Rent
RENT. Various species of rent appear in Roman Law: rent (canon) under the long leasehold tenure of Emphyteusis; rent (reditus) of a farm; ground-rent (solarium); rent of state lands (wctigal); and the annual rent (prensio) payable for the jus superficiarum or right to the perpetual enjoyment of anything built on the surface of land. (See ROMAN LAW.)
ENGLISH LAW. (As to the rent of apartments, etc., see LODGER AND LODGINGS.) Rent is a certain and periodical payment or service made or rendered by the tenant of a corporeal hereditament and issuing out of (the property of) such hereditament. Its characteristics, therefore, are (i) certainty in amount; (2) periodicity in payment or rendering; (3) the fact that rent is yielded and is, therefore, said " to lie in render," as distinguished from profits d prendre in general, which are taken, and are, therefore, said to lie in prendre; (4) that it must issue out of (the profits of) a corporeal hereditament. A rent cannot be reserved out of incorporeal hereditaments such as advowsons (Co. Litt. 473, I42a). But rent may be reserved out of estates in reversion or remainder (see REAL PROPERTY) which are not purely incorporeal. It is not essential that rent should consist in a payment of money. Apart from the rendering of services, the delivery of hens, horses, wheat, etc., may constitute a rent. But, at the present day, rent is generally a sum of money paid for the occupation of land. It is important to notice that this conception of rent was attained at a comparatively late period in the history of the law. The earliest rent seems to have been a form of personal service, generally labour on land, and was fixed by custom. The exaction of a competition or rack rent beyond that limited by custom was, if one may judge from the old Brehon law of Ireland, due to the presence upon the land of strangers in blood, probably at first outcasts from some other group. 1 The strict feudal theory of rent admitted labour on the lord's land as a lower form, and developed the military service due to the crown or a lord as a higher form. Rent service is the oldest and most dignified kind of existing rent. It is the only one to which the power of distress attaches at common law, giving the landlord a preferential right over other creditors exercisable without the intervention of judicial authority (see DISTRESS). The increasing importance of socage tenure, arising in part from the convenience of paying a certain amount, whether in money or kind, rather than comparatively uncertain services, led to the gradual evolution of the modern view of rent as a sum due by contract between two independent persons. At the same time the primitive feeling which regarded the position of landlord and tenant from a social rather than a commercial point of view is still of importance.
Rents, as they now exist in England, are divided passes / of Keats.
into two great classes rent service and rent charge.
Rent Service. A rent service is so called because by it a tenure by means of service is created between the landlord and the tenant. The service is now represented by fealty, and is nothing more than nominal. Rent service is said to be incident to the reversion that is, a grant of the reversion carries the rent with it (see REMAINDER) . A power of distress is incident '"The three rents are: rack rent from a person of a strange tribe, a fair rent from one of the tribe, and the stipulated rent which is paid equally by the tribe and the strange tribe." Senchus Mor, p. 159, cited by Maine, Village Communities, p. 187. See also Vinogradoff, Villainage in England (Oxford, 1892), pp. 181, 188, 215; The Growth of the Manor (by the same author) (London, 1905), pp. 230, 328; Pollock and Maitland, Hist. Eng. Law (Cambridge, 1895), ii. 128-134.
at common law to this form of rent. Copyhold rents and rents reserved on lease fall into this class.
Rent Charge. A rent charge is a grant of an annual sum payable out of lands in which the grantor has an estate. It may be in fee, in tail, for life the most common form or for years. It must be created by deed or will, and may be either at common law or under the Statute of Uses (1536). The grantor has no reversion, and the grantee has at common law no power of distress, though such power may be given him by the instrument creating the rent charge. The Statute of Uses (1536) gave a power of distress for a rent charge created under the statute. The Conveyancing Act 1881, 44, has given a power of distress for a sum due on any rent charge which is twenty-one days in arrear. By 45 a power of redemption of certain perpetual rents in the nature of rent charges is given to the owner of the land out of which the rent issues. Rent charges granted since April 26th, 1855, otherwise than by marriage settlement or will for a life or lives or for any estate determinable on a life or lives must, in order to bind lands against purchasers, mortgagees or creditors, be registered in the Land Registry in Lincoln's Inn Fields (Judgments Act 1855 and Land Charges Act 1900). In certain other cases it is also necessary to register rent charges, for instance, under the Improvement of Land Act 1864 and the Land Transfer Acts 1875 and 1897. Rent charges are barred by non-payment or non-acknowledgment for twelve years. The period of limitation for the arrears of such rent is six years.
