Real Estate - Leases
( Originally Published 1911 )
Definitions of landlord and tenant.—A landlord is an owner of an estate in real property or of an interest therein, when considered with relation to another hiring the property and agreeing to pay rent, who is known as a "tenant."
Rent.—Rent is a definite, periodical return for the use of land. The expression "definite" does not necessarily mean absolutely ascertained by the agreement, but that which can be made definite, is definite. If A rent a farm to B, and in return is to get a definite share of the produce, while neither party knows what that share is to be worth, the fact that when the return is to be paid, it can be definitely ascertained, makes it a definite return; and "leasing upon shares," as it is called in the country, is an appropriate method of establishing the relation of landlord and tenant.
In addition to the fact that the return shall be definite, it is necessary that it be periodical, i. e., that the period when the return shall be paid be specified. It may be that the entire rent is paid when the tenant enters upon the premises, or that he pays it in installments, once a month, once a year, or even once a day, but it must be at a fixed time or period.
A janitor of an apartment house who is paid wages and permitted to occupy an apartment, is not a tenant. He is a mere employe, part of whose wages is paid by a right of occupation. If the landlord end the employment, he does not have to go to the trouble he would be obliged to take to remove a tenant from the premises. For that reason, when permitting a person to occupy property, although the owner may look at the relation as a hiring in all its essentials, if he wants to protect his property from the right of occupation becoming such that it is difficult to end it, it is best to raise the conventional relation of landlord and tenant. If a purchaser is let into possession under a contract, it is best to give him a lease for a definite term, even if at a nominal rent, so that it is a definite, periodical rate ; and make him sign an instrument under which he agrees to go into the property as tenant, and in no other relation.
Term of lease.—The time during which occupancy is to last is known as the "term of the lease," or, technically, as "the term." There is no limit to the term of a lease, as matter of law: it can be made for 999 years or for one year.
The landlord's interest in the rent, the right to receive rent and his expectation of being restored to possession of the property at the expiration of the term, remains real property. The tenant's interest, no mat-ter how long the lease may be, remains personal property, and is assignable as personal property and goes to the personal representatives rather than to the heirs.
It is customary in New York State in writing leases, where it is intended that they shall run for a longer term than twenty-one years, to make provision for an apparent term of twenty-one years, with the privilege or right to renew. The reason is that in order to keep all property from being tied up with leases in fee which will never end, or leases for a very long term, the tax law of that state provides that on a lease for more than twenty-one years, in addition to the ordinary tax upon the land, the rent may be taxed as personal property to the person who is entitled to receive it. If that person is not within the state, it may be taxed against the tenant ; thus on leases for more than twenty-one years in New York State there is a double burden of taxation, and so the expedient has been adopted of writing the lease for twenty-one years, with covenant and conditions in relation to renewal.
Assignment of leases.—Unless the lease expressly provides against assignment, a tenant's right may be assigned. It may be mortgaged, the mortgage being a lien upon the tenant's term or right to occupy. If a lease provides by covenant that it shall not be as-signed by the tenant, as leases usually do, and if the tenant, notwithstanding that covenant, assigns the lease, and the landlord receive rent from the assignee, knowing of the assignment, that is held to be a waiver of forfeiture; and subsequent assignments would not amount to another breach of that covenant, but the term of the lease would then be freely assignable. If the landlord wants to protect himself not only against his tenant as-signing, but against all assignments subsequent to the first, he must make express provision not only that the tenant shall not assign, but that no subsequent assignee shall assign.
It is usual to provide, as penalty for breach of the covenant against assignment, that it shall operate as a forfeiture of the term, but the landlord is not entitled to summary proceedings for breach of that covenant ; he can regain possession only by the cumbersome method of an action for ejectment.
