In this essay I consider the meaning and effect of the decision of the House of tenant's vulnerable position in relation to a singular successor of the landlord by. Relationships between landlords and tenants are governed by several The promises that are made between a landlord and tenant define the nature of the. The following are only examples of the existing laws which provide for rent alteration. landlord-tenant relationships which no longer exist in modern urban Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS , .
There was no irritancy clause in the lease. Non-residence did not create an irritancy, and there was no conventional irritancy. He then turned to the real right issue. He followed the decision in Drummond 71 where the court had held that although a residence clause was not fenced with a power of irritancy, the contract would necessarily come to an end if the tenant should put it out of his power to fulfil the conditions of the lease.
Lord Cowan put the matter as follows: He said a lease was a real right, and to be assimilated to a feu-right. That is not its nature.Prop1 Class 27 Landlord-Tenant Relationship III: Implied Warranty of Habitability
A contract of lease is a mutual contract, and although, under the statutewith some of the privileges of a real right, it does not substantially differ from a mutual contract. It is no doubt an heritable contract, on account of its being for a tract of future time. That is a totally different matter from its being a real right. The Act of was for the benefit of the poor people who laboured the ground. It prevented the vendees of the lessor from turning out the lessee. It declares the right followed by possession to have that effect, but that is not making it, properly speaking, a real right.
This is the authoritative edition published in February The lease conditions provided for the customary sequence of handover arrangements by which the incoming tenant would have access to parts of the land from 1 March for the purpose of sowing and by which, in due course, the tenant would have access after his waygoing to reap his final crop.
Thereafter the landlords sold the farm to the pursuer with entry at 29 February The defender duly took access to the land under green crop between late March and early May and during that period prepared and sowed the ground.
The pursuer then had the defender interdicted from entering on the land on the plea that the lease was not binding on him as a singular successor of the landlords, the defender not having taken entry to the land in terms of the lease.
Instead, he argued that he had been in possession of part of the land from March onwards and that that limited possession was sufficient to confer on him the protection of the Act. The First Division refused the appeal by distinguishing between the possession that would have followed from entry at the specified date and the anticipatory or deferred occupation of certain parts of the land by which the agricultural cycle was maintained.
Without possession the tenant is merely the personal creditor of the lessor. By entering into possession the lessee publishes to the world in general, and to singular successors in particular, the fact of his lease, and since the practice of taking sasine on a tack fell into disuse in the 15th century, no substitute has been recognised by our law for possession except registration of long leases under the Act of It is significant however that neither the arguments of counsel nor the opinions of the judges make any reference at all to the nineteenth century controversy.
First, the Roman law in which a lease of land, as part of the wider contract of hire, conferred on the lessee only a right in personam against the lessor; and second, the strict feudal theory on which sasine endowed the proprietor with rights of ownership that were valid against all comers. The tenant under the Roman contract locatio conductio had a right in personam, against the lessor only, to be maintained in possession.
To them, the taking of possession was only the palest shadow of sasine. The idea that the mere taking of possession could confer a right in rem was heresy. To them the taking of sasine was a significant juristic act by which the fullest rights of ownership were conferred and publicly acknowledged.
The private act of taking possession under a private contract that endowed the lessee with, at most, subordinate and temporary rights in the subjects could not meaningfully be equiparated with sasine. The liberal construction to which Rankine referred was favoured by most of the writers from earliest times and has had a secure place in the case law for the last two hundred years.
The obiter dicta of two judges in Edmond v Reid are the last judicial statements to have been made in support of the personal right theory. It is perhaps a criticism of the alternative theory that in wresting these dicta from that single case, Bury and Bain have failed to place their theory in its full historical context.
If I am right in my interpretation of the twentieth century authorities, it is beyond any reasonable challenge, in my view, that in the modern law of Scotland a contract of lease that meets the essential requirements that were agreed and re-stated in Gray v Edinburgh University 86 confers a right in rem on the tenant.
13. Two Questions in the Law of Leases
On the other hand, if the contract fails to meet those requirements, it is not a lease at all. But even if it were a valid form of lease, the question whether it fell with any particular statutory regime would depend on the relevant legislation. For example, it may be that under the Housing Scotland Acts a party may be deemed to be a tenant even if he holds under a form of tenure that is not a lease at all. It cannot therefore fit into the scheme of the Act where every lease to which the Act applies is subject to a statutory form of annual relocation 89 after the expiry of the contractual term and is good against any subsequent landlord of the holding.
The definitions of landlord and tenant in section 85 1 apply, of course, only for the purposes of the Act. Even if it were possible for the lease to be granted by the co-proprietors including himself, the lease would be unworkable. By reason of the rights of every individual pro indiviso proprietor that are inherent in his ownership, and by reason of the principle of unanimity to which I have referred, the appellant — on that hypothesis — could prevent inter alia the service upon him of any notice to quit under section 21 of the Act, any notice for a review of rent under section 13, any demand to remedy fixed equipment under section 22 and any application for a certificate of bad husbandry under section That would be an unreasonable result.
