'*fe^ dnrtif U Sam i^rljonl ICibtatg Cornell University Library KFN5146.G34 The law of aparKntf illaJl g"^^^^^^^^^^^ 3 1924 022 803 682 >- Cornell University Library The original of tinis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022803682 The Law OF Apartments, Flats and Tenements WILLIAM GEORGE Author of George on Partnership FALLON LAW BOOK COMPANY 83 Nassau Street New York 1908 Copyright i;oa BY Fallon Law Book Company J. B. LYON COMPANY, PRINTERS, ALBANY, N. Y. TABLE OF CONTENTS. PAGE. Pi-ef ace ., 5 PART I. (Jliaptcr I. Owner and Proprietor 7 Chapter II. Owner and Apartment-Holder 5.') Chapter III. Owner and Third Persons 58 PART II. Chapter I. Proprietor and Owner 75 Chapter II. Proprietor and Apartment- Holder 83 Chapter III. Proprietor and Third Persons 148 PART III. Chapter I. Apartment-Holder and Owner 167 Chapter II. Apartment-Holder and Proprietor 174 Chapter III. Apartment-Holder and Third Persons 199 Index 215 Appendices : The Tenement-House Act of the State of New York 227 The Building Code of the City of New York 303- [3] PREFACE This little volume has heen prepared for the use chiefly of laymen and so makes no great pretense to the profundity expected to be found in what is called "A Treatise;" nevertheless if the profession can find it useful so much the better. In his vindication the author will say that, aware of the unhappy character imputed to one who would be his own lawyer, he would retard by no means the alacrity of his reader toward seeking a professional man on the first appearance of trouble. The purpose here is to warn rather than arm. It has been thought well to divide up the material as though an apartment-house were kept as an invest- ment in each case by some person ; he, the owner, leas- ing the whole building to another person, the proprie- tor, to be conducted by the latter as his business in letting separately portions to others again who would be denominated apartment-holders. Convenience has been the motive and it is hoped that the method will not confuse. As a fact, in many cases — perhaps in most — the owner conducts the business as his own and lets out the apartments himself or through his agent ; if then he has the -double capacity of owner and pro- prietor, that fact ought to make what is contained here none the less easUy to be understood. A large part of the contents is devoted to the law of Landlord and Tenant and it has been desired in places to dispense with the word sublessee, since where the owner himself operates the house, an apartment-holder would not be [5] G Preface. a sublessee at all, except, of course, where the lessee of an apartment himself has sublet. Again, our view includes a glimpse at least of the other relations of " Bailor and Bailee," " Master and Servant," " Prin- cipal and Agent," etc. Since the bailee, master or principal may be, according to the connection, either owner or proprietor, confusion is avoided rather by our method. However, treatment of the several topics must necessitate the retention of technical expressions here and there, otherwise the text would seem not to respond to the references that give it authority. The intelligent reader will keep the explanation in mind and apply it as his needs demand. The reason for dividing up Landlord and Tenant and treating it piecemeal in three places was that in the effort to avoid repetition as much as possible the various parts of the subject might be put each under the title of the person most likely to be on the lookout for it in an emergency. But for the saving of words it might have been repeated all under the three titles, since properly it applies to all. The work is but a sketch at best, because the sub- jects are large and necessarily every book has its limitations. It could not go into all of them at length ; that would require a library rather than a volume. PART I. OWNER. [7] PART I OWNER. CHAPTER ONE. Owner and Proprietor. I. Explanation of Words — Lease — Term — Reversion. By "what is known unscientifically as a deed, the owner of houses or lands parts with his estate in the latter for all time,^ whereas by a lease what he parts with is only present possession. The time — be it long or short — during which, by the provisions of the lease, the possession is to remain away from him is called the term. At the end of the term the possession comes biack to him, and this coming back — or the expectation of , its coming back — is called the rever- sion. It is not inconsistent with this statement to add that this ' ' coming back ' ' may anticipate the end of the term as fixed by the lease, the same taking place for condition broken, as it is called: broken, that is, 1 It is true that technically a conveyance in fee is not necessary to constitute a deed. At common law a deed is " a writing sealed and delivered by the parties," but in ordinary language the term is used in a much more restricted sense as a conveyance of the fee of land. Sanders ■;;. Eiedinger, 164 N. Y. 564, affirming Cullen, J., in same case in 51 N. i. Supp. 937. [9] 10 Owner and Peoprietoe. through some act or omission of one of the parties, the condition referred to being one upon which, ac- cording to the lease itself, this outstanding possession was to depend.^ , 2. Tenancy — What It Is. The literal meaning of the word tenancy is a holding, and its application here is to that possession we have been talking about: and, notwithstanding all we have said, this possession may be enjoyed by the holder, or tenant, as he is called, without formalities. But this, it ought to be stated, depends upon the quality of the possession in the respect of pemianence. Letting for Years — How Assured. A letting for a term exceeding three years must be evidenced by a written instrument signed and sealed by the parties, and one for a less term, but over one year, by a written instrument signed at least.^ A written lease for a term of over three years, if not sealed, can be enforced only as a lease for three years ; and an unsigned lease intended to create a term of over one year can be enforced only as creating a 2 Kapalje & Lawrence Law Diet, title " Condition." 3 The English statute of frauds contains a section which differs from the law generally in the several Sta.tes of our Union in excepting from its operation parol leases not exceeding three years; hence in England such a lease is good now as before the statute of frauds, when no lease needed to be in writing. But even there, if the lease is not actually commenced by the entry of the tenant, it is held to be only a contract for an interest in or concerning lands — interesse termini, as Black- stone calls it — and is void by the fourth claiise of the fourth section of the law. Until such entry the lessee cannot be sued for damages for not occupying as tenant, nor for use and occupation. And see Chitty on Contr. 319, 320. OWNEE AND PeOPRIETOE. 11 tenancy at ivill.