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Reply to Query CCLXXXVII. (Vol. VII., p. 438.)

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In my opinion the lessee is not liable for the dilapidations to the roof, nor is the landlord bound to keep it in repair.

As far as I know there have been very few cases with respect to “flats.” They are mostly American, and a few Scotch cases.

Of course all depends on what are the covenants of the lease, but if there is no covenant as to the roof mentioned in the agreement, as I have said, neither party is responsible.

The landlord may not remove or break through a roof, but he may let it decay without being compelled to repair, and without being made answerable for the consequences of such dilapidated condition.

It is the business of the lessee to see that proper covenants are put in the agreement to ensure both the support of his flat from below and the maintaining of the covering above.

The best works on the subject are Clode's Law of Tenement Houses and Flats ; the paper read by Mr. Clode, see vol. 23 (March 16th, 1891) of the S. I. Transactions ; and Smith's Lan of Landlord and Tenant.

H. H. COLLINS, Fellow.

Replies to Qriery CCLXXXVIII. (Vol. VII., p. 439).



This appears to me to be an old city lease prepared immediately after the Fire of London, when it was decided to supersede the old timber houses by those of brick and hard wood. It is likely that the underleases run in the same terms.

I should think it doubtful whether oak timber could be enforced where fir is universally used.

J. D. MATHEWS, Fellon.


As regards Question 1, I think that the lessors would be the proper persons to apply to for a statement as to the particular Acts of Parliament referred to in the lease which they themselves prepared. It could then be ascertained whether or not those Acts are still in force.

Question 2 is, in my opinion, distinctly a legal one, and no doubt one of our legal Associates would be good enough to answer it.


Replies to Query CCLXXXIX. (Vol. VIII., p. 17).



(A) The surveyor in this case cannot insist upon the owner giving up land for the purpose of widening an existing highway. Undoubtedly it would be a mutual advantage to have the road 40 feet wide ; but if the owner will not give the land, there is no other course open than for the council to purchase it. The threat of refusal to pass the plans of houses is one which cannot be enforced, provided the said plans comply in all respects with the bye-laws in force.

The fixing of the building line may be done with the view of eventually widening the road, but the law does not give any power to take land without compensation.

(B) I would refer the Qnerist to Vol. III. of the Professional Notes pp. 192-3, where a similar question was answered.



A. No. If his plans are right in themselves I think his remedy would be by mandamus. But if the Corporation require him to give only half the difference between 30 and 40 feet (i.e. 5 feet) it is for him to consider whether the game is worth the candle. B. (a) Depends on the owuership of the cop. (b) Do.

of the ditch. Do.

of the quick-thorn fence.



(A) The Corporation undoubtedly have the right to refuse to pass plans which do not meet with their approval.

(B) If the ground is to be continued as at present (presumably as a field or garden) any new fence must be placed so as not to curtail the right hitherto enjoyed by the public, whether as road, or ditch, or footpath. This does not relate to ground converted into building sites, where a different principle applies.

S. B, SAUNDERS, Professional Associate.

Replies to Query CCXC. (Vol. VIII., p. 17).



I consider the tithe cannot be recovered by distress. Section 2 states that tithe rent-charge, as defined by the Act of 1891, shall not be recoverable in any other manner than that pointed out in the section, viz. by an order of the county court, but this order empowers the officer of the court to distrain, when the owner of the land is also occupier. In any other case the order is executed by the appointment of a receiver of the rents and profits of the land.

L. BURD, Fellow.


County Court proceedings for the recovery of tithe rent-charge are permissive and not compulsory except in the sense that there is no statutory obligation on an owner of tithe rent-charge to enforce the payment, but proceedings for the recovery of tithe rent-charge payable in pursuance of the Tithe Act (except tithe rent-charge issuing out of the lands of a railway company) must, if commenced, be taken in accordance with the provisions of the Tithe Act 1891 in the County Court, as by Section 2 (1) it is expressly enacted that tithe rent-charge “shall not be recovered in any other manner.”