The suggestion is that their Lordships took too narrow a view of rent as being a payment of money, there being wide definitions of rent given by the writers which comprehend a non-pecuniary consideration. This again seems not to advance the argument. To succeed in the alternative theory its proponents must still establish that a personal lease created by several pro indiviso proprietors in favour of one of their number is a valid contract. In my view, if the personal lease known to the Scottish common law had survived to the present day, the arrangement between the pro indiviso proprietors in the Clydesdale Bank case could not have been such a contract, for the good and sufficient reason that it is not possible for a party to be both creditor and debtor in a contract.
The logic of this principle is recognised as a general principle of the law of contract. Neither court found it necessary to consider the validity of such a contract. In my view, it is irrelevant to the present discussion; but it may be that the judgment of Lord Mackay of Clashfern in that case is not the last word on that subject.
Qua tenant, he could not avail himself of his rights as co-proprietor pro indiviso to resist removal at the instance of his co-proprietors… that fact does not enable him to maintain himself in possession qua tenant till he is removed with his own consent.
The question was whether the rent passing under the lease was a true indicator of the annual value of the subjects on the statutory valuation hypothesis. For the answer to that question, it did not matter whether the lease was valid or not.
The issue of the validity of the lease was not raised by either party to the appeal and none of the judges considered it. Neither court considered it to have any persuasive value. This is the key element in the alternative theory; but it may be a step too far. However, in such a contract, the parties would be, on one side, the occupier and, on the other side, the other pro indiviso proprietors.
The contract in this case was between different parties, namely, on one side, all of the pro indiviso proprietors and, on the other, one of the three qua individual.
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The judges of the House of Lords regarded the purported lease document as being in itself a valid contract by which the pro indiviso proprietors regulated the occupation and management of the land.
Those statements were plainly obiter. In my view, they are unsound. Since the contract was between all three proprietors and one of their number, it failed as a contract for occupation and management on the same logic on which it failed as a lease. But the objection goes beyond that.
The contract bore to be, and was intended to be, a lease. I cannot understand how, as the judges of the House of Lords seem to have implied, it fell to be read as being what it did not bear to be, and was not intended to be; namely, a contract between all three pro indiviso proprietors contracting as such inter se. One example of landlord taking back possession of his property after the lease had expired was in Texas. The tenant, Johnny Sanchez, gave notice to the landlord that he had purchased a home and was moving from the leased premises.
The tenant gave notice that he would abandon the property on August 16th and no rent was paid for time after August 16th. Several days later, on August 21st, the landlord went to the property to determine if it was habitable and make any necessary repairs prior to renting the property to a new tenant.
During this inspection the landlord discovered illegal drugs and notified the police. The police arrested Johnny Sanchez for illegal possession of a controlled substance and he was sentenced to seven tears in prison and was forced to pay monetary fines. In defending himself, the former tenant claimed that the landlord did not have the right to allow the police into the house.
He claimed it was still in his possession and since no search warrant was issued all evidence was obtained illegally. The judge threw out this defense. Since Sanchez had abandoned the property and quit paying rent, the landlord had the right to regain possession of the property. The evidence was allowed in the trial and Mr. Sanchez was convicted WL As stated above, the landlord has the responsibility to provide quiet enjoyment to the tenant, and the tenant has the right to quiet enjoyment.
This enjoyment includes the use of the premises without unreasonable interference from the landlord or third parties Liuzzo and Bonnice, page An example of this would be the case of Classens vs. Aiello in the state of Massachusetts. In this case the tenant, John Classens, claims that the landlord failed to provide him with his right to quiet enjoyment.
In the case, the tenant claims that the landlord, who was responsible for paying the utility expenses at the property, intentionally set the heat at allow temperature during the cold winter months. The tenant requested on several occasions that the heat be increased so that he and his family could more comfortable enjoy the property that they were renting. The landlord failed to act on these requests and the tenant pursued legal action.
The courts agreed with the tenant that the heat was set at an unreasonably low temperature and thus the tenant and his family could not reasonably enjoy the premises they were paying for. The tenant also has the right to take possession of the property on the date the two parties agree upon in the lease.
If the two parties agree that the tenant will take possession on December 1,the tenant has the right to take possession that day, and the landlord a responsibility to insure the property is ready and available on that day. The tenant also has the right to maintain possession of the property for the duration of the lease. Thirdly, the tenant has the right to transfer their interest in the property to a third party, so long as the landlord agrees to the transfer of the interests.
This may allow a tenant to vacate the property if necessary. If a tenant must move to a different city with eight months remaining on the lease, transferring the rights of possession to a third party may be a good thing for both the tenant and the landlord.
It allows the tenant to vacate the property without penalty, and it helps the landlord maintain an uninterrupted stream of income from the property.
The tenant has responsibilities as well. First off, the tenet has the duty to pay rent regardless of whether the landlord fulfilled his or her responsibilities. The tenant also has the duty preserve the premises. Basically, the tenant has a duty to return the property to the landlord in the same condition as it was when they took possession of the property.