Various Forms of Rent Charge. Forms of rent charge of special interest are tithe rent charge (see TITHES), and the rent charges formerly used for the purpose of creating " faggot votes." The device was adopted of creating parliamentary voters by splitting up freehold interests into a number of rent-charges of the annual value of 405., so as to satisfy the freeholders' franchise. But such rent charges are now rendered ineffective by the Representation of the People Act 1884, 4, which enacts (subject to a saving for existing rights and an exception in favour of owners of tithe rent charge) that a man shall not be entitled to be registered as a voter in respect of the ownership of any rent charge.
A rent charge reserved without power of distress is termed a rent-seek (reditus siccus) or " dry rent," from the absence of the power of distress. But, as power of distress for rents-seek was given by the Landlord and Tenant Act 1736, the legal effect of such rents has been since the act the same as that of a rent charge.
Other Varieties of Rent. Rents of assize or Quit rents are a relic of the old customary rents. They are presumed to have been established by usage, and cannot be increased or diminished. A Quit rent (quietus reditus) is a yearly payment made from time immemorial by freeholders or copyholders of a manor to the lord. The term implies that the tenant thereby becomes free and quit from all other services. Owing to the change in the value of money, these rents are now of little value. Under the Conveyancing Act 1 88 1 (s. 45) they may be compulsorily redeemed by the freehold tenant; and the Copyhold Act 1894 provides similarly for their extinction in the case of manors. Quit rents, like ordinary rent charges, are barred by non-payment, or non-acknowledgment, for twelve years. Those paid by freeholders are called chief rents. Fee farm rents are rents reserved on grants in fee. According to some authorities, they must be at least one-fourth of the value of the lands. They, like quit rents, now occur only in manors, unless existing before the Statute of Quia Emptores or created by the crown (see REAL PROPERTY). A rent which is equivalent or nearly equivalent in amount to the full annual value of the land is a rack rent. A rent which falls appreciably short of a rack rent is usually styled a ground rent (q.v.). It is generally reserved on land which the lessee agrees to cover with buildings, and is calculated on the value of the land, though the buildings to be erected increase the security for the rent and revert to the Tessor at the end of the term. A dead rent is a fixed annual sum paid by a person working a mine or quarry, in addition to royalties varying according to the amount of minerals taken.
The object of a dead rent is twofold first, to provide a specified income on which the lessor can rely; secondly (and this is the more important reason), as a security that the mine will be worked, and worked with reasonable rapidity. Rents in kind still exist to a limited extent; thus the corporation of London is tenant of some lands in Shropshire by payment to the crown of an annual rent of a fagot. All peppercorn, or nominal, rents seem to fall under this head. 1 The object of the peppercorn rent is to secure the acknowledgment by the tenant ot the landlord's right. In modern building leases a peppercorn rent is sometimes reserved as the rent for the first few years. Services rendered in lieu of payment by tenants in grand and petit serjeanty may also be regarded as examples of rents in kind. Grand serjeanty is a form of tenure in chivalry under which the king's tenants (servientes) in chief owed special military or personal services to the king; e.g. carrying his banner. Petit serjeanty a form of tenure in socage was usually applied to tenure of the king or a mcsne lord by some fixed service of trivial value, e.g. feeding his hounds. These forms of tenure were abolished in 1660. Labour rents are represented by those cases, not unfrequent in agricultural leases, where the tenant is bound to render the landlord a certain amount of team work or other labour as a part of his rent. It was held in the court of queen's bench in 1845 that tenants who occupied houses on the terms of sweeping the parish church and of ringing the church belt paid rent within the meaning of the Limitation Act of 1833 (see Doe v. Benham (1845), 7 Q.B. 976). As to the apportionment of rents, see APPORTIONMENT.
