tenant mortgages fixtures to A., and subsequently surren- Chap. II. 8. 5. ders his lease to his landlord, he cannot thereby deprive the mortgagee of his right to enter and sever the fixtures. within a reasonable time, and the latter may therefore maintain an action against an incoming tenant who has prevented him from exercising that right (p). So, too, the determination of a term by surrender does not prevent a previous purchaser of fixtures from removing them within a reasonable time after notice of the surrender (q). possession With reference to the subject under discussion in this Delivery of section it might possibly be argued that the tenant's right without prewould be preserved if, by some formal act or declaration, judice, &c. he expressly signified his intention not to abandon the fixtures at the end of his term. For example, if he were to accompany the delivery of possession of the premises, with a protestation that he does so without prejudice to his right of taking away his fixtures at a future time, and does not intend to give them to the landlord (r). Or, again, that any recognition of the tenant's right on the part of the landlord would have the effect of revesting the property in the tenant (s). On these points nothing satisfactory is to be collected from the authorities; but it is submitted that as the landlord's right to the fixtures does not arise from a presumption of gift, but from the fact that they form a part of the land (f), such proceedings would probably be held to be inoperative on the principles explained in the case of Marston v. Roe (u). (p) London and Westminster Loan, &c. Co. v. Drake, 28 L. J., C. P. 297. (q) Saint v. Pilley, L. R., 10 Ex. 137. Compare Moss v. James, 47 L. J., Q. B. D. 160; affirmed in C. A., 38 L. T. 595. (r) This is stated to have been done in the case of Davis v. Jones, 2 B. & Ald. at p. 166. (s) See Lyde v. Russell, 1 B. & Ad. at p. 396; Minshall v. Lloyd, 2 M. & W. at p. 458; West v. Blakeway, 2 M. & G. 729. (t) See ante, p. 129. (u) 8 A. & E. at p. 59. And see Torrey v. Burnett, 20 Am. Rep. 421. Part I. Landlord's permission to on premises. Where a landlord's attorney sent to the tenant a letter stating that the landlord had no objection to the tenant's leave fixtures leaving fixtures on the premises and making the best terms he could with the incoming tenant, it was held that this letter did not amount to a licence to the tenant to enter at any time and remove the fixtures. The Court also held that, even if it were to be looked upon as a licence, it would not bind the incoming tenant as not being by deed (r). Where, however, a landlord agrees on the expiration of a term to endeavour to effect a sale of fixtures for the tenant delivering up possession, there may be an implied agreement that the tenant shall be at liberty to remove them within a reasonable time if the sale is not effected (). It is a common and very proper precaution, to provide for the removal of fixtures after the end of the demised term, by a particular provision in the tenant's lease (x). General rule unless pro It is obvious that the rule established in the several not applicable authorities above considered cannot apply to cases where, perty affixed. from the construction of the property in question, and its connection with the realty, it is not accounted a fixture at all, but is considered in law to remain a mere chattel (y). Thus, where a tenant erected a barn on the demised premises, which was so constructed that it was not united to the soil, but rested on the foundation by its own weight alone, it was held that, although the tenant left this barn on the premises after the expiration of his term, he did (v) Roffey v. Henderson, 21 L. J., Q. B. 49. (w) See Torrey v. Burnett, 20 Am. Rep. 421. (x) See Hallen v. Runder, 1 Cr., M. & R. 226, where a tenant forebore to remove his fixtures during the term, his landlord agreeing to take them at a valuation, and it was held that he might afterwards recover their value. As to the continuing possession and right of property of an outgoing tenant, see Beaty v. Gibbons, 16 East, 116, as explained in the next section, post, p. 162. (y) See ante, Chap. I. p. 2. not relinquish his right to it, but might afterwards recover Chap. II. s. 5. it from his landlord by action (z). uncertain In accordance with the observation already made (a), Tenants of the preceding remarks are to be understood as applying interests. only to tenancies, the determination of which might bẹ previously ascertained. For although no decision has expressly established, that tenancies which are of uncertain nature and duration are excepted out of the general rule, yet it has frequently been stated that tenants of such interests, as tenants for life, at will, &c. (b), are not so restricted, but will be allowed to remove their fixtures within a reasonable time after the expiration of their estates. No laches can in such cases be imputed to them for not availing themselves of their privilege during the term (c). This exception is supported by the analogy of the rule in the case of emblements, where a similar indulgence is allowed to tenants for life, &c., on the equitable principle, that a party shall never be prejudiced by the sudden determination of his term. As regards agricultural tenants, however, a change has been made by 14 & 15 Vict. c. 25, s. 1, to the effect that a tenant at rack rent, whose tenancy has determined by the death or cesser setts, that the tenants could (c) See Oakley v. Monck, Part I. of the estate of a landlord entitled for his life, or for any other uncertain interest, shall continue to hold until the expiration of the current year of his tenancy. This seems to place such tenants on the footing of ordinary tenants for terms certain as regards the time within which they must remove fixtures (d). (d) For a summary of rules relating to fixtures as between landlord and tenant, see Appendix (B). SECTION VI. Of the Effect of Contract and the Terms of the Tenancy in respect of Fixtures. THE doctrine of fixtures has been investigated in the pre- Chap. II. s. 6. ceding sections, on the supposition that there was nothing in the terms of the demise to control or affect the tenant's right of removal. It remains now to consider what effect is produced upon the relative interests of the landlord and tenant, when they have bound themselves by any agreement which, directly or by implication, has relation to fixtures (a). It is a principle applicable to the law of fixtures, as well Tenant's as to every other branch of law, that individuals, on enter- right in fixtures, how ing into a contract, may agree to vary the strict position affected by in which they would otherwise legally stand towards each other; that is, where no absurdity or general inconvenience would result from the transaction. (a) The reader must observe, that this section more particularly relates to the terms of the tenancy, as affecting the right to things put up by the tenant himself and which are properly the subject of the law of fixtures, and that it does not refer to those provisions in leases, &c., which concern things annexed to the freehold at the time of the demise; as, when a person, on becoming tenant, agrees to purchase of the landlord articles affixed to the demised premises. In letting houses, F. "Modus et conventio &c., a stipulation is often made L contract. |