name or orwise, & provd in the latter case the rect thof shl be acknowed by such owner or occupier, or by some pson claimg to be such. 4. In the event of this agrmt being determined as afsd, the sd A., his hrs or assns, shl forthwith at his or their own expse wall or block up the sd windows. IN WITS, &c. A. then to wall up windows. XVIII. AGREEMENT between ADJOINING HOUSE-OWNERS as to PARTIES, A., owner of one house, 1. B., owner of other house, 2. as to encroach B. WHAS the sd A. is the owner of a house situate, &c., & the Recital sd B. is the owner of a pce of land adjoing thto, on wch he has erected [is erectg] a house, the upper pt of the south wall of ments by wch encroaches on the roof of the house of the sd A.; And the sd B. has affixed to the front of the sd house of the sd A. a pipe to carry off the water from the roof of his sd house: NOW it is MUTUALLY AGRD as follows: ments to 1. THE sd encroachmts of the sd south wall of the house of Encroachthe sd B. & of the sd pipe shl be deemed to have been made, be deemed & the continuce hrafter of such respive encroachmts shl be permissive. deemed to be with the express licence & consent of the sd A., to the intent that the sd B. or any pson claimg under him, shl not acquire any easemt or right in respt thof. and make damage. 2. THE sd B. shl at his own expse keep the sd pipe pperly B. to repair cleansed & in good order, & shl make good, & compensate the good future sd A. for all damage wch may at any time be done to the house of the sd A. by water runng from the roof of the house of the sd B., or by leakage or overflow from the sd pipe. encroachments on 3. THE sd B. shl pull down & remove the sd wall & pipe so To remove far as the same resply encroach as afsd, & make good any damage occasioned thby to the house of the sd A., within notice. 14 days after the sd A. shl have given or left at the sd house (a) As to agreements of this nature, see 2 & 3 Will. 4, c. 71, s. 2, and above, p. 46, note (a). Agreement to bind owners for time being. Notice to be endorsed on titledeeds. of the sd B. a notice in writg in that behalf, & every such notice shl be sufft although not addressed to any pson by name or description. 4. THE respive owners for the time being of the sd houses shl have the benefit of & be bound by this agrmt, & shl be deemed to be included in each article of this agrmt wherever the names of the sd A. & B. resply occur: And notice of this agrmt shl be endorsed on the convce to the sd B. of his sd pce of land, & on every future assurce of the sd house thron erected. IN WITS, &c. Apportionment of rents. Provisions of Conv. Act, 1881. XIX. AGREEMENT for APPORTIONMENT of RENT under LEASE, where the REVERSION of PART of the PREMISES has been sold to a PUBLIC UNDERTAKING under the LANDS CLAUSES ACT, 1845 (a). PARTIES, A., lessor, 1. B., a Public Board, pchasers, 2. C., lessee, 3. (a) See the Act 8 & 9 Vict. c. 18, s. 119. Where the premises are conveyed by virtue of the Elementary Education Act, 1870 (33 & 34 Vict. c. 75), or the School Sites Acts, 1841 to 1851 (4 & 5 Vict. c. 38, 7 & 8 Vict. c. 37, 12 & 13 Vict. c. 49, 14 & 15 Vict. c. 24), the apportionment can be made under 12 & 13 Vict. c. 49, by agreement between the lessor or owner subject to the lease, the tenant, and the party to whom the conveyance is made, and when made is binding on all underlessees and other persons, whether parties to the agreement or not. An apportionment of rent made on the severance either of the reversion or of the leasehold interest would not, unless concurred in by him, be binding, in the former case on the lessee, and in the latter on the lessor, who would otherwise be entitled to have it made by a jury or other competent authority (Bliss v. Collins, 5 B. & Ald. 876), but such concurrence is usually dispensed with, as an agreement come to between the owners of the severed portions of the reversion or of the leasehold interest (as the case may be) is generally acquiesced in. Sections 10, 11 and 12 of the C. A., 1881, contain provisions (which are to a considerable extent merely declaratory of the previous law) applicable to leases made after the commencement of the Act, as to the effect of the severance of the reversionary or leasehold estate respectively on the rights of the parties. Section 10 provides, in effect, in case of the severance of the reversion, that