* A lease for over seven years should be recorded as well as signed and sealed. 3. Tenancies of Uncertain Duration — Tenancy at Will. A tenancy at ivill is one that depends on the wills of both parties and conies to an end at the will of either party upon notice to the other party, first duly communicated, of his desire that it shall end.® Such a tenancy is created also by one's occupying with the owner's consent but without the formality of a letting. In the case last mentioned the holding begins only on the day the tenant actually enters the premises.** An instance of this would be the allowing an intending purchaser or lessee to enter upon the premises in an- ticipation of his being given formal assurance of title, permanent or temporary as the case might be.'^ Natu- rally a tenancy at will terminates with the life of either party.* If in such a case the tenant is the surviving party, and he continues in possession, the tenancy be- * Although the agreement as to the letting be void (by statute of frauds) as to its duration and tnere results but a tenancy at will, yet in other respects it regulates the terms on which the tenancy subsists — - for instance as to the rent, the time of the year when the tenant is to quit, etc. Riggs p. Bell, 5 L. E. 4Vi; Greenleaf on Evidence, Vol. 1, § 263, cited in Cody v. Quarterman, 12 Ga. 384. 5 Rich V. Bolton, 46 Vt. 84. A mortgage of the property by the owner terminates a tenancy at will, provided the tenant has notice of it. Jarman v. Hale, 1 Q. B. D. (1899) 994. See also § 15, post. 6 Taylor's Landlord and Tenant, § 68. 7 When one enters under promise of the owner for a valid lease in writing, which promise afterward fails of fulfilment, the owner on re- suming possession cannot exact from tne tenant payment for use and occupation. Greton v. Smith, 33 N. Y. 245. 8 Cruise Dig. 273. A tenancy at will terminates by the ueath of the lessor. Flood v. Flood, 83 Mass. 217; HoUis r. Pool, 3 Mete. 350. 12 Owner and Pkoprietok. comes one at sufferance f and every other tenancy may degenerate into such by the unwarranted persistency of the tenant after the end of the term assured by his lease.^" 4. Tenancies of Uncertain Duration — Tenancy at Suffer- ance. A tenant at sufferance is one who comes into pos- session by lawful title and remains in by no title at all." But for the indifference of the owner there could not be such a tenancy, and it is clear that when this indifference gives way to recognition and toler- ance the tenancy becomes one at will.^^ Modern Treatment of Tenancies of Uncertain Duration. buch tenancies are, however, regarded with dis- favor by the courts, and the latter are disposed to treat all tenancies of uncertain duration as tenancies from year to year whenever any good reason may be found for doing so.^^ In New York where the time for 9 By the removal of the will ot the lessor the tenancy at will becomes one at sufferance. Flood v. Flood, 83 Mass. 217. 10 The burden is on the tenant, who holds over after his lease has expired, to show that by the acceptance of rent for the subsequent oc- cupation or by some agreement, or by some recognizing otherwise of the relation of landlord and tenant, the landlord has assented to a continuance or renewal of the same relation. Moore v. Smith, 56 N. J. Law, 446. See also Moore v. Moore, 41 N. J. Law, 515; Decker v. Adams, 12 N. J. Law, 99. 11 2 Blackstone's Comm. 150. 12 Besides these there is the anomalous holding, out of which arises the action for use and occupation, to recover in which the plaintiff must prove 'title in himself, occupancy by the defendant, and facts war- ranting an inference of intent that the conventional relation of land- lord and tenant shall exist. Preston v. Hawley, 101 N. Y. 586. 13 Johnson v. Johnson, 13 R. I. 457. OWNEB AND PeOPEIETOR. 13 the expiration of the term cannot be inferred from a lease not explicit in that respect the statute fixes the expiration as being on the first day of the month of May following." In New Jersey the term endures until the next fixed day for rent-payment.^° In Dela- ware the tenancy becomes one for a year." But the New York statute so terminating such holdings on the first day of May does not apply to tenancies from month to month." 5. End of Term — Tenant Holding Over — Effect — Re- newal or Not. When a tenant for one or more years holds over after the expiration of his term without express agree- ment, but with the assent of his landlord, the law im- plies that he holds the premises upon the former terms as tenant from year to year.^^ When this holding over is without the assent of the landlord the latter has the option to regard the other as either a tenant or a tres- passer, whichever he may choose: the tenant himself has no option in the matter." A lease of this kind, held over as stated above, is presumed to be renewed 14 Laws of New York (1'896), chap. 547, p. 591, § 202. 15 Gen. Stat. New Jersey, p. 1924, § 37, Act of 1888. And see Albey V. Weingart, 71 N. J. Law, 92, 58 Atl. 87; Steffens v. Earl, 40 N. J. Law, 128. 16 Laws of Delaware, 1893, chap. 120, § 2, " except of houses and lots usually let for a less time."' And see Schmitz r. Lanferty, 29 Ind. 400. iTGildfoyle v. Cahill, 41 N. Y. Supp. 29. 18 Wood V. Gordon, 18 N. Y. Supp. 109, and particularly the cases cited there. 19 Park V. Castle, 19 How. Pr. 29; 1 Daly, 384; Schuyler v. Smith, 51 N. Y. 309; Jackson r-. Wilsey, 9 Johns. 267; Lesley v. Randolph, 4 Eawle, 123; Jackson v. Salmon, 4 Taunt. 128; Hall v. Meyers, '43 Md. 446; Adams 1). City of Cohoes, 127 N. Y. 175; Haynes v. Aldrich, 133 N. Y. 287. 14 OwNEE AND PeOPEIETOB. for a year, but proof is admissible to overcome the presumption.^" A landlord's consent to his tenant's holding over for a specified time, however, is not tan- tamount to a lease for another term.^ When the term is for less than a year, or by the quarter, month, or week indefinitely, by a holding over the tenancy be- comes one from quarter to quarter, etc., until ended by a quarterly, monthly, or weekly notice to quit." If the language of a provision in a lease relating to the renewal of the latter is indefinite it is to be given the construction most favorable to the tenant.^ The formal creation of a tenancy being accomplished by means of a lease we shall proceed to consider what is to be understood by that word. . 6. Lease — What It Is — Technical Words not Necessary. A lease imports a contract between a lessor and lessee for the possession and profits of land, etc., on the one side and a recompense by rent or other con- sideration on the other.^ Technical words are not necessary to give it validity.^ The apparent intention 20 Bacon v. Brown, 9 Conn. 334. 21 Luger V. Goerke, 45 N. Y. Supp. 839. 22 Taylor's Landlord and Tenant (9th ed.), Vol. I, § 57; Hiird v. Whitsett, 4 Colo. 77, and cases there cited; Wood v. Gordon, 18 N. Y. Supp. 109. 