HL Deb 09 December 1927 vol 69 cc733-66

House again in Committee (according to Order):

[The EARL OF KINTORE in the Chair.]

LORD DYNEVOR moved, alter Clause 16, to insert the following new clause:—

Premises subjected to the Rent and Mortgage Interest (Restrictions) Acts.

"This part of this Act shall not apply to any premises which are subject to the provisions of the Rent and Mortgage Interest (Restrictions) Acts, 1920 to 1923."

The noble Lord said: I should like to explain to your Lordships that the Rent Restrictions Acts apply to residential premises and not to business premises, or premises of which the major part is residential, although a business may be carried on therein. In this Bill there is no definition of "business premises" and premises partly used for business come under it, although they are residential as well as business. The expression "tenant" in this Bill refers to a person entitled to possession by operation of law or otherwise; in fact, it includes everybody.

Professional premises have been brought into this Bill and doctors, etc., who live in houses under the Rent Restrictions Acts can claim for improvements and be offered a lease in lieu thereof. If the rent under a lease is increased which Act takes precedence—the Rent Restrictions Act or this Bill? Under this Bill a claim for goodwill can be made for premises partly used as business premises, and the tenant is building up a goodwill in controlled premises at a rent which cannot be raised to the market value. The tenant is only able to stay because of the Rent Restrictions Acts, and when these Acts come to an end the tenant will get compensation for loss of the goodwill, which he has built up at the expense of the landlord who has not been able to obtain possession or claim his full market value rent. I think this is a very important Amendment, and I hope my noble friend the Lord Chancellor will tell us very clearly the exact position of those premises under this Bill. I beg to move.

Amendment moved— Page 16, line 21, at end, insert the said clause.—(Lord Dynevor.)

THE EARL OF MIDLETON

I hope the Lord Chancellor will give consideration to what has been urged by my noble friend Lord Dynevor with regard to this Amendment. I really think that the method by which this particular class of tenancy has crept into the Bill has not been intentional on the part of the Government. Many of us have great sympathy with the Rent Restrictions Acts for the purposes for which they were intended and I am by no means clear that at this moment the Acts could properly be entirely abrogated, but there is no doubt whatever that they need amendment in some particulars. There are instances in which they have been used most injuriously against the intention both of the authors of those Acts and those who supported them. The position in which we are placed with regard to those Acts is this. The Government, I believe, fully admit that they do need a certain measure of recasting, but they have not had time this year to do that in another place. These Acts will come up in the course of the next few days as part of the Expiring Laws Continuance Bill. In that position we have no power to deal with them in detail: therefore, with all their imperfections, they must go on for another year.

I think the statements of Ministers in the course of the last few weeks make it clear that there is very little hope that even next year the Rent Restrictions Acts will be dealt with. They are gradually becoming permanent. I do not say they will actually become a permanent measure, but it is an anomaly that this Bill which we are now discussing, brought in as it was to deal with leaseholders, should have been gradually extended to cover a shorter class of tenancy. Without the intention of anybody, so far as I know, these tenancies under the Rent Restrictions Acts have been included in this Bill. The landlords desire again to get possession of a large number of the premises concerned, in some cases actually for their own occupation. But, anyhow, tenancies of that description, which are held at a rent in many cases far below the economic rent, should not be given all the advantages, including compensation, which are contained in this measure. That is all the more the case because we cannot deal with the Rent Restrictions Acts. I would suggest that in the interest of the Courts and of the avoidance of litigation, apart from what seems to me to be equity and fair dealing, this class of tenancy should be excluded from this Bill.

THE LORD CHANCELLOR (VISCOUNT CAVE)

This is of course an important Amendment. I do not in the least complain of its being moved and of an answer being desired. I would point out to begin with that this Amendment can only affect a very few cases, because the Rent Restrictions Acts apply to houses and business premises the rent of which taken together must not exceed £105 a year in Greater London and £78 a year in other parts of the kingdom. The number of cases where a tenant of premises of that value, who only holds possession because of the Rent Restrictions Acts, would execute an improvement of any importance or Mould carry on a business which would create a substantial goodwill, must be extremely small. Therefore the cases sought to be covered are not of any great importance and would not result in any substantial liability, but even as to those small premises your Lordships will remember that if this Amendment is carried the landlord, on the tenancy coming to an end, will be able to take advantage of the increased value of his property attributable to the tenant's improvements or the tenant's goodwill. It must be remembered, too, that the point will not arise except at a moment when the tenancy comes to an end and therefore the Rent Restrictions Acts cease to operate and the premises become decontrolled.

With those considerations in mind, would your Lordships take a possible case? Take two houses exactly similar, side by side if you please, each used partly as a dwelling house and partly as a shop and each subject to the Rent Restrictions Acts. Suppose the tenant of one of the two buildings makes improvements which increase the value of his house by, say, £20 a year, and that the other makes no such improvements. The tenancies come to an end at the same time and both tenants quit their holdings. Is the tenant who has increased the value of his landlord's property by a sum equivalent to a rental of £20 a year to be treated in exactly the same way as the tenant who has made no improvements at all? Surely in that case, as in the case of larger properties, the fact ought to be realised and the landlord who has benefited by his tenant's expenditure or his tenant's energy in the one case ought to be called upon to pay the net value to him of what remains in his hands in the one case, although of course no such point arises in the other. Your Lordships will remember that the Rent Restrictions Acts only apply if the premises are used partly as business premises and partly as dwelling houses. They do not apply to business premises which are nothing else, and in such cases it is only improvements which are improvements in relation to the business that give rise to a claim for compensation. That appears from Clause 13, subsection (3) of the Bill.

I have no doubt, if there be a conflict—I do not think there is any—between the Rent Restrictions Acts and this Act, that this Act would prevail and that, where a real improvement is made by the tenant and leaves something of substance in his landlord's hands, the landlord would be called upon to pay compensation or to offer a renewal on terms which would recognise the existence of this improvement. The real point is whether you are to put these small premises on a different footing from the larger ones. It seems to me that the principle is the same in both cases. The tenant has spent his money, the landlord gets something in his pocket and, although the amount is smaller in one case than in the other, yet the same rule ought to apply and compensation ought to be paid. I hope that on consideration this Amendment will not be pressed.

THE EARL OF MIDLETON

I am sure the Lord Chancellor wishes to act fairly in this matter, but he is not acting fairly as between landlord and tenant. I will tell your Lordships presently about a letter that I received only yesterday, but in the first place let me urge that we are put in a great difficulty. The Lord Chancellor says there would be very few of these cases. I have asked him repeatedly if he can give us figures showing the number of tenancies affected by this Bill. I would particularly bag that we might be furnished with those figures before the Report stage. I mean figures of the number of tenancies under the Rent Restrictions Acts which will come under this Bill. I believe the number will run into hundreds of thousands. The Lord Chancellor put a suppositious case of a tenant who, being a rent restriction tenant, may have made improvements that are to go into the landlord's pocket. I will give, not a suppositious but an actual case, particulars of which reached me only yesterday.

