Termination of Lease
Deasy’s Act 1860
LANDLORD AND TENANT LAW AMENDMENT ACT, IRELAND, 1860
Surrender
7. The estate or interest of any tenant under any lease or other contract of tenancy shall not be surrendered otherwise than by a deed executed, or note in writing signed by the tenant or his agent thereto lawfully authorized in writing, or by act and operation of law.
Sub-Leases
8. The surrender of any lease made before or after the passing of this Act for the purpose of obtaining a renewal thereof, shall be valid without the surrender of the interests of the under-tenants thereunder; and the owners of such renewed lease for the time being and their representatives shall have the same rights and remedies as against such under-tenants as he or they would have had or have been entitled to had such surrender not been executed; and the chief landlord shall have the same remedies against the premises for the rents and duties reserved in such new lease, not exceeding the rents and duties reserved by the lease out of which such under tenancies were derived, as he would have been entitled to in case no such surrender had been executed.
Destruction
40. If any dwelling house or other building constituting the substantial matter of the demise, and holden by any tenant under any lease or other contract of tenancy not containing an express covenant or agreement binding on the tenant to repair the same, shall be destroyed, become ruinous and uninhabitable, or incapable of beneficial occupation or enjoyment, by accidental fire or other inevitable accident, and without the default or neglect of the said tenant, it shall be lawful for such tenant to surrender the said premises; and on tendering the said surrender and on payment of all rent and arrears due or accruing due, or tendering the same, the said tenant shall be thenceforth discharged from all obligation to pay the rent or perform the covenants and conditions in the lease thenceforward.
44. The surrender to or resumption by a landlord, or eviction of any portion of the premises demised by a lease, shall not in any manner prejudice or affect the rights of the landlord, whether by action, by entry, or ejectment, as to the residue of said premises.
Conveyancing Act 1881
Releif againsst Forfeiture
CONVEYANCING ACT, 1881
14. – (1) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforce able, by action or otherwise, unless and until the lessor 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, and, in any case, requiring the lessee 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 compensation 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 foregoing provisions of this section, and to all the other circumst-
ances, thinks fit; and in case of relief may grant it on such terms, 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.
(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; anda lessee includes an original or derivative under-lessee and the heirs, executors, administrators, 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, alsoa grantor as aforesaid, and his heirs and assigns.
(4) This section applies although the proviso or stiplulation 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 seciton a lease limited to continue as long only as the
lessee abstains from committing a breach of covenant shall be and take effect asa lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a 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.
[Sub. s. (7) rep. by S.L.R. 1894.]
(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 notwithstanding any stipulation to the contrary.
Conveyancing Act 1892
Leases, Under-leases, Forfeiture
2. – (1) A lessor shall be entitled to recover as a debt due to him from a lessee, and in addition to damages (if any) all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor by writing under his hand, or from which the lessee is relieved, under the provisions of the Conveyanc ing and Law of Property Act, 1881, or of this Act.
(2) Sub-section six of section fourteen of the Conveyancing and Law of Property
Act, 1881, is to apply to a condition for forfeiture on bankruptcy of the lessee, or on taking in execution of the lessee’s interest only after the expiration of one year from the date of the bankruptcy, or taking in execution, and provided the lessee’s interest be not sold within such one year, but in case the lessee’s interest be sold within such one year, sub-section six shall cease to be applicable thereto.
(3) Sub-section two of this section is not to apply to any lease of –
(a) Agricultural or pastoral land:
(b) Mines or minerals:
(c) A house used or intended to be used as a public-house or beershop:
(d) A house let as a dwelling-house, with the use of any furniture, books, works of art, or other chattels not being in the nature of fixtures:
(e) Any property with respect to which the personal qualifications of the tenant are of importance for the preservation of the value or character of
the property, or on the ground of neighbourhood to the lessor, or to any person holding under him.
3. In all leases containing a covenant, condition, or agreement against assigning, underletting, or parting with the possession, or disposing of the land or property leased with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition, or agreement shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject toa proviso to the effect that no fine or sum of money in the nature ofa fine shall be payable for or in respect of such licence or consent; but this proviso shall not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to such licence or consent.