Payment of Rent. Rent is due in the morning of the day appointed for payment, but a tenant is not in arrears until after midnight on that day. Rent made payable in advance by agreement between a landlord and his tenant is called forehand rent. It is not uncommon in letting payment. a furnished house, or as to the last quarter of the term of a lease of unfurnished premises, to stipulate that the rent shall be paid in advance. As soon as such rent is payable under the agreement the landlord has the same rights in regard to it as he has in the case of ordinary rent. If' a tenant pays his rent before the day on which it is due, he runs the risk of being called upon in certain circumstances to pay it over again. Such a 'payment is an advance to the landlord, subject to an agreement that, when the rent becomes due, the advance shall be treated as a fulfilment of the tenant's obligation to pay rent. The payment is, therefore, generally speaking, a defence to an action by the landlord or his heirs. But if the landlord mortgages his reversion, either before or after the advance, the assignee will, by giving notice to the tenant, before the proper rent-day, to pay rent to him, become entitled to the rent then falling due. Payment by cheque is conditional payment only, and if the cheque is dishonoured the original obligation revives. Where a cheque in payment of rent is lost in the course of transmission through the post, the loss falls on the tenant, unless the landlord has expressly or impliedly authorized it to be forwarded in that way: and the landlord's consent to take the risk of such transmission will not be inferred from the fact that payments were ordinarily made in this manner in the dealings between the parties. A tenant may deduct from his rent (i) the " landlord's property tax " (on the annual value of the premises for income tax purposes), which is paid by the tenant, if the statute imposing the tax authorizes the deduction (which should be made from the rent next due after the payment); (ii) taxes or rates which the landlord had undertaken to pay but had not paid, payment having thereupon been made by the tenant; (iii) payments made by the tenant which ought to have been made by the landlord, e.g. rent due to a superior landlord; (iv) compensation under the Agricultural Holdings Acts 1883-1900.
Remedies for Non-payment of Rent. A landlord's main remedy for non-payment of rent is distress (Lat. distringere, to draw asunder, detain, occupy), i.e. the right to seize all goods found upon the demised premises, whether those of the tenant or of a stranger, except goods specially privileged, and to detain and, if need be, to sell them, in satisfaction of his claim. The requisites of a valid distress are these: (a) There must be " a certain and proper rent," i.e. rent due in respect of an actual tenancy of corporeal hereditaments: (b) the rent must be in arrear; (c) there must be a reversion in the person distraining; and (d) there must be goods on the premises liable to be distrained.
1 When peppercorn rents were instituted, in the middle ages, they were not, however, nominal, the cost of spices being then very great. A peppercorn rent, generally an obligation to pay I ft of pepper at the usual rent flays, constituted a substantial impost even as late as the 18th century.
All personal chattels are distrainable with the following excep tions: (i) Goods absolutely privileged (a) fixtures (q.v.); (b) goods sent to the tenant in the way of trade; (c) things which cannot be restored, e.g. meat and milk; growing corn and corn in sheaves formerly fell within this category, but the Distress for Rent Act !737 ( s - 8) abolished this exemption in the case of the former, and a statute of 1690 abolished it in that of the latter; (d) things in actual use, e.g. a horse while it is drawing a cart ; (e) animals ferae naturae (dogs and tame deer or deer in an enclosed park may be distrained) ; (/) things in the custody of the law, e.g. in the possession of a sheriff under an execution (q.v.) ; (g) straying cattle; (h) in the case of agricultural holdings under the Agricultural Holdings Acts 1883-1900 hired agricultural machinery and breeding stock; (i) the wearing apparel and " bedding " a term which includes " bedstead " of tenant and his family, and the tools and implements of his trade to the value of 5 (Law of Distress Amendment Act 1888) ; (j) the goods of ambassadors and their suites (Diplomatic Privileges Act 1708). (ii) Goods conditionally privileged, i.e. privileged if there are sufficient goods of other kinds on the premises to satisfy the distress (a) implements of trade not in actual use; (b) beasts of the plough and sheep; (c) agisted cattle; (d) growing crops sold under an execution (Landlord and Tenant Act 1851, s. 2); (e) lodgers' goods. The Lodgers' Goods Protection Act 1871 provides that where a lodger's goods have been seized by the superior landlord the lodger may serve him with a notice stating that the intermediate landlord had no interest in the property seized, but that it is the property, or in the lawful possession, of the lodger, and setting forth the amount of the rent due by the lodger to his immediate landlord. On payment or tender of such rent the landlord cannot proceed with the distress against the goods in question.
