and it seems that the fact of premises becoming uninhabitable from the want of proper repairs will not entitle the tenant to quit without notice, and is no answer to an action for the rent. With regard to farms, a promise is implied by the law on the part of a yearly tenant to use the farm in a husbandlike manner and cultivate it according to the custom of the country (2).

Property tax is always borne by the landlord, and Property tax always borne any contract by the tenant to bear it is void; the by landlord. tenant should in the first instance pay it, and is then entitled to have it allowed to him out of his rent (a). Tithe rent-charge is not a charge upon the person of Other cases. the owner or occupier but upon the land, and therefore, in the absence of agreement to the contrary, a tenant paying it may deduct it from his rent. In a recent case where the tenant had covenanted to pay "all taxes, rates, duties, and assessments, whether parliamentary, parochial, or otherwise," it was held that he was liable to pay the costs of certain drainage works compulsorily done upon the premises by order of the sanitary authority of the borough (b).

sometimes

Although there may be nothing in a lease to that effect, A tenant may a tenant may sometimes by custom have certain rights, have rights by on the ground that the parties have contracted with custom. reference to that custom, and an implied contract has been thus created (c). This often occurs in the case of farming tenants with reference to the custom of the country as to their rights on giving up possession of their farms. If a lease contains any particular stipulations as to the manner in which a tenant is to quit, and what he is to be entitled to on quitting, then

(2) See generally hereon Woodfall's Landlord and Tenant, 560-576. (a) 5 & 6 Vict. c. 35, s. 103.

(b) Budd v. Marshall, L. R. 5 C. P. D. 481; 50 L. J. Q. B. 24; 29 W. R. 148.

(c) See ante, p. 19.

the rule Expressum facit cessare tacitum applies, and no custom can have any effect; but if, though there is a lease, it is silent on this point, then, as was decided Wigglesworth in the case of Wigglesworth v. Dallison (d), the tenant may take advantage of the custom.

v. Dallison.

Fixtures.

Meaning of the term.

Questions frequently arise between landlord and tenant as to the right to fixtures. The term fixtures is used sometimes with different meanings; strictly speaking, it signifies things affixed to the freehold, but it may also be used as signifying chattels annexed to the freehold, but which are removable at the will of the

person who annexed them (e). The rule at common law as to things affixed to the freehold is expressed by the maxim of our law, Quidquid plantatur solo, solo cedit; but this rule, being found to operate in discouragement of trade, has been gradually much mitigated. It may be stated generally that fixtures erected for the purposes of trade, ornament, or domestic use, and also agricultural fixtures (ƒ), may be removed by a tenant as against his landlord, and it may in particular cases happen that custom gives a tenant a wider right than he would ordinarily have. When a tenant has the right to remove fixtures, the removal by him must be moved during during his tenancy, or such further period as he holds under a right to consider himself tenant (g), i.e. whilst permitted by the landlord to remain in possession; and if he does not remove them during that time he will lose his right to them, for they then become a gift in law to the landlord, unless indeed the landlord afterwards gives a licence to the tenant to enter to remove the fixtures, and such a licence would not be good. unless under seal (h).

Must be re

tenancy.

(d) 1 S. L. C. 594; Dougl. 201.

(e) 2 S. L. C. 189.

(f) 14 & 15 Vict. c. 25; 38 & 39 Vict. c. 92, s. 53.

(g) Weeton v. Woodcock, 7 M. & W. 14.

(h) Roffey v. Henderson, 17 Q. B. 574.

be removed,

rule now

As before stated, originally, under the maxim Quid- Originally no quid plantatur solo, solo cedit, nothing in the nature of fixtures could a fixture could be removed, and the mitigations of the but the old old rule have arisen gradually; the first was in favour mitigated. of trade fixtures, and subsequently other cases extended it to ornamental and domestic fixtures. There have been a very great number of cases upon this subject, and amongst the articles that have been decided to be removable by the tenant may be mentioned as instances the following:-Chimney-glasses, sheds, blinds, ornamental chimney-pieces, wainscots, shelves, counters, pumps, partitions, shrubs and trees planted for sale (i). The fixtures, if removable, must be taken away without material damage to the inheritance, and the right of removal is, of course, liable to be controlled by express contract; so that, for instance, if a tenant covenants to keep in repair all erections built, or thereafter to be built, and surrender them at the end of the term, this will prevent him removing things which but for the covenant he might have removed (k).

