Proviso for reentry.
(l) Taylor v. Shum, 1 Bos. & Pul. 21; Rowley v. Adams, 4 M. & Cr. 534.
(m) Sugd. Vend. & Pur. 478, note, 3rd ed.
(n) Stat. 32 Hen. VIII. c 34, s. 2.
0) Ante, p. 236.
(p) 1 Wms. Saund. 240, n. (3); Martyn v. Williams, 1 H. & N. 817.
(q) Vyvyan v. Arthur, 1 Barn. & Cres. 410, 414.
(r) Stat. 32 Hen. VIII. c. 34.
Effect of licence for breach of covenant.
(s) Ante, p.235
(t) Dumpor's case, 4 Rep. 119; Brummell v. Macpherson, 14 Ves.
(u) 4 Jarman's Conveyancing, by Sweet, 377, n. (e). (x) 2 Prest. Conv. 199.
Restriction on effect of licence.
Licence to one of several lessees, or as to part only.
Severance of reversion.
The old law.
(y) Stat. 8 & 9 Vict. c. 99, s. 5. (z) Stat. 22 & 23 Vict. c. 35, s. 1.
(a) Sect. 2.
(b) Sect. 3.
The above enactments however failed to provide for the case of an actual waiver of a breach of covenant. On this point the law stood thus. The receipt of rent by the landlord, after notice of a breach of covenant committed by his tenant prior to the rent becoming due, was an implied waiver of the right of re-entry (d); but if the breach was of a continuing kind, this implied waiver did not extend to the breach which continued after the receipt (e). An implied waiver of this kind did not destroy the condition of re-entry (f); but an actual waiver had this effect. Few landlords therefore were disposed to give an actual waiver. The inconvenience which thus arose is now met by a subsequent act (g), which provides that, where any actual waiver of the benefit of any covenant or condition in any lease on the part of the lessor, or his heirs, executors, administrators, or assigns, shall be proved to have taken place, after the passing of that act (h), in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance, or any breach of covenant or condition, other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear.
"Waiver of a breach of covenant.
(c) Co. Litt. 215 a. Sec as to coparceners, Doe. d. De Rutzcn v. Lewis, 5 A. & E, 277.
(d) Co. Litt. 211 b; Price v. Worwood, 4 H. & N. 512.
(e) Doe d. Mutton v. Gladwin, 6 Q. B. 953; Doe d. Baker v.
Jones, 5 Ex. Rep. 498.
(f) Joe d. Flower v. Peck, 1 B. & Adol. 128.
(g) Stat. 23 & 24 Vict. c. 38, s.6.
(h) 23rd July, 1860.
A condition of re-entry is, evidently, a very serious instrument of oppression in the hands of the landlord, when the property comprised in the lease is valuable, and the tenant by mere inadvertence may have committed some breach of covenant. To forget to pay the annual premium on the insurance of the premises against fire might thus occasion the loss of the whole property; although, on the other hand, the landlord might well consider such forgetfulness inexcusable, since it might end in the loss of the premises by fire whilst uninsured. In this matter some beneficial provisions have been made by recent enactments. The Courts, both of Equity (i) and of Law (k), have now power to relieve, upon such terms as they may think fit, against a forfeiture for breach of a covenant or condition to insure against fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the Court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the application to the Court in conformity with the covenant to insure. But where such relief shall be granted, a record or minute thereof is required to be made by indorsement on the lease or otherwise (l). And the Courts are not to relieve the same person more than once in respect of the same covenant or condition; nor are they to grant any relief where a forfeiture under the covenant in respect of which relief is sought shall have been already waived out of Court in favour of the person seeking the relief (m). It is further provided (n) that the persons entitled to the benefit of a covenant on the part of a lessee or mortgagor to insure against loss or damage by fire shall, on loss or damage by fire happening, have the same advantage from any then subsisting insurance relating to the building covenanted to be insured, effected by the lessee or mortgagor in respect of his interest under the lease or in the property, or by any person claiming under him, but not effected in conformity with the covenant, as he would have from an insurance effected in conformity with the covenant.
As to fire insurance.
Courts may relieve against forfeiture for non-insurance.
Lessor to hare benefit of informal insurance.
(i) Stat. 22 & 23 Vict. c. 3.5, s. 14.
(k) Stat. 23 & 24 Vict. c. 126, s. 2.
(l) Stat, 22 & 23 Vict. c. 35, s. 5; 23 & 24 Yict. c. 126, s. 3.
(m) Stat. 22 & 23 Vict. c. 35, s. 6.
(n) Sect. 7.
It was provided by the Statute of Frauds (o), that no leases, estates or interests, not being copyhold or customary interests, in any lands, tenements or hereditaments, should be assigned, unless by deed or note in writing, signed by the party so assigning, or his agent thereunto lawfully authorized by writing, or by act or operation of law. And now, by the act to amend the law of real property (p), it is enacted that an assignment of a chattel interest, not being copyhold, in any tenements or hereditaments, shall be void at law unless made by deed (q).
A very beneficial provision for purchasers of leaseholds is made by the recent Act to which we have already frequently referred (r). This Act provides that where, on a bond fide purchase after the passing of the Act of a leasehold interest under a lease containing a covenant on the part of the lessee to insure against fire, the purchaser is furnished with a written receipt of the person entitled to receive the rent, or his agent, for the last payment of rent accrued due before the completion of the purchase, and there is subsisting at the time of the completion of the purchase an insurance in conformity with the covenant, the purchaser or any person claiming under him shall not be subject to any liability by way of forfeiture or damages, or otherwise, in respect of any breach of the covenant committed at any time before the completion of the purchase, of which the purchaser had not notice before the completion of the purchase (s).