A lease is an agreement under which owner gives up possession and use of his property for valuable consideration and for definite term and at end of term owner has absolute right to retake, control and use property. (Black’s Law Dictionary).
The transferor is called the lessor.
The transferee is called lessee.
The price is called the premium.
The money, share service or other thing to be so rendered is called rent.
Right and Liabilities of the lessor
1.SECTION 108(A) -DISCLOSURE OF MATERIAL DEFECTS
In the absence of a contract or local usage to the contrary, the lessor is bound to disclose to the lessee any material defects in the property but only with reference to its intended use, provided
- The lessor is aware of such material defect,
- The lessee is not aware of that material defect, and
- The defect is such that the lessee could not with ordinary care discover.
2.SECTION 108(B)-DELIVERY OF POSSESSION
The clause imposes statutory obligation upon the lessor to give possession of the premises to the lessee. What amounts to delivery of possession depends on the nature of the property leased. Where the lessor fails to deliver possession in spite of the lessee’s request to put him in possession, the lessee may, in the absence of a contract to the contrary.
- Repudiate or rescind the contract on the ground of failure of the lessor to give possession, but he cannot do so, when he takes possession of a portion of the demised premises, if the lessee rescinds the whole contract, he can recover the consideration, if any, paid by him to the lessor,
- Sue for damages for breach of the obligation,
- sue for possession of the property demised, even though he has failed to pay the stipulated consideration, he may also sue the third party in possession.
- Sue for specific performance,
- He may withhold payment of rent, or claim abatement or suspension of the rent.
3. SECTION 108(C)-IMPLIED CONTRACT
In the absence of a contract or local usage to the contrary, the lessor shall be deemed to contract with the lessee that if the latter.
- Pays the rent reserved by the lease, and
- Performs the contracts binding on the lessee he may hold the property (a) During the time limited by the lease, (b) Without interruption.
The clause lays down two other propositions, namely:
- The benefit of such contract shall be annexed and go with the lessee’s interest as such, and
- May be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
RIGHTS AND LIABILITIES OF THE LESSEE
The word “accession” means “accretion” or addition not with some difference. It is not necessary for accretion to be imperceptible, it is sufficient, if it is gradual.
The conditions necessary for the application of this clause are:
(a) There must be no contract or local usage to the contrary.
(b) An accession must have been made to the demised property.
(c) Such accession must have been made during the continuance of the lease
(d) There must be no law relating to allusion in force to the contrary.
If all the above conditions are fulfilled, then such accession shall be deemed to be comprised in the lease.
2.SECTION 108(E)- DESTRUCTION, ETC., OF SUBJECT-MATTER
The clause becomes applicable only if,
(1) There is no contract or local usage to the contrary,
(2) Any material part of the property demised is (a) Wholly destroyed, or (b) rendered substantially and permanently unfit for the purposes for which it was let,
(3) By fire, or tempest, or flood, or Violence of any army or of a mob or other irresistible force, and
(4) The injury is not occasioned by the wrongful act or default of the lessee.
3.SECTION 108(F)-NECESSARY REPAIRS
The essential conditions for the application of this clause are:
(a) There must be no contract to the contrary.
(b) The lessee himself must be under no obligation to make any repairs to the property
(c) The lessee must have given notice to the lessor to make the repairs within a reasonable time,
(d) The lessor must have neglected to make the repairs within a reasonable time after notice.
If all the aforesaid conditions are fulfilled, the lessee acquires the following rights:(a) To make the repairs himself, and
(b) To deduct the expense of such repairs with interest from the rent, or
(c) To recover the expense of such repairs with interest from the lessor.
4.SECTION 108(G)-NECESSARY PAYMENTS
The necessary conditions for the application of this clause are
(1) There must have been no contract to the contrary.
(2) The lessor must have neglected to make any payment, which he was bound to make and
(3) which payment, if not made by him, must be recoverable from (a) the lessee, or (b) against the property.
If all the above conditions are satisfied, the lessee may make such payment himself, and deduct it with interest from the rent or otherwise recover it from the lessor. Apart from this clause, the tenant has also a right to recover the amount under Sec 69 of the Contract Act, if he pays it under protest. The reason is, that when the lessee makes a payment which the lessor is bound to make, and which, if not made, is recoverable from the lessee or from the demised premises, the lessee is a person interested in the payment and is, therefore, entitled to be reimbursed.
5.SECTION 108(H)-REMOVAL OF THINGS ATTACHED TO EARTH
The clause applies only in the absence of a contract to the contrary It empowers the lessee, even after the determination of the lease, to remove, at any time, whilst he is in possession of the property leased, but not afterwards, all things which he has attached to the earth. But he can do so only, if after so doing, he can leave the property in the state in which he received it.