The landlord had leased a house under the Rent Restrictions Acts just before the War. That tenancy was made subject to his paying rates and taxes. The rates and taxes have now risen to such a degree that they absorb the greater part of the rent. Meantime the neighbourhood has considerably improved and he could have relet the premises for double at any time in the last five years, but he cannot get possession of them. According to the Lord Chancellor's argument, although I quite understand that he has done it with the best possible intention, this tenant, who has sat practically rent free, keeping the landlord out of any money whatever for the last five years, may now go to the Court at the proper time and say, "I want to make an improvement," and still further increase the profits of the shop, and the landlord, if he objects, is very unreasonable. The landlord who is getting nothing out of the premises has to see the tenant continuing to sit at a rent which is absolutely inadequate, and if he wishes to get possession of the premises later on he must pay compensation, or give a further lease. You are working two Acts together so that the right which you intend to do by this Bill makes a wrong under the other Act. I really would ask the Lord Chancellor to consider before Report whether there is not a case for some governing words.

VISCOUNT SUMNER

There is one small point to which I should like to draw attention. I quite agree, as far as I can tell, with the Lord Chancellor in thinking that goodwill questions will not

arise very often in connection with these premises, though I should have thought that if Part I did an injustice at all it should be remedied even if the number of cases is few. But may I point out with regard to improvements, that there will be no claim under Part I for compensation for three years? The inference, therefore, which I am sorry I have to draw, is that so far as the Lord Chancellor is in a position to anticipate the future we shall still have the Rent Restrictions Acts with us alter the expiration of three years.

THE LORD CHANCELLOR

My noble and learned friend must not assume that. It is true it is only if the Rent Restrictions Acts continue for three years that this point will arise at all. But my noble and learned friend must not assume that they will continue for three years, and certainly not that they will be continued without modification. I will only make one observation about the Earl of Midleton's speech. I think he has forgotten that if rates rise the landlord can increase the rent under the Rent Restrictions Acts to the extent of the increase in the rates.

LORD DYNEVOR

Like my noble friend the Earl of Midleton I cannot quite accept the statement of the Lord Chancellor that cases affecting premises under the Rent Restrictions Acts are likely to be few. I believe that they will run into hundreds and thousands of cases, especially now that we have added the professions. Take doctors and surveyors and people of that kind who live in the country. Most of those people live in houses that come under the Rent Restrictions Acts. They do not live in great palaces outside the Rent Restrictions Acts. I do not know whether the Lord Chancellor has really grasped the necessity for doing something on this question. I understand he simply wants to turn my Amendment down and does not suggest any alternative. In those circumstances I must press my Amendment.

On Question, Whether the proposed new clause shall be there inserted?—

Their Lordships divided:—Contents, 22; Not-Contents, 30.

CONTENTS.
Leven and Melville, E. Bertie of Thame, V. Ullswater, V.
Lovelace, E. Sumner, V.
Midleton, E. [Teller.] Tredegar, V. Carson, L.
Dynevor, L. [Teller.] Kintore, L. (E. Kintore.) Queenborough, L.
Fairlie, L. (E. Glasgow.) Meldrum, L. (M. Huntly.) Saltoun, L.
Faringdon, L. Merthyr, L. Strachie, L.
Harris, L. Ormonde, L. (M. Ormonde.) Wavertree, L.
Jessel, L. Phillimore, L.
NOT-CONTENTS.
Cave, V. (L. Chancellor.) Cranbrook, E. Buckmaster, L.
De La Warr, E. Charnwood, L.
Salisbury, M. (L. Privy Seal.) Howe, E. Cottesloe, L.
Iddesleigh, E. Cushendun, L.
Sutherland, D. Lucan, E. [Teller.] Darling, L.
Wellington, D. Onslow, E. Gage, L. (V. Gage.)
Plymouth, E. [Teller.] Hampton, L.
Bath, M. Scarbrough, E. Stanmore, L.
Stanhope, E. Templemore, L.
Airlie, E. Thomson, L.
Beauchamp, E. Haldane, V. Tweeddale, L. (M. Tweeddale.)
Bradford, E. Peel, V.

On Question, Amendments agreed to.

Clause 17:

Limitation on damages for breach of covenants to repair.

17.—(1) Damages for a breach of a covenant or agreement to keep premises in repair during the currency of a lease, or to leave premises in repair at the termination of a lease, whether such covenant or agreement is expressed or implied, and whether general or specific, shall in no case exceed the amount (if any) by which the value of the reversion (whether immediate or not) in the premises is diminished owing to the breach of such covenant or agreement as aforesaid, and in particular no damage shall be recovered for a breach of any such covenant or agreement if it is shown that the premises, in whatever state of repair they might be, would at or shortly after the termination of the tenancy be pulled down, or such structural alterations made therein as would render valueless the repairs covered by the covenant or agreement: Provided always, that the foregoing provision shall not exonerate the tenant from liability under any covenant to repair if the necessity for pulling down or for the alterations as aforesaid is due solely to the neglect, act or default of the tenant.

(3) Any dispute arising during or at the termination of a lease as to the amount of damages payable in respect of any breach of any such covenant or agreement may if both parties agree be referred to the tribunal.

(4) This section applies whether the lease was created before or after the commencement of this Act.

THE LORD CHANCELLOR moved, in subsection (1) after "keep" ["keep premises in repair"], to insert "or put." The noble and learned Viscount said: The clause as drawn covers only a covenant to keep premises in repair. It ought to extend to a covenant to put premises in repair.

Amendment moved— Page 16, line 26, after ("keep") insert ("or put").—(The Lord Chancellor.)

Amendment moved— Page 16, line 27, after ("leave") insert ("or put").—(The Lord Chancellor.)

LORD JESSEL moved, in subsection (1), after "diminish," to insert "or the letting value or the value of the reversion (whether immediate or not) in any adjoining premises belonging to the same landlord or to any superior landlord, from whom the immediate landlord of the tenant directly or indirectly holds is diminished." The noble Lord said: I beg to move this Amendment on behalf of my noble friend Viscount Younger of Leckie, in whose name it stands and who is unavoidably absent. The object of the Amendment is to protect adjoining premises in the same ownership where damage is done by a breach of a covenant to repair. There is no question here of a third party. It is simply a matter of adjoining premises belonging to the same landlord or to a superior landlord. I hope that the Government will see fit to accept the Amendment.

Amendment moved— Page 16, line 32, after ("diminish") insert the said words,—(Lord Jessel.)