4. Wherea lessor is proceeding by action or otherwise to enforcea right of re-entry or forfeiture under any covenant, proviso, or stipulation ina lease, the court may, on application by any person claiming as under-lessee 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 (erm of the lease or any less term the property comprised in the lease or any part thereof in any person entitled as under-lessee 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, compens ation, giving security, or otherwise, as the court in the circumstances of each case shall think fit, but in no case shall any such under-lessee be entitled to requirea
lease to be granted to him for anY, longer term than he had under his original sub-lease.
In section fourteen of the Conveyancing and Law of Property Act, 1881, as amended by this Act, and in this Act, ‘lease’ shall also include an agreement fora lease where the lessee has become entitled to have his lease granted, and ‘under lease’ shall also include an agreement for an µnder-lease where the under-lessee has become entitled to have his under-lease granted, and in this Act ‘under-lessee’ shall include any person deriving title under or from an under-lessee.
Cases General
Lynch v Lynch
(1843) 6 lr.L.R. 131 (Exchequer)
Brady C.B.:
This case, which was tried before the Lord Chief Justice, comes before the Court ona motion to set aside the verdict. It is an ejectment on the title, and the lessors of the plaintiff claim under a freehold lease for a life still in being. It appeared in the course of the trial, that in the year 1833 an ejectment for non-payment of rent was brought to evict that lease, and that in order to pay off a portion of the arrears, an arrangement was entered into whereby one Patrick Lynch, the husband of the present defendant Judith Lynch, who is since deceased, on payinga part of the arrears, got into possession of a portion of the lands; for which portion the present ejectment has been brought, and the question made at the trial before the Lord Chief Justice was, whether the arrangment entered into at the time of the ejectment for non-payment of rent, between Mr. Willington, the agent on the part of the head-landlord, and Patrick Lynch, the late husband of the defendant, with the assent of the lessees or their representatives (the present lessors of the plaintiff), was only intended as a means of securing the repayment of the portion of the arrears of rent advanced by him, or whether it was the creation of a term altogether new, directly under the landlord, without any holding under or connexion with the original lessees.
The Chief Justice left the question to the Jury, most strongly in favour of the lessors of the plaintiff, – for he told them, that unless they were certain that at the time of the agreement, the lessees knew of the terms of that agreement and concurred in it, and knew also at the time that their concurring in that agreement, it would have the effect of putting an end to the lease of 1821, and concurred in it with such knowledge of the effect, they would not be warranted in finding for the defendant; and that if they were not fully satisfied thereon, or if they conceived the lessees intended only the making a security to Patrick Lynch for the money he advanced, and either did not know, or did not intend, that their interest in the lease of 1821 should be finally surrendered, they should find for the plaintiff.
The jury under that direction found for the defendant: thus finding unequivocally and distinctly that the lessors of the plaintiff were parties to the settlement or agreement between the landlord and the new tenant Patrick Lynch, and that they concurred with the landlord in making to the person under whom the defendant derives, a new letting of the premises of which they had been previously in possession under the lease of 1821. The Chief Justice in effect told the Jury, that if that was their opinion, they should find for the defendant, because, the transaction so completed, amounted in his opinion to a surrender by operation of law, and that the parties claiming under the original lease could not set it up as against the defendant deriving under the person with whom such new arrangement was made. The lessors of the plaintiff on this motion insist that this view of the case cannot be upheld, and it has been broadly contended that we are to look behind the cases in England, and in particular the case of Thomas v. Cook (2 B. & Al. 119), in which this doctrine of surrender by operation of law is said to have originated in modern times. That was the case of a tenancy from year to year, and the Court there held that when the tenant assented to his landlord making a new lease and taking a new party as tenant in his place, the transaction amounted to a valid surrender of his lease by operation of law, although there was no note or surrender in writing. It has been contended by Counsel for the lessors of the plaintiff that that case might have been decided on other grounds, but we find no other grounds suggested in the argument or mentioned by the Members of the Court in the delivery of their judgments. And in the Nisi Prius report of the same case (2 Stark. N.P.C. 408),
they are the only grounds upon which the case is put.
