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Disclaimer
The subject matter included in this book should not be considered as legal advice
for specific cases or for general legal guidance. Readers should seek such advice
from their own legal counsel. The material in this text is provided solely for
educational and informational purposes. However, all possible circumstances
could not be anticipated; therefore, individual situations may require further
evaluation prior to application of the solutions or recommendations presented
herein.
This page intentionally left blank
Dedication

To my wife, Kirsten, for her continued patience and

support while I wrote this second edition.
—Bill
Contents

List of Tables and Figures..............................................................................xiii

Preface ............................................................................................................xv
Acknowledgments .........................................................................................xvii
About the Author ..........................................................................................xix

1 The Contracting Cycle and Advance Contract Planning.........................1

2 Competition and Socioeconomic Contracting ......................................37
3 Solicitation Documents: Information for Prospective Contractors ........55
4 Solicitation Document: Proposal Requirements and Preparation
Guidelines .............................................................................................87

5 Management of Pre-Proposal Communications and Evaluation

of Proposals .........................................................................................117

6 Protests................................................................................................143
7 Contract Negotiations, Ethics, and Conflicts of Interest .....................161
8 Contract Document ............................................................................187
9 Contract Terms and Conditions .........................................................205
10 Short Form Contracts, Short Form RFPs, Emergencies and
Letter Contracts ..................................................................................235

11 Contract Review, Execution, and Audit ..............................................253

12 Contract Administration and Closeout ...............................................269
xii  Contents

A Glossary of Terms ...............................................................................291

B Best-Practices Research Project............................................................311

C Best-Practices Request for Proposals (RFP) .........................................351

D Best-Practices Model Services Contract (MSC)...................................379

E Proof of Anomalies in Formulas for Weighing Objective

Values and Subjective Scores...............................................................407

F Estimate at Completion ......................................................................413

G Sole Source Justification/Approval Form.............................................415

H Reference Checklist .............................................................................419

I Short Form RFP with Short Form Contract .......................................421

J Form for Evaluation of Proposals in Response to RFP........................451

K Formulas for Weighing All Criteria Including Those with

Optimal or Suboptimal Values............................................................453

L Sample Show Cause Letter ..................................................................457

M Sample Letter Contract .......................................................................459

N Contract Amendment .........................................................................461

O Short Form Contract Amendment ......................................................463

P Contractor Performance Report ..........................................................465

Index ............................................................................................................467

The appendices (A trough to P) may be assessed at www.routledge.com/series/

AUEPUBADMPUP)
Tables and Figures

Tables
Table 1.1 Best Practices in Contracting for Services ....................................9
Table 1.2 Topics Included in Advance Contract Planning ........................16
Table 3.1 Comparison between Types of Solicitations ..............................61
Table 3.2 Proposal Evaluation Criteria and Criteria Weighting.................82
Table 5.1 Assignment of Scores Based on a Scale of 1–10.......................127
Table 5.2 Assignment of Scores Based on Specific Adjectives ..................128
Table 5.3 Assignment of Scores Based on Color Codes ...........................129
Table 5.4 Assignment of Scores Based on Narrative Descriptions ...........130
Table 5.5 Superiority of 70–100 Scoring Scale for Subjectively
Rated Criteria ..........................................................................131
Table 5.6 Addition to the RFP Advising Prospective Contractors
of the Use of Weighted Criteria...............................................132
Table 5.7 Assignment of Scores Based on the TWS Process ....................132
Table 5.8 Format for Combined Weighed Scores....................................136
Table 5.9 Average or Consensus Scores ...................................................137
Table 5.10 Weighed Scores and Contractor Pricing ..................................138
Table 5.11 Grand Total Scores..................................................................140
Table 9.1 Incidence of Inclusion of Provisions in State and Local
Government Terms and Conditions ........................................206
Table 12.1 Summary of Price Changes......................................................277
Table B.1 Incidence of Inclusion of Provisions in State and Local
Government Terms and Conditions ........................................334
Table B.2 Description of Proposal Scoring Methods in RFP ...................344
Table B.3 Responses to Question Regarding Description of Process
for Filing Protests in RFP ........................................................348
Table C.1 Proposal Evaluation Criteria and Criteria Weighting...............358
Table E.1 Present Formulas Anomaly Depicted in Percentages................409
Table E.2 Weighed Scores with Anomalous Subjective Formula .............411
Table E.3 Weighed Scores with Recommended Subjective Formula........411
xiv  Tables and Figures