THE FIRST COMMISSIONER OF WORKS (VISCOUNT PEEL)

My noble friend's Amendment would bring into account damage to property beyond that comprised in the lease. That, of course, will increase the liability of the tenant for breach of a covenant to repair as compared with his liabilities under the existing law. It would, in fact, be an alteration of the existing law. Under the law as it stands the measure of damages in the case of action taken during the currency of the lease is the damage to the reversion, and in the case of an action at the termination of the lease the cost of putting the premises in repair. In neither of these cases is the effect on the value of any property other than the demised property taken into consideration. Accordingly the Amendment moved by my noble friend would bring in an entirely new principle.

A part from the substance the question is whether the form in which the proposal is suggested would have the effect desired by my noble friend. It would provide that damages for breach of covenant to repair were not to exceed the amount by which the value of the reversion in the premises is diminished or the letting value or the value of the reversion in any adjoining premises belonging to the same landlord is diminished. The damages therefore under the Amendment can be limited to the lower of the two sums, and I do not think that this will effect the object that my noble friend intends. I have already pointed out that it will introduce a very serious amendment in the existing law on the subject of liability for damage, and I hope that ray noble friend will hesitate before he presses his Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR moved, in subsection (1), after the fourth "agreement," to insert "to leave or put premises in repair at the termination of a lease." The noble and learned Viscount said: The intention of this Amendment is to limit the operation of the clause. The words in which this Amendment would occur provide that no damage shall be recovered for a breach of any such covenant if the premises are going to be pulled down in the event. That ought, I think, to be confined to the case of a covenant to repair or to leave in repair at the end of the term. If during the term the tenant fails to observe his repairing covenant and the landlord brings an action for damages, then the landlord ought to recover damages. This ought not to be denied him because at some future time, at the end of the term, the premises are going to be pulled down. This provision, therefore, would limit the clause in that way.

Amendment moved— Page 16, line 35, after ("agreement") insert ("to leave or put premises in repair at the termination of a lease").—(The Lord Chancellor).

LORD CARSON moved, in subsection (1), to leave out "shortly" and to insert "within three months." The noble and learned Lord said: In the absence of my noble friend Lord Halsbury, in whose name this Amendment stands, I beg to move it formally in order to ask the Lord Chancellor if he will kindly tell me what is his definition of the word "shortly." It is one of those words that are very difficult to construe in an Act of Parliament. It certainly seems unsatisfactory, unless there is something magical in the word "shortly," to state that the premises would "shortly after the termination of the lease" be pulled down. How long is the matter to be hung up until you can define the word "shortly"?

Amendment moved— Page 16, line 37, leave out ("shortly") and insert ("within three months").—Lord Carson.)

THE LORD CHANCELLOR

This question rather reminds me of a controversy that has lately broken out in the Courts as to what is a newly-born child. I think one must really leave the question of fact as to whether the premises are going shortly to be pulled down to the decision of the Court, which would deal reasonably with this matter. To put in a term of three months would, of course, defeat the object of this clause, because the landlord might easily escape its operation altogether by delaying the pulling down for only a day after the three months had elapsed. It is better to leave the question of fact;—for that is what it is—to the Courts to decide.

VISCOUNT BERTIE OF THAME

Surely it would lead to litigation and expense between landlord and tenant if the word "shortly" were not defined?

On Question, Amendment negatived.

THE LORD CHANCELLOR moved, in subsection (1), after "tenancy" ["termination of the tenancy"], to insert "have been or". The noble and learned Viscount said: This is to cover a case where the premises have been actually pulled down at the time when the proceedings for recovery of damage are taken. Of course the clause ought to apply in that case.

Amendment moved— Page 16, line 37, after ("tenancy") insert ("have been or").—(The Lord Chancellor.)

THE LORD CHANCELLOR moved to omit the proviso in subsection (1). The noble and learned Viscount said: This Amendment proposes to leave out some words which are really quite meaningless. They were inserted in an Amendment in another place. If the premises, in whatever state of repair they might be, would have been pulled down, the need for pulling them down cannot be due solely to the tenant, and accordingly these words ought to go out.

Amendment moved— Page 16, line 40, leave out from ("agreement") to the end of the subsection.—(The Lord Chancellor.)

THE LORD CHANCELLOR

My next Amendment is mere machinery. I beg to move.

Amendment moved— Page 17, line 30, at end insert ("This subsection shall be construed as one with section one hundred and forty-six of the Law of Property Act, 1925").—(The Lord Chancellor.)

THE LORD CHANCELLOR moved to leave out subsection (3). The noble and learned Viscount said: We propose to leave out this subsection altogether, and therefore the Amendment standing in the name of Viscount Sumner will not be necessary. We omit this subsection because the new tribunal applies only to Part I of the Bill.

Amendment moved— Page 17, lines 31 to 35, leave out subsection (3).—(The Lord Chancellor.)

Clause 17, as amended, agreed to.

Clause 18:

Provisions as to covenants not to assign, etc., without licence or consent.

18.—(1) In all leases whether made before or after the commencement of this Act con- taining a covenant condition or agreement against assigning, under-letting, charging or parting with the possession of demised premises or any part thereof without licence or consent, such covenant condition or agreement shall, notwithstanding any express provision to the contrary, be deemed to be subject to a proviso to the effect that such licence or consent is not to be unreasonably withheld, and (if the lease is for more than forty years, and is made in consideration wholly or partially of the erection, or the substantial improvement, addition or alteration of buildings, and the lessor is not one of the bodies mentioned in section four, subsection (1) paragraph (f)), to a proviso to the effect that in the case of any assignment, under-letting, charging or parting with the possession (whether by the holders of the lease or any under-tenant whether immediate or not) effected more than seven years before the end of the term no consent or licence shall be required, but notice in writing of the transaction shall be given to the lessor within six months after the transaction is effected.

(2) In all leases whether made before or after the commencement of this Act containing a covenant condition or agreement against the making of improvements without licence or consent, such covenant condition or agreement shall be deemed, notwithstanding any express provision to the contrary, to be subject to a proviso that such licence or consent is not to be unreasonably withheld; but this proviso does not preclude the right to require as a condition of such licence or consent the payment of a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to the landlord, and of any legal or other expenses properly incurred in connection with such licence or consent nor, in the case of an improvement which does not add to the letting value of the holding, does it preclude the right to require as a condition of such licence or consent, where such a requirement would be reasonable, an undertaking on the part of the tenant to reinstate the premises in the condition in which they were before the improvement, was executed, and any difference as to the reasonableness of any such sum or requirement shall, if both parties agree, be referred to the tribunal.

(3) In all leases whether made before or after the commencement of this Act containing a covenant condition or agreement against the alteration of the user of the demised premises, without licence or consent, such covenant condition or agreement shall, if the alteration does not involve any structural alteration of the premises be deemed, notwithstanding any express provision to the contrary, to be subject to a proviso that no fine or sum of money in the nature of a fine, whether by way of increase of rent or otherwise, shall be payable for or in respect of such licence or consent; but this proviso does not preclude the right of the landlord to require payment of a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to him and of any legal or other expenses incurred in connection with such licence or consent.