the owners of the severed portions shall have the remedies for the recovery of the apportioned parts of the rent and the benefit of the lessee's covenants Recite lease. AND WHAS the inhance & simple of & in the sd house & premes, No. reversion in fee Recital of afsd, pt of the seisin. ment. sd premes comprd in the hinbfe recited lease, expectant upon the determinon of the term granted by the sd lease, is now vested in the sd B.: AND WHAS the sd B. require for the Recital of pposes of, &c., vacant posson of the house and premes afsd, premises wch are delineated in the plan drawn in the margin hrof & required. thron coloured pink, the remr of the premes demised by the sd lease being coloured blue of the same plan : NOW IT IS HBY, psuant to the provons of the Lands AgreeClauses Consolidon Act, 1845, AGRD AND DECLD betn & by the sd sevl pties hto of the first & third pts, for themselves and condition of re-entry and other conditions (as to the old law, see Mayor of Swansea v. Thomas, 10 Q. B. D. 48); section 11 contains a provision, in the like case, for annexing the obligation of the lessor's covenants to the severed portions of the reversion; and section 12 provides in effect (in extension of 22 & 23 Vict. c. 35, s. 3) that in case of the reversion being severed by conveyance, surrender, or otherwise, or of the avoidance or cesser in any other manner of the leasehold interest as to part only of the land, every condition of re-entry or other condition shall be apportioned and remain in force in like manner as if the land comprised in each severed part, or as to which the term remains subsisting (as the case may be), had alone originally been comprised in the lease. It has been decided in Ireland that a surrender or re-demise to the lessor Effect of of part of the premises in the lease had the effect of destroying the condition the Act. of re-entry under the doctrine as to the non-apportionability of conditions (see Mortimer v. Shortall, 1 Con. & Law. 417, 427, as to a surrender (a decision of Lord St. Leonards); Lessee Delap v. Leonard, 5 Ir. L. Rep, 287; 6 Ir. L. R. 473, as to a re-demise: referred to in Platt on Leases, Vol. II., 333); and the same principle must, it is conceived, apply to the case of the lessor concurring in an apportionment of the rent and condition of re-entry on an assignment by the lessee of part of the property in the lease. If this be good law, it is remarkable that there should not (so far as the writer is aware) be any English decision on the point, nor any precedent or hint in any of the works on conveyancing, as to the necessity for a defeasance in any such case to revive the condition of re-entry; and the case is not provided for by Lord St. Leonards' Act, 22 & 23 Vict. c. 35, s. 3. See as to the apportionment of conditions, Butl. Co. Litt. 202b, n. (2), 215a; 1 Wms. Saund. 302, ed. 1871; 1 Smith's L. C., notes to Dumpor's case, p. 43; and as to defeasances, see 3 Jarm. & Byth. by Sweet, 681-686. The defect, if it existed, is only partially cured by s. 12 of the C. A., 1881, namely, in the case of the avoidance or cesser by surrender or otherwise of the term as to part of the land, and not in the case of a re-demise, or that of the lessor concurring in an apportionment on an assignment by the lessee of part of the property; and the Act only applies where the lease was after the Act. As to the effect of the surrender of the lease of part of the premises upon the covenant for payment of rent, see Baynton v. Morgan, 21 Q. B. D. 101; 22 Q. B. D. 74. Costs. resply, & for their respive hrs, exs, ads, & assns, on the one pt, & the sd B. for themselves, their succors & assns, on the other pt, THAT the sd yrly rent of £ day of be apportioned in mner follg; shl, from the the yrly rent of £, pt of such yrly rent of £--, shl be the As to the apportion ment of rent charges. As to the partial release of XX. DEED of COVENANT by the OWNER of a PERPETUAL ENDORSED on a CONVEYANCE of the lands subject to the rentcharge (b). PARTIES, the within named A., owner of rent-chge, 1; the within named B., owner of lands chged, 2. WITNETH, that (a) As to what costs are payable by B. without special agreement, see Exp. Buck, 1 H. & M. 519. (b) The apportionment can be made by the Board of Agriculture (to which the functions of the Land Commissioners have been transferred by the Board of Agriculture Act, 