Figures
Figure 3.1 RFP Cover Page.........................................................................63
Figure 3.2 Table of Contents......................................................................64
Figure 8.1 Model Services Contract Variable Information Table..............196
Figure 8.2 Example of Poorly Crafted Scope of Work..............................201
Figure 8.3 Corrected Version of Same Scope of Work .............................202
Figure 9.1 Model Services Contract Variable Information Table..............209
Figure 10.1 Meetings/Milestones/Deliverables ............................................242
Figure 10.2 Short Form Contract Amendment...........................................244
Figure 11.1 Contract Review and Execution...............................................257
Figure 12.1 Estimate at Completion ...........................................................275
Figure 12.2 Contract Amendment ..............................................................280
Figure B.1 Research Project Cover Letter..................................................313
Figure B.2 2015 Government Contracting Best-Practices
Questionnaire ..........................................................................314
Figure B.3 Model Services Contract Variable Information Table..............339
Figure C.1 Life Cycle Cost Proposal Format .............................................364
Figure D.1 Model Services Contract Variable Information Table..............380
Figure D.2 Account Information ...............................................................385
Figure D.3 Exhibit I—Contractor/Agency Meeting Schedule....................386
Figure D.4 Exhibit II—Project Milestone Schedule...................................387
Figure D.5 Exhibit III—Contract Reports and Other Deliverables ...........387
Figure E.1 Present Formulas Anomaly Depicted Graphically....................410
Figure F.1 Estimate at Completion ...........................................................413
Figure G.1 Sole Source Justification/Approval Form .................................416
Figure H.1 Reference Checklist..................................................................419
Figure I.1 Short Form RFP Cover Sheet ..................................................422
Figure I.2 Short Form RFP Life Cycle Cost Proposal Format..................432
Figure I.3 Short Form RFP Model Services Contract Variable
Information Table ...................................................................434
Figure I.4 Short Form RFP Account Information....................................439
Figure I.5 Short Form RFP Exhibit I—Contractor/Agency Meeting
Schedule...................................................................................440
Figure I.6 Short Form RFP Exhibit II—Project Milestone Schedule .......441
Figure I.7 Short Form RFP Exhibit III—Contract Reports and
Other Deliverables ...................................................................441
Figure J.1 Source Selection Evaluation Team Criterion Rating................452
Figure K.1 Graphic Depiction of Criterion with Optimal Value...............455
Figure K.2 Graphic Depiction of Criterion with Suboptimal Value..........455
Figure N.1 Contract Amendment ..............................................................462
Figure O.1 Short Form Contract Amendment...........................................464
Figure P.1 Contractor Performance Report...............................................466
Preface

The objective of the second edition of this book project is to continue the
availability of best-practices document templates and contracting methodologies
obtained through a survey of present practices and a review of documents
presently employed by state and local government agencies. The principal
documents that were developed were a Request for Proposals (RFP) and a Model
Services Contract (MSC) based on best practices in state and local government
agencies. The templates are available for use by all state and local governments.
A second best-practices questionnaire was sent in 2015 to all fifty states, the
fifty largest cities in the United States, and 123 other government agencies. The
response from the states was down slightly from the original 2006 questionnaire.
The response in 2015 from large cities, however, was fivefold the response to
the 2006 questionnaire. The response rate from other local government agencies
continued at the disappointing rate of the 2006 questionnaire. The number of
states and local government agencies participating in the most recent best-
practices survey totals thirty-two compared to merely twenty-three participants
in the 2006 project. The improvement in the rate implementing best practices
from 2006 to 2015 by state and local government agencies is also gratifying.
The increased rate of adopting contracting best practices vindicates the
observation, made in the book’s first edition, that the overwhelming majority
of state and local government contracting officials strive to serve the public both
professionally and ethically.
A significant improvement in the process for scoring proposals in response
to RFPs is reflected in this second edition. The recommended process is similar
to the practices of seventy-nine percent of the states and cities responding to the
2015 best-practices research project. It was noted during the 2015 research
project, however, that a significant number of the states and cities were using
two formulas for weighing the scores that contained slight anomalies. Proofs of
the anomalies are provided and corrected formulas are recommended in this
second edition for weighing the scores assigned to proposals.
While one might presume that this project was intended solely for the bene-
fit of contracting professionals, that notion would be based on the assumption
that only contracting professionals are involved in contract management activities.
xvi  Preface