Under the exception to the common law rule in Elwes v. Mawe. favour of trade fixtures it was decided in Elwes v. Mawe (1) (which is a case very generally quoted and referred to on the subject of fixtures), that this would not apply to allow tenants in agriculture to remove things erected for the purposes of husbandry; and Lord Ellenborough, in delivering the opinion of the Court to that effect, said:"To hold otherwise, and to extend Reason of the rule in favour of tenants to the latitude contended agricultural for by the defendant, would be, as appears to me, to being remov introduce a dangerous innovation into the relative state fixtures. of rights and interests holden to subsist between landlords and tenants. But its dangers or probable mischief are not so properly a consideration for a Court of

(i) See a list of things decided to be removable and not removable in Chitty on Contracts, pp. 338-341.

(k) West v. Blakeway, 2 M. & G. 729; Penry v. Brown, 2 Stark, 403. (4) 2 S. L. C. 169; 3 East, 38.

fixtures not

able as trade

Provision of 14 & 15 Vict. c. 25.

Provision of 38 & 39 Vict. c. 92, s. 53.

law as whether the adoption of such a doctrine would be an innovation at all; and being of opinion that it would be so, and contrary to the uniform current of legal authorities on the subject, we feel ourselves, in conformity to and in support of those authorities, obliged to pronounce that the defendant had no right to take away the erections stated and described in this case." These remarks shew the reason of the decision, and as the rule undoubtedly often worked hardship on tenants, it has been altered by the Legislature, it being now provided by 14 & 15 Vict. c. 25 (m), that all buildings, engines, or the like, erected by the tenant for agricultural purposes, with the consent in writing of the landlord, shall remain the property of and be removable by the tenant, so that he do no injury in the removal thereof; provided that one month's notice in writing shall be given before removal to the landlord, who within that time is to have a right of purchasing at a value to be ascertained by two referees or an umpire. The Agricultural Holdings Act, 1875 (n), also contains a provision on this subject, with regard to tenants under that Act, as follows:- Where after the commencement of this Act a tenant affixes to his holding any engine, machinery, or other fixture for which he is not under this Act or otherwise entitled to compensation, and which is not so affixed in pursuance of some obligation in that behalf, or instead of some fixture belonging to the landlord, then such fixture shall be the property of and removable by the tenant: Provided as follows: 1. Before the removal of any fixture the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect of the holding. 2. In the removal of any fixture the tenant shall not do any avoidable damage to the building or other part of the holding. 3. Immediately after the removal of any fixture the tenant shall make good all

(m) Sect. 3.

(n) 38 & 39 Vict. c. 92.

damage occasioned to any building or other part of the holding by the removal. 4. The tenant shall not move any fixture without giving one month's previous notice in writing to the landlord of the intention of the tenant to remove it. 5. At any time before the expiration of the notice of removal, the landlord by notice in writing given by him to the tenant may elect to purchase any fixture comprised in the notice of removal, and any fixture thus elected to be purchased shall be left by the tenant, and shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding; and any difference as to the value shall be settled by a referee under this Act as in case of compensation, but without appeal. But nothing in this section shall apply to a steam engine erected by the tenant, if before erecting it the tenant has not given to the landlord notice in writing of his intention to do so, or if the landlord by notice in writing given to the tenant has objected to the erection thereof " (0).

between the two foregoing

The most noticeable difference between this provi- Difference sion and the one contained in 14 & 15 Vict. c. 25, is that under the earlier statute only fixtures erected with provisions. the consent in writing of the landlord can be removed. It must not be forgotten, however, that the operation of the Agricultural Holdings Act may be excluded, and the general practice since its passing has been to exclude it, and also that it only applies to tenancies of an agricultural or pastoral character to the extent of two acres at the least (p).

sale of fixtures

"As to the operation of the Statute of Frauds, Contract for 29 Car. 2, c. 3, upon contracts exclusively for the sale need not be in of fixtures, it appears to be settled that such contracts writing.