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to be done by more than one justice of the peace. In- 57 & 58 Vict. terpretation Act, 1889, 52 & 53 Vict. c. 63, sect. 13, sub- c. ccxiii, sect. (12).

Complaint. No time being specially limited by the Act. for making the complaint, it must be made within six calendar months from the time when the matter of the complaint arose. See the Summary Jurisdiction Act, 1848, 11 & 12 Vict. cap. 43, sect. 11. The Standing Orders of Jan. 1, 1895, direct that an owner who neglects to comply with a notice is to be summoned within seven days, see App. III., Pt. I., post.

District Surveyor.-Any surveyor appointed by the Council to survey a structure reported to be dangerous is a 'District Surveyor' for the purposes of this Part of the Act. See sect. 103, subsect. (2), ante, p. 193. At the expiration of the time limited by the order, the district surveyor is again to report to the Council. If the order has not been complied with, the work is to be executed by the Works Department of the Council, under the supervision of an officer of the superintending architect's office. Standing Orders, January 1, 1895, App. III., Part I., post.

Expenses. The expenses of obtaining and carrying out the order are to be paid by the owner of the structure, sect. 109, subsect. (1), post, p. 199; and if the owner cannot be found, or refuses or neglects to pay, the Council may, after serving him with three months' notice, sell the structure, sect. 109, subsect. (2), and the purchaser may enter and take down and remove the structure, sect. 110 If the proceeds of the sale are insufficient to pay the amount of the expenses incurred by the Council, no part of the land on which it stood may be built upon until the balance is paid, sect. 111, and the Council may recover such balance in a summary manner, sect. 112.

The Council may, instead of selling the structure, recover the expenses in a summary manner, sect. 112, as to which see sect. 166, post, p. 254.

If the sum does not exceed 50%. the Council may take proceedings for its recovery in the County Court, sect. 168, post, p. 263. Rules to be observed with respect to the payment of expenses recoverable from the owner are contained in sect. 173, post, p. 266. In the case of the recovery of expenses in a summary manner the time of limitation will run, not from the date when the expenses were incurred, but from the time of the demand and refusal. Labalmondiere v. Addison, 1 E. & E. 41; 48 L. J. M. C. 25; 5 Jur. (N.S.) 231.

In proceedings for the recovery of expenses incurred in obtaining and carrying out an order, the magistrate may consider the validity of the original order, and refuse to make the order for the payment of such expenses on the ground of the invalidity of the original order. Labalmondiere v. Frost, 1 E. & E. 527; 28 L. J. M. C. 155; 7 W. R. 205; 5 Jur. (N.S.) 789; 23 J. P. 598.

The order is to be made on the 'last statutable owner.'

s. 107.

!

c. ccxiii.

s. 107.

57 & 58 Vict. So if the person in occupation is an 'owner,' as defined by sect. 5 (29), the order must be made on him, and not on the person from whom he holds, though that person may also be within the definition. Mourilyan v. Labalmondiere, ante. In that case, which turned on the construction to be put upon sect. 3 of the Metropolitan Building Act, 1855, whereby 'owner' was similarly defined, Crompton, J., is reported (in the 'Law Journal' report) to have said: 'Perhaps, in a case where there is a lease and sub-lease, the right thing would be to go back to the person who was clearly liable under sect. 3' (30 L. J. M. C. p. 98). But that statement, made obiter, appears to be hardly in accordance with the reasons given by the learned judges in their judgments. In Hunt v. Harris, 34 L. J. M. C., Byles, J., said that the decision in Labalmondiere v. Mourilyan was that 'the party who was a tenant for twenty-one years under a covenant to repair was the party liable, and further that he was the only party liable.'

The present Act provides by sect. 173, subsect. (1), post, p. 267, that where expenses are to be borne by, or may be recovered from, the owner of any premises, 'the owner immediately entitled in possession to the premises or the occupier thereof shall in the first instance pay the expenses,' with a limitation that the occupier is not to be liable to pay any sum exceeding in amount the rent due, or that will thereafter accrue due from him in respect of the premises during the period of his occupancy. With regard to the 'owner' of a church, &c., see the note to sect. 5 (29), ante, p. 29.