23 Johnson, V. Railroad Co., 35. Beav. 480; Cardigan v. Armltage, 2 Barn. & Cress. 197; Commonwealth v. Sheriff (Pa.), 3 Brewst. 537. 24 Allen V. Lamjjden, 2 Md. 279, quoting from Bacon's Abridgment and Archbold's Landlord and Tenant. 25 To establish the relation of landlord and tenant it is not n"ces- sary that the words " lease " or " let " or " rent " be used. Any lnnc;ii 'ge plainly meaning or implying that the one shall hold from the other is sufficient. Merke v. Merke, 113 111. App. 518. A l?ase need not be in any formal words or any technical shape. A letter and the .nMSiv- to it may combine to create the tenancy even for one under the ?f > iite Owner and Pkoprietoe. 15 of the parties is the key to its construction.^* The chief concern of the lessee imder this conveyance is the possession, and this will be given attention later on.^'^ Under this conveyance the lessor's main con- cerns are, first, rent, which he has by way of com- pensation for the possession he has parted with; and second, the reversion, to which rent is closely related.^ Rent — What It Is. Rent is defined to be a certain annual profit issuing out of lands and tenements in recompense for the possession. It must be certain; that is, fixed in amount or, if it is to be paid in any form other than money, fixed in value. It must issue annually. It is not meant by this, though, that it is to be paid necessarily just once a year, provided the pa^Tuents are to be made at fixed and uniform intervals counted of frauds. Shaw v. Farnaworth, 108 Mass. 357. A lease executed under a mutual mistake of fact may be reformed. Kanalli r. Zeppetelli, 94 N. Y. Supp. 561. In a controversy as to whether — under a verbal agreement — a term was for one year or one month, the fact that the tenant was to enjoy possession gratuitous!}' raised a presumption in favor of a yearly term. Schumacher v. Waring, 27 N. Y. Supp. 325. A condition in a lease that upon a certain contingency the lease shall be canceled implies that the contingency cancels it ipso facio, any further act of the defendant not being needed. Bruder v. Geisler, 94 N. Y. Supp. 2. 26 City, etc. v. United States Trust Co., 101 X. Y. Supp. 574. 2TSee § 65, post. ■ 28 Rent grows out of the estate and tne enjoyment of it, and it is the privity of estate rather than of contract which connects the re- version with the rent. The contract settles only the amount of rent and the terms of payment. Peck v. Northrop, 17 Conn. 217. Rent is incident to the reversion and passes to the grantee of the reversion. Outtoun V. Dulin, 72 Md. 540; Winestine v. Ziglatzki-Marks Co., 77 Conn. 404, 59 Atl. 496. 16 Owner and Pboprietoe. in fractions of a year.^" It must be in return — that is, by way of giving back — for tbe possession. Fi- nally, it must issue out of the thing possessed i^" hence the remedy of distress for rent in case of default, the owner having recourse to what is to be found on the premises. 7. Rent — In What Paid — How Pasmient Applied. Except when it has been expressly stipulated other- wise in the lease rent is payable in money only, by which is meant the legal circulating medium : and even if the lessor accepts something in lieu of money — a cheque or a note, for instance — -this would be no concession, for his original demand would be good until actual payment.^^ Of course, . the honoring or cashing of the paper mentioned would satisfy the demand. The fact of making a tender of rent with a failure to accept it immediately does not relieve the tenant of his duty to pay it: the tender must be kept 29 " Bent is a noun of mviltitude, meaning not one single sum due at some one moment, which may be recovered by an action and may be lost if not; but meaning a succession of sums of money payable in a, general yearly (inj;erval) or at shorter interval during the whole term specified." Chief Baron Kelly in Zouche v. Dalbiac, L. R. 10 Exch. 172. See also Richardson v. Tangridge, 4 Taunt. 128. 30 Peck r. Northrop, 17 Conn. 217. In Newman f. Anderson, 5 B. & P. 224, Lord Mansfield said : " It must occur constantly that the value of demised premises is increased by the goods upon the premises, and yet the rent reserved still continues to issue out of the house and land, and not out of the goods." 31 The giving a note does not extinguish the rent, even though re- ceived. ' Sutliflf V. Atwood, 15 Ohio St. 180. But if the landlord takes the note of a third party and through his own lack of diligence allows the maker to fail without its being paid the lessee is released. Josse V. Schultz, 2 Cranch C. C. 579. Owner and Peoprietob. 17 good.^^ The payment is to be applied as directed ; not, necessarily, in discharge of the instalment longest due.^* But if it is not indicated to the landlord how the payment is to be applied he has his option in the matter.^* In case of payment by the assignee of a tenant under whose lease an assignment was for- bidden acceptance does not necessarily commit the landlord to a waiver of the prohibition.^' Eent that becomes due on Sunday or a legal holiday is payable the next following secular day:^'' this does not, how- ever, work any change in the regular intervals of rent days afterward. 8. Rent — Necessity of Demand — Withholding of Rent. In all cases before rent can be held to be in default a demand must have been made for payment.^^ Evic- 32 A debtor is bound at all times to meet a, demand for money that he may have tendered. Town v. Trow, 24 Pick. 171; Stow v. Russell, 36 111. 18. After institution of summary proceedings a tender of rent must include costs in order to be eflFective. Stover i;. Chasse, 29 N. Y. Supp. 291. 33 A receipt for rent is prima facie evioence that prior rent has been paid. Jenkins v. Calvert, 3 Cranch C. C 216. 34 A receipt for rent is prima facie evidence that prior rent haa been paid. Jenkins v. Calvert, supra. Therefore, " When not directed to the contrary effect the landlord may apply payment to the back rent." Collender v. Smith, 45 N. Y. Supp. 1130; Hunter v. Osterhoudt, 11 Barb. 33; Eeed v. Ward, 22 Pa. St. 144. 35 Payment extinguishes the demand, no matter who makes it. Baker V. Pratt, 15 111. 568. By accepting rent from one who has been given — contrary to the covenant in the lease — - an assignment of the latter, the landlord does not discharge the lessee as to rent for the rest of his term. Ward V. Krall, 46 Mo. App. 447. And see Rector v. Deposit Co., 102 111. App. 554. 36 Sunday rent is payable on Monday. Craig v. Butler, 31 N. Y. Supp. 963. And see Porter v. Pierce, 120 N. Y. 221. See also laws on the subject in the several States. 37 Where, as a rule, the tenant has sought the landlord in order to 2 18 Owner and Pkopkietoe. tion does not exempt a lessee from Ms obligation to meet the demand for rent due at the time :^^ and when, under the agreement, in a letting for a year the rent is payable in advance and there be a dispossession for good cause the tenant cannot force a return of the money paid.