In general, a landlord cannot distrain except upon the premises demised, but he has a statutory right to follow things clandestinely or fraudulently removed from the premises within 30 days after their removal, unless they have been in the meantime sold bona fide and for valuable consideration. A landlord may, by statute (Landlord and Tenant Act 1709, s. 6), distrain within six months after the determination of the lease provided that the tenant has remained in possession. A distress must be made in the daytime, i.e. not before sunrise or after sunset. Six years' arrears of rent only are recoverable by distress (Real Property Limitation Act 1833, s. 12): the Real Property Limitation Act 1874 (s. i), which bars distress for rent after twelve years, applies to rent-charges and not to rent under a lease, and the six years' arrears may be recovered in spite of the lapse of time. In the case of agricultural tenancies falling within the Agricultural Holdings Acts 1883-1900, the right of distress is confined to one year's arrears of rent. Where the tenant is bankrupt, a distress levied after the bankruptcy is limited to six months' rent accrued due prior to the date of adjudication; see Bankruptcy Act 1883 (s. 42) and 1890 (s. 28). Where a company is being wound up, the landlord may not distrain without the leave of the court. An extension of time is allowed in cases where in the ordinary course of dealing between landlord and tenant the payment of rent has been allowed to be deferred for a quarter or half year after the rent became legally due (act of 1883, s. 4). The landlord may distrain in person or may employ a certificated bailiff (Law of Distress Amendment Act 1888, s. 7). An uncertificated person levying a distress is liable to a fine of 10, without prejudice to his civil liability (Law of Distress Amendment Act 1895, s. 2). The seizure must not be excessive (statute of Henry III., 1267); but enough must be taken to satisfy the claim, for the landlord cannot distrain twice for the same rent where he could have taken sufficient in the first instance. After being seized, the goods must be impounded (Distress for Rent Act 1707, s. 10; and see the statute of 1690, s. 3, on impounding of corn, straw, hay; the Distress for Rent Act 1737, s. 8, on impounding of growing crops; and the statute of 1554 and the Cruelty to Animals Act 1849, s. 5, on impounding of cattle) ; and the landlord has a statutory power of sale (statute of 1690, s. 5). It is illegal to proceed with a distress if the tenant tenders the rent before the impounding; and a tenant has, by statute (1690, c. 5), five clear days' grace, excluding the date of seizure, between impounding and sale. On the written request of the tenant, this period will be extended to fifteen days (Law of Distress Amendment Act 1888, s. 6). A tenant may, before sale, recover goods illegally distrained by an action of replevin (L. Lat. replegiare, to redeem a thing taken by another). Where no rent was due to the distrainer the tenant may recover by action double the value of the goods sold (statute 1690, s. 5); and summary remedies for the recovery of the property have been created by modern enactments (Law of Distress Amendment Act 1895, s. 4, on distress of privileged goods; Agricultural Holdings Act 1883, s. 46). Where rent was due, but the distress was irregular, the tenant can only recover special damage (Distress for Rent Act 1737, s. 19).
Goods taken under an execution (q.v.) are not removable till one year's rent has been paid to the landlord (Landlord and Tenant Act 1709).
The landlord has, besides distress, his ordinary remedy by action. In addition, special statutory remedies are given in the case of tenants holding over after the expiration of their tenancy. By the Distress for Rent Act 1737 any tenant giving notice to quit, and holding over, is liable to pay double rent for such time as he continues in possession (see further under EJECTMENT).
Ireland. The main differences between Irish and English law have been caused by legislation (see EJECTMENT; LAND- LORD AND TENANT).
Scotland. Rent is properly the payment made by tenant to landlord for the use of lands held under lease (see LANDLORD AND TENANT). In agricultural tenancies the legal terms for the payment of rent are at Whitsunday after the crop has been shown, and at Martinmas after it has been reaped. But a landlord and tenant may substitute conventional terms of payment, either anticipating (fore, or forehand rent) or postponing (back, or backhand rent) the legal term. The rent paid by vassal to superior is called feu-duty (see FEU). Its nearest English equivalent is the fee farm rent. The remedy of distress does not exist in Scots law. Rents are recovered (i) by summary diligence, proceeding on a clause, in the lease, of consent to registration for execution; (ii) by an ordinary petitory action; (iii) by an action of " maills and duties " (the rents of an estate in money or grain: " maills " was a coin at one time current in Scotland) in the Sheriff Court or the Court of Session; and (iv) in non-agricultural tenancies by procedure under the right of hypothec, where that still exists; the right of hypothec over land exceeding 2 acres in extent let for agriculture or pasture was abolished as from November ii, 1881 (see HYPOTHEC); (v) by action of removing (see EJECTMENT). Arrears of rent prescribe in five years from the time of the tenant's removal from the land.