If the term be assigned, under a properly drawn lease, the tenant still remains liable upon the covenant to pay rent, but is entitled to be credited with the amount paid by his assignee. He is bound for the balance on his covenant to pay the rent, and may be sued when-ever the installments of rent are due or at the end of the term for the whole amount. Any occupant of the premises, not the original tenant, may be held liable for his occupancy at a fair rental, but unless an express agreement or obligation to pay rent can be shown, an occupant cannot be sued except for the value of the occupancy during his actual use.
Leases created verbally and by writing.—A lease for the term of one year or less may be created verbally. A lease for a term exceeding one year must be in writing and must be subscribed by the person to be charged, in the same manner as the other writings which have been considered. The elements of subscription, and the necessity for clearly expressing the entire contract in the instrument are the same as in regard to other instruments. A lease for a term greater than one year may be valid not only between the parties but binding upon third persons without necessity of record, for if the tenant be in occupancy, and claim the benefit of his term, no matter how long it is, it must be remembered that the principle of notice by occupancy applies to leaseholds just as it does with regard to the fee or any other interest. A purchaser or person dealing with property is bound to respect the rights evidenced by occupancy and claim, just as much as though they were of record, so it is not safe to conclude, when dealing with real property, that because the tenant has not re-corded his lease, his term is not over one year.
204. Tenancy at will.—Leases may be divided ac-cording to the length of term, the first and longest in the eyes of the law, being a tenancy at will. This is the tenancy which is entered into at will without limitation of time: it may last forever, at the will of the parties, and can be terminated only upon giving notice by either party of the intention to terminate. If it is desired to make a hiring anything else than a tenancy at will it should be made definite.
Tenancy for years.—A tenancy other than at will may be a tenancy for a year or years or from month to month. A tenancy for years may last for twelve months or longer. It is usually fixed upon the basis of an annual rent payable in installments. A tenancy for years, or a tenancy which is a definite hiring for longer than from month to month, ends of its own force, without notice, on the day fixed. If there be hold-over, the landlord has the option of treating the tenant as a hold-over from month to month or, if the term has been for a year or more, of treating him as an annual tenant for another year; or, if he requires possession, a land-lord can put the tenant out.
A landlord has those three options, if he exercises his rights promptly; and it is the part of prudence to exercise the right on the very day the term ends. If the tenant be held as hold-over, he is liable for the rent in accordance with the terms of the hold-over. If nothing be said on either side, the presumption is that he is a hold-over as an annual tenant upon the same terms as the former lease. The relation having been entered into and the rent accepted, the landlord will be bound for another yearly term.
Obligations of landlord and tenant.—The obligation of a landlord is to accord the tenant the possession of the property he has hired, and to protect him in that possession. The obligation of the tenant is reciprocal. He must protect his landlord's interest, give him prompt notice of all matters which affect that interest of which he learns by reason of his occupancy; and he may not recognize any person as landlord or pay rent to any person who claims in hostility to the maker of his lease. The tenant must be loyal to his landlord and is liable for damage if he breaks that obligation.
Ground lease.—A form of lease for years is the lease which is known in some cities as a "ground lease," and in other cities as "ground rent." It is a form of lease the characteristics of which are: first, a term longer than ordinary hiring; second, the incident that the improvements on the property are usually made by the tenant, which is the reason that it is known as a "ground lease," because the first subject of hiring and the basis for fixing rent in the beginning of the term, is the value: of the ground or land as vacant ground. Leases of that sort are appropriate from the standpoint of the landlord, where he has either a large tract or some valuable property without capital to erect a valuable improvement, or without the desire to invest large sums of capital and do intricate financing for the purpose of raising money to put into construction. In some cities it is a favorite method of fixing investment values of land. In New York, partly because of the operation of the public policy law against long term leases, and partly because its operation there has been to show that tenants whose terms are not assured for very long terms, do not put upon the property improvements commensurate with, the rest of the neighborhood, it is not such a favorite method of leasing.
