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Reply to Query CCCXXXVII. (Vol. VIII., p. 271).
RIGHT OF WAY_CHURCH ROAD.
There has clearly been a sufficient dedication of the right of way to justify the District Council in taking action for removal of all obstructions. Under a recent decision such authorities can remove obstructions without giving the obstructer notice, but it is usual and courteous to give a notice first.
Unless the District Council can prove that the owner of the land or the occupier is under obligation to repair the roadway the duty of such repair will fall upon the District Council, and the owner cannot prevent the repairs.
It is the “cussedness" of the obstinacy shown in this case which gives agitators against private rights so much food to work upon.
Replies to Query CCCXXXVIII. (Vol., VIII. p. 271).
AGRICULTURAL HOLDINGS ACT, 1883—LAND LET AS STUD FARM
CLAIM FOR COMPENSATION ON QUITTING.
The simplest method of procedure appears to be to obtain the signature of the tenant to give up vacant possession of the holding on the 14 February, and, as he put in no claim for improvements, the case would so far be settled.
The question as to the farm not being under the Act of 1883 is doubtful.
GILBERT MURRAY, Fellow.
The Agricultural Holdings Act cannot be excluded upon the grounds stated. The bolding is clearly an agricultural one-as probably the tenant will agree when the Agricultural Rating Act is applied.
As to the tenant's willingness to give up all claims to compensation upon quitting, no mere covenant to that effect will be of any avail. The only method by which the proposal can be secured is by a covenant to somewhat of the following effect, viz. : “ The landlord further agrees, in “ consideration of the tenant executing manurial or other improvements “ as hereinafter provided, to (erect certain new buildings or make certain “ specified permanent improvements, as the case may be) free of interest " to the tenant, and the tenant hereby agrees, in consideration of the “ benefits to arise from the landlord's outlay therein, to execute manurial " or other improvements within the Schedule of the Agricultural Holdings “ Act to an amount equivalent thereto in manurial value." The words “ equivalent in manurial value” are intended to provide that in the case of purchased feeding stuffs the manurial value only be taken into account, and not the cost of purchase.
A mere reduction from the rent paid by the former tenant cannot be set off against the new tenant's claim. But if the new tenant agrees to pay the old rent, and the landlord covenants to allow so much of it towards the tenant's annual outlay in manurial or other improvements, the reduction will be a set-off.
F. PUNCHARD, Fellon.
I conclude that there are two grounds on which the Agricultural Holdings (England) Act, 1883, may be contracted out of.
(A) By providing a “specific compensation "in lieu thereof, which in the opinion of the Court would be held to be “fair and reasonable com
pensation having regard to the circumstances existing at the time of “ making such agreement.” (Section 5.)
(B) That the tenancy, having regard to the special object for which it is created, is not an agricultural one within the meaning of Section 54.
Having regard to the facts set out in the question, it appears to me that under both these heads there should be no difficulty in framing a covenant that would probably protect the lessor, but it would be difficult to prevent the lessee or his assignee, if it answered his purpose, from making any attempt to set aside the arrangement at the termination of the tenancy on the ground that it did not provide “fair and reasonable compensation" for the amount to which he was then entitled. It is hardly necessary to add that such a covenant should be carefully drawn ty a competent solicitor
E. A. RAWLENCE, Fellow.
It is somewhat difficult to understand the paragraph stating, “ The " holding was rack-rented, but is now let at its agricultural value.”
A fair, reasonable, agricultural rent would, I take it, come under the designation of “rack-rent” as usually understood ; therefore I do not see how “reduced rent” will come in or be shown in the present instance.
But even if the incoming tenant does gain some advantage in this respect, and " is willir.g,” in consequence, “to give up all claim for
compensation on quitting," I do not think he has power in this way to contract himself out of the Act, or that the latter can be “expressly “ excluded from applying to this holding." It seems to me that this is not a case where either the provisions of Section 5 (second paragraph) or of Section 55 of the Act will apply. The holding cannot be described as neither agricultural nor pastoral, nor partly one and partly the other, and therefore the definition in Section 54 must, in my opinion, be accepted as conclusive. And further, Section 61 declares that a “holding means any “parcel of land held by a tenant," and “live stock" (which would comprise horses on a stud farm also) “ includes any animal capable of being dis« trained."
J. W. FAIR, Fellow.
Reply to Query CCCXXXIX. (Vol. VIII., p. 272).
BUILDING ACT 1891-PARTY WALL NOTICE.
In Section 5 of the London Building Act, 1894, ss. 29, owner includes every person holding any interest in the property otherwise than as a tenant from year to year, or for any less term, or as a tenant at will. Therefore B, C, and D are all adjoining owners under the Act, and entitled to the requisite notice.
It is very desirable that all the owners should agree and become parties to one award, but if this is impossible there must be three separate awards.