Any difference as to the reasonableness of any such sum shall, if both parties agree, be referred to the tribunal, and where a dispute as to the reasonableness of any such sum has been determined by a court of competent jurisdiction or the tribunal, the landlord shall be bound to grant the licence or consent on such terms as the court or tribunal considers reasonable.

(4) This section shall not apply to leases of agricultural holdings within the meaning of the Agricultural Holdings Act, 1923.

VISCOUNT SUMNER moved, after "In all leases" at the beginning of the clause, to insert "other than mining leases." The noble and learned Viscount said: This is the first of three or four Amendments of a similar kind, which I have put down at the request of parties interested, and although I hope it will not prove to be really controversial, I would like to explain in what circumstances it arises. The object is to take mining leases out of the operation of this Part of the Bill. They are already formally excluded by Section 16 from Part I of the Bill, but for some reason, which is not at all apparent, this Part, which deals with covenants to repair and covenants not to alter the user, and not to assign without consent, and so forth, includes the case of mining leases. The submission which I have to make is that mining leases should be omitted from both Parts of the Act, and therefore I propose to limit the clause to leases other than mining leases, which are defined in the interpretation part of the Bill.

The Amendment which I am now moving is one that is concurred in by Lord Strachie, and the others, which I shall not need to move if my first Amendment is accepted, are in addition concurred in by Lord Gainford who, not being able to be present here to-day, has asked me to say that he gives mo the authority of the interests which he particularly represents, the Mining Association of Great Britain, to assent to and support the other three Amendments. For the moment I deal with the Amendment which excludes mining leases altogether. In substance it is supported by Lord Dynevor, who has an Amendment on the paper. Mining leases, of course, stand substantially on a very different footing from the ordinary class of leases contemplated in this Bill. They are very much more like agricultural leases, and if this question of mining leases requires to be dealt with by legislation at all, I conceive that it would be very much better done in a separate Act specially relating to the mining industry.

The reason is this. In ordinary business premises the relation between landlord and tenant is that of a rent receiver and rent payer, coupled with obligations of an ordinary kind with regard to the repair of the premises, which are houses in one shape or another, large or small. In the case of mining leases the position is really an informal partnership in the exploitation of the minerals, in which, of course, the landlord is so much interested that in most leases, I imagine, there is a provision that, subject to a dead rent unless a certain amount of minerals is got annually, his interest depends upon the increasing exploitation of the coal getting; and you must remember that behind him, in turn, stand the royalty owners, on whose behalf I am also asked to move this Amendment. Without going into controversial questions, whether the royalty owners are or are not fit to live, while they live they are interested in having their royalties secured as far as possible. The result is that a great deal of give and take has to go on between the landlord, the lessor of the mine, and the lessee, and so far as I can understand there has not been any complexity or difficulties arising between lessor and lessee.

If you have, for example, a covenant which restrains the lessee from a particular kind of user, or ties him down to some particular mode of user, or restrains him from assigning without leave—the ordinary covenants—to relieve him from the restrictions and entitle him to assign without the consent of the lessor, or to alter the user without the consent of the landlord, presents a problem which is quite different from that which arises simply between the landlord and tenant of an ordinary building. In such circumstances no landlord could afford to make any concessions to his lessees, if the lessees were by the Act relieved from the restrictions under which they come by covenant, and upon which the landlord largely relies for his ability to give and take. I do not ask your Lordships to take this from me—I am not an expert in coal mining—but that is what I am told by those who speak on behalf of the association, and so far as my knowledge of the matter goes, I think it is substantially correct. I hope your Lordships will accept it, having, as you have, numerous Peers present who know more than I know, but what I do suggest is that, the position being much more analogous to that of agricultural leases, where the landlord and tenant again are in an informal partnership to exploit the fruits of the earth, than to a tenancy of an ordinary structure, it would be better to omit mining leases from the Bill altogether, as they are formally omitted from Part I, and if they do require to be dealt with, let them be dealt with upon fuller consideration and at greater leisure.

Amendment, moved— Page 17, line 38, after ("leases") insert ("other than mining leases").—(Viscount Sumner.)

LORD STRACHIE

Speaking on behalf of the royalty owners—I am only a very small royalty owner myself in a part of the country where the industry is in a depressed condition—I can reiterate all that the noble and learned Viscount has said as to the objection to including mining leases in this Bill. I am afraid the Mines Department does not appreciate how very different mining leases are from the ordinary leases of houses, how the royalty owner and the mining company are in constant touch with one another, always ready to make concessions and meet each other in every possible way. In these days, when coal mining is carried on in very difficult circumstances, it is extremely undesirable to put any kind of restrictions between them and to make the working of the collieries any more difficult than it is. The sole object of the lessors and lessees is undoubtedly the profitable working of the mines. The effect of this Amendment will be to remove them from the Bill, and if they are not removed I am certain there will be friction in the future. May I ask the Lord Chancellor also whether, under this Bill, leases for quarrying are included as well as mining leases, because if it appears necessary, I should like to ask my noble friend to add to his Amendment after "mining leases" the words "and quarrying leases".

LORD DYNEVOR

I have another Amendment later on the Paper to provide that the provisions of Part II shall not apply to mining leases. As I read Lord Sumner's Amendment, I am afraid that it only takes mining leases out of Clause 18 and not out of Clause 17. Part I does not apply to mining leases; my object was to take them completely out of Part II also. Under the Mines (Working Facilities and Support) Act, 1923, mining lessees have their own tribunal—namely, the Railway and Canal Commissioners—and the Mining Industry Act, 1926, Section 13, gives power to vary leases on application to the Railway and Canal Commissioners. Therefore there is already a complete mining code, and I do not think there is any need for more or alternative Acts of Parliament, which will only lead to confusion. I therefore support the noble and learned Viscount, Lord Sumner.

THE LORD CHANCELLOR

This question, a very important question, of excluding mining leases from Clause 18 of the Bill has been the subject of discussion between the Mines Department, the Mineral Owners' Joint Committee, who represent the landlords of mining property, and the Mining Association, who represent the tenants, and an agreement has been come to among those bodies up to a certain point, which would enable me to satisfy a great part of the wishes expressed by noble Lords. Indeed, I propose to go a little further, in fact, substantially further, than the agreement at which they arrived. It is not unnatural, nor is it inconvenient, that in moving this Amendment, which relates only to subsection (1) of the clause, noble Lords should have discussed the application of later subsections of the clause to mining leases. Perhaps I may be allowed the same latitude.

