HL Deb 03 March 1892 vol 1 cc1755-9

Order of the Day for the Second Reading, read

LORD HERSCHELL

My Lords, this is a Bill to effect certain amendments in the Conveyancing and Law of Property Act, 1881. The Bill is similar to, and, I believe, identical with a Bill which passed through the other House last Session, and was read a second time in your Lordships' House; but at a very late period of the Session—in fact at the very close; and, on the Motion to go into Committee, the noble Marquess opposite suggested that the Bill was one of some importance, and that it was too late to deal with it during the Session. My Lords, it has come up early enough this Session for us to be able to deal with it. The Bill contains a variety of provisions—each of them entirely independent; and, therefore, there is no principle involved in the Bill; it is a question simply of the expediency and propriety of each of the several provisions. The first of those provisions relates to cases of forfeiture by bankruptcy or execution; if the property is conveyed to another, within the time limited in the Bill, it avoids the result of bankruptcy or execution, the effect of which will be to preserve to the creditors of the bankrupt, very often, property that is very valuable; because, in some cases, there have been failures in building operations, and the result has been very disastrous to the creditors, owing to the impossibility of dealing with the property in this way. The next provision relates to conditions against assigning or under-letting; it enables the Court to relieve from a forfeiture, by assigning or under-letting, where the permission to assign has been unreasonably withheld, and to prevent money being insisted upon by way of payment for the licence to assign. As your Lordships are aware, the Act of 1881 contains provisions enabling the Court to relieve against certain forfeitures, but excepts the particular cause of forfeiture with which I am now dealing. My Lords, it would not be right to pass a measure of that sort without considerable safeguards. The Bill excludes from this section all agricultural or pastoral land; it excludes mines or minerals; it excludes a house used, or intended to be used, as a public-house; it excludes what I may briefly describe as a furnished house; and it excludes property with respect to which the personal qualifications of the tenant are of Importance for the preservation of it. To all I those cases the Act does not apply. It only applies, in short, where the personal qualification or position of the tenant is a matter of indifference; and in those cases it provides that the Court may relieve against forfeiture, if the permission to assign is unreasonably withheld. Then there are certain powers inserted for the protection of under-lessees, enabling the Court to give certain relief, that I need not trouble your Lordships with in detail. The only other provision is to remove doubt as to whether in the Act of 1881 "lease" includes also "an agreement to let"; there has been judicial doubt on that point, and that is removed by that last section. My Lords, as I said before, I believe there are some amendments which it is desirable to propose to the Bill, which my noble and learned Friend (Lord Selborne), who is not here now, has indicated to me, which may have to be considered. I ask your Lordships now only to give a Second Reading to the Bill, which, as I have said, involves no question of principle, but is simply a question of expediency.

THE LORD CHANCELLOR

My Lords, my noble and learned Friend has truly said, I think, that there is no particular principle involved in the Bill; but I am rather anxious to guard myself against the qualified approval that I once gave to the Bill by saying that, upon a more mature and careful consideration of it, I cannot help thinking that there are one or two objections to the form in which it is cast. I will tell my noble and learned Friend at once that I am only referring to that part of the Bill which has reference to conditions or covenants to assign. With respect to the rest of the Bill I entirely concur in its provisions. In the first place, I want to point out that I think the Bill is improperly cast, and ought to be amended in that respect. Instead of making a general proposition, from which you afterwards exclude almost everything (which seems to me a very awkward mode of drafting), the more natural course would be to say that which you intend to be the subject of enactment. But I have a still more serious objection to the form in which the third Clause is conceived; that is, by giving a non-natural and unreal meaning to words which in themselves have a very common and reasonable meaning. It is to be enacted there that "in all leases" and so on— Containing a covenant against assigning or underletting"— I omit any unnecessary repetition of words meaning the same thing— Such covenant, condition or agreement shall be deemed to be subject to a proviso to the effect that such licence or consent shall not be unreasonably withheld. It seems to me that the more natural thing would be, if you mean to prohibit the landlord from entering into such a contract, to prohibit it, and it would be plainly manifest upon the face of the instrument. But to say that people are to contract in words of ordinary common sense, and that the Legislature should put upon it, in a Statute which very few people but lawyers would see, another and entirely different meaning and additional condition, seems to me very unreasonable. I think a more reasonable and rational way of doing it would be to say that in such cases as you want to exclude, it shall not be lawful to enter into any such contract. And, my Lords, one word as to the fourth exception— 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. My Lords, I am not quite certain that I am able to comprehend what are the "personal qualifications of the tenant," and I do not quite know whether I am able to define beforehand what is "the value or character of the property." In a hunting county, for instance, would it be a personal qualification of the tenant that he can shoot foxes or anything of that sort? That is one illustration of what I mean. But the things are so wide that the difficulty I have is whether that is not a trap for a lawsuit, and whether, although it looks very innocent in itself, and you would say that it was very unreasonable of a landlord to refuse except where the character or value of the property is affected by the personal qualifications of the tenant, yet, when one comes to analyse it (and I admit that I did not myself at first consider the full effect and value of those words), I confess it looks to me very much as if it would be a very interesting Debate, possibly in a great number of Courts, as to what it meant; and, although that might be very interesting to the learned profession, it might not be so interesting either to the tenant or the landlord. My Lords, I have thought it only right to call attention to this matter. I agree with my noble and learned Friend that there is a good deal that is of value in this Bill which I should be sorry to see lost; but I think that in the Standing Committee it would be very desirable to see whether some construction cannot be put upon those words to prevent their being made really a trap for people getting into lawsuits without really knowing that they were in dispute at all.

LORD HERSCHELL

My Lords, I shall, of course, be glad to consider the points to which my noble and learned Friend has called attention, and I quite agree with him that there may be improvements made in the drafting of the Bill. It arises, as my noble and learned Friend knows, I daresay, from this: that the Bill is introduced in a certain form, and various proposals are accepted from opponents of the Bill, so as to satisfy them; and then the result is that it comes up with everybody satisfied, but not always, consequently, in the best possible form.

Motion agreed to: Bill read 2a (according to Order), and committed to a Committee of the Whole House.

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