This is not the only decision upon the subject. The doctrine there established has been followed in the subsequent cases of Walker v. Richardson (2 M. & W. 882); Reeve v. Bird (C.M. & R. 31); and Bees v. Williams (2 C.M. & R. 581); so that we must, I think, on this motion, take it that the doctrine stated and acted on in the case of Thomas v. Cook, has received the general sanction of the Judges of England, and is now the settled law of the land.
But it is contended that this case is distinguishable from the cases cited, on the ground that this is a lease of a freehold estate, and as such cannot be surrendered without a deed or note in writing, according to the Statute of Frauds (7 W. 3, c. 12,
s. 1, Ir.), which enacts that, ‘No leases, estates, or interests, either of freehold, terms of years, or any other uncertain interest in any messuages, manors, lands, tenements or hereditaments, shall be surrendered, unless by deed or note in writing, or by act and operation of law.’ To judge the force of this objection, let us consider what is the meaning of the expressions thus used in the statute. A surrender by ‘act and operation of law,’ I think may properly be stated to be a surrender effected by the construction put by the Courts on the acts of the parties, in order to give to those acts the effect substantially intended by them; and when the Courts see that the acts of the parties cannot have any operation, except by holding that a surrender has taken place, they hold it to have taken place accordingly. Surrender by implication is quite a different thing: thus, before the Statute of Frauds, the mere cancelling of the deed may have amounted to a surrender by implication. Now, it is unquestionable that before the Statute of Frauds, a lease for life was equally capable of being surrendered by parol or by operation of law, as a lease for years. The doctrine is so expressly laid down in Shepherd’s Touchstone, p. 301, where it is said, that ‘Iflessee for life or years take a new lease of him in reversion, of the same thing in particular contained in the former lease for life or years; this is a surrender in law of the first lease: – as if lessee for his own life, or another’s life, in possession or reversion, take a new lease for years; or a lessee for forty years takes a new lease for fifty years; the first lease in both these cases is surrendered. And this rule holdeth, albeit the second lease be for a less time that the first, as if lessee for life accept a lease for years, or lessee for twenty years accept a lease for two yel\fs.’ Again, in the same passage it is said: ‘And this rule, as it seems holdeth also, albeit the second lease be to the lessee and
a stranger, or to the lessee and his wife; and albeit the second lease be by word only, and the first lease be by deed, if so·be the thing granted by the lease be such a thing as may pass by word without writing.’ Now, unquestionably the new agree ment in the present case was valid without a lease, for in truth it was no more than the creation of a tenancy from year to year in Patrick Lynch.
It was however contended by Mr. /.Jynch in a very ingenious argument for the lessors of the plaintiff, that there was a distinction between a lease for lives and a lease for years, in regard to the mode in which they could respectively be surren dered; and for that purpose he cited amongst others, a case from 1 Levintz (Mason
v. Tredway, p.145). But that case stands upon totally different grounds. The Court was there considering what construction was to·be put upon the language of a deed; and in the same chapter from which I have already quoted in Shepherd’s Touch stone (Chap. xvii. p. 300), a surrender by writing is said to be an instrument testifying by ‘apt words’ that the particular tenant of the lands or tenements for life or years doth consent, &c.; and the Courts have accordingly held that certain words may have an operation in the case of a lease for years which they cannot have in the case of a lease for lives; and that is the substance of the decision in the case from
Levintz.