Your Lordships know that Clause 18 has three branches. Subsection (1) provides that where there is a covenant against assignment or subletting that shall be held to be subject to a condition that consent to assignment or subletting shall not be unreasonably withheld, and also that in the case of a long lease no consent shall be necessary except during the last seven years of the term. Subsection (2) provides that in the case of a covenant against making improvements without consent, that consent shall not be unreasonably withheld; and subsection (3) provides that in the case of a covenant against altering the user of the demised premises without consent that consent shall also not be unreasonably withheld in certain conditions which are defined in the subsection. I want to take those three branches separately and it is convenient that I should begin at the end and deal first with subsection (3). That subsection, as I have said, refers to covenants for altering the user of premises without consent. There I entirely agree—and indeed all parties interested agree—that that subsection is not really apt to apply to mining leases, and when the time comes, if my noble friend moves his Amendment in subsection (3), I shall be prepared to advise the Committee to accept that Amendment.

Then, as to subsection (2), which refers to a covenant against making improvements without consent, in that case I think the owners and tenants have not come to an agreement. But I think there is a special reason for exempting mining leases from that subsection which has just been mentioned by Lord Dynevor. Under the Mines (Working Facilities and Support) Act, 1023, there is a special tribunal set up for dealing with mining lessees who want to make what they consider improvements. The Act provides that if there is any facility, right or provilege required in order that the minerals may be properly find conveniently worked by the person entitled to work them and the proper and efficient working of the minerals is unduly hampered by the inability or failure of that person to obtain that right, facility or privilege, then such a right may be conferred upon that person by order of the Railway and Canal Commissioners under the procedure laid down in the Act. So if the mining lessee desires to make an improvement to obtain facilities for working his minerals, and he cannot get the landlord's consent he can go to that tribunal and obtain an order. I think that completely covers the case which is sought to be met by this subsection so far as mines are concerned. Therefore when the time comes I should advise the Committee to accept the exemption of mines from that subsection.

I come back to subsection (1) which, as I said, has two branches. It provides that where there is a covenant against assignment or underletting it shall be held to be subject to a condition that consent to assignment or subletting shall not be unreasonably withheld. I have not heard any good reason for exempting mines from that part of subsection (1). It seems to me that in the case of mining leases, as in the case of other leases, consent to assignment ought not to be unreasonably withheld, especially at the present time when combination and amalgamation are already in the air and when such assignments may be very much to the fore. I am sorry that on that point owners and lessees are at issue and your Lordships will have to decide. So far as I am concerned, I do not see any sufficient reason for exempting mining leases from the first part of subsection (1).

On the other band, with regard to the second part of subsection (1), which makes assignment quite free until the last seven years of the term, I think there are reasons why that should not apply to mining leases, and it is part of the agreement or consensus between the persons who have been debating the matter outside the House that mining leases shall be exempted from that part of subsection (1). I notice that the noble and learned Viscount, Lord Sumner, has on the Paper an alternative Amendment which would exactly meet that point. The Amendment proposes first to call the first part of subsection (1) (a) and the second part of it (b), and then the noble Lord's Amendment, which says that paragraph (b) of subsection (1) shall not apply to mining leases, is exactly what I think would be the right solution, and when the time comes I am prepared to accept that Amendment.

Inadvertently, I think I slightly misdescribed subsection (3), which does not say that consent shall not be unreasonably withheld. But my conclusion is just the same, that mining leases ought to be exempted from the subsection. I think we have met an important claim reasonably, and that the House will agree to the solution—I will not call it a compromise—which the Government upon the whole recommend, that Clause 18 shall not apply to mining leases except as regards the first branch of subsection (1) which prevents consent to assignment being unreasonably withheld. I do not think that mine owners any more than other people desire to act unreasonably.

LORD STRACHIE

Would the Lord Chancellor kindly answer my question about quarries?

THE LORD CHANCELLOR

I have no doubt that "mining" would include a quarry because it is mining in or under the soil.

LORD BUCKMASTER

I sincerely hope that the Amendment the Lord Chancellor has accepted will induce your Lordships also to support him in his desire to retain the earlier part of this section. One thing that seems to mo essential at present is that, as far as possible, every facility should be granted that will enable mines to be readily grouped and worked together in combination. It is perfectly true that one of the Statutes passed by this Government has enabled conditions in leases to be relaxed by application to a tribunal; but I cannot see why, if it be thought desirable to prevent absolute covenants restricting alienation applying to ordinary leases, they should not also cease to be applicable to mining leases. Indeed, it appears to me that they need it more than any other. Supposing you had a group of mines that were being put together by some combination of people and one landlord held out. You would have either to go to your tribunal and have a prolonged argument or give up the whole scheme. I cannot see how even the mining landlord is hurt by a provision that consent to assignment shall not be unreasonably withheld. What, no doubt, is in the mind of the noble and learned Viscount is that there is always the difficulty of definition, but the covenant that has stood the test of the Courts for years now and on which there have been decisions, is that it ought to be taken as applying in just the same way to mining leases as to other leases.

VISCOUNT SUMNER

I will not say anything about the cogent way in which the noble and learned Lord opposite has dealt with this matter or the way in which the Lord Chancellor has offered to meet the object I have in view. But for the one reason or the other I ask leave to withdraw my first Amendment. I think I am right in saying—and I understood the Lord Chancellor to agree with me—that my other Amendments, moved in their turn, would carry out the lines which he was prepared to advise your Lordships to accept. May I be allowed to explain that two of them are simply to insert "other than mining leases" in the two subsections which he said should not apply to mining leases. The Amendment to subsection (1) is merely for the purpose of dividing the words by (a) and (b) so as to give point to the Amendment at the end of subsection (4), which will exempt mining leases from the second proviso but leave them under the first. I will, therefore, move them formally when they are reached after having leave to withdraw my first Amendment.

Amendment, by leave, withdrawn.

VISCOUNT SUMNER moved, in subsection (1), after "subject", to insert "(a)". The noble and learned Viscount said: I beg to move the Amendment which stands in my name.

Amendment moved— Page 18, line 5, after ("subject") insert ("(a)").—(Viscount Sumner.)

LORD DYNEVOR moved, in subsection (1), after "withheld," to insert "provided the proposed tenant is proved to the satisfaction of the landlord to be a respectable and responsible person." The noble Lord said: Clause 18 puts into all leases the words that such licence or consent is not to be unreasonably withheld … in the case of any assignment, under-letting, charging or parting with the possession of the premises. I think a safeguard is required and that the new tenant should be a respectable and responsible person to the satisfaction of the landlord. People most objectionable both to the landlord and the neighbours may get possession—which, I hardly think, is what the Government would wish—and the responsibility of proving the respectability of the person should rest with the person who assigns the lease and the onus should not, as in the Bill, rest on the landlord to say that the new tenant is respectable or otherwise. These words are already found in leases, and I beg to move.