There can be no doubt that great complications are caused by all parties interested being represented, and the system usually adopted under the old Act of simply serving the notice on one owner or whoever else it may concern, although at times, leading to trouble, was much simpler, and worked well.
J. D. MATHEWS, Fellow.
Replies to Query CCCXL., (Vol. VIII., p. 272).
DISTRICT COUNCIL-PROPOSED WORKS—CLAIM FOR PREPARING
Answer to question (A).
In my opinion it is necessary for the instructions to the quantity surveyor to be under seal to enable him to recover his fees from the Local Board of Health for preparing the bills of quantities. See the case of Hunt v. Wimbledon Local Board. (L. R., 4 C. P. D., App. 48; 46 L. T., C. P. D., App. 207 (1878) and other reported cases.
Answer to question (B).
As the claim (in my opinion) is barred by the absence of a contract under seal, it is not necessary to consider any other collateral circumstances of the case.
Josiah Hunt, Fellow.
If the instructions given by the Local Board surveyor were clear and definite, I should consider such quite sufficient authority for the quantity surveyor to act upon.
I assume that the Local Board or District Council is bound by the “ Public Health Acts," and Clause 266 I think meets the case.
266. “ Notices, orders, and other such documents under this Act may
“ be in writing or print, or partly in writing and partly in print ; “and if the same require authentication by the Local Authority, “the signature thereof by the clerk to the Local Authority or “ their surveyor or inspector of nuisances shall be sufficient
“ authentication." It is not usual (in my experience) for instructions given by * Corporate “ Bodies" (not trading concerns) to be under seal, excepting when the parties are required to act judicially, and I think it likely that a quantity surveyor or other such practitioner insisting upon instructions under seal would find his services in future dispensed with.
It is not unusual for matters of this description to stand over for some time, although four and a half years is an excessive time. Surveyors and others of any position do not care to press for fees when the work is still under consideration.
For the above reason I should consider the claim (if properly substantiated as to the facts) to be good within the time allowed by the statute of limitation.
John HOLDEN, Fellow.
Reply to Query CCCXLII. (Vol. VIII.,
HALF-YEARLY TENANCY-LENGTH OF NOTICE TO QUIT—WHEN TO
It has never been decided what length of notice to quit is necessary in the case of a half-yearly tenancy, beyond that it must be a “reasonable" notice. The common understanding and practice is to give a half-year's notice. The notice should expire on the last day of some half-year - reckoning from the original date of entry.
J. H. REDMAN, Associate.
Replies to Query CCCXLIII. (Vol. VIII., p. 274.)
VALUATION FOR MORTGAGE-ALLOWANCE FOR REPAIRS.
If the tenants are likely to continue their tenancies for seven years and opwards, I think that 74 per cent. of the gross rent would be a sufficient deduction for repairs under the circumstances stated in the question (unless the couditions of the property are unusual in some other respects), but if owing to the situation of the property or for other reasons the tenants are likely to avail themselves to any large extent of the opportunity of moving every three years, I think it would be safer to allow a deduc. tion of 10 per cent. from the gross reuts for the cost of needful repairs. The repairing covenant might not cover all the works required to fit vacated rooms for new tenants.
HOWARD MARTIN. Fellon.
I do not consider 7} per cent. a sufficient allowance for repairs on such a property. Changes of tenancy will inevitably take place, and each will entail an expenditure that will raise the average outlay on repairs. I should say 10 per cent. would be a fair deduction, but this might be amended, either way, by an inspection.
J. H. SHERWIN, Fellon.
The age of the premises is not stated, but assuming them to be modern, i.e. less than 20 years old, and substantial, I think 10 per cent. would probably be nearer the mark.
All external repairs have to be done by the lessor, and practically most of the internal repairs.
Philip E. PILDITCH, Fellow.
I think 10 per cent. would be a more proper deduction, unless the report apply only to a comparatively short period for enforcing repayment. Assuming that the building is newly erected, the repairs for the first few years might be light, but for a considerable number of years provision must be made for a fund to meet heavier periodical repairs. In this reply I assume that " gross rents” means the rents after deducting all kinds of charges for servants (if any) provided by the lessor for the general use of the lessees or tenants.
ARTHUR HARSTON, Fellon.
I do not consider 75 per cent. a sufficient allowance for repairs at a deduction from the gross rents according to the tenancies. The triennial outside paintings, the repairs to roof and to drains, in addition to redecoration, fall upon the owner. I should deduct at least 10 per cent. from gross rents.
W. BENNETT ROGERS, Fellon.
Reply to Query CCCXLIV. (Vol. VIII., p. 275.)
USER OF WALL BY ADJOINING OWNER.
I think that A is fully justified in requiring B to build a wall to his shed; otherwise, having no wall of his own, B will use his neighbour's wall, and in time acquire a right.
J. D. MATHEWS, Fellow.