express power of re-entry (s). The landlord cannot prevent the waiver by accepting the rent conditionally and without prejudice to his right to insist on the forfeiture (t). But a forfeiture is not waived by the acceptance by the landlord of rent due before the forfeiture was incurred (u). (2) An absolute and unqualified demand of rent due after 2. Demand the forfeiture, made by a person having sufficient authority (x). of rent. (3) Bringing an action for rent accruing due subsequently 3. Action. to the forfeiture (y), or taking other proceedings, such as a claim to an injunction (2), based upon the continuance of the tenancy (a). Hence, where a writ claims possession for the forfeiture and also arrears of rent accruing due subsequently to the forfeiture, the latter claim operates as a waiver of the forfeiture (b); though if the breach is a continuing one-as in the case of non-repair-the lessor may still be entitled to forfeit in respect of the breaches subsequent to the date up to which rent has been claimed (c). (4) Distress for rent, whether due before or after the cause 4. Distress. of forfeiture (d). The Landlord and Tenant Act, 1709, ss. 6, 7 (e), which allows distress within six months after the determination of the tenancy, does not apply where the tenancy is determined by forfeiture (ƒ); and, apart from the statute, a distress can only be made during the existence of the tenancy. Hence the distress recognizes the tenancy and operates as a waiver, unless it is capable of some other explanation, as where it is levied as a preliminary to showing insufficiency of distress and so gaining a title to sue in ejectment under sect. 210 of the Common Law Procedure Act, (a) Pellatt v. Boosey (1862), 31 L. J. C. P. 281. (8) Marsh v. Curteys (1598), Cro. Eliz. 528. (t) Davenport v. Reg. (1877), 3 App. Cas. 115; Croft v. Lumley (1855), 5 E. & B. 648, see 6 H. L. C. 672, p. 744; Griffin v. Tomkins (1880), 42 L. T. 359; Strong v. Stringer (1889), 61 L. T. 470. (u) Green's Case (1582), Cro. Eliz. See Price v. Worwood (1859), 4 H. & N. 512. 3. (x) Per Parke, B., in Doe v. Birch (1836), 1 M. & W. p. 408. (y) Roe v. Minshall (1760), Bull. N. P. 96; Dendy v. Nicholl (1858), 4 C. B. N. S. 376. (z) Evans v. Davis (1878), 10 Ch. D. 747. (d) Pennant's Case (1596), 3 Rep. 64 b; Doe v. Peck (1830), 1 B. & Ad. 428; Doe V. Williams (1835), 7 C. & P. 322 (as to waiver of disclaimer). (e) 8 Anne, c. 14, supra, p. 276. (ƒ)_ Grimwood v. Moss (1872), L. R. 7 C. P. p. 365; Kirkland v. Briancourt (1890), 6 T. L. R. 441. See Ward v. Day (1864), 5 B. & S. 359. 5 Recital. 6. Agreement to grant new lease after 1852 (g). And the mere continuing in possession of distress taken before the forfeiture is not a waiver (h). But if the lessor has already commenced proceedings in ejectment, since this is a final determination to insist on the forfeiture (i), neither distress (k) nor the receipt of rent due subsequently to the forfeiture (1) operates as a waiver; though such receipt of rent may be evidence of a new tenancy from year to year on the old terms (m). (5) A recital of the existence of the tenancy in an instrument subsequent to the forfeiture (n). (6) An agreement by the landlord to grant a new term after the expiration by effluxion of time of a term in respect of expiration of which a forfeiture has been incurred (o). forfeited lease. 7. Notice to repair. Continuing breach. (7) Where there is a general covenant to repair, and also a covenant to repair after notice, a notice to repair within a specified period, as three months, is a waiver of the general covenant (p), and there is no forfeiture till the period has elapsed. Consequently there is no waiver of the forfeiture for breach of the special covenant by receipt, after the period of the notice, of rent due while the notice was running (q). But where the notice is to repair "forthwith" (r), or, “in accordance with the covenants of the lease "(s), the general covenant is not waived, and the lessor can enter at once for non-repair. Where the breach of covenant causing a forfeiture is continuous (t), the receipt of rent, or other acknowledgment of tenancy by the landlord, will not preclude him from taking advantage of a forfeiture incurred subsequently to such acknowledgment (u). (g) 15 & 16 Vict. c. 76; Thomas v. (i) Supra, p. 502. (1) Doe v. Meux (1824), 1 C. & P. (m) Evans v. Wyatt (1880), 43 L. T. 176. A covenant to repair admits of continuing breach (x), and if the neglect continues from day to day, distress is no waiver of the forfeiture in respect of the subsequent breach (y). A covenant to insure is a continuing covenant, and a waiver extends only to past breaches (2). Where there is a covenant against assigning or demising the premises, or permitting any other person than the lessee to occupy them, and the lessee underlets, it has been. held that permitting the underlessee to remain is not a continuing breach, and a distress with knowledge of the underletting is a waiver (a); but where the covenant is against using the premises otherwise than in a particular way, a use by an underlessee in any other than such particular way may be a continuing breach on the part of the lessee (b). The lessor cannot insist on forfeiture for a continuing breach where he has received rent and required repairs to be done (c). restricted to breach to According to the doctrine of Dumpor's Case (d), a condition Effect of was not apportionable, and a waiver of a breach, like a licence to do waiver an act otherwise prohibited, dispensed with the condition altogether, and not merely in respect of the