Amendment moved— Page 18, line 6, after ("withheld") insert the said new words.—(Lord Dynevor.)

VISCOUNT PEEL

At present, of course, the consent is not to be unreasonably withheld, and I think one may truly say that if the tenant was not a respectable or responsible person it could not be said that the refusal was unreasonable if the landlord refused to act. If the Amendment of my noble friend was inserted it would, in effect, withdraw the whole of the meaning from the clause, because it would rest entirely with the landlord to say: "I do not want him." He would not have to say why and there would be nothing to tie him to accepting a responsible tenant. The other point mentioned by my noble friend was this. He said in effect: "I do not see why it should be the landlord's business to prove these points about the tenant." On the contrary, the onus lies on the tenant to show that he is a responsible and respectable person if any issue arises. Would not that be enough? He has to prove it to the satisfaction of the tribunal or Court. As in other cases the landlord will be perfectly placed because if the tenant were not a responsible person the landlord would be justified in withholding his consent. But the Amendment really destroys the whole value of the clause.

LORD DYNEVOR

My reading of the wording of this Bill is a little different from the reading of it by my noble friend Lord Peel, but I am not going to suggest he is wrong or I am right. He evidently is satisfied that the position is quite safeguarded and I will accept his word on that and withdraw my Amendment.

Amendment, by leave, withdrawn.

VISCOUNT SUMNER

I beg to move the next Amendment in my name, in subsection (1) after "withheld, and."

Amendment moved— Page 18, line 7, after the first ("and") insert ("(b)").—(Viscount Sumner.)

THE LORD CHANCELLOR moved to leave out of subsection (1) "one of the bodies mentioned in section four, subsection (1), paragraph (f)" and insert "a Government Department or local or public authority, or a statutory or public utility company." The noble and learned Viscount said: The words which I propose to leave out were put in on Report in another place. The drafting has been objected to and also the inclusion in the exemption of certain profit-making concerns. It seems to me better, instead of doing the thing by reference, to insert the words "a Government Department or local or public authority or a statutory or public utility company." I beg to move.

Amendment moved— Page 18, lines 10 and 11, leave out ("one of the bodies mentioned in section four, subsection (1) paragraph (f)") and insert ("a Government Department or local or public authority or a statutory or public utility company.")—(The Lord Chancellor.)

LORD PHILLIMORE moved, at the end of subsection (1), to insert "otherwise the transaction shall be void." The noble Lord said: If your Lordships will follow this clause, in the case of the last seven years no consent or licence is required, but notice in writing of the transaction must be given by the lessee within six months after the transaction is effected. What is to happen if notice is not given to the lessor? That is my difficulty. There is no penalty provided if the lessee does not do it. Thus the lessor is left in consequence in a difficulty. Possibly the premises are vacant and when he tries to find the original lessor, very likely discovers he has emigrated. He does not know anything about a lessee, because nobody has told him, and even if the premises are occupied he may find somebody who is not the lessee, but a tenant under the lessee. I think there ought to be at any rate some security and some provision, and I have suggested that if the notice is not given within the six months the transaction shall be void. I am sure, whether that is the right course or not, that something ought to be done to save the lessor from finding himself without any tenant who is capable of paying the rent. I beg to move.

Amendment moved— Page 18, line 19, at end insert ("otherwise the transaction shall be void").—(Lord Phillimore.)

THE LORD CHANCELLOR

I do not think the Amendment will do as it stands, because the effect of it might be to hang up the whole matter for six months.

LORD PHILLIMORE

If the noble and learned Viscount will forgive me, it would be part of the conveyancing business that the solicitor for the transferee would insist on seeing the notice produced.

THE LORD CHANCELLOR

But he would have six months.

LORD PHILLIMORE

No.

THE LORD CHANCELLOR

Supposing you are borrowing money on the lease the mortgagee cannot wait six months before knowing that he is safe.

LORD PHILLIMORE

He would insist on his doing it at once.

THE LORD CHANCELLOR

I believe the only effect of it as it stands would be to give a right to damages if notice were not given. I agree that is not a very satisfactory remedy. If my noble friend will allow me I will think it over and see if I can suggest anything better than the Amendment before Report stage.

LORD PHILLIMORE

If the noble and learned Viscount will be good enough to consider and put in something to make a security, I shall be satisfied.

Amendment, by leave, withdrawn.

LORD HARRIS moved, at the end of subsection (1), to insert:— But this proviso does not preclude the right of the landlord to require as a condition of such license or consent the payment of a reasonable sum in respect of any legal or other expenses properly incurred in connection with such license or consent, and any difference as to the reasonableness of any such sum shall, if both parties agree, be referred to the tribunal. The noble Lord said: The society that wishes for this proviso suggests that there is an omission from the Bill. They are not satisfied with the proviso which appears in the third paragraph and it seems to be reasonable that the landlord should not be put to these legal and other expenses. I beg to move.

Amendment moved— Page 18, line 19, at end insert the said words.—(Lord Harris.)

VISCOUNT PEEL

I agree that what is suggested by my noble friend is reasonable, but what I am advised is this. In view of Section 144 of the Law of Property Act, 1925, which provides that no fine shall be charged for consent to assigning, it would be practically impossible to hold that the landlord, who was put to legal expenses in connection with giving consent to assigning, could not demand payment of those expenses by the tenant. That is what I am advised. But if the noble Lord is urgent upon these words being inserted he could not insert them here. The first subsection, as the Lord Chancellor has already pointed out, applies to quite different things, and therefore my noble friend's Amendment is not applicable to it. He would have to split up the clause in order to introduce his Amendment. Perhaps he would like to withdraw it now and give the matter consideration before Report. I am advised, however, that it really is not necessary.

LORD HARRIS

Why not?

VISCOUNT PEEL

Because of Section 144 of the Law of Property Act, 1925.

LORD PHILLIMORE

I think the noble Viscount has not been rightly advised about this. I do not see how the Law of Property (Amendment) Act can touch this when the Bill becomes an Act of Parliament. This Bill provides against any charge and what I think the noble Lord wants and those who must have instructed him want, is the ordinary provision that the costs of the solicitor of the landlord and possibly a surveyor in seeing that the proposed transferee or assignee is a responsible and respectable man, should be provided for, as they are in one of the other clauses. I cannot help thinking His Majesty's Government would agree that ought to be done.

LORD BUCKMASTER

Would it not be well to consider the clause and the two Statutes? I have not got the Law of Property Act before me and no human being carries it in his head. I do think that there is something about it in that Act and it would obviously be most undesirable that you should have two different provisions in different Acts. If there is any point on it at all I would suggest to the noble Lord that this matter be postponed until Report and until the two matters can be examined and made to agree.