A strong illustration of the anxiety of the Courts to construe the acts of the parties so as to effectuate their intention, occurs in the following instance, viz., where tenant for life joined with the remainder-man or reversioner in making a feoffment; and it bears directly on the question now before us. According to the law before the Statute of Fruads, it was settled that in such a case, if the feoffment was without deed, it operated as the surrender of the estate for life, and as the feoffment of the reversioner or remainder-man; but if the feoffment was by deed, it operated as a grant of the life estate by the tenant for life, and as the confirmation of the remainder-man. This will be found expressly laid down in Treport’s case (6 Coke, 15a.); and the law upon the subject is thus stated in 2 Bacon’s Abr. Estate p. 572, ‘The next thing to be considered is when tenant for life and he in reversion join in the conveyance; and this has a different operation as the feoffment is with or without deed; for if it be without deed, then this is construed to be a surrender of the estate for life, and the feoffment of him in reversion, for no other interpretation can make the feoffment effectual; for if the estate passes from the tenant for life to the feoffee, it will be a forfeiture of his estate, whereof he in reversion may take advantage, notwithstanding his joining; for he having only the reversion had nothing to do with the freehold, and by consequence could make no feoffment or livery; and it cannot be a grant or confirmation of him for want of a deed, therefore to make it effectual it is construed the surrender of the tenant for life, and the feoffment of him in reversion. But if tenant for life and he in reversion join in a feoffment by deed, then each passes only his own estate; the tenant for life the freehold in possession, and he in reversion his reversion; and this cannot be a forfeiture, because he in reversion joined in a proper conveyance to transfer his reversion, and having passed it to another, has no interest left to entitle him to take advantage of the forfeiture if it was one.’ There is a case in Croc. James, to the same effect. It is plain then on these authorities that not only could a lease for life have been surrendered by parol at common law, but that the doctrine of surrender by operation of law applied to it equally, and to the same extent as to a lease for years; and this being the case, I see no ground for any distinction on which the Court can act in holding it not to be governed by the case of Thomas v. Cook (2 B. & Al. 119), and the other cases following it to which I have referred.
If in the present case the Jury had found that the intention of the parties was to make a security to Patrick Lynch only, the case would have been different; but they found directly the contrary. They have given the estate to a new tenant through the landlord, and with the assent of the original lessees. Could the landlord after that insist that the old lease was subsisting, for the purpose of defeating his grant to the new tenant? and if he could not, can the former lessee who concurred in that grant be in a different position?
Upon these grounds then, being of opinion that the case of Thomas v. Cook was well decided, and that there is no sound distinction between a freehold lease and a lease for years, we think the verdict ought not to be set aside, or a new trial granted.
Pennefather B.:
· After the very full judgment just pronounced it may not, perhaps, be expected that I should add any thing; but as it is a question of considerable importance, and I believe the first judicial determination of the exact point in question, I will briefly state the grounds of my concurrence in the Chief Baron’s judgment.
The point upon which this case turns was decided, for the first time, in the case of Thomas v. Cook (2 B. & Al. 119). Before that case, it was settled law on the older authorities, that the acceptance of a new lease by a tenant operated as a surrender of his interest, whether such new lease were for a greater or less estate, whether the first lease had been freehold, or whether it was one for a long term of years. There are many authorities to show that the previous lease, whether of freehold, or for a term of years, was surrendered by the acceptance of a demise though by parol. The case of Thomas v. Cook (2 B. & Al. 119) carried the law a little further. There the demise was made, not to the former tenant, but to the new occupier, with his privity and assent; and the same construction, and the same operation have been given to that dealing by that case, that would have attended a lease or demise made to the tenant himself.
It was argued, that Thomas v. Cook (2 B. & Al. 119) might have been decided on other grounds, but no other ground was suggested by any of the learned Judges by whom the case was decided. It was put on the operation of the second demise, and held to be a surrender by operation of law; and in truth, it would appear to me, that (although no allusion is made to it by any of the learned Judges) their decision might derive much support from the passage read by the Chief Baron from Shepherd’s Touchstone (p. 301). For, in that passage it is said, that, although the second demise be made not singly to the tenant, but to the tenant and a stranger, it shall equally have the effect of a surrender by operation of law. Now, what does Thomas v. Cook decide? It is this, that where the second demise was with the assent of the lessee to a stranger, and the stranger got the possession, the effect was the same as if the demise had been made to the original tenant. That is not very different from, nor does it carry the law much further than, that a demise or lease to the tenant and a stranger operates as a surrender by operation of law.
For a while, however, doubts were entertained of the soundness of the decision in that case, and I confess, that I, myself, participated in those doubts. But whatever the propriety of that decison may be, it has been acted on, and recognised in many subsequent cases; and if it establish, as it does, that a demise to a stranger with the assent of the lessee, possession accompanying the act, is a surrender by operation of law of a chattel interest; I think it must be equally so of a freehold, and that no well founded distinction can be taken between the two.
If the decision in Thomas v, Cook (2 B. & Al. 119), acted on as it has been, is intended to be controverted, it must be done in such a way as to admit of the case being carried further by way of appel\l, and the question should be put upon the record; but on a motion for a new trial, it must be considered a binding authority.