^' Eent may not be held back by the tenant because of his apprehension lest the landlord will not give him quiet possession.*** A nuisance which, on the ground of eviction, a tenant might avail himself of to vacate the premises midterm cannot, after occu- pancy throughout the term by him, be set up by way of counterclaim in an action for rent.*^ The fact that the lease has been made out in the name of the agent of the owner does not entitle any the less the latter to the rent.*^ On death of the owner of fee-simple property the rent of the latter, if under lease, goes to the heir.*^ When security has been given f6r the pay the rent, that fact does not relieve the landlord of the obligation to make a, demand upon the tenant before ejecting him. Rea v. Eagle Transfer Co., 201 Pa. St. 273, 50 Atl. 764. See also Zinsser v. Herr- man, 52 N. Y. Supp. 107. 88 Johnson ». Barg, 28 N. Y. Supp. 728. 39 Bernstein v. Heinemann, 51 N. Y. Supp. 467. 40 Pickett V. Ferguson, 45 Ark. 177. «Edgerton V.'Page, 20 N. Y. 281; Borell v. Lawton, 90 £i. Y. 293. •42 The owner is entitled to the rent, although the lease be made in the name of the agent. Sterret v. Flannery, 42 N. Y. Supp. 349. 43 Fay V. Halloran, 35 Barb. 295. But rent accrued before the death of the owner is assets in the hands of the executor. Spier v. Robinson, 9 How. Pr. 325; Miller v. Crawford, 14 N. Y. Supp. 358. The general rule is that an executor has no right to the possession of the testator's real estate unless it is given him by the will. An executor or ad- ministrator may sell the real estate for the payment of debts or legacies when the necessity for so doing is made apparent to the Orphans' Court, and an order is made by that court authorizing such sale; but until then he has nothing to do with it. Appeal of Pennsylvania Co., 168 Pa. St. 431. An action by an executor to recover a proportionate part of the rent due at the death of the lessor must be brought against Owner and Proprietor. 19 rent the landloi'd must return the balance after de- ducting what is his due.^* 9. Rent — Payment — Destruction of Premises. Unless the contrary is provided by statute, or by express words in the lease, partial or total destruction of the rented premises by fire, flood, or other extraor- dinary cause does not relieve the tenant of the duty to pay rent.*® However it is a fact that in most of the States a release virtually results by statute in case of destruction by fire, water, tempest, an invading army, or other disaster in any such statute named.*^ To avail himself of such a release, however, the tenant must be careful to vacate the premises.*^ It is also to be borne in mind that a claim must be made as to his right to go, based on the destruction, and that the heir or devisee, and not against the tenant. Niles v. Chaee, 29 Hun, 200. 44 The surplus over the rent dae, of the amount previously deposited vpith the landlord as security, must, after eviction, be refunded to tiie tenant. Kahn v. Tobias, 37 N. Y. Supp. 632; Scott v. Montells, lOR N. Y. 1. 45 Smith v. McLean, 123 111. 210; Turner r. Mantonya, 27 111. App 500; Nonotuck Silk Co. v. Shay, 37 111. App. 543. 46 At common law when the tenant was deprived of the premise* through the destruction of them by an invading army, fire, water, tempest, or any other like cause, he was required to pay the rent not- withstanding, unless he had exercised the prudence to have a covenant in his lease exempting him from such duty in case of his being so deprived. Paradine v. Jane, Aleyn, 26; Monk v. Cooper, 2 Strange, 763 1 Belfour v. Weston, 1 T. R. 310; Hallett v. Wylie, 3 Johns. 44. The tenant is relieved from this hard.ship in New York by statute. See Laws of 1860, chap. 345. Similar laws now exist in most of the States. But where no statute relieves him and he has not relieved himself by a clause in his lease, he must still pay rent notwithstanding the destruction. Smith v. McLean, 123 111. 210; Turner v. Mantonya, 27 111. App. 500; Nonotuck Silk Co. «. Shay, 37 111. App. 593. 47 Lansing v. Thompson, 40 N. Y. Supp. 425. i 20 OWNEE AND PeOPBIETOR. it must be made witliin a reasonable time.*^ But rent due on the day of the disaster, whatever it may be, is not released.*^ Where, as mentioned above, statute or the contract makes destruction of the premises a release of rent, a tenant who has paid rent in advance may after the destruction recover back such part of it as was not earned up to the time of the disaster.^" The statute is not to be stretched in its terms, how- ever, so as to cover troubles or inconveniences to the tenant not plainly within its intention.^^ It is hardly necessary- to say that where the tenant is himself under obligation to repair dilapidation of the prem- ises does not release him of the duty to pay rent.^^ 10. Rent — Landlord's Neglect to Repair — Effect — No- tice — Silence. Indeed even where the obligation to repair is on the landlord and he defaults in the covenant to such effect the fact cannot be availed of for a defense in an action for rent.'^ Where a tenant, notified that on his Ijolding over the rent will be increased to a specific figure or that some other named change in the old lease will be made, holds over nevertheless it will be taken as an acquiescence in the change."* 48 Copeland v. Lutgen, 40 N. Y. Supp. 653. 49 Craig V. Butler, 31 N. Y. 345. 50 Porter v. Tull, 6 Wash. 408. 51 The statute is not to be extended beyond its purpose and does not enlarge the law of evidence. Huber v. Ryan, 65 N. Y. Supp. 135. 62 Crawford v. Redding, 28 N. Y. Supp. 733. 53Drago V. Mead, 51 N. Y. Supp. 360; Lewis v. Ritoff, 101 N. Y. Supp. 40. MHiggins V. Halligan, 46 111. 173; Marcy v. Alexander, 24 Pa. St. 272. OWNEE AND PkOPRIBTOR. 21 Rent — Unpaid — Landlord's Remedies. Where the premises concerned in the tenancy are of the sore with wliich we have chiefly to do, within the purpose of this book, the landlord, except as set forth below, has no lien for rent.^® In some of the States — save by way of dispossession — he has no remedy at all that is not open to every other creditor of the tenant as well; the reference here is to the fact that the remedy by what is called distress has been taken away in those States.^** Elsewhere distress obtains still, it having come down to us with the rest of our law — except in a few respects — as a sort of inherit- ance from the mother country."'