In order that it shall be possible: for a tenant to erect upon land which he has leased a building commensurate with the surroundings and of sufficient character not to retard the progress of the district, it is necessary that the tenant can at least expect to be able to get out of the difference between the ground rent which he pays with the interest, and the actual rents thereon from occupancy, enough to make the investment attractive. Or the tenant must be assured that when the first term is over, he shall have a right to renew, even though he does lose the ownership of the building, upon such terms as will really operate as an extension of the first term. The improvements when they are made, although the tenant has a limited ownership in them, immediately become the property of the landlord, no matter whether or not as one of the terms of the lease it is required that at the end of the term the landlord shall pay the value of the improvements. The improvements are real property; the landlord has an insurable interest in the property, and the entire property passes to his heirs, or, under his will, by devise.
The stipulation with regard to rent may be for a rental fixed upon the basis of the land value alone, with provision for periodical readjustment of the rent, but for practically a perpetual option of renewal upon the part of either the landlord or the tenant. In New York City that form of lease is usually for a term of twenty-one years, with provision that at the end of the term the landlord shall have the option either of renewing the lease or of paying the tenant the value of the improvement. If they cannot agree, it is usual to make provision in the lease for arbitration. The basis of rental being fixed at a percentage, the only thing to be ascertained by the arbitration is the value of the land.
Another form of lease is that which provides, not for perpetual renewal, but for a limited number of periods of renewal. Still another, and a most important form of lease, is that which provides for one term and renewal, or at most two renewals. The tenant is required to put up an expensive improvement, the landlord very often making a loan to aid the tenant in constructing the building, and taking a mortgage on the building for the amount of the loan. The problem of the tenant, in a case of that sort, becomes the problem of amortization of the investment; the rent must be so much lower than the expected return from the building that at the end of the terms and renewals the tenant will get back his cost of construction, a fair return upon his investment, and a fair compensation for the rest of the transaction. That is a very complicated problem of financing, and few can engage in it successfully.
Tenancy from month to month.—The shortest tenancy known to the law or commercial experience is the tenancy from month to month. It looks like a separate arrangement for each month, but in reality it is not. It is usually a continuous term, self-renewing, continuing forever, the incidents of the tenancy being that the rent is payable monthly, that the tenant can vacate at the end of any monthly term, but that the land-lord cannot terminate the tenancy at any time except upon the last day of a monthly term and upon giving notice of his intention to require possession, and cannot raise the rent unless he give the tenant notice to vacate, if he will not voluntarily pay the increased rent. In all legal computations, Sundays and holidays count, except when they are the last day.
In the city of New York there is a very thin wall between the tenancy at will and the tenancy from month to month; and a tenancy at will will tie up the property to the first of May, while a monthly tenant can be put out at the end of any month. If it is a tenancy from month to month, the landlord should see to it that the receipt reads plainly to that effect, and the tenant should understand when he goes into possession that he is a tenant from month to month, and not upon a yearly hiring or a hiring without term.
Termination of leases.—First, and most important, every lease ends at the expiration of the term. Except at the end of the term, leases may be terminated by a voluntary offer of surrender on the part of the tenant, and a voluntary acceptance of that offer by the landlord. If there be such surrender and acceptance, from the time thereof, all obligations under the lease, on the part of both landlord and tenant, are ended. The tenant is liable for rent up to the time of surrender, but not beyond that.
Surrender and acceptance may be implied from the acts of the parties. Unless the landlord has a provision in his lease that if the property become vacant he may resume possession for account of the tenant and continue charging him rent up to the end of the term, it may be implied from the act of the landlord in taking possession of the property when the tenant left it vacant, that there has been an offer of surrender by the tenant and acceptance of possession by the landlord. Landlords who have taken possession of property in order to protect it against depredation have found themselves in the position of having accepted surrender of the property. A verbal surrender, followed by the actual occupancy by the landlord, is sufficient. It is not varying the terms of the written instrument, but is the limitation or ending of an obligation. Anything that is an exclusion of the tenant from the property may be predicated as an acceptance of an offer to surrender.
