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The answer, therefore, to the enquiry would be:
(iii.) An underlessee would only be liable to the person who had granted the lease to him, and not to the original lessee, unless he had entered into a covenant to bear his lessor harmless.
J. WHITTAKER ELLIS, Bart., Fellow.
Nothing is said in the question as to the class of property to which the premises belong. This, in view of the covenant containing the words "tenantable repair," and regard being had to Proudfoot v. Hart,* may be a most material element. It is also a difficult question to answer, without having seen the premises; but, so far as I can gather the facts, I should say
(i.) Clean and touch up. Where this makes a respectable finish it is all that is claimable.
(ii.) It all depends upon how far the papering is disfigured. If so much so that a reasonably-minded tenant seeking such property would not be satisfied with its condition, then, probably, repapering is claimable. The same principle governs the question of matching and patching paper. If it can be matched so as not to be unsightly, then it is admissible.
(iii.) No reliable opinion can be expressed without seeing the underlease and knowing more of the circumstances; but the Courts would, I think, be hard to persuade that with so short a tenancy the covenant could be pressed so as to require the underlessee to give up the premises in better state than when they were taken, and this is what would be the result in this case.
C. HERBERT BEDELLS, Fellow.
In answer to this question, I am of the opinion
1. That the lessor's claim is not necessarily confined to cleaning and touching up paint work, or to one coat of oil.
2. That the lessor would be obliged to repaper, either as a whole or in part, rooms where the paper was damaged; the amount of damage necessitating repapering depends to some extent upon the character of the premises.
3. That the underlessee is not liable to the original lessor at all. P. E. PILDITCH, Fellow.
The words, in "very passable" condition, are too vague to enable me to answer the questions satisfactorily and fully. I think, however, that the covenants justify a landlord in claiming that wherever the See Professional Notes," vol. iv., pp. 178, 246, 321.
walls and woodwork have been damaged by nails they should be repapered and painted in the usual way. Patching papers which are no doubt faded will not satisfy the covenant as to good state and condition," nor will one coat of paint.
As regards iii. Certainly not.
EDWD. TEWSON, Fellow.
Reply to Query CLXXXV. (Vol. V'I., p. 354).
PAROCHIAL ASSESSMENT OF NURSERYMAN'S GREENHOUSES.
1. The land must be assessed at what it is worth for the purpose to which it is put, but no further rule can, I think, be given applicable to all cases.
2. As to the percentage on value which should be applied, this is generally answered by the question, How many years' purchase would be given for a rent chiefly derived from glasshouses? and I think the querist will find that, instead of what apparently is his view, viz., that the greater the risk the less the gross value should be, the reverse will be the answer.
3. The answer to this is, simply, that the rateable value should not be less because the hereditament is necessarily fragile, but that the gross should be more in consequence.
4. If in the Metropolis, Class 6; although, probably, if the land were small in area the deduction would be inadequate.
WM. EVE, Fellow.
As regards this question, I assume that the rent paid for the bare land on lease represents its present value, therefore the rent so paid would be the rateable value; some small sum for repairs, say 5 per cent., would have to be added to arrive at the gross value. Then the glasshouses being erected on the land, the value of the land is thereby increased, and I should take the present structural value of these at 6 per cent. for the gross and 4 per cent. for the rateable-the deduction of one-third being made because of the heavy expenses in repairing and maintaining this part of the nursery.
As to No. 2, the question is, what would the property let for, from year to year, on the statutory terms? The cost of the land, especially if it was bought years ago, would, probably, be no guide whatever in determining the letting value.
3. It would be right, in arriving at the rateable value, whether of the glasshouses or of any other portion of the holding, to add the cost of repairs, renewal, and insurance, to arrive at the gross value.
4. A nursery generally consists of a dwelling-house, stabling (sometimes also labourers' cottages), and glasshouses. The repairs, renewals, and insurance would not be in the same ratio for all these, and in the valuation they, together with the land, would have to be treated sepa
rately, and then the several gross and rateable values added together, to arrive at the assessment of the entire hereditament, viz., the nursery. If the dwelling were worth, say, £50 gross, I should deduct one-sixth to obtain the rateable, and, if there were any cottages worth, on a weekly tenancy, say, 3s. per week each, the gross would be £6, and the rateable £5, each.
From the above remarks, it will be seen that the true deduction for statuteables will depend upon the value that the buildings bear to the land, and no fixed rule can, therefore, be given.
A nursery consisting simply of land, glasshouses, and stabling (without a dwelling-house) would come under Class 6 of the 3rd Schedule in the Valuation (Metropolis) Act, 1869.
W. G. COOKE, Professional Associate.
Reply to Query CLXXXVI. (Vol. VI., p. 355).
REPAIRING COVENANT-GOOD AND SUBSTANTIAL REPAIR.
With reference to the question under this heading, I do not consider the words "good and substantial repair" specially cover whitewashing, papering, and similar items, which, if required, must be specially described in the lease.
If the structure has been substantially upheld and no wilful or wanton waste or damage permitted or allowed to take place, I am of opinion that the soiling of the premises is not covered by the terms above named, as a house may have been occupied and soiled throughout, but yet left structurally in good and substantial repair.