The Standing Orders of January 1, 1895, contain directions as to the procedure to be followed in ascertaining the amount of the expenses to be recovered from the owner. App. III., Part I., post.

See

Arbitration.--The Arbitration Act, 1889, 52 & 53 Vict. cap. 49, applies to every arbitration under this Act so far as it is not inconsistent with it or with any rules or procedure autho rised or recognised by it. The Arbitration Act enables an arbitrator (sect. 19) at any stage of the proceeding under a reference, and requires him, if so directed by the Court or a judge, to state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference. The reference to the surveyors or to the arbitrator of 'all questions of fact or matters in dispute,' is not inconsistent with the power so given to the surveyors or the arbitrator, since, should any question of law arise, the surveyors, having taken the opinion of the Court thereon, can then dispose of the matter in dispute. The appointment of the arbitrator is inconsistent with the Arbitration Act. Under that Act arbitrators may appoint an umpire at any time within the period during which they have power to make an award.

Under sect. 19 of the Arbitration Act, 1889, the arbitrators or umpire may state the award in the form of a special case for the opinion of the High Court. See also the note to sect. 91, ante, p. 182.

ss. 108, 109.

108. Notwithstanding any such notice requiring arbi- 57 & 58 Vict. tration as aforesaid a petty sessional court on complaint c. ccxiii. by the Council may if of opinion that the structure is in such a dangerous condition as to require immediate Court may treatment make any order which such court may think fit with respect to the taking down repairing or otherwise standing securing the structure.

Petty Sessional Court.-See as to this Court the note to sect. 107, ante, p. 195.

make order,

notwith

arbitration.

109. (1) All expenses incurred by the Council in Expenses. relation to the obtaining of any order as to a dangerous structure and carrying the same into effect under this Part of this Act shall be paid by the owner of the structure but without prejudice to his right to recover the same from any person liable to the expenses of repairs.

(2) If the owner cannot be found or if on demand he refuse or neglect to pay the said expenses the Council after serving on him three months notice of their intention to do so may if in their discretion they think fit sell the structure but they shall after deducting from the proceeds of the sale the amount of all expenses incurred by them pay the surplus (if any) to the owner on demand.

'Structure.'—See, as to this expression, sect. 102, ante, p. 192. 'Owner-For the definition of this expression, see sect. 5 (29), ante, p. 25.

Expenses. Where the materials are not sold under this section, or where the proceeds of sale are insufficient, expenses incurred by the Council in respect of a dangerous structure, or the balance thereof, are by sect. 112, post, recoverable in a summary manner, as to which see sect. 166, post, p. 254.

Where the materials are sold, and the sale realises an amount more than sufficient to cover the expenses, the balance, if not claimed by any person entitled thereto within one year, is to be paid by the Council into Court; see sect. 172, post, p. 266.

Rules with respect to the payment of expenses which the Act declares are to be borne by or may be recovered from the owner of any premises are contained in sect. 173, po t. The, owner immediately entitled in possession or the occupier is by subsect. (1) of that section made liable to pay the expenses, with the limitation that the occupier shall not be liable to pay any sum exceeding the amount of rent due, or that will thereafter accrue due from him in respect of the premises during the period of his occupancy. Each 'successive owner' is to be liable to contribute to the expenses in proportion to his interest, subsect. (2), differences as to the amount of contribution being

c. ccxiii.

S. 109.

57 & 58 Vict. settled by arbitration, subsect. (3). So that the Council may obtain payment from any person who is an 'owner' as defined by sect. 5, subsect. (29), ante, p. 25, while this owner, in the absence of any covenant between himself and a superior landlord, or himself and a tenant, to pay such expenses, is by virtue of the provision contained in subsect. (2) of sect. 173 enabled to recover a proportion of such amount from every person who is also an 'owner' of the premises within the meaning of the definition. In the absence of any covenant on the part of the landlord to repair the premises a tenant for a term of years would, but for this provision, be unable to recover from his landlord money spent in complying with a notice or order under this Part of the Act; since a landlord is not in the absence of an express contract bound to do any repairs to the premises even if the result of non-repair is that the premises become dangerous. Gott v. Gandy, 2 E. & B. 845.