The relation of landlord and tenant may be severed by breach of a condition of the lease. The conditions in the lease may be divided into two classes, those for which the landlord can get a summary dispossess, and those for which he cannot get a summary dispossess. A landlord can get dispossess and summary possession of his property for three causes :
First: If the tenant hold over after expiration of the term;
Second: For non-payment of either rent, taxes or water rates, if the tenant has covenanted to pay these charges;
Third: For unlawful use of the premises.
For any other breach of the covenant of the lease a landlord is not entitled to a summary dispossess, but must sue his tenant for ejectment under the lengthy process of an action. In order to obviate that necessity, important leases are often drawn in such manner that all the conditions of the lease which call for payment of any sort by the tenant are put in such form that those payments, if they become owing, are made additional rent; for instance, if the tenant should be liable for damages to the premises, or should be required to make repairs, or to comply with the orders of municipal departments and fail to do so, the landlord is at liberty to do these things, all of which can be liquidated in money payments ; and those payments thereupon become additional rent, collectible with and in the same manner as the fixed rent reserved. All other covenants should be made conditional limitations upon the length of the term, i. e., it should be provided in the lease that if a covenant be broken, the landlord shall have :the right to give notice that he elects to end the term of the lease at a fixed time. That is known technically as a "conditional limitation." If the tenant remain in posession after the time thus fixed, he remains as a mere hold-over, and can be put out in the same manner as if he were a hold-over after a natural expiration of the term. Complicated clauses of that sort are only worth while in leases for long term of valuable property. In cases where the tenant is not put in occupancy of the entire building, there is seldom anything which the tenant is required to do for which, in case of default, the landlord has no efficient remedy.
A dispossess proceeding is brought, not in the supreme court, but in a court of minor jurisdiction. In cities it may be brought in the city courts or in the municipal or district courts ; in the country it may be brought in the courts of justices of the peace. No one has ever been so harsh as to question the right of a judge in a district court to withhold signing the war-rant for a few days when the tenant has made an appeal to his compassion; but, as matter of legal right, the landlord is entitled to the signing of the warrant immediately.
The signing of the warrant results in the breach of the relation of landlord and tenant; and only such covenants remain enforceable as are expressly made to continue after the owner has regained possession. If, after the warrant is signed, the tenant will not voluntarily quit the premises, the warrant will be executed by a public official who will physically remove the ten-ant and his belongings from the premises. That ends the situation, so far as the summary proceeding can accomplish it.
In some states in long term leases if, after the dispossess, there remain more than a specified number of years of the term, notwithstanding the issue of a warrant of dispossess and its execution, a tenant may come back any time within a specified time, pay up the back rent, and redeem the premises. That situation is met in long term leases by requiring from the tenant an express waiver of the right of redemption.
Repairs.—Unless it be expressly covenanted in the lease, there is no obligation on the part of the land-lord to do anything in the matter of repairs. The landlord is not obligated to do anything except to let the tenant occupy and pay rent. The tenant has a general obligation to commit no waste upon the premises but is not obligated to make permanent repairs. He can let the premises go along in ordinary wear and tear until they are worn out, so long as he does not commit actual waste.
Constructive eviction.—Another way in which the relation of landlord and tenant may be severed is by a constructive eviction, which occurs where a tenant is not accorded the occupancy of the premises by reason of some act or omission of the landlord, or where the property is not kept in such a manner that it may be used for the purpose for which it was hired with the knowledge of the landlord. If a tenant rent an apartment in an apartment house, in which he depends for heat upon the steam-heating apparatus of the building, and there is no heat in his apartment so that he cannot use it for the purpose for which it was hired, i. e., for living purposes, that would amount to constructive eviction and give the tenant the right to remove from the premises; but he must take advantage of it at the time.
Option in case of fore.—In some states a lease terminates if there be a fire on the premises so as to render them untenantable. If there be no such law, or if there be express stipulation to the contrary, the tenant remains liable under his lease no matter from what cause the premises become untenantable. A fire does not necessarily break the lease, but if, by reason of the fire, the premises are made untenantable, and the tenant has the option to vacate, he must exercise that option within a reasonable time, and if he does not vacate the obligation of the lease remains. It is usual in ordinary leases to extend that option to the landlord by the fire clause, which may be seen in many printed forms.