This notion, however, is not necessarily applicable in state and local government.
These government agencies often maintain a relatively small central contracting
function staffed by professionals who assist department personnel in contracting
matters. Therefore, there are numerous agency employees whose primary func-
tion and expertise are in fields other than contracting, but who are called upon
to participate in the drafting of solicitations, writing sole source justifications,
writing scopes of work, serving on advance contract planning and source selection
teams, recommending award of contracts and assisting in the management of
those contracts.
There are others, in addition to contracting professionals and functional
department personnel who participate in contracting activities, who can benefit
from the document templates and contracting methodologies developed through
this project. Board or council members of governing or legislative bodies, chief
elected and appointed officials and their ranking staff members, as well as agency
financial and legal counsel staff members have considerable exposure to and
responsibility for agency contracts.
The templates developed during the course of this project, described and/or
contained in this book, and available online to readers, are intended for the
benefit of state and local government agency contracting professionals as well as
the other agency officials and employees, mentioned above, who also participate
in the contracting function.
The vast number of existing local government agencies, including counties,
cities, school boards, universities, and special districts, made it impossible to
request participation from every local government agency. Because it was
impossible to invite all local government agencies to participate, and because all
states would be invited to participate in this project, it was decided to limit the
invitation for local government project participation to the fifty largest US cities
and to a select sample of other local government agencies. The 123 local
government contracting professionals selected for participation in the 2015 best-
practices questionnaire were gleaned from membership rosters belonging to
professional government contracting associations. The invitations to participate
in the 2015 questionnaire were sent to the governors of all fifty states with copies
to the chief procurement official, the mayors of the fifty largest cities with copies
to the chief procurement official, and directly to the 123 procurement
professionals from other local government agencies.
All state and government agencies are encouraged to adopt the best practices,
described herein, that are made available through the generosity of contracting
professionals throughout the United States.

William Sims Curry

Chico, California May 2015
Acknowledgments

I wish to acknowledge the support from the states, large cities, and other local
government agencies, named below, that participated in the project to develop
a best-practices Model Services Contract (MSC) and a best-practices Request
for Proposals (RFP). The documents developed through this project are based
on best practices found in the participating state and local government agencies.
Both documents are included in the book’s appendices, and access to these
documents is available online. This book provides a discussion of the resultant
best-practices MSC and RFP as well as other recommended contracting best-
practices and contract management tools.
This acknowledgment is an expression of sincere gratitude extended to those
participating agencies that responded to the 2015 best-practices questionnaire:

Participating States and Local Government

Agencies

STATES CITIES

Arizona Arlington, Texas

Indiana Austin, Texas
Maine Charlotte, North Carolina
Massachusetts El Paso, Texas
Michigan Houston, Texas
Minnesota Long Beach, California
Mississippi Los Angeles, California
Nevada Mesa, Arizona
North Carolina Nashville, Tennessee
North Dakota Portland, Oregon
Oklahoma Raleigh, North Carolina
South Dakota Sacramento, California
Virginia San Antonio, Texas
West Virginia San Jose, California
Tucson, Arizona
xviii  Acknowledgments

Other Local Government Agencies

County of Sacramento, California
County of Sutter, California
Portland State University, Oregon
About the Author

