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8. If a lessee covenants to repair without exception, he will be compelled to repair or rebuild, if the house or tenement be damaged or destroyed by fire, although that fire may be caused by lightning or by accident.
9. These statements will suggest to lessees the importance of inserting in their covenants an exception from any liability to rebuild or repair, provided that the house or tenement is destroyed or dilapidated by fire. And any lessee who possesses a lease without such exception, should, for his own security, insure, as he is bound to maintain, repair, and uphold, although the dilapidation may be occasioned by accidental fire. Should the covenants restrict the lessee, by prohibiting the making of a fire, or the manufacture of any substance, or otherwise, the lessee is liable to action for damage should any fire happen in the house or tenement, by which dilapidation or damage is occasioned, and resulting from a breach of the covenants.
10. The malicious or wilful burning of a house or tenement, an act called Arson, is a crime of great malignity, and is severely punished by the English Law. Its malignity is much greater than theft, because it may endanger the property and lives of many persons. A person who sets fire to his own house is, by the Stat. 43 Geo. 3, c. 58, guilty of Arson, and it is an act of felony without benefit of clergy.
1. When a lessee enters upon general covenants to repair, he will be chargeable with dilapidations upon buildings voluntary erected by himself, and he will be compelled to deliver them, at the end of the term, in substantial repair, as well as those buildings forming parts of the estate when the lease was granted.
2. When a covenant to keep in repair is entered upon, and the tenement is suffered to fall into a state of dilapi. dation, a notice must be served by the landlord; and after thus serving a notice, the landlord may, within three months, bring an ejectment against the tenant for a breach of the covenant.
3. The following is the form of notice to repair:“ In pursuance of a certain indenture of lease, bearing date- I do hereby give notice and require you forthwith, at your own proper costs and charges, to put the premises demised by the said indenture of lease, and every part thereof, into good and substantial repair, agreeable to the covenant, on your part and behalf, contained in the said indenture of lease.”
4. The original leaseholder is always bound to the landlord, and must put into repair when notice is given to him, and in default thereof may be served with an ejectment.
5. If a lease be taken without a covenant to repair, sustain, and withhold, the lessee will be still bound to keep in repair, unless otherwise expressed. And not only so, a tenant at will is bound to restore possession in fair and tenantable repair, though not in substantial repair, like a tenant for years.
“A tenant from year to year is bound," says Lord Kenyon, “ to commit no waste, and to make fair and tenantable repairs, such as putting in windows and doors, that have been broken by him, so as to prevent waste and decay of the premises.
6. To determine what is and what is not a dilapidation is sometimes a difficult matter. Fair wear and tear, without accident, is no dilapidation; but where there is any kind of accident it is one. Wear takes place insensibly and in a gradual manner. Accident, suddenly and perceptibly. The nosing of a step may be completely worn away and yet be no dilapidation; but if broken away instead of worn, it is a dilapidation. Injuries arising from neglect are dilapidations. If anything decay, for want of attending to the coverings or from neglect of painting it, it is a dilapidation, though the paint itself is not one, unless the lessee had covenanted to do it. Cracked squares of glass. are not usually esteemed dilapidations if sufficient to keep out wind and weather; or if any timber decay, so long as it affords support it is no dilapidation; but if it gives way, the tenant is bound, not only to replace it, but to repair all damage caused by its fall.
Tenantable repairs do not, however, include any part of what may be termed the skeleton of a house-they extend only to the finishing, and include the work of the joiner, plasterer, and glazier, not the bricklayer or carpenter: keeping out wind and weather are, however, considered as tenantable repairs.
7. With regard to the fair value of dilapidation, or the reasonable price chargeable on the lessee at the expiration of his term. The tenant is bound to keep the tenements in repair, to a certain degree, but not to deliver them up as
If he leave the house in as good condition as it would have been if no accident happened, the lessor has no claims; and all that the lessor can claim in any case is a sum sufficient to effect this, which must be left to the judgment of the surveyor; but scarcely any case can occur, where a demand of more than three-fourths of the new price would be justifiable, and none where one-fourth would not be fairly demanded. A covenant to leave the house in as good condition, at the end of the term as when the lease was granted, appears to be no stronger than a common repair
8. The tenant is liable to the landlord in every case for those articles wbich are called his, the landlord's fixtures, that is to say, everything which is accessary or annexed to the estate: that which is not absolutely fixed to the estate by mortar, nails, bolts, or the like, is a moveable chattel, and belongs to the tenant. If a tenant should erect a barn, or any other building, upon pillars, rollers, or otherwise, not entering the ground, it belongs to the tenant, and cannot be claimed by the landlord. All buildings erected for the purpose of trade are removable, so that, not only ovens and coppers, but workshops and manufactories, may be removed, if erected for that purpose only,-for it was decided by Lord Kenyon, that a brick chimney
• Woodfall, Law of Landlord and Tenant.
would not prevent a tenant from removing a building, neither would its being on a brick foundation do so.
9. The following remarks by Lord Chancellor Hardwicke, on a case brought before him for judgment, may be of some service to the surveyor, as directing his practice
during the term a tenant may take away chimney-pieces, and even wainscot, which is a very strong case, but not after this term; if he does, he is a trespasser. A mortgage, says Mr. Attorney General, is a purchase, but then it is a redeemable one. How does it stand between a purchaser and vendor? If a man sell a house where there is a copper, or a brewhouse where there are utensils, unless there was some consideration given for them, and a valuation set upon them, they would not pass. But then another question will arise, after possession is delivered, what action you can bring? For where things are fixed to the freehold, an action of trover will not lie for them. Several sorts of things are often fixed to the freehold, and yet may be taken away; as beds fastened to the ceiling with ropes, nay, frequently nailed, and yet no doubt but they may be removed."