6.SECTION 108(I)-ENTITLEMENT TO CROPS
If the following conditions are fulfilled, namely
(1) There is no contract or local usage to the contrary
(2) A lease of uncertain duration determines by any means except the fault of the lessee.
Then the lessee or his legal representative is entitled,
To all the crops planted or shown by the lessee and growing upon the property when the lease determines, and To free ingress and egress to gather and carry them.
7.SECTION 108(J)-ABSOLUTE TRANSFER
The clause lays down the following propositions, which apply only in the absence of a contract or local usage to the contrary:
(a) The lessee may transfer absolutely the whole or any part of his interest in the demised property,
(b) The lessee may transfer by way of mortgage the whole or any part of his interest in the property,
(c) The lessee may transfer by way of sub-lease the whole or any part of his interest in the property; and
(d) Any transferee of such interest or part may again transfer it,
(e) The lessee cannot, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease,
But this clause should not be deemed to authorize
(a) A tenant having an untransferable right of occupancy, or
(b) The farmer of an estate in respect of which default has been made in paying revenue, or
(c) The lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.
8.SECTION 108(K)-DISCLOSURE OF FACTS
The lessor rests under an obligation to disclose all material defects in the property, with reference to its intended use, of which the lessor is but the lessee is not aware, and which the latter could not with ordinary care discover. But, by this clause, the obligation of the lessee is more limited, for he is bound to disclose, to the lessor only facts, as to the nature or extent of the interest which the lessee is about to take, provided the facts are such that (a) The lessee is, and (b) The lessor is not, aware of them, and. (c) that materially increase the value of such interest.
9.SECTION 108(L)-PAYMENT OF RENT OR PREMIUM
The clause provides that, in the absence of a contract or local usage to the contrary, the lessee is bound to pay or tender, at the proper time and place the premium or rent to the lessor or his agent in this behalf The right to recover rent, or the liability to pay or tender rent, accrues and subsists only if the relationship of landlord and tenant arises and subsists between the parties. Where the relationship of landlord and tenant is proved it was held that there is liability to pay rent If no such relationship exists there is no liability to pay rent; and that liability continues only so long as the relationship of landlord and tenant does subsist, or during the period for which rent is claimed.
10.SECTION 108(M)-RESTORATION OF PROPERTY ON TERMINATION
The clause applies only in the absence of a contract to the contrary. It casts an obligation upon the lessee
(1) To keep, and
(2) On the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused (a) By reasonable wear and tear, or (b) Irresistible force, and
(3) To allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition, and
(4) When such defect has been caused by any act or default on the part of the lessee, his servants or agents, to make it good within three months after such notice has been given or left.
11.SECTION 108(N)-NOTICE TO LESSOR
The clause enacts that the lessee, in the absence of a contract to the contrary, rests under an obligation to give, with reasonable diligence, notice to the lessor, if the lessee becomes aware,
(a) Of any proceeding to recover the property, or any part thereof, or
(b) Of any encroachment made upon the lessor’s right concerning the demised property, or
(c) Any interference with the lessor’s right concerning the demised property.
The clause lays down what the lessee may do and what he may not do.
It enacts that the lessee may use:
(1) The property, and (2) Its products, if any, but only as a person of ordinary prudence would use them, if they were his own. Yet, it imposes an obligation upon the lessee.
(a) Not to use, or permit another to use, the property for a purpose other than that for which it was leased, or (b) Fell timber, or (c) Sell timber, or (d) Pull down or damage buildings belonging to the lessor, or (e) Work mines or quarries not open when the lease was granted, or (f) Commit any other act which is destructive or permanently injurious thereto.
12.SECTION 108(P) – ERECTION OF PERMANENT STRUCTURES
The clause imposes an obligation on the lessee, in the absence of a contract or local usage to the contrary, not to erect on the property any permanent structure, except for agricultural purposes. The fact that the tenant has improved the land by the permanent structure, or that the permanent structure will improve the demised premises can afford no defense. But there are exceptions to the general rule. One such exception is that mentioned in the clause itself, viz., the tenant may build a house, or other permanent structure, for agricultural purposes. Another exception may exist Where the lessor by standing by and allowing the tenant to go on with the work without objection, may disentitle himself to the assistance of the court.
13.SECTION 108(Q)- RETURN OF POSSESSION
Section 108 sets out the rights and liabilities of lessor and lessee. Clause (q) of that section imposes a liability to put the lessor into possession of the property on the determination of the lease. Such liability arises whether the lease is terminated by notice or by efflux of time.