Restrictive Covenants - What is Meant by Waste - Quest of Property - The Tenant Who Will Not Pay - Registration of Land - Its Value as a Safeguard - How to Register Land

Sometimes, as in the case of a post-office or a public-house, there is a covenant to carry on a specified trade or business upon the premises ; or it may be that the covenant is not to carry on a trade or business. In the latter case the fact that no profits are made, or no payment received, as in the case of a charity, will not excuse the carrying on of certain transactions, such as keeping a school. Often there is an additional clause " to use the premises as a private residence only," and this will prevent the premises " from being used as a school, an art studio for teaching pupils, or as an office for the receipt of orders for coal. A covenant not to convert a dwelling-house into a shop may be broken by merely exhibiting goods for sale.

Waste

Waste is a spoil or destruction in houses, gardens, or trees, etc., and is either voluntary by act of commission - e.g., pulling down a building - or permissive by act of omission, e.g., suffering a house to fall for want of necessary repairs. Tenants for years are liable for permissive as well as for voluntary waste without an agreement.

But a tenant for life is only liable for permissive waste if bound to keep the premises in repair. A tenant at will is not liable for permissive waste, but if he commit voluntary waste his tenancy is determined ; nor is a tenant from year to year, although he also is liable for voluntary waste. Waste arising from act of God - e.g., tempest - is excusable.

Pulling down a house or altering its internal construction, as by turning two rooms into one, or a hall into a stable, is waste ; so is building a new house if injurious to the inheritance, or removing windows, doors, wainscot, benches, furnaces, or other fixtures annexed to the house either by the landlord or tenant. Digging up and removing soil from the surface, sowing pernicious crops, inclosing and ploughing up common lands, converting one kind of land into another, e.g., arable land into wood, or meadow into arable. Digging for gravel, lime, clay, stone, etc., in mines or pits unopened at the date of the lease, except so far as is necessary to obtain materials to repair the house.

But to divide a meadow by making ditches to drain off the water, to cut quickset hedges, and to take and sell flints turned up in ploughing is not waste. To cut down fruit-trees in a garden or orchard, and trees which are esteemed timber - i.e., oak, ash, and elm - in all places is waste, but it is not waste to cut timber to be used for necessary repairs to the house, gates or fences.

Permissive Waste

Allowing a house to be uncovered, or to remain uncovered after the roof has been removed by tempest, whereby the timbers become rotten, or allowing walls to decay for want of paint or plaster, suffering a wall or bank built to exclude water from the premises to decay, whereby they become flooded and unprofitable, is waste ; but a flood arising from the act of God is not waste. To leave the land uncultivated may be bad husbandry, but is not waste. Where lands were let as a dairy farm, and the tenant allowed young trees and shrubs in a meadow to remain unfenced so that the cattle injured them, it was held not to amount to waste.

Quiet Enjoyment

For some reason or other, a covenant for quiet enjoyment does not mean what it implies. In nearly all cases it is restricted to the act of the lessor, and those who claim under him, and is merely an assurance against the consequences of a defective title, its object being to guard against a disturbance of possession. Noise and vibration from adjacent premises may be legally a nuisance sufficient to give the tenant a right of action, but not for a breach of the covenant for quiet enjoyment.

Covenant for Renewal

This, as its name implies, is a clause by which the landlord or lessor undertakes on the application of the tenant, and usually upon the payment of a specified premium or fine, to renew the lease on the same terms at the end of the term. Where the landlord covenants to renew upon being applied to by the tenant, the latter will forfeit his right under the agreement if he fail to make application at the specified time.

Option Of Purchase

This is much the same as the right of renewal. The requirements of the stipulation as to notice must be strictly complied with, time being of the essence of the contract. But if the tenant, though he gives the required notice, fails to pay the purchase-money by the appointed time, his right of purchase is gone, unless the delay is waived by the landlord.

Proviso for Re-entry

The right of re-entry may arise through a breach of a condition because the estate of the lessee or tenant is ended by it, or it may come about through a breach of covenant, when the right to re-enter is expressly reserved by the lease. The nice legal distinctions between a condition, a limitation, and a covenant it would be tedious to go into, but a grant to John Jones so long as he remains parson of Dale is an example of a limitation. And where there are things to be done on both sides, as, for instance, where the tenant agrees to give up part of the premises on a reduction of rent being made by the landlord, this is prima facie a covenant, and not a condition. When one half-year's rent is in arrears, and the landlord has the right to re-enter, the estate becomes liable to forfeiture, and the landlord may bring his action for ejectment.

The difficulties of evicting a tenant who will not pay his rent are great, and the process is expensive ; so that a landlord who finds that he has got for a tenant a man of straw, is glad to be rid of him at any price.

Registered Land

In the case of land which is registered under the Land Transfer Act, the registered proprietor has an estate in fee simple in possession, and should he be out of possession, the onus. of proving his title, instead of being upon him, will be on the person in possession. In the case of unregistered land, the presumption that the person in possession is the beneficial owner may be rebutted by proof that he is only tenant for life, or a trustee, or that he is a mere trespasser.

Investigation Of Title

No purchaser should ever assume that the person in possession can legally convey the land which it is desired to purchase. He should always ascertain the nature and extent of the vendor's interest, and this is called investigation of title, and is usually done by the purchaser's solicitors. The purchaser should not be satisfied by merely reading the vendor's abstract of title; it may be necessary for his protection to examine the deeds which are referred to in the abstract.

Abstract Of Title

The vendor always furnishes an epitome of the instruments and facts which show that he is the owner of the property, or that he has power to dispose of the interest that he has agreed to sell. This epitome the vendor must be prepared to verify, and this is what is called the abstract of title.

Value Of Registration

A purchaser from a person who is registered as " proprietor with absolute title " can safely take a conveyance of land by means of a registered transfer from him without making any investigation of title, and a purchaser from a person who is registered as " proprietor with possessory title " need only investigate the title so far as to ascertain that all interests adverse to the estate of the first registered proprietor have been got in, or will be conveyed to him.

Form Of Registration

The register may be divided into three divisions - viz., the property register, the proprietorship register, and charges register. The property register contains a description of the land, a reference to the filed plan, and notes as to ownership of minerals, and so forth. In the case of leasehold land there is also a reference to the registered lease, and such particulars of the lease inserted as the applicant should desire and the registrar approve, and a reference also to the lessor's title if registered. The proprietorship register states nature of the title, and contains name, address, and description of the proprietor.

The charges register contains notice of leases, estates in dower or by courtesy, or of such notes of conditions or other rights adversely affecting the land.

A person may apply to be registered with an absolute, or possessory title in the case of freehold land; or in the case of leaseholds, with a good leasehold title, the first registration of which has the same effect as registration with an absolute title.