The following is a form of lease which may be studied with advantage:
THIS INDENTURE, made the day of in the year one thousand nine hundred and . ., BETWEEN REALTY ASSOCIATES, a corporation organized under the laws of the State of New York, hereinafter designated as Landlord, and ............ hereinafter designated as Tenant,
WITNESSETH, that the Landlord has agreed to let and hereby does let, and the Tenant has agreed to hire, and hereby does hire from the Land-lord all that portion of the premises in the Borough of Brooklyn, County of Kings, City and State of New York, known as and by the street number ........ more fully described as follows:— ......... for a term of which term shall commence on the day of and end on the .... day of unless sooner terminated as hereinafter provided, for the annual rent or sum of dollars.
AND THE TENANT COVENANTS AND AGREES:
1st. To pay the rent as aforesaid as follows:
2nd. To make all repairs, both exterior and interior, and also all repairs to elevators and elevator machinery, and any other apparatus belonging to the building, and the Landlord shall not be liable for any manner of repairs in or about said premises or to any part of the street, sidewalk or vaults in front thereof;
In case of default by the Tenant under this paragraph, then, and in that event, the Landlord, its successors or assigns may make such repairs as may be necessary, and all necessary expenses consequent thereupon shall be borne by the Tenant and shall be deemed collectible as additional rent, and shall become due and payable by the Tenant to the Landlord immediately after the same shall have been paid or incurred by the Landlord, and the Landlord shall have the right to enter in upon said premises to make such repairs;
3rd. IN CASE the Tenant shall have repairs made to the building and a lien shall be filed upon the premises, forthwith to take such action as will remove the lien from the premises, and in default thereof for ten days after notice, the Landlord may pay the amount of such lien or discharge the same by deposit and the amount so paid or deposited shall be deemed additional rent reserved under this lease and payable with interest from the date of such payment upon the next day upon which rent shall accrue under this lease;
4th. To make good all damage resulting from misuse or neglect;
5th. To take good care of the premises and suffer no waste or injury;
6th. To pay as additional rent on or before the thirty-first day of July in each and every year a sum equal to all charges which may be made for the use or rent of Croton or other water in said premises, and also to pay within sixty days after the same shall have become payable all taxes imposed on said premises, except as follows,
7th. To pay as additional rent at all times during the said term, all premiums upon policies of fire insurance which may be taken upon the said premises :
8th. At all times during the said term at the expense of the Tenant to insure and keep insured in favor of the Landlord, all plate glass in the store fronts, windows and doors of the above described premises in such amounts as shall be satisfactory to the Landlord, and to furnish the Land-lord with policies of insurance covering the same;
9th. In case the Tenant fails to furnish such insurance as above provided or to pay the premium or premiums upon the same, or in case the Tenant shall fail to pay such water rates or any charge of tax, as above provided, the Landlord may in each and every case procure such insurance or pay such amounts and may add the amount of such premiums or payments to the next installment of rent falling due and the same, with interest thereon from the date of payment, shall be additional rent reserved hereunder, payable on the next day provided for the payment of rent succeeding the payment of such premiums or payments by the Landlord;
10th. To furnish the Landlord at all times during the term of this lease with security in the sum of dollars, which security shall be furnished as follows:—
11th. To allow the usual notice of "To Let" to be placed upon the walls or in a conspicuous place upon the exterior of the said premises for six months prior to the expiration of the term of this agreement, and "For Sale" notices at any time during the term, and to permit such notices to remain thereon without hindrance or molestation, and also to permit applicants to inspect the interior of said premises during such period between the hours of 10 A. M. and 5 P. M. on each and every business day during such time;
12th. To admit representatives of the Landlord into said premises at all times for the purpose of making alterations or improvements;
13th. To comply at the expense of the Tenant with all rules, orders, ordinances and regulations of each and every department or bureau of the city, county, state or national government applicable to the said premises, and of the New York Board of Fire Underwriters;
14th. In case of fire to give immediate notice thereof to the Landlord, which shall cause the damage to be repaired as speedily as possible. If the damage be so extensive as to render the premises untenantable, the rent shall be paid up to the date of the fire, and shall cease until such time as the building shall be put in proper repair, and thereafter the Tenant shall again pay the rent herein reserved, and have no option to cancel this lease; but if the destruction be total, the rent shall be paid up to the time of such destruction, and then and from thenceforth, this lease shall cease, provided, however, that such damage or destruction be not caused by the carelessness, negligence or improper conduct of the Tenant, or the servants or agents of the Tenant.