^ This remedy may be 85 A landlord's lien does not attach to any demised premises not of a crop-producing character. B6N0 distress in Montana. Bohne v. Dunphy, 1 Mont. 333. Nor in pklahoma. Smith v. Wheeler, 4 Okl. 138. Nor in New York. Hos- ford V. Ballard, 39 N. Y. 47. lS[or Minnesota. ,Dutcher v. Culver, 24 Minn. 584. Nor Missouri. Welch r. Ashby, 88 Mo. App. 400. Nor North Carolina. Howland v. Forlaw, 108 N. C. 567. Nor in Massa- chusetts. ■ Wait, Appellant, 7 Pick. 105. B7 To entitle a person to distress for nonpayment of money it must be due under- a demise and for a rent fixed and certain in nature. Melick V. Benedict, 43 N. J. Law, 425. The reason of this is " that the tenant may know, in case he be threatened with a, distress, what he is to pay to prevent it, or in case his goods shall be distrained, what sum to tender in order to retain them. Wells v. Hornick, 3 Penr. & W. 31. But the necessity that the rent be fixed and certain does not call for the naming of the rent by precise figures in the lease. In Selby v. Greaves (L. R. 3 C. P. 594), Willes, J., says: "It is new to me that a rent is uncertain, because it cannot be ascertained at the tiine of the demise what will become payable at a certain contingency. Such a rent may be clearly distrained for. The maxim id certum est quod reddi certum potest applies. A thing is sufficiently certain when it may be made so by an arithmetical process." JBut the rent or profit, in whatever it consists, whether payable in money, or in produce of land or labor, or in repairs, must be stipulated for by the contract and must be certain or capable of being reduced to a certainty by either party. Valentine v. Jackson, 9 Wend. 302; Smith v. Colson, 10 Johns. 22 Owner and Propbietoe. invoked only where by agreement the rent has been made fixed and certain, irrespectively of the right to distrain being expressly reserved in the lease."* II. Distress — Its Nature — What May Be Distrained — Exceptions. Distress is a formal proceeding whereby, in case a tenant is in default for rent due, payment is exacted out of personal property found on the premises."" The light is inseparable from the reversion.*" It is a formal proceeding because certain forms in carrying it out are required by statute, without strict adherence to which the landlord may become a trespasser."^ As a general principle all movables found on the premises are subject to distress ; but in a case before Lord Chief Justice Willes"^ the latter mentioned certain excep- tions as follows : 1. Things annexed to the freehold. 2.. Things delivered to a person exercising a public S'l. Demise of a grist-mill, the tenant to pay one-third of the tolls for rent. Fry v. Jones, 2 Eawle, 11. Demise of marl pit and brick mine, the tenant to pay so much per solid yard for the marl and so much per thousand for the bricks. Daniel v. Gracie, 6 Q. B. 145. Demise of a coal yard, the tenant to pay one-half of the profits of the business conducted on the premises. Melick v. Benedict, supra. 68 Penney v. Little, 3 Scam. 301. 69 When the lease contains a covenant whereby the tenant is to pay for the gas consumed on the premises, a sum due for gas so consumed is rent in arrears and may be distrained for. Fernwood Masonic Hall Association v. Jones, 102 Pa. St. 307. The same rule would apply when the tenant covenants to pay taxes, water rates, insurance, etc. «0Prescott V. De Forest, 16 Johns. 159; Ragsdale v. Estis, 5 Rich. (So. Car.) 429. 61 If, after electing to proceed for his rent by distress under the statute, the landlord legally enters for the purpose but fails to comply thereafter with the statutory requirements he becomes a trespasser ab initio. Wyke v. Wilson, 173 Pa. St. 12. 82 Simpson v. Hartopp, Willes, 512. Owner and Pboprietob. 23 trade to be carried, wrought, worked up, or managed in the way of his trade or employ. 3. Cocks or sheaves of corn. 4. Beasts of the plough and instruments of hus- bandry. 5. The instruments of a man's trade or profession. The first-named three sorts were absolutely free, and could not be distrained even though there were no other goods on the premises: the last three only sub modo; that is, on the supposition that there is sufficient distress besides.^ 12. Same — Application to the Present Subject. ' ' Beasts of the plough " in no case certainly would be found on premises such as we are concerned with here ; hardly either ' ' instruments of husbandry, ' ' unless gardening tools have place in such a category. The instruments of a man's trade or profession, how- ever, are protected now by the laws of the several States exempting certain descriptions of property from seizure in execution, provided they are in actual use.®* In the same connection there are statutes pro- tecting the books of a professional man.® . Distress not Confined tO' Effects of Actual Tenants. Generally the goods found on demised premises are susceptible of being distrained without regard to whether they belong to the tenant, an undertenant,®® esTreiber v. Knabe, 12 Md. 491. 64 Ege V. Ege, 5 Watts, 135. But only in case they are in actual use, or when there is a sufficiency of other goods on the premises to meet in full the distress. Treiber v. Knabe, supra. «6Ege V. Ege, 5 Watts, 135. M Forty V. Imber, 6 East, 435. It was so held also in Page v. Middle- ton (see below) where the circumstances were trying. Here a machine 24 Owner and Pkopeietoe. or a stranger.^^ And, notwithstanding the acts in force in most of the States securing to married women freedom for their separate property from lia- bility for the debts of their husbands, goods on the premises belonging to the tenant's wife are no more protected from distress than those of a subtenant' or a stranger.®® 13. Following Distress. For purposes of distress the landlord is not re- stricted to goods actually on the premises at the mo- ment, but such as are the property of the tenant and were on the premises he may follow after they have been moved away. Observe, however, the goods must left with A. on trial was by him — in prospect of his assigning his business to another — deposited with B., who like A. was a tenant of part of the building, and was afterward seized for the assignee's rent. Page V. Middleton, 118 Pa. St. 546, 12 Atl. 415. Not so in New Jersey. There a landlord may distrain any of the goods of his, her, or their tenant or tenants and not of any other person, although in possession of such tenant or tenants. Allen V. Agnew, 24 N. J. Law, 443. 6T Page V. Middleton, supra. A piano forte belonging to a stranger, and hired to a music teacher bearding at a public hotel, and found in the hotel and not being in use as an instrument of trade or profession, and there not being a sufficiency of other goods on the premises, is liable to be distrained for rent due by the hotel-keeper. Treiber i>. Elnabe et al., 12 Md. 491. N. B. — The instrument was out of the posses- sion of the music teacher and in the family room of the hotel-keeper where it had remained from November to February. By statute in Pennsylvania (Laws of Pa. 1896, No. 171), pianos, organs, and melo- deons hired from their owner and on leased premises are exempt from distress, provided the owner — by himself or his agent — or the hirer gives notice to the lessor. Rohrer v. Cunningham, 138 Pa. St. 162. 