Section 2 concludes: "Tithe rent-charge as defined by this Act shall not ** be recovered in any other manner"—that is, than through the county court. The court may not permit the recovery in that way, and in this sense it would seem county court proceedings “are permissive and not * compulsory," but the rent-charge cannot be recovered by the tithe-owner by distress. What is the objection taken?

J. H. SABIN, Professional Associate.

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This is rather a question for lawyers, but it appears to me that the mere fact of the vestry paving, cleapsing, &c. the court, does not convey any ownership in the soil. I should close the court at once, transferring to the vestry its paving, lamps, &c., and then proceed to build. Or if the vestry have signified their intention of resisting this I should apply for a mandamus compelling them to assent. There have been several cases of building upon ground once under the charge of vestries, but I have not a list at hand. should imagine that the law of ownership would be the same in town and country.

W. WOODWARD, Fellon.

Replies to Query CCXCII. (Vol. VIII., p. 19).




I am of opinion that if A has no other title to an easement of support for his house from B's land but what his eight years' user gives him, he has no remedy for so much of the subsidence as may be occasioned by the withdrawal by excavation of the support from B's land, as eight years' user is not sufficient to give him a title (Angus v. Dalton, L. R. 6, Appeal Cases, 740).

In so far as the subsidence is caused by the subtraction of subterranean water from the site of A's house, the case seems to be covered by Popplewell v. Hodkinson (L. R. 4, Ex, 248), unless the subtraction of the water by heat in the present case can be distinguished from the means employed in that.

WALTER CLODE, Associate.


No. The right to lateral support for newly erected buildings from adjoining land is only acquired by twenty years' enjoyment of the right (Dalton v. Angus 6, App. case 740). In this case the house has not been built twenty years. Moreover, the law does not recognise any right of support from underground water (Popplevell v. Hodkinson, I. R. 4, Ex. 248).

J. H, REDMAN, Associate.


1. I do not see that B has unduly excavated his land. What he did does not appear to have immediately injured A's building, so that he did not deprive him of any lateral support to which he was entitled if he had any such right.

2. A would have no right of action against B for allowing the water to escape from A's sub-soil. I do not see why evaporating it instead of allowing it to run away should make any difference, but I am not aware of any decision on the point.


Replies to Query CCXCIII. (Vol. VIII, p. 19).




The six months' notice, expiring with the year of tenancy, will be sufficient.

J. W. WILLIS BUND, Associate.


It is in my opinion quite clear that the provision of Section 33 of the Agricultural Holdings (England) Act 1883 nullifies the six months' notice to quit, “ unless the landlord and tenant of the holding, by writing under “ their hands, agree that this section shall not apply, in which case a “ half-year's notice shall continue to be sufficient.”

The distinction between a six months' notice and a half-year's is a distinction without a difference.



All contracts of yearly tenancy whether entered into before or after the Agricultural Holdings (England) Act 1883 came into operation, are now, as to notice to quit, tenancies under this Act. Nevertheless, the owner and occupier may agree by each subscribing to a written memorandum, accepting a half-year's notice in conformity with the statute. Six months is not half-a-year, hence a six months' notice is bad.



1. The 33rd section of the Agricultural Holdings (England) Act 1883 is retrospective in its action so far as a notice to quit is concerned, and includes therefore the holding held under an agreement made before the passing of the Act of 1883. After that Act was passed it was open to the landlord and the tenant of the holding, by writing under their hands, mutually to agree that Section 33 Act of 1883 should not apply to the holding in question, in which case a half-year's notice should continue to be sufficient. If, however, this was not done, a year's notice to quit will now be necessary.

2. Distinction between a six months' notice and a half-year's notice. In Barlow v. Teale, in the Queen's Bench, this question arose, and it was shown that a six months' notice to quit was in the eyes of the law equivalent to a half-year's notice.

W. ARNOLD, Fellon.

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