15th. To quit and surrender the premises at the expiration of said term in as good state and condition as they were at the commencement of the term, reasonable use and wear thereof and damages by the elements excepted;
16th. Unless the written consent of the Landlord shall first be obtained, not to
a. Make any alterations in the premises,
b. Sublet the whole or any part thereof for any business which may be obnoxious or detrimental to the neighborhood,
c. Use the premises or any part thereof for any purpose deemed extra hazardous,
d. Assign this lease;
17th. To indemnify and save harmless the Landlord for and against any and all liability, losses, damages and expenses, causes of action, suits, claims and judgments arising from injury to person or property of any and every nature, and for any matter or thing growing out of the occupation of the demised premises, the demolition by the Tenant of the buildings now thereon, the construction of any building thereon, or arising or growing out of the use, occupation, management, possession or control of the demised premises, or of any building thereon, or of the streets, side-walks or vaults adjacent thereto, occasioned by the Tenant, the agents, employes, assigns of the Tenant or by sub-tenants, or by their sub-tenants, their agents or employes, sub-tenants or assigns, respectively, or which may be occasioned by any person or thing whatever, at any time during the term of this lease;
18th. To hold the Landlord harmless from and indemnified against all damages including counsel fees and expenses to any person or persons by reason of an act commonly known as the "Civil Damage Law," or any other act of similar purport;
19th. That, in case of default on the part of the Tenant or on the part of any person or persons claiming through or under the Tenant in the payment of any of the rents herein reserved, or reserved in any renewal hereof, or in the performance on the part of the Tenant of any of the covenants contained herein, or in any renewal hereof, to be kept and per-formed by the Tenant, neither the Tenant nor any such person or corporation shall have or claim any right of redemption in said premises under Sections 2256 or 2257 of the Code of Civil Procedure, nor under any law now in force or hereafter enacted, after any termination of this lease by re-entry by the Landlord or by its obtaining possession under summary proceedings or otherwise in any lawful manner; and the said Tenant for the Tenant and every such person hereby releases all such right of redemption; AND the Tenant for the Tenant and every such person agrees that in the event of any action of ejectment brought by the Landlord, its successors or assigns for failure to perform any of the covenants herein, or in any renewal hereof, the Tenant for the Tenant and every such person waives all right to any second or further trial as matter of right or favor under Sections 1525 and 1526 of the Code of Civil Procedure, or any other law of similar import now existing or which may hereafter be enacted.