I am, however, far from saying that Thomas v. Cook (2 B. & Al. 119) was rightly decided, whatever may be the difficulty (and there is much) in that decision arising out of the Statute of Frauds. Assm ing, therefore, that case to have been rightly decided, I am unable to distinguish the case of a freehold from that of a chattel, and consequently concur in the judgment of the Chief Baron.
Lefroy B.:
The first question in this case is, whether the cast done by the landlord, as between him and a third person, with the concurrence of the former tenant, will amount to a surrender by operation of law of the tenant’s interest.
I was at first inclined to think that Thomas. v. Cook (2 B. & Al. 119) carried the law further than the doctrine of implied surrender had previously gone; but I now think, as the Court has already intimated, that that decision does no more than apply the law to a new case, but does not infringe on the principle of the law as antecedently established. Another question is, whether the doctrine laid down in Thomas v. Cook is applicable to a freehold lease.
With respect to the first question – consider first, what is the law as to a dealing merely between the landlord and his tenant. According to all the authorities, if a tenant in a dealing between himself and his landlord does an act acquiring a new interest, or a new estate inconsistent with his former estate, that amounts to a surrender of his former estate by operation of law. But each of these ingredients must concur in the transaction in order to constitute it a valid surrender by operation of law; namely: – there must be an act affecting the possession – that act must create an interest; and lastly, that interest must be inconsistent with the tenant’s former interest. Thus, in 2 Roll. Ab. 495, Surrender, F. pl. 3, 4, 5, it is said if a tenant grant a license to his landlord to make a feoffment, or to make livery, or
himself give livery as the attorney of his lessor; in none of these cases will there be a surrender.
The act in which the tenant joins must also create an estate; and accordingly, the accepting of a new lease which is void, does not amount to a surrender, because it creates no new estate, and therefore, no estate inconsistent with the tenant’s former interest. It appears to me, that the case of Thomas v. Cook (2 B. & Al. 119) merely extended that doctrine to an act done by the landlord creating a new interest
in a third person inconsistent with the tenant’s, the tenant concurring in the act. In that case, the possession was given up by the tenant, pursuant to the new agree ment made by the landlord with the tenant’s concurrence and assent, and it was held to amount to an implied surrender, or as it is called, a surrender by operation of law. The decision did not rest merely on the tenant’s having assented to the agreement, but on his giving up the possession pursuant to the agreement; by which a new interest was created inconsistent with the former tenant’s interest, on somewhat of the same principle upon which Courts of Equity have held that a parol agreement accompanied by possession takes a case out of the Statute of Frauds.
The distinction between an act done by the tenant affecting the possession, and a mere assent or agreement, has been acted upon in a case in M’Clelland and Younge, – I allude to the case of Doe d. Huddleston v. Johnston (p. 141). In that case a tenant from year to year agreed by parol with his landlord’s agent to quit at the ensuing Lady-day, which was within half-a-year; and the premises were re-let by auction, at which the tenant attended and bid, but the new tenant was not let into possession; and that was held not to amount to a surrender, because the tenant did not do an act affecting the possession inconsistent with his former interest – thus following up the principle of the cases in Roll’s Abridgment.
The mere fact of the tenant’s being a party to the agreement, is not per se sufficient to constitute a surrender; but if the tenant be a party to the agreement, and follow it up by giving possession in pursuance of it – that amounts to a surrender by operation of law, and that is precisely the state of facts here. The original lessee not only acceded to the new arrangement or agreement made by the landlord with Patrick Lynch, but followed that up by giving up the possession to Lynch in pursuance of that agreement.
But it is said that this being the case of a freehold lease, is distinguishable on that ground from the case of a chattel interest. In the old cases, however, no distinction is taken in a dealing between the landlord and tenant, whether the lease be freehold or chattel. In Mellow v. May (Moore, 636), which is recognised in Hamerton v. Stead (3 B. & C. 483), it was decided that in the case of a lease for life, if the lessee accepted from the landlord a tenancy from year to year, or even a tenancy at will, it amounted to a surrender of the lease; and I see no reason why the doctrine acted upon in the case of Thomas v. Cook (2 B. & Al. 119) should not apply to the case of a freehold lease as well as a chattel.