A covenant is usually contained in leases that the tenant shall pay all rates, taxes, and assessments, and in cases where similar covenants contained the word 'duties,' the landlord has been held to be entitled to recover from the tenant the amount paid by him under the Metropolis Management Act in respect of private improvement expenses, Thompson v. Lapworth, L. R. 3 C. P. 149, 17 L. T. (N.S.) 507, and the cost of complying with an order of a local authority to do certain works in order to abate a nuisance, Budd v. Marshall, 5 C. P. D. 481, 50 L. J. C. P. 24, 42 L. T. (N.S.) 793, 29 W. R. 148, 44 J. P. 584 ; and where the tenant had covenanted to pay outgoings,' it was held that he was bound to refund to the landlord the amount which he had been compelled by the Vestry to pay as his proportion of the cost of paving a new street. Aldridge v. Fearn, 17 Q. B. D. 212, 55 L. J. Q. B. 587, 34 W. R. 578, followed in the case of Batchelor v. Biggar, 60 L. T. (N.S.) 416. See also note to 25 & 26 Vict. c. 102, sect. 96, Appendix I., post.

As the section, however, enacts that the owner shall pay the expenses without prejudice to his right to recover the same from any person liable to the expenses of repairs, and as by sect. 173, subsect. (2), provision is made for the division of the amount among all the owners, it is evidently the intention of the Act that these expenses shall not be within the covenant to pay rates, &c., but in the absence of an express contract by some person to keep the structure in repair, repairs are to be paid by the lessors and those entitled to the premises in reversion.

The expenses to be paid by the owner are the expenses incurred in relation to the obtaining of any order, and carrying the same into effect. This does not appear to include the expense of shoring and securing the premises and erecting the hoarding or fence provided for by sect. 106, ante, p. 194. These expenses are, therefore, general expenses to be paid by the Council, sect. 189, post, p. 276 (except the surveyor's fee, as to which see Schedule III., Part II.), which are to be deemed to

be expenses incurred by the Council in the matter of the 57 & 58 Vict. dangerous structure; sect. 113, subsect. 3, post, p. 202.

.

Services of notices.-The language of the section is somewhat paradoxical. But the provision as to service of notice on the owner where he cannot be found is met by the fact that sect. 188, post, p. 274, in such cases enables notices under the Act to be served by affixing them to some conspicuous portion of the premises; and subsect. 3 of that section also makes it sufficient to address the notice to the 'owner' of the premises (naming the premises to which the notice relates), without further name or description.

с. сехііі.
SS. 110, III.

sale of

110. Where under this Part of this Act any dangerous Provisions structure is sold for payment of the expenses incurred respecting in respect thereof by the Council the purchaser his agents dangerous and servants may enter upon the land whereon the structures. structure is standing for the purpose of taking down the same and of removing the materials of which it is constructed.

Sale of materials.-Under sect. 109, ante, the Council is empowered to sell a dangerous structure for the purpose of its demolition and the removal of the materials, where the owner either cannot be found or refuses or neglects to pay the expenses incurred by the Council in relation to an order as to such structure; and under sect. 115 (3), post, p. 203, power is given to the Council to sell the materials of a neglected structure within the meaning of that section ordered to be taken down, unless the expenses incurred by the Council in relation thereto are paid within fourteen days.

Any person hindering or obstructing any person empowered by this section to enter upon any land is liable under sect. 200 (4), post, p. 285, to a penalty not exceeding ten pounds.

land not to

be built on till balance

111. Where the proceeds of the sale of any such If proceeds structure are insufficient to repay to the Council the insufficient amount of the expenses incurred by them in respect of such structure no part of the land whereon the structure stands or stood shall be built upon until after the paid. balance due to the Council in respect of the structure has been paid.

Insufficiency of proceeds of sale. The provisions of this section are similar to those which were contained in sect. 19 of the Metropolitan Building (Amendment) Act, 1878. Further provision is made by sect. 116, post, whereby upon complaint by the Council that expenses incurred by it in respect of a dangerous structure have not been paid, a petty sessional court may fix the amount of such expenses and of the costs of the proceedings before the petty sessional court, and may make an order directing that no part of the land upon which the structure

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