LORD PHILLIMORE

I dare say that might be all right, but I do not see how any previous Act can dispense from prohibitions which are in this Bill. Therefore you want a proviso in this Bill, though no doubt you want it in the same terms as you may have it in the other Act.

THE LORD CHANCELLOR

The terms of the other Act are these:— but this proviso does not preclude the right to require the payment of a reasonable sum in respect of any legal or other expenses incurred in relation to such licence or consent. We want to have the opportunity of fitting the words of the old Act into the new Act so that they may be worked together. I will have some words drafted and the noble Lord will see them on the Paper and decide whether he is content.

Amendment, by leave, withdrawn.

VISCOUNT SUMNER

I beg to move the next Amendment standing in my name in respect of subsection (2).

Amendment moved— Page 18, line 20, after ("leases") insert ("other than mining leases")—(Viscount Sumner.)

THE LORD CHANCELLOR

I assent to this, but I may have to consider before Report whether we shall not shorten the matter by extending the final Amendment of my noble friend to subsections (2) and (3) making it one exemption, but it is a matter for consideration.

VISCOUNT SUMNER

We will judge when we see it on the Paper.

Amendment moved— Page 18, line 40, leave out from ("executed") to the end of subsection (2).—(The Lord Chancellor.)

Amendment moved— Page 18, line 43, after ("leases") insert ("other than mining leases").—(Viscount Sumner.)

LORD PHILLIMORE moved, in subsection (3), after "of" ["a reasonable sum in respect of any damage"], to insert "the capitalised value of the net addition to the letting value of the holding that is determined to be the direct result of the alteration of the user, and of." The noble and learned Lord said: My noble friend Lord Ernle has asked me to move this Amendment for him as he is unfortunately obliged to be elsewhere today. He was in his place yesterday. It has been observed to me that once you begin to tinker with the sanctity of contracts by statutory legislation you never know what gaps you have to provide against, or what provisions you have to make, and no doubt continually new discoveries will be made as to improvements which have to be provided for. At a late stage in the House of Commons, Sir George Cockerill and Sir Philip Pilditch were responsible for bringing forward an Amendment in similar terms to the one I am now moving on behalf of Lord Ernle. I have here the OFFICIAL REPORT in which the Secretary of State is reported as saying:— The Amendment raises rather a difficult point. I have not yet had time to consult the Law Officers upon it. The Lord Chancellor will be in charge of the Bill in another place, and I will consult him before it gets there. Thereupon the matter was allowed to wait until it came to your Lordships' House.

The state of things is this. This is the sort of case which illustrates the point which was made in the House of Commons and which, on Lord Ernie's behalf, I make again to-day. There are one or two residential houses side by side, or it may be one large house, and the tenant of it says to the landlord: "I should like to convert this into flats. It does not suit me to live in and the character of the neighbourhood is such that houses of this description are no longer wanted. At any rate I could get a great deal more money for it if I turned it into flats." The landlord has an absolute veto, or at any rate he can drive the tenant to the tribunal if he has not an absolute veto on a thing of that kind being done. But he may say to the tenant: "Yes, I am agreeable, and you ought to be remunerated for the expense which you will be put to in making the necessary alteration. But you know that one of the reasons why this house would be suitable for flats is that it is in this particular neighbourhood. That is my business. I am the ground landlord. I bring that part of the contribution to the success of the undertaking. You ought to let me have some share of the additional rent that you are going to get—by no means all, very likely not the lion's share, perhaps a very small share of the whole thing. But at any rate I ought to have something."

The words in which the Amendment is expressed may be capable of alteration. It has been suggested to me by some gentlemen who are interested in the matter that it may be so. The words proposed in the Amendment are "the capitalised value of the net addition to the letting value of the holding that is determined to be the direct result of the alteration of the user, and of". That is to say that this provision does not preclude the right of the landlord to require payment of a reasonable sum in respect of the capitalised value of the net addition to the letting value of the holding. If it should be thought desirable that, instead of the landlord having the right to demand a particular figure it should be left to the tribunal to decide the figure, there would be no objection. In all probability it would be as a rule agreed between the landlord and the tenant. As the matter stands now, the landlord cannot ask anything, and he has therefore no inducement to consent to something which would be for the common benefit of landlord and tenant if it could be carried out, and probably for the better development of the neighbourhood. The landlord is to get nothing, and therefore he has no inducement to agree. The tenant will be driven to the tribunal, if indeed the tribunal can give him relief. All that is asked is that that kind of agreement between landlord and tenant should not be prohibited by the Bill. Therefore I beg to move the insertion of the words standing on the Paper in the name of Lord Ernle.

Amendment moved— Page 19, line 11, after the second ("of") insert ("the capitalised value of the net addition to the letting value of the holding that is determined to be the direct result of the alteration of the user, and of")—(Lord Phillimore.)

VISCOUNT PEEL

This subsection (3) of Clause 18 lays down an absolute rule that the payment of a fine shall not be required as a condition of consent to change of user—change of user, may I say, that does not involve structural alteration. I think the noble and learned Lord has overlooked that phrase, because he talks about converting into flats, which distinctly means a structural alteration. Such a case does not come in at all; it is excluded altogether. Therefore we fall back on the point of change of user. If you are going to insert the phrase "the capitalised value of the net addition to the letting value of the holding that is determined to be the direct result of the alteration of the user," you are really making the clause of no value. It is almost a contradiction of the terms of the clause. Therefore the better course, I should have thought, would be to move to omit the clause. There is a precedent for this in Section 144 of the Law of Property Act, 1925. It is there provided that there shall be no fine charged for consent to assignment. That is a precedent, but it would not apply to structural alteration, and really the question before your Lordships' House is very simple. It is whether the practice of exacting fines for change of user should be allowed to continue or not. The idea of restriction of user, of course, is that the landlord at the time of granting the lease wants the property to be used for a particular purpose. If he alters his view afterwards and agrees to the premises being used for a different purpose, there docs not seem any reason in that case why he should exact a considerable sum of money from the tenant.

LORD BUCKMASTER

I admit that I have been puzzled as to how you can alter premises to make them into flats without effecting some structural alterations. However, everything is possible, and I suppose that may be possible. But if this is done, if you can change a house into fiats without structural alteration, I do not see why the landlord should ask to have something added to the letting value as a condition of giving his consent. Nothing is done except to put two families into a house instead of one. Suppose, on the other hand, business premises are concerned, and a man wants to alter a shop window, which I imagine might be done without any real structural alteration: the alteration of the windows might add something material to the value of the premises, and I do not see why in those circumstances the landlord should have the benefit of the added letting value because the tenant has spent some money and done something that is an improvement.