68 The general rule of law makes all the goods and chattels found on the premises demised subject to distress for the rent thereof even though they be not the tenant's goods. * '' ' The special law called " The Married Women's Act " of 1848, was evidently not intended to alter this general law of landlord and tenant, and" we do not think that it ought to be extended by construction to do so. If this woman had Owner and Pkopbietob. 25 have been on the premises.^^ The goods of a stranger, on the contrary, once removed are inviolate while off the premises.™ Goods of the undertenant, in order to be distrainable for the principal tenant's rent, must be actually on the premises, such undertenant being in possession at the time." Like the goods of a stranger they may be distrained only while on the premises. It will have been seen, therefore, that goods" once on the demised premises that may be followed by the landlord for purposes of distress are those only of the principal tenant.'^^ Right of Distress — How AfTected by Express Liens. The- owner's statutory right to distrain is superior to an express ,lien given in the lease, and it may be exercised notwithstanding the latter.''^ 14. Right of Distress — How Affected by a Judgment. Siich right of the owner's is not extinguished either by an unsatisfied judgment recovered for the rent.'^* Rank of Distress as a Lien. The lien of a distress in favor of a landlord is su- perior to other junior liens, and may be enforced not been the wife, but merely a tenant under lease of part of the house, she would have been a feme sole, yet her goods would have been liable to distress for the rent. That she, as a wife, is under the control of her husband and that he may endanger her property by a too expensive rent are necessary results of the marriage relation which no course of legislation or jurisprudence can prevent. Blanche v. Bradford, 38 Pa. St. 344. 69 Bradley v. Pigot, 1 Miss. 348. 70 Slocum V. Clark, 2 Hill, 47.5. Tl Archhold's Landlord and Tenant, 43. 72 Halford ». Hatch, Doug. 183. 73 O'Hara v. Jones, 46 111. 288; 74 O'Hara v. Jones, supra. .26 Owner and Pbopkietok. against all but prior lienholders and bona fide pur- chasers without notice.''^ - And if the goods of a tenant on the premises are^ seized under execution or attach- ment the landlord 's lien for his rent — due notice first being given — must be paid out of the property before the seizure may be made to benefit the person for whom it was undertaken.'^'^ The reason becomes patent here — that is, the advantage distress gives a landlord over other creditors of the tenant — ^why in some of the States distress has been abolished by 'statute. The standing of the right of distress after the death of the tenant seems to be involved in doubt. In Illinois it has been held that after such an event it cannot be availed of." 15. Reversion — Landlord's Rights in That Respect Dur- ing the Lease. The reversion is an estate in expectancy rather than possession — the possession being the tenant's sole estate ; therefore, as against the tenant, the only right of the landlord in this connection relates to its being kept unimpaired for his enjoyment after the tenant's possession shall have come to an end. Injury to the premises by the tenant such as to affect the reversion is called waste. In the books the word is used mostly 75 O'Hara v. Jones, supra. T8At common law, goods seized in distress were held merely by way of pledge. Statute 2 William and Mary, chap. 5, gave the landlord the right to appraise and sell the property seized. Statute 8 Anne, chap. 14, allowed him — ^by giving due notice to the sheriff attaching the property in execution — ■ to have a year's rent paid out of the pro- ceeds of sale before the latter could be applied to the satisfaction of the execution creditor. Newell v. Clark, 46 N. J. Law, 363; Ege v. Ege, 5 Watts, 134. 77 Estate of Kern v. Noble, 57 111. App. 27. Owner and Peophietor. 27 where' the subject in discussion is land, and has refer- ence particularly to wanton destruction of trees, etc.; there may be, however, an injury caused to the build- ing which an owner has erected on his land, as we shall see in the next section. The form of the remedy used by the owner as a rule is injunction to stay waste; but in the case of a tenancy at will the landlord may sue in trespass. The reason of this is that, although the action of trespass can be availed of only by one in possession, the injury puts an end to the estate at will and so the possession is restored to the landlord ipso facto?^ 1 6. Waste — Doctrine as Applied to City Buildings. In general it is no justification for an act of waste that the party doing the injury designed at some future time to restore the property to the condition it was in when the lease was made. The question is whether the tenant when committing the act caused thereby an injury which affected the owner at that particular time in regard to his reversion; for by a lease there is conferred the use of the demised prem- ises — not the dominion. If the tenant exercises an act of ownership he no longer is protected by his tenancy. To illustrate : in a case where, contrary to his obligations as made to appear above, a tenant abused the permission given him to alter the premises, tore down partitions recklessly and otherwise availed himself of his possession to ill-use the property he was held to be guilty of waste.'^^ 78Tobey v. Webster, 3 Johns. 468. 79 Agate V. Lowenbein, 57 N. Y. 604 ; Douglass v. Wiggins, 1 Johns. Ch. 435; Peer v. Wadsworth (N. J. Law), 58 Atl. 378; Maddox v. White, 4 Md. 72, 59 Am. Dec. 67; Jungerman v. Bovee, 19 Cal. 354. 28 Owner and Peoprietob. 17. Same — The Injury to the Premises Must Be Serious. But where the owner's grievance was merely the tenant's attaching a sign to the outside wall it was held that such an act was not calculated to cause irreparable mischief. The sign so attached was in form three balls, and it was insisted these indicated a disreputable avocation and tended to affect injuriously the trade and business of the other tenants and to dis- credit the house generally for rental purposes. But the court could not see how, in the nature of things, tliis could be an injury to the reversion, although in- convenience and vexation might, perhaps, be caused by it so far as it affected other tenants. The opinion in- timated that any cause of action growing out of the facts accrued to these, rather than the landlord.^ When the owner has re-entered and is in possession again he may in a proper suit recover for waste against one who, having been his tenant, removed at the end of his term fixtures from the premises.** But see Fox v. Lynch (N. J. Ch.), 64 Atl. ^39, where the tenant removed old, wornout, and worthless bar fixtures, to make room for new ones of his own, and they were not to be found afterward bo as to be put back at the close of the lease. soGoodell V. Lassen, 69 111. 145. 