IT IS SPECIFICALLY UNDERSTOOD AND AGREED BETWEEN THE LANDLORD AND TENANT: THAT
1st. All improvements made in, to or upon said premises by the said Tenant shall become the property of the Landlord at once when made;
2nd, The Landlord shall not be liable for any personal or property dam-age caused by other tenants or persons in said building, or resulting from electricity, water, rain, snow or gas, which may leak or flow from any part of ,said building, or from the pipes or plumbing works of the same, or from any other place, nor for any interference with light or otherwise, by neighboring owners, or caused by the operations of the city in the construction of any public work;
3rd. The Landlord shall not be responsible for any latent defect or change of condition in any building now on the premises or in any building which may be put on the premises during the term of this lease or any renewal hereof, nor be liable to any person for damages to any such building nor for damage to persons or property by reason of anything afore-said; and the rent shall not be withheld or diminished on account of any such defect or change;
4th. If the Tenant shall make default in fulfilling any of the covenants and conditions of this lease or in making any payment herein provided, or in case the Tenant abandons the premises and the same shall become vacant, the Landlord may re-enter said premises and remove all persons there-from, either by any suitable action or proceeding at law or by force or otherwise without being liable to indictment, prosecution or damages there-for, and in any such case the Landlord may give to the Tenant five-days' notice of its election to end the term under this lease, and thereupon the term under this lease shall expire and all right of occupation thereunder on the part of the Tenant shall end, and the Tenant will quit and surrender the said premises to the Landlord, and at the option of the Landlord, it may relet the premises as the agent of the Tenant and receive the rents therefor, applying the same first to the payment of such expenses as it may be put to, and then to the payment of the rent and other payments which may be or become due according to the terms of this lease, and the balance, if any, at the expiration of the term of this lease, shall be paid over to the Tenant;
5th. IN CASE of reentry or of termination, of this lease by summary proceedings, or otherwise, whether the premises be relet or not, the Tenant shall remain liable until the time when this lease would have expired but for the termination thereof, for the yearly rent and additional rent reserved herein, less the avails of reletting, if any there be, and shall pay the same monthly, or otherwise, as hereinbefore provided for payment of rent;
6th. The failure of the Landlord to insist in any one or more instances upon strict performance of any of the covenants or conditions of this lease, or of any renewal hereof, or to exercise any option herein conferred, shall not be construed as a waiver or relinquishment for the future of any such covenant, condition or option, but the same shall continue and remain in full force and effect.
7th. ALL NOTICES provided for in this lease shall be given in writing and may be given by mailing and depositing the same in any post-office station or letter-box enclosed in a post-paid envelope addressed to the Tenant at the demised premises.
8th. This lease shall be subject and subordinate at all times to the lien of the mortgages now on the demised premises and subject and subordinate to the lien of any mortgage or mortgages which at any time may be made a lien on the demised premises, and the Tenant covenants that the Tenant and all persons having any interest in this lease will execute proper sub-ordination agreements to this effect at any time upon request of the Landlord. If the Landlord shall at any time fail to pay the interest or any installment of principal which may become due and payable by the terms of such mortgage, or shall fail to pay the taxes and assessments charged against the said premises, or shall fail or neglect otherwise to comply with the terms of such mortgage or mortgages, and the holder or holders of such mortgages shall have previously demanded such payments or such compliance, the Tenant shall have the right to make payment of such interest, taxes or assessments, or any other payment required by the terms of such mortgage or mortgages and, to the extent of such payments, to be subrogated to the rights of the holder of such mortgage, and the Tenant shall have the right to consider such payment as an advance rental of said premises; and if the Tenant shall not have the use of the said premises for the entire period for which such advance rental shall have been paid, the Landlord hereby agrees to pay to the said Tenant the entire amount of such advances, less, however, such proportion thereof as may be properly charge-able as rent for the period of the Tenant's occupancy of said premises.
THE LANDLORD FOR ITSELF, ITS SUCCESSORS AND ASSIGNS COVENANTS TO AND WITH THE TENANT,
That if, and so long as the Tenant pays the rent and additional rent re-served under this lease and observes the covenants thereof, the Tenant shall quietly enjoy the demised premises and every part thereof, subject, however, to the terms of this lease and to mortgages as aforesaid, which may at any time be or become liens on the demised premises.
THE LANDLORD AND TENANT COVENANT TO AND WITH EACH OTHER
That this lease and each and every covenant herein shall bind and run in favor of the Landlord, its successors and assigns and the Tenant, and the executors, administrators, successors and assigns of the Tenant.
IN WITNESS WHEREOF, the Landlord has caused its corporate seal to be hereto affixed and same to be signed by its proper officers, and the 'Tenant has executed the same.