Lessor may apply to Court for relief.

Definition of term "lease."

Exceptions.

remedy the breach, and in any case requiring him to make
compensation in money for the breach, and the lessee fails,
within a reasonable time thereafter, to remedy the breach,
if it is capable of remedy, and to make reasonable com-
pensation in money to the satisfaction of the lessor for the
breach.

(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, apply to the Court for relief; and the Court
may grant or refuse relief, as the Court, having regard to
the proceedings and conduct of the parties under the fore-
going provisions of this section, and to all the other cir-
cumstances, thinks fit; and in case of relief may grant it
on such terms, if any, as to costs, expenses, damages, com-
pensation, 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.
(3.) For the purposes of this section a lease includes an
original or derivative under-lease, also a grant at a fee farm
rent, or securing a rent by condition; and a lessee includes
an original or derivative under-lessee, and the executors, ad-
ministrators, and assigns of a lessee, also a grantee under
such a grant as aforesaid, his heirs and assigns; and a
lessor includes an original or derivative under-lessor, and
the heirs, executors, administrators and assigns of a lessor,
also a grantor as aforesaid, and his heirs and assigns.
(4.) This section applies although the proviso or stipula-
tion under which the right of re-entry or forfeiture accrues
is inserted in the lease in pursuance of the directions of any
Act of Parliament.

(5.) For the purposes of this section a lease limited to con-
tinue so long only as the lessee abstains from committing a
breach of covenant shall be and take effect as a lease to
continue for any longer term for which it could subsist, but
determinable by a proviso for re-entry on such breach.
(6.) This section does not extend-
(i.) To a covenant or condition against the assigning, under-

letting, parting with the possession, or disposing of
the land leased; or to a condition for forfeiture on the

bankruptcy of the lessee, or on the taking in execution
of the lessee's interest; or

(ii.) In case of a mining lease, to a covenant or condition.
for allowing the lessor to have access to or inspect
books, accounts, records, weighing machines or other
things, or to enter or inspect the mine or the workings
thereof.

(8.) This section shall not affect the law relating to re-entry
or forfeiture or relief in case of non-payment of rent.
(9.) This section applies to leases made either before or after
the commencement of this Act, and shall have effect not-
withstanding any stipulation to the contrary.

Act in case of

Section 14 does not apply to an agreement for a No relief under lease. Consequently if a person who holds an agree- an agreement ment for a lease does any act which, if the lease had for a lease. been granted, would have involved a forfeiture, he loses the right to insist on specific performance, and the Court cannot relieve him (i).

VI. The effect of alienation by the lessor or lessee as regards the rent and the covenants and conditions of the lease.

is apportion

A rent reserved on a lease is by common law inci- Rent follows dent to the reversion and passes with it on every devo- reversion, and lution or alienation. And if the reversion of part of able on a the land comprised in a lease is aliened, the rent is tion. apportionable at common law (k).

partial aliena

made to pass

The benefit of and obligation under the covenants Benefit of and and conditions in a lease did not, however, pass at covenants and liability under common law to a grantee of the reversion. This is conditions remedied by the stat. 32 Hen. 8, c. 34, which provides with reversion that "all grantees of reversions shall enjoy all advan- by statute. tages, benefits and remedies by action for non-performance of conditions, covenants, or agreements contained or expressed in indentures of lease, which the grantors or lessors themselves had or enjoyed," and also gives a right of action to the lessce against grantees of the reversion.

(1) Swain v. Ayres, 20 Q. B. D. 385.

(k) Co. Lit. 148 a.

On alienation
of reversion of
part of de-
mised land,
condition of
re-entry for
non-payment
of rent is
available for
apportioned

part.

But until recent Act

condition was gone, as

regards breach of covenants,

except where

lessee himself

was alienee.

Rent and benefit of lessee's covenants and condition of reentry to run with reversion.

Obligation of lessor's covenants to run with reversion.

It has been held that under this Act the assignee of the reversion of part of the demised property may sue the lessee on the covenants in the lease to repair or to pay rent, and in the latter case the rent will be apportioned by the Court or a jury (?).

The stat. 22 & 23 Vict. c. 35 (m), gives to the assignee of the reversion of part of the lands comprised in a lease, where the rent has been legally apportioned, the benefit of all conditions and powers of re-entry for non-payment of the rent in like manner as if such conditions or powers had been reserved to him in respect of such apportioned rent.

The last-mentioned enactment applied to the rent only. If the reversion was severed, the right of reentry on breach of covenants could not be enforced by the grantee of part (n), unless the grant of part was to the lessee himself so as to cause an extinguishment, in which case the right of re-entry remained intact over that part which remained in the lessor (0).

The Conveyancing Act, 1881, contains the following provisions, applicable only to leases made after the 31st December, 1881

Sect. 10. Rent reserved by a lease and the benefit of every covenant or provision therein contained having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land or in any part thereof immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased.

Sect. 11. The obligation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, if and as far as the lessor has power to bind the reversionary

(1) Twynam v. Pickard, 2 B. & Ald. 105; Mayor of Swansea v. Thomas, 10 Q. B. D. 48.

(m) Sect. 35.

(n) Knight's case, 5 Co. 54 b.
(0) Hyde v. Warden, 3 Ex. D. 72.

estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise; and, if and as far as the lessor has power to make the lease binding against the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled.

Sect. 12. Notwithstanding the severance by conveyance, surrender, or otherwise, of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition, contained in the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease.

As a

blished by

It was formerly a rule of law that if a condition was once dispensed with it was gone for ever. consequence of this principle, it was held in Dumpor's Dumpor's Case. Case (p), that a condition not to alien without licence was determined by the first licence given. This doc- Law estatrine is now abolished by the Act 22 & 23 Vict. c. 35, Dumpor's Case which provides in effect that a licence to do any parti- altered by cular act which, without such licence, would create a forfeiture, shall extend only to that act, and that a licence to one of several co-lessees shall not destroy the condition as against the other co-lessees, and that a

(p) 4 Co. Rep. 119 b.

22 & 23 Vict.

c.

35.

Mortgagor in

licence to assign, &c., part of the property shall not destroy the condition as to the rest of the property (9).

A conveyance of the reversion by way of mortgage Bue for rent, of course passes to the mortgagee the right to the rent and the benefit of all covenants and conditions. But as it is usual for the mortgagee to permit the mortgagor to remain in possession, the Judicature Act, 1873 (), provides that a mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person.

Whether lessor can

accrued.

It seems doubtful whether under the stat. 8 & 9 Vict. assign right of C. 106, s. 5, a lessor can pass to his assignee the right entry already to enter for a breach already committed of the lessee's covenants: at all events, such a right will not pass by the assignment of the reversion, unless expressly mentioned (s).

Effect of

destruction of mesne reversion.

8 & 9 Vit. c. 106, s. 9.

As the right to the rent and to sue on the covenants. follows the reversion, it was formerly important, where a lease was made by a person who was himself only a termor, or had otherwise a limited interest, that the term or other interest constituting his reversion should not be merged or surrendered. For example, if lands were held by A. for life or for years, with remainder to B., and A. made a lease and afterwards surrendered his estate to B. or took a conveyance from B. which had the effect of merging his (A.'s) estate, the consequence was that, the immediate reversion on the lease being gone, the rent and the benefit of the covenants were gone also. To remedy this, it is provided by 8 & 9 Vict. c. 106, s. 9, that in case of the merger or

(9) Sects. 1, 2.

Sect. 25, sub-sect. 5.

(s) Crane v. Batten, 23 L. T. R. 220; Hunt v. Remnant, 9 Exch. 635; 23 L. J. Ex. 135.