1889 (52 & 53 Vict. c. 30), on the application of the persons interested in the land and the rent-charge under the Inclosure Act, 1854 (17 & 18 Vict. c. 97), ss. 10 to 14. See also as to apportionment in the case of lands taken under the Lands Clauses Consolidation Act, 1845, ss. 115117; under the Church Building Acts, 14 & 15 Vict. c. 97, s. 27; 36 & 37 Vict. c. 50, s. 3; of commutation and enfranchisement rent-charges under the repealed Copyhold Acts, 4 & 5 Vict. c. 35, ss. 50, 52, 55; 6 & 7 Vict. c. 23, ss. 4-8; and under the Copyhold Act, 1894 (57 & 58 Vict. c. 46), s. 28; and of drainage and improvement rent-charges, 9 & 10 Vict. c. 101, ss. 44, 45; 19 & 20 Vict. c. 9, ss. 8, 10; 27 & 28 Vict. c. 114, ss. 68-71. By 22 & 23 Vict. c. 35, s. 10 (passed to remedy the inconvenient doctrine that the release of part of the land charged with a rent-charge operated as for apportiong the within mentd yrly rent-chge of £50, the sd A. hby covts with the sd B., his hrs & assns, in mner follg (that is to say): ment of Apportionpart of rent in first 1st. That so long as the clear yrly sum of £10, pt of the sd yrly rent-chge of £50, shl be duly & punctually pd by eql half-yrly paymts at the times at wch the sd rent-chge is pay- on property able, or within 21 days thrafter, as & for the portion of the schedule. sd rent-chge payable in respt of the land & bldgs descd in the first schdle hto, by the sd B., his hrs or assns for the time being entled to the same land, then & so often as the same shl happen the sd A. will not, nor shl his hrs, exs, ads, or a release of the whole land), it was enacted that a release of part of the land charged shall not extinguish the whole rent-charge, but shall only bar the land from right to recover it out of the land released, "without prejudice nevertheless a rentcharge. to the rights of all parties interested in the hereditaments remaining unreleased and not concurring in or confirming the release." The effect of these saving words has been held to be that where the owner of the rentcharge releases part of the land without the concurrence of the owner of the other part, the whole of the rent-charge is not extinguished, but only a proportionate part of it can be recovered against the owner of the unreleased portion of the land: Booth v. Smith, 14 Q. B. D. 318. The doctrine as to a release of part of the land extinguishing the rent-charge did not apply to a release of the land from part only of the rent-charge (Vin. Abr. "Rent," 504; 3 Cruise Dig. 301; Co. Litt. 148, referred to in Tudor's L. C., Conv., notes to Clun's case, p. 331); and the enactment above referred to, does not and was not required to cover that case. An apportionment might therefore be effected by a release of each portion of the land from so much of the rent as is to be borne by the other portion; but it is better that it should be effected (as in this precedent) by way of covenant only (according to a plan which was in use to avoid the common law doctrine as to the effect of a release). It has been doubted whether an absolute covenant not to claim the rent against the land would not operate as a release (see Co. Litt. 147b. n.; but see Shepp. Touchstone by Preston, 345); but it seems clear that a conditional covenant, as in the text, could not so operate. remedies for recovering apportioned rentcharge. A rent-charge may be apportioned between several owners without the As to the consent of the owner of the lands, so as to keep alive the right of each owner to distrain for his part (Rivis v. Watson, 5 M. & W. 255; 2 Dart, V. & P. 1044; and as to the separate right of distress of each tenant in common of a rent-charge, see Whitley v. Roberts, McClel. & Y. 107); and the remedies for the recovery of a rent-charge by distress, or receipt of rents, or appointing a term, which are given by the C. A., 1881, s. 44 (where that Act applies), would also, it is conceived, remain in force after apportionment (whether by severance of the land or of the rent-charge itself). An action also lies against the terre-tenant for recovery of a rent-charge (Thomas v. Sylvester, L. R. 8 Q. B. 368; Swift v. Kelly, 24 L. R. Ir. 107; Re Blackburn, &c., Society, 42 Ch. D. 343; Searle v. Cooke, 43 Ch. D. 519), or an apportioned part thereof, whether, as it seems, it be legal or equitable (Booth v. Smith, 14 Q. B. D. 318, see pp. 320, 321). |