HOWARD CHATFEILD CLARKE, Fellow.
The terms "good and substantial repair" would ordinarily be considered to mean good structural repair, and would not include decorative repair.
The opinion quoted appears to be founded on the Appeal Court case of Proudfoot v. Hart.* In the course of his judgment, Lord Justice Lopes said:" As to papering and painting, generally speaking the "tenant would not be bound to repaper or repaint. Most clearly he is "not bound to repaper with similar paper to that which was on the "walls when the tenancy began, or to repaint with similar paint. Most clearly, also, he is not bound to do repairs which are merely decorative. "But if at the end of the lease the paper and paint are in such a con"dition as to cause portions of the premises to go into decay, he is bound "to repaper and repaint to such an extent as will satisfy the terms of "the definition which I have stated."
The definition referred to was that of the meaning of "good tenantable repair," terms carrying greater responsibility than “ good and substantial repair."
*Prof. Notes," vol. iv., p. 246.
This judgment appears to me to have so far modified the liabilities of lessees as to leave it doubtful whether under any general covenant to repair they can be called on to paper, paint, or whitewash, unless the omission to do so will cause the structure, or parts of the structure, to decay, in which case the work would necessarily be preservative as well as decorative. J. H. SHERWIN, Fellow.
Many surveyors have expressed astonishment at the result of the judgments in Crawford v. Newton* and Proudfoot v. Hart,† that whiting ceilings, papering, and painting cannot always be enforced, either at common law or under express covenant, for "tenantable repair" or "good tenantable repair," in the absence of covenants, for whiting, papering, and painting. But in this respect these recent judgments do not enunciate any new doctrine. In 1807, Mr. Beazley, in an excellent Paper read before the London Architectural Society, in summing up "tenantable repairs," says:-" They extend to painting which, however, in itself, is not included, but damage caused by neglecting . . . painting is included." Further, he says:—“ Any decay arising from the neglect of painting is a dilapidation, but the "paint itself is not one, unless by covenant the lessee was bound to "do it."
The covenant quoted in the question now asked is, "good and substantial repair." "Substantial" refers more to the fabric and the substance, rather than to cleansing and decoration. "Good repair," ' good tenantable repair," "tenantable repair," and "habitable repair," all appear to mean much the same thing. In the judgment of the Court of Appeal, in Proudfoot v. Hart, good tenantable repair is defined as "such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it." With regard to paper, it was held that the lessee was not liable to repaper if the old paper was merely worn, or merely in a worse condition than when the tenant went in, if it is in such a condition that a reasonably-minded tenant of the class who would take such a house would not think the papering unfitted the house for his occupation. The same with painting and whiting ceilings. But, in any case, if the want of paint the woodwork will decay, then it is obvious that the tenant must repaint.
Whether the questioner's covenant, “good and substantial repair,” be construed as good repair and substantial repair, or "good substantial repair," I think the above judgment will apply so far as papering, whiting, and painting is concerned.
Papers on Dilapidations, by Mr. Wheeler, Q.C., and two Papers by Mr. Pilditch, and the cases cited above, will all be found in the "Transactions."
*"Prof. Notes," vol. ii., p. 247.
ARTHUR HARSTON, Fellow.
"Prof. Notes," vol. iv.. pp. 178, 246, 321.
Reply to Query CLXXXVII. (Vol. VI., p. 355).
RATING OF BRICKFIELDS.
There is no rule applicable to all brickfields for deduction from gross to rateable. This must necessarily depend upon circumstances. Certainly any deduction for waste and spoilage should be made before arriving at the gross, not after. Bricks are not rateable, but the earth of which they are partially made.
As to breeze, if the occupier finds breeze, its cost is in addition to the royalty paid; if not, then the royalty would be less if he did find it, and the gross and rateable will be less, but the question of breeze cannot affect the difference between gross and rateable.
W. EVE, Fellow.
So far as my experience goes, it is not usual to make the allowance claimed. The royalty is agreed upon with the knowledge that imported material will be used, and the sum agreed upon is the value of the brick earth apart from same.
Jos. JOPLING, Fellow.
Reply to Query CLXXXVIII. (Vol. VI., p. 356).
LIABILITY TO MAINTAIN A DIVERTED ROAD ON A RAILWAY BRIDGE
By Sec. 46 of the Railway Clauses Consolidation Act, 1845, the Railway Company is liable to repair the approaches to the bridge, and they can be compelled by mandamus so to do. The authority having control of the road leading to the bridge must take action.
ROBT. GODFREY, Fellow.
If a road has been diverted by order of Quarter Sessions, and a new road formed in place of an old one, the former, if made up to the satisfaction of the Road Authority, has to be maintained in place of the latter. If, however, the old road is not abolished by the order, it must, of course, be kept up by the Road Authority, who are under no liability as to the new additional road, unless the order makes them responsible-a liability which they could have opposed when the formal notice was given. Unless the responsibility for repair was directly transferred by the terms of the order, I am of opinion that it remains with the owner to repair.
WM. WEAVER, Fellow.
By Sections 91 and 92 of Highway Act, 1835, a new diverted highway is to afterwards continue a public highway, repairable by party