, 536; 1 Bing. N. C. 467; 6 C. & P. 782.
5 Burdett v. Withers, 2 N. & P. 122.
6 Belfour v. Weston, 1 T. R. 311.
7 Holtzapffel v. Baker, 18 Ves. 117.
1 Love v Howard, 6 R. I. 116 (1859); Second Universalist Society v. Providence, Ib. 235.
2 Twycross v. Fitchburg Railroad Co., 10 Gray, 293 (1858). Under a lease of a building in Boston, for one year from Sept. 20, 1857, in which the lessee covenants to pay to the lessor "all the taxes and assessments whatsoever, whether in the nature of taxes now in being or not, which may be payable for or in respect of the said premises, or any part thereof, during said term," the lessee is liable to pay the taxes assessed on the 1st of May, 1858, although in Boston taxes are not payable until the 1st of November in each year. Wilkinson v. Libbey, 1 Allen, 375 (1861).
3 Tidswell v. Whitworth, Law R. 2 C. P. 326 (1867), citing and distinguishing this case from Sweet v. Seager, 2 C. B. (n. s.) 119. 4 Thompsons. Lapworth, Law R. 3 C. P. 149 (1868).