LORD PHILLIMORE

I think the noble and learned Lord's speech answers part of the speech of the noble Viscount. It may very well be, as I think the noble Viscount must have forgotten, that you will have a compound application, an application for leave to alter the structure and an application for leave to alter the user. As the noble and learned Lord, Lord Buckmaster, has pointed out, in most cases the alteration of user will necessitate also the alteration of structure, but there are cases in which the alteration of user could be quite well made without alteration of structure, such as the conversion of a dwelling house into offices or even (though this is more difficult) the conversion of a dwelling house into flats. If the tenant goes to some expense to make the alteration, I understand his claim to get the benefit of it, but if he goes to no expense it seems to me a fortiori a case for the landlord having some share.

The truth is that the accrued benefit results to both from the fact that both are there. The tenant is there at the moment, and the landlord is there in future. The pair are enabled, by reason of their respective interests, to convert this property from one purpose to another, and therefore it seems to me only reasonable that the landlord should have a share. You make it odious if you call it a fine, but you just do not call it a fine. You simply say that the landlord may—only "may"—agree with the tenant, and, if you like—I am instructed that this would be accepted—can agree only if the tribunal thinks it reasonable. In this way you would facilitate business and improvements, you would improve the condition of tenants who otherwise might not be allowed to do these things and you would do no harm to anybody.

On Question, Amendment negatived.

THE LORD CHANCELLOR

My next Amendment is consequential.

Amendment moved— Page 19, line 16, leave out from the beginning of line 16 to ("where") in line 18.—(The Lord Chancellor.)

LORD DYNEVOR moved, in the second paragraph of subsection (3), to leave out "both parties" and to insert "the landlord and tenant and all parties interested in the reversion expectant on the determination of the lease." The noble Lord said: I think this is really a drafting Amendment, but I want to point out that there may be more than two parties. There may be more than the landlord and the tenant, and it is necessary and desirable to bring them all in.

Amendment moved— Page 19, line 17, leave out ("both parties") and insert ("the landlord and tenant and all parties interested in the reversion expectant on the determination of the lease").—(Lord Dynevor.)

LORD BUCKMASTER

I do not think that the noble Lord has really thought what is meant by "all parties interested in the reversion." There may be a whole group of beneficiaries, an enormous mass of people, and it would really be impossible to bring this crowd before the tribunal. I cannot see that any harm is done if the two parties who really are concerned are able to state their difference in this way without bringing in a crowd of others.

THE LORD CHANCELLOR

On a point of order, by my Amendment, to which your Lordships have just agreed, we have left out the whole of these two lines, including the words "both parties".

LORD DYNEVOR

I do not think that the Amendment to which we have just agreed was read out, or perhaps I missed the point.

THE LORD CHANCELLOR

The noble Lord is thinking of another Amendment. I am speaking of my Amendment to leave out from the beginning of line 16 to "where" in 18.

Amendment, by leave, withdrawn.

Amendments moved—

Page 19, line 20, leave out ("or the tribunal").—

Page 19, line 22, leave out ("or tribunal").—(The Lord Chancellor.)

Amendment moved— Page 19, line 25, at end insert ("and paragraph (b) of subsection (1) of this section shall not apply to mining leases").—(Viscount Sumner.)

Clause 18, as amended, agreed to.

LORD DYNEVOR

had given Notice to move, to insert the following new clause after Clause 18:—

Mining Leases.

"The provisions of Part II of this Act shall not apply to a mining lease."

The noble Lord sad: As the Lord Chancellor has accepted Lord Sumner's Amendment, I will not press this one, but I must say that I prefer my own Amendment.

Clause 19:

Apportionment of rents.

19. An order of apportionment of any such rent or payment as is mentioned in section ten of the Inclosure Act, 1854, may be made by the Minister of Agriculture and Fisheries under sections ten to fourteen of that Act, on the application of any person interested (according to the provisions of the Inclosure Acts, 1845 to 1882) in the land charged with the rent or payment or any part thereof, without the concurrence of any other person:

Provided that the Minister may in any such case, on the application of any person interested in the rent or payment require as a condition of making the order that any apportioned part of the rent or payment which does not exceed the yearly sum of two pounds shall be redeemed forthwith in accordance with section one hundred and ninety-one of the Law of Property Act, 1925.

THE LORD CHANCELLOR moved to leave out "any such" ["apportionment of any such rent"] and to insert "a rent reserved by a lease or any such other." The noble and learned Viscount said: It is doubtful whether Section 10 of the Inclosure Act applies to rent reserved by a lease, having regard to the definition of persons interested in land in Section 16 of that Act, and it has been urged that there should be a power where, for instance, part of a farm is sold, for the landlord or the tenant to obtain an apportionment of the rent in a simple manner. Section 140 of the law of Property Act deals with severance of the reversion and Sections 191 and 192 deal with the apportionment of certain charges, but neither of those sections applies to rents reserved by a lease or tenancy. The result is that, if we have the severance of a farm, it may be essential that the rent payable for the two portions severed should be apportioned, but there is no statutory provision for this and you are thrown back on the Common Law, which requires the rents to be apportioned either by agreement or a jury. If these words are inserted, they will bring that case within the scope of Section 10 of the Inclosure Act, and will avoid a good deal of trouble.

Amendment moved— Page 19, line 26, leave out ("any such") and insert ("a rent reserved by a lease or any such other").—(The Lord Chancellor.)

THE LORD CHANCELLOR

My next two Amendments deal in substance with the same point, and the third is drafting.

Amendments moved—

Page 19, line 30, leave out from ("interested") to the second ("the") in line 32, and insert ("in")

Page 19, line 33, after ("thereof") insert ("or in the land in respect of which such rent or payment is payable")

Page 19, line 36, leave out ("interested in") and insert ("entitled to").—(The Lord Chancellor.)

THE LORD CHANCELLOR moved to insert as a new subsection: (2) Where the reason for the application was due to any action taken by a person other than the applicant, the Minister shall, notwithstanding anything in section fourteen of the Inclosure Act, 1854, have power to direct by whom and in what manner the expenses of the application or any part thereof are to be paid. The noble and learned Viscount said: Section 14 of the Inclosure Act, 1854, provides that the person making an application for an apportionment shall pay the expenses incident thereto, in such proportions and to such amount as the Commissioners (now the Minister of Agriculture) shall certify in that behalf. In a case, however, where the applicant is interested owing to the severance of the property at the instance of someone other than the applicant, for instance, where a landlord sells part of a farm and so makes an apportionment of rent necessary, it seems only fair that the costs of such an application should not as a matter of course be paid by the tenant, who feels bound to make the application because of the landlord's action. It is therefore proposed to leave the costs to the discretion of the Minister who is required to make the apportionment of the rent.

Amendment moved— Page 19, line 42, at end, insert the said new subsection.—(The Lord Chancellor.)

Clause 19, as amended, agreed to.

First Schedule:

    cc764-6
  1. FIRST SCHEDULE. 614 words
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