particular breach; but this effect of waiver has been removed by the Law of Property relates. Amendment Act, 1860, the sixth section of which is as follows: which it specially 66 'Where any actual waiver of the benefit of any covenant or 23 & 24 Vict. condition in any lease on the part of any lessor, or his heirs, c. 38, s. 6. executors, administrators or assigns shall be proved to have taken place, after the passing of this Act, in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance, or any breach or covenant or condition, other than that to which such waiver shall specially relate, or to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear." (iv) Relief against Forfeiture. Relief against forfeiture can be granted under sect. 14 of the Conveyancing Act of 1881 (e), as amended by the Conveyancing (x) Coward V. Gregory (1866), L. R. 2 C. P. 153. See Fryett v. Jeffreys (1796), 1 Esp. 393. "(y) Doe v. Durnford (1832), 2 Cr. & J. 667. (z) Doe v. Gladwin (1845), 6 Q. B. 953. (a) Walrond v. Hawkins (1875), L. R. 10 C. P. 342. (b) See judgment of Bramwell, L.J., in Lawrie v. Lees (1880), 14 Ch. D. 249. Cf. 7 App. Cas. p. 30. (c) Griffin v. Tomkins (1880), 42 L. T. 359. (d) (1603), 4 Rep. 119; 1 Sm. L. C. 11th ed. 32. (e) 44 & 45 Vict. c. 41. Conveyancing s. 14, sub-s.(1). Act of 1892 (f), except to lessees for non-payment of rent, and in certain cases specially excluded from the operation of the section. The relief of lessees against forfeiture for nonpayment of rent is provided for by statutes which were already in force in 1881; and, under the Conveyancing Act of 1892, an underlessee may be relieved against forfeiture of the headlease for non-payment of rent. Relief in the above excluded cases can be given only under special circumstances recognized as justifying the intervention of equity. The right to relief is a chose in action which, in the event of the bankruptcy of the lessee, vests in his trustee, and the trustee is entitled to sell such right and to assign it to the purchaser (g). (a) RELIEF UNDER THE CONVEYANCING ACTS. By the first and second sub-sections of sect. 14 of the Conveyancing Act, 1881, it is enacted as follows:— "(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease (h), for a breach of any covenant or conrepair breach. dition in the lease, shall not be enforceable by action or otherwise, unless and until the lessor (i) serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach (j), and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails within a reasonable (k) time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the lessor for the breach. Sub-sect. (2). forfeiture. "(2) Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, (f) 55 & 56 Vict. c. 13. (g) Howard v. Fanshawe, [1895] 2 Ch. 581, 589. (h) "Lease" includes an original or derivative underlease, and “lessee" has a correspondingly extended meaning (sub-sect. (3)). See, too, sect. 5 of the Act of 1892, as to "lease," "underlease," and "underlessee." (i) For the purposes of this 14th section "a lessor includes an original or derivative underlessor, and the heirs, executors, administrators, and assigns of a lessor" (sub-sect. (3)). But the "assigns" so included are legal assigns, and the person who owns an equity of redemption does not come within that description: Matthews v. Usher, [1900] 2 Q. B. 535, at p. 537. () A notice requiring the lessee to repair" within one month or a reasonable time thereafter," when the lease allows three months, is good within this provision: Re Serle, [1898] 1 Ch. 652. (k) See Horsey Estate, Lim. v. Steiger, [1899] 2 Q. B. 79. apply () to the Court for relief; and the Court may grant or refuse (m) relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms (n), if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit." The last-mentioned sub-sect. (2) did not enable an underlessee to obtain relief against a forfeiture of the headlease for breach of a covenant combined in it; but this defect was remedied by the Conveyancing Act, 1892, s. 4, which is as follows: "Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any (o) covenant, proviso, or stipulation in a lease, the Court may, on application by any person claiming as underlessee any estate or interest in the property comprised in the lease or any part thereof either in the lessor's action (if any) or in any action brought by such person for that purpose, make an order vesting for the whole term of the lease or any less term the property comprised in the lease, or any part thereof, in any person entitled as underlessee to any estate or interest in such property upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise as the Court in the circumstances of each case shall think fit, but in no case shall any such underlessee be entitled to require a lease to be granted to him for any longer term than he had under his original sublease." This section gives to the Court the most ample discretion to say upon what conditions and terms the property comprised in the headlease shall be vested in the underlessee-a discretion absolutely unfettered by any limitation except that contained in (1) As to mode of applying, see Ruttledge v. Whelan (1882), 10 L. R. Ir. 263. (m) E.g., Batson v. London School Board (1903), 20 T. L. R. 22, where landlords were held entitled to recover possession, notwithstanding a claim of title set up by the Board. (n) As to compelling a tenant who has executed the repairs to come in (0) The section accordingly applies Conveyanc ing Act, 1892 (55 & 56 Vict. c. 13), s. 4. Court's discretion to relieve underlessees. |