81 An action of trespass may be maintained by a landlord against a tenant at will for waste, because the injury determines the estate, and the possession is considered thereby in the landlord. There must be a, possession in fact of the real property to which the injury wag done in order to entitle a party to an action of trespass quare clausum fregit. Tobey v. Webster, 3 Johns. 468. A landlord having consented to his tenant's removing certain shutters from the building and storing them on the premises was not entitled, after the close of the tenancy, to damages for the removal. Cohen v. Wittemann, 91 N. Y. Supp. 493. After the tenant's possession ceases he cannot, without the owner's consent, enter and remove any additions made; and if he does so during the tenancy, to the damage of the realty, he is liable. Hart v. Hart, 117 Wis. 639; Kelley v. Border City Mills, 126 Mass. 148. OWNEE AND PrOPEIBTOR. 29 i8. Owner*s Implied Rights Under the Lease. The right to exact rent from the tenant and to have the reversion remain unimpaired adheres to the owner without the aid of any covenant in the lease,*^ although covenants making assurance as to both the one and the other are, in fact, usually included in written in- struments of the kind. It will be observed that in such instruments the final stipulation of the lessee is that he at the end of the term will restore the premises to the owner in as good a condition as that he found them in, reasonable wear and tear excepted.®^ It is not expected that these premises, on being restored to the owner, shall be in any better condition than that found by the tenant at the time of the delivery of the possession to him.** If he is expected to deliver back no less than he received he is required to deliver back no more.^ A tenant for years who has so stipulated and has been put to the necessity of realizing the stipu- lation through tire negligence of a third person has an action against the latter.^* 82 But not to exact an advance payment of rent. Arcade Realty Co. I'. Tunay, 101 N. Y. Supp. 593, citing Goldsmith v. Schroeder, 87 N. Y. Supp. 558. 83 A tenant has, under his covenant to deliver the premises in a good state of repair, until the end of his wnole term to carry out the pur- pose. Fox V. Lynch (N. J.), 64 Atl. 439. 8*Middlekauff v. Smith, 1 Md. 329; Stultz v. Locke, 47 Md. 562; Gutteridge v. Munyard, 7 Car. & P. 129. 85 In Pox V. Lynch (supra), old and absolutely worthless bar fixtures had been replaced by fresh, modern, and serviceable ones of the tenant's. These the landlord claimed the tenant must leave on the premises, si^ce the others could not be restored. In the circumstances the claim was not allowed. 86 Cook V. Champlain Tr. Co., 1 Den. 91. 30 OWISTEE AND PbOPEIETOB. 19. No Warranty as to Condition of Premises Implied from Lease. And it is not required of the owner that in giving possession to his tenant the premises shall be in any- thing like perfect condition. It is for the tenant to see for liimself if they are suitable for his needs, since there is no obligation on him to take them if they are not so. On the leasing of a house or lands there is no implied warranty that they shall be fit, the one for occupancy or the other for cultivation. The implied contract relates to the estate only; not to the condition of the property. When a lease contains no express words to the effect that the property is or shall be fit for the purpose for which it is rented there is no implied warranty to that effect : and in case the house falls down in consequence of some inherent defect the lessor is not bound to repair, and yet the lessee will be required to pay rent.*' As was said in the English case of Eobbins v. Jones,^^ " Fraud apart, there is no law against letting a tumble-down house, and the tenant's remedy is on his contract, if any."*^ 20. Same — Rule of Caveat Emptor. Caveat emptor affects a lessee as well as a grantee. The owner owes the intending lessee no duty to exer- cise ordinary care to ascertain defects , and apprise 87 Smith V. Walsh, 92 Md. S18; Hess v. Newcomer, 7 Md. 325; Daly v. Wise, 132 N. Y. 306; Franklin v. Brown, 118 N. Y. 110; Cole v. MeKey, 66 Wis. 500; Minneapolis Cooperative Co. v. Williamson, 51 Minn. 53, 38 Am. St. Rep. 476, note; Bennett r. Sullivan, 100 Me. 118, 60 Atl. 886. ' 88 Robbins v. Jones, 15 C. B. N. S. 240. 89 Smith V. Walsh, 92 Md. 518. Owner and Pboprietoe. 31 liim of them.*" By leasing a dwelling-house the owner implies no warranty that it is reasonably habitable.^^ And in a case where one contracting to take possession on a certain day had failed so to do, owing to there being a mass of timber and rubbish" in the building, it was said that his contract held him; none the less so that one he had counted upon as a sublessee had re- ceded from his agreement owing to the untenantability of the premises. The court held that caveat emptor applied and that the tenant ought to have arranged for his protection beforehand by contract.®^ Tenant's Implied Right — Quiet Enjoyment. By the bare fac,t of taking a lease the tenant ob- ligates himself to pay the landlord rent On the other hand he enjoys, by virtue of the relation alone and irrespectively of any express contract, the right of quiet enjoyment,®'* althougu in written leases a cov- enant to an effect such as this usually finds a place. The discussion of this right will be pursued further on.^ 21. Special Covenants. It is hardly necessary to say that special covenants will be found in most cases to be for the benefit of the 80 This does not warrant, of course, the use of deception on the land- lord's part in the effort to acquire a tenant. Thus it has been held that the false representation of the owner's agent to the effect that the premises were in good repair, made the owner liable to a tenant who was injured through relying upon them. Meyers v. Kussell (Mo. App.), 101 S. W. 606. 91 Bennett v. Sullivan, supra; Doyle v. Railroad Co., 149 U. S. 413, 92 Carey v. Kreizer, 57 N. Y. Supp. 7H. 93 Covenant for quiet enjoyment is the consideration for the promise to pay rent. Vernam v. Smith, 15 N. Y. 327 ; Kitchen Bros. Hotel Co. V. Philbin, 2 Nebr. (unofficial) 340, 96 N. W. 487. W § 64, post. 32 OWNEB AND PeOPBIETOB. party who lias the upper hand in the situation: in other words, the party most eager for the contract makes the concessions. As a rule this is not the owner; and we see very frequently, therefore, cove- nants requiring the tenant to pay water rates,^'' general taxes, insurance premiimis, etc.,^® but for which cov- enant the possession would go to him not thus bur- dened.'''' He assumes duties which are those of the landlord and which, so far as they concern others, the owner is not relieved of even then.** But where the 86 See § 98, post, and the note there appropriate to this subject. 