Labour or service rents were at one time very frequent in Scotland. The events of 1715 and 1745 showed the vast influence over the tenantry that the great proprietors acquired by such means. Accordingly acts of 1716 and 1746 provided for the commutation of services into money rents. Such services may still be created by agreement, subject to the summary power of commutation by the sheriff given by the Conveyancing Act 1874 ( 20, 21). " In the more remote parts of Scotland it is understood that there still exist customary returns in produce of various kinds, which being regulated by the usage of the district or of the barony or estate cannot be comprehended under any general rule " (Hunter, Landlord and Tenant, ii. 298). Up to 1848 or 1850 there existed in Scotland " steelbow " leases analogous to the chetel de fer of French law (see LANDLORD AND TENANT) by which the landlord stocked the farm with corn, cattle, implements, etc., the tenant returning similar articles at the expiration of his tenancy and paying in addition to the ordinary rent a steelbow rent of 5 % on the value of the stock.
As to the rent of apartments, etc., see LODGER AND LODGINGS.
United Stales. The law is in general accordance with that of England. The tendency of modern state legislation is unfavourable to the continuance of distress as a remedy. In the New England states, attachment on mesne process has, to a- large extent, superseded it. In New York and Missouri it has been abolished by statute; in Mississippi the landlord has a claim for one year's rent on goods seized under an execution and a lien on the growing crop. In Ohio, Tennessee and Alabama it is not recognized, but in Ohio the landlord has a share in the growing crops in preference to the execution creditor. The legislatures of nearly all the states agree with the law of England as to the exemption from distress of household goods, wearing apparel, etc. (see Dillon's Laws and Jurisprudence of England and America, pp. 360, 361; also HOMESTEAD). As to the rent of apartments, etc., see LODGER AND LODGINGS. Fee farm rents exist in some states, like Pennsylvania, which have not adopted the statute of Quia Emptores as a part of their common law (Washburn's Real Property, ii. 252).
Other Laws. Under the French Code Civil (art. 2102) the landlord is a privileged creditor for his rent. If the lease is by authentic act, or under private signature for a fixed term, he has a right over the year's harvest and produce, the furniture of the house and everything employed to keep it up, and (if a farm) to work it, in order to satisfy all rent due up to the end of the term. If the lease is not by authentic act nor for a specified term, the landlord's claim is limited to the current year and the year next following (see law of 12th Feb.' 1872). The goods of a sub-lessee are protected : and goods bailed or deposited with the tenant are in general not liable to be seized. The French law is in force in Mauritius, and has been reproduced in substance in the Civil Codes of Quebec (arts. 2005 et seq.) and St Lucia (arts. 1888 et seq.). There are analogous provisions in the Spanish Civil Code (art. 1922). The subject of privileges and hypothecs is regulated in Belgium by a special law of the 16th Dec. 1851; and in Germany by ss. 1113 et seq. of the Civil Code. The law of India as to rent (Transfer and Property Act 1882) and distress (cf., e.g., Act 15 of 1882) is similar to English law. The British dominions generally tend in the same direction. See, e.g.. New South Wales (the consolidating Landlord and Tenant Act 1899); Newfoundland (Act 4 of 1899); Ontario (Act I of 1902, s. 22, giving a tenant five days for tender of rent and expenses after distress); Jamaica (Law 17 of 1900, certification of landlord's bailiffs) ; Queensland (Act 15 of 1904).
AUTHORITIES. English Law: Woodfall, Landlord and Tenant (18th ed., London, 1907) ; Foa, Landlord and Tenant (Ath ed., London, 1907); Fawcett, Landlord and Tenant (yd ed., London, 1905); Gilbert on Distress and Replevin (London, 1823); Sullen, Law of Distress (2nd ed., London, 1899) ; Oldham and Foster, Law of Distress (2nd ed., London, 1889). Scots Law: Hunter on Landlord and Tenant (4th ed., Edin., 1876) ; Erskine's Principles (2Oth ed., by Rankine, Edin., 1903); Rankine's Law of Landownership in Scotland (3rd ed., Edin., 1891); Rankine's Law of Leases in Scotland (2nd ed., Edin., 1893). American Law: McAdam, Law of Landlord and Tenant (New York, 1900) ; Bouvier's Law Dictionary (ed. G. Rawle) (London and Boston, 1897), tit. " Distress " in " Ruling Cases"; Landlord and Tenant (American Notes) (London and Boston, 1894-1901). (A. W. R.)
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)
