Sessional_Paper_1949 — Page 65

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and all Walls Banks and amendments

to the satisfaction of . . . . the Director of Public Works,” and there is a covenant to yield up such buildings at the end of the term. It may be that amongst many thousands of leases there may be some in which this clause is not in- cluded, but in the opinion of Government's advisers, there are none. Moreover, such clauses are included in the few cases where leases have been granted in the past of ground without actual covenant to build. The effect of a clause so worded is in the latter event to create a responsibility to repair and maintain any buildings which have been erected on the land since the date of the original demise (Rose v. Spicer, Rose v. Hyman (1911) 2 K.B. 234, C.A.). The effect of such a covenant is to give rise to an action for damages if it is not complied with but, additionally, if there is a clause pro- viding for re-entry on breach of covenant then re-entry may be exercised. There is a proviso for re-entry included in a standard form in all Crown Leases.

with all manner of needful and necessary reparations.

2. As has been pointed out by Mr. J. B. Griffin, a line of cases following from Paradine re Jane in 1647, confirms that though the failure to repair or maintain is due to enemy action, a continuing breach of covenant is constituted and re-entry is justifiable. Mr. Griffin went on to point out that re-entry would in many cases not be inequitable, since three years have elapsed since the re-occupation and in appropriate cases forfeiture would not automatically follow the re-entry since on good grounds a lessee would be able to obtain relief against forfeiture by application to the Governor- in-Council or to the Court and such relief would, upon equitable principles, be granted on reasonable terms.

3. There are certain other abnormal instances and circumstances, however, to be considered.

4. The policy has been followed in recent years so far as is practicable to grant a lease in respect of each house, but most of the old leases and some modern ones are leases of building lots on each of which many houses have been built. This makes little real difference since the covenant to maintain is one that runs with the land and is applicable to each section; but the provision for re-entry contained in each lease is indivisible; for instance in the event of ten houses having been built, nine being now in good repair but one being damaged or not maintained at all, a breach of the covenant does occur but re-entry, if it is to take place, must take place on the whole lot, and there must be provision therefor for a sale to take place only of the tenth portion, and the appropriate remedy is that this could and should be done and that in such a case the other nine “innocent” assignees should each be offered a new Crown Lease of his section, without conditions, the condition for re-development being raised against the tenth owner only.