86 Covenant to pay taxes does not contemplate special assessments for public improvements. Eealty Co. v. Garth, 97 N. Y. Supp. 640. Covenant by the lessee to pay " taxes, rates, charges, assessments, etc.," does not cover the expense ot making the premises conform to some statutory requirements. Under a demise for twenty-one years a lessee covenanted to pay the rent reserved and further " to pay and discharge all and all manner of taxes, rates, charges, assessments and impositions whatever then or at any time to be charged, assessed or imposed on the premises thereby demised or in respect thereof or of the said rent as aforesaid, by authority of parliament or otherwise however." Dur- ing the term the landlord having been called upon to abate a nuisance injurious to health arising from the bad condition of the drains upon the premises, and in order to prevent proceedings against him did such work as was called for in the circumstances. Subsequently it was held by Lord Justice Lindley, upon authority of Tidswell v. Whitworth (L. R. 2 C. P. 326), that the payment having been made by the lessor not for a " rate," etc. ( quoting the words of the covenant above ) but in performance of a duty imposed upon him by act of parliament he was not entitled to have the lessee repay him. Rawlins v. Briggs, L. R. 3 0. P. Div. 368. STThe obligation to pay taxes cannot be imposed upon the tenant except by express stipulation. Darcey v. Steger, 50 N. Y. Supp. 638. So also as to payment of insurance premiums. Hart v. Hart, 117 Wis. 639. It might be remarked here that if the tenant has the building insured in his own name and without requirement, equity will regard him as the owner's trustee as to the insurance. Ebert v. Fisher, 54 Mich. 294. 98 See post, § 51. Owner and Peopeietok. 33 owner finds some difficulty in letting tlie premises the concessions have to come from him by way of invita- tion or inducement. Hence often we see leases in which the owner has covenanted to asstmae duties wliich otherwise would be the tenant's. In this cate- gory is the covenant to repair, as we are to see here- after.®^ To repeat, special covenants in most cases are made to favor the landlord; however, this is offset somewhat by the disposition of the courts to side with the tenant where possible in construing these cov- enants.^ 22. Covenant Restricting the Use of the Premises — Similar Condition. Almost it goes without saying that an owner may discriminate among the uses it is possible for his property to be put to,^ and so a covenant is not in- frequent in conveyances securing the grantor against its being put to specified undesirable uses. This ap- plies, of course, to leases as well as to other, convey- ances, whether the subject-matter is a house and lot or land that the lessee designs building upon; for in the one case he may have a choice as to what is to be done with the house, and in the other as to what sort of a house is to be erected and for what purpose. It might be remarked here that words in the lease such 98 In some of the States, however — for instance, California, Georgia, and North Dakota — there is a statutory duty on the landlord to repair. Gately v. Campbell, 124 Cal. 520; Purcell v. English, 86 Ind. 34; Tor- reson v. Walla, 11 N. Dak. 481. 1 Wall V. Hines, 70 Mass. 256. 2 When the mode of occupation is fixed by the lease, or where the purpose of the lease is expressed therein, or when the intention of the parties to confine the leased premises to a special use may be fairly Implied from the words of the lease, then the tenant may be enjoined 3 34 Owner and Peopeietoe. as -to be occupied as,"* etc., in sucli a connection amount to a condition and not a covenant.* The dif- ference is that upon breach of a condition the tenancy is forfeited if the owner so wishes, whereas breach of a covenant merely subjects the tenant to an action in which damages may be given the owner for the breach. 23. Same — Tenement and ApartmeAt-Houses. There has existed here and there always a feeling more or less strong against a tenement-house, so called, as being a menace to the prosperity of sur- rounding real estate in point of yalue and to the neigh- borhood in a social way. Covenants against the erec- tion of these houses are not unusual. But restrictions upon building are not aided by the courts through any liberal mode of construction,^ but enforced in a strict and narrow way. For a time — conceding that the teuTient-house of disagreeable notoriety could be callpd not inaptly " a nuisance," as much so as a stable — these covenants were construed as aimed at the) only, even where the word " apartment-house " from converting the property to other uses. Reed v. Lewis, 74 Ind. 433: Martdox )'. White, 4 Md. 72; 1 Washb. Real Prop. 546; Steward V. Winters, 4 Pnndf. Ch. 587. 3 Maddox v. White, supra. 4 Wliite P. Naerup, 57 111. App. 114. Use of the property in some man""'- in ron<^i''t with t'ne desires of the owner as indicated by the covenant subjects the tenant to forfeiture or injunction, as the" owner may prefer. Maddox v. White, 4 Md. 72. Whether or not the lease comes to an end by breach of the covenant depends on the option of the ovmer. Willian's v. Chemical Engine Co., 63 Atl. 990. BPonn P. Feilberg, 56 N. Y. Supp. 341; White v. Building & Con- structioi Co., PI N. Y. Sunn. 434. Pee also Clark v. Jammes, 33 N. Y. Supp. 10'?0; White v. Maynard, 111 Mass. 250. Owner and Pbopeietoe. 35 Avas employed.® Not so now : it has been held in New York that by the year 1886 a distinction between the two had come to be recognized, and that the word " apartment-honse, " when used in such a covenant, has been used knowingly; so that the covenant must exclude that class of buildings no matter how princely in design and structured 24. Covenant to Repair — Rebuilding After Fire. At common law it needed no covenant to that effect to impose upon the tenant the duty of repairing the premises demised ;* so, too, except where some statute provides expressly otherwise,® the rule holds good in this country,^" as we shall see presently.^^ It requires 6 White V. Building & Construction Co., supra. 7 McClure v. Leaycraft, 90 N. Y. Supp. 233. 8 Lewis V. Chisholm, 68 Ga. 40; Purcell v. English, 86 Ind. 34; Petz V. Voight Brewing Co., 116 Mich. 418; Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289. There is no implied covenant requiring the land- lord to make repairs. Gluck v. Baltimore, 81 Md. 326. 9 The Civil Code of California, § 1941, imposes — in the a' s nee of agreement to the contrary- — the duty upon a lessor of a building in- tended for " the occupation of human beings " to put the demised prem- ises into fit condition; but his default exposes him to no action 'ly the tenant for damages for resulting pergonal injuries, the sole Ip'I ) effect of the default being the choice given the tenant, under sect in ■ 1942, either to repair — deducting the cost from the rent — or * "acate. Gately v. Campbell, 124 Cal. 520. So also in North Dal