William Sims Curry received a Bachelor of Science in Business Management

from Florida State University, Beta Gamma Sigma, and a Master’s in Business
Administration from Ohio State University.
His initial exposure to the contracting field came as an Air Force Systems
Procurement Officer who was involved in the procurement of staff support for
electronic systems such as command, control and communications and radar
projects as well as space systems and ballistic missile programs. Following his
retirement as an officer in the United States Air Force, he worked in contracting
or purchasing for the Stanford Linear Accelerator Center on the Positron Electron
Project and for several private sector corporations in the aerospace and defense
field on the Hubble Space Telescope and various Department of Defense
programs. Mr. Curry’s exposure to state and local government contracting began
when he became a County Purchasing Services Manager and continued through
his subsequent appointments as a County Deputy Administrative Officer and
finally as a County General Services Director. Following his retirement as
General Services Director, he continues his involvement in state and local
government contracting through independent research projects, writing on
government contracting matters, and consulting assignments.
William Sims Curry has been a member of the National Contract Manage-
ment Association (NCMA) for forty years. During those forty years he wrote
numerous articles on contract management and ethics that were published in
NCMA periodicals as well as periodicals published by other professional
organizations. Curry authored three published books and two chapters of a
textbook on government contracting. He conducted seminars and workshops
on the topics covered in his books and articles.
His consulting assignments on government contracting matters were per-
formed for a DOD prime contractor, state agency, state university, community
college chancellor’s office, and a county general services department. He
developed the curriculum and taught college courses in the field of Materials
Management.
Curry was designated by the NCMA as a Certified Professional Contracts
Manager (CPCM) and received the award of NCMA Fellow. He served on the
xx  About the Author

NCMA Professional Standards and Ethics Committee for four years. Mr. Curry
was on the Board of Directors for the Industry Council for Small Business
Development (ICSBD): a not-for-profit corporation established to assist small,
small disadvantaged, and women-owned small businesses. He held various elected
offices within the ICSBD including President. Mr. Curry is a member of the
American Society for Public Administration (ASPA), Text and Academic Authors
Association (TAA), National Institute for Governmental Purchasing (NIGP), and
the California Association of Public Procurement Officials (CAPPO) for which
he also wrote and presented professional development papers.
Chapter 1

The Contracting Cycle

and Advance Contract
Planning

Chapter Objectives
The objectives of this first chapter are to introduce the reader to services contract-
ing for state and local government agencies, and to explain the characteristics of
the contracting cycle and the processes involved in advance contract planning.
The specific topics that are presented to the readers are:

 Introduction to Services Contracting in State and Local Government

Agencies
 Essential Elements of a Contract
 Distinctive Attributes of Contracts for Services
 Participants in State and Local Government Contracting
 Best-Practices Research Project Conducted in Preparation for Writing the
Second Edition of This Book
 The Contracting Cycle
 Pre-Solicitation Phase
 Solicitation Phase
 Proposal Evaluation
 Contract Award
 Contract Administration
 Contract Closeout
2  The Contracting Cycle and Advance Contract Planning

 Advance Contract Planning

 Implementation of Best Practices in the Contracting Process
 Implementation of other Prudent Practices in the Contracting Process

1.1 Introduction
There are numerous references to terminology used in the field of contract
management that begin in Chapter 1 and continue to be introduced throughout
the entire text. The terms are defined as they are introduced to readers. However,
in recognition of the need for readers to refresh their understanding of these
terms when the terms appear in subsequent chapters, the definitions are provided
in alphabetical order in Appendix A, Glossary of Terms.
To demonstrate how state and local government agencies will benefit through
the establishment of professional contracting standards and procedures such as
those presented in this text, a scenario involving the award of a contract featuring
problems that can be encountered in the absence of standards and professionalism
will be presented. The following is not an actual case; however, it is a composite
case that includes decadent practices found in several actual cases.
Contractor Alpha approached a departmental employee at a government
contracting agency with a proposal to provide certain services to the agency. The
state procurement code, which also applied to local government agencies,
included an exception to the competitive contracting rules for that particular
service. The proposal provided for the compensation of millions of dollars to
the contractor over the course of the multi-year contract. However, the
government agency would realize an increase in revenues resulting in a payback
of their investment within five years. The proposal also promised a positive net
revenue stream to the agency over the life of the project.
The departmental employee, however, was reluctant to bring the proposal
forward to the agency officials that had authority to award the contract.
Contractor Alpha presented numerous arguments to the departmental em-
ployee in favor of the project, including a five-day all-expenses-paid trip,
occasionally referred to as a “boondoggle,” to another government agency
that had implemented a similar project. The departmental employee was also
offered additional benefits if he would support their proposal and present it
to the decision makers. The government contractor that implemented the
similar project was in a location that was several thousand miles distant from
the contracting agency, but adjacent to a popular tourist attraction.
The departmental employee finally agreed to present the proposal to the
agency officials with authority to award the contract. A competing contractor
hired an employee from Contractor Alpha who then alerted Alpha’s competitor
to the sole source contract that was being proposed to the contracting agency
officials. Alpha’s competitor approached the departmental employee with a
 The Contracting Cycle and Advance Contract Planning  3

competing proposal that, in comparison to the Contractor Alpha proposal,

would save the agency over one million dollars annually. The departmental
employee had, however, taken the all-expenses-paid trip as well as the other
benefits, and felt committed to pursue the sole source contract with Contractor
Alpha. He told Alpha’s competitor that they would not be recommended for
the immediate project, but encouraged them to submit their own sole source
proposal during the following fiscal year.
Alpha’s competitor provided evidence, of the impropriety in the award of
the contract to Contractor Alpha, to a law enforcement agency. Following the
law enforcement agency’s investigation, they obtained the indictment of two
Contractor Alpha officials and the departmental employee. The departmental
employee was immediately placed on administrative leave pending investigation
by the contracting agency. The contracting agency, along with elected and
appointed officials, was criticized in the local and regional media for their derelict
contracting procedures and lack of controls which permitted their approval of
such a contract and for their failure to detect the indicted employee’s nefarious
actions.
The Contractor Alpha employees and the departmental employee were
convicted of contract fraud and sentenced to fines and imprisonment. The
department employee was fired, divorced by his wife and lost virtually all his
assets. Shortly after his imprisonment, he committed suicide. The local and
regional media continued to report follow-up stories on their initial reporting,
with emphasis on the nefarious behavior of the contracting agency officials. One
high-ranking appointed official did not have his employment contract renewed
and two long-serving elected officials lost to political challengers during the
subsequent election.
Whereas the above scenario is fictitious, the events that transpired and
outcomes for the participants are based on actual events that occurred in a
number of unrelated cases. Adoption of the standards, procedures, and templates
presented in this text will not guarantee that the adopting agency will not experi-
ence a similar situation; however, implementing the recommendations presented
in this text will inform government officials and employees unequivocally of the
agency’s commitment to professional contracting standards, demonstrate
proactive measures to guard against contract fraud, and establish professionalism
in the management of the agency’s contracting function.
Prior to delving into a description of the contracting cycle and advance
contract planning, readers are introduced to the essential elements of a contract,
the distinctive attributes of contracts for services, identification of the participants
in state and local government contracting, and a summary of the methodology
and results of the follow-up research project that was conducted in preparation
for writing the second edition of this text. A detailed account of the research
methodology and results are provided in Appendix B, Best-Practices Research
Project.
4  The Contracting Cycle and Advance Contract Planning

1.1.1 Essential Elements of a Contract

A contract is an agreement that is legally enforceable and reflects the relationship
between two or more parties for a specific time period. Contracts should be
crafted to identify potential risks and describe how these risks are to be mitigated.
Otherwise, the agency may be exposed to risks for which it is not prepared to
address and resolve the consequences therefrom. There must also be a meeting
of the minds between the parties to the contract such that there is no ambiguity
with respect to the understanding of the parties regarding the nature of the
agreement. Additionally, contracts must include an offer, acceptance, considera-
tion, competent parties, and a legal purpose.
An offer entails the communication of the offeror’s willingness to enter into
a contract that shall be binding if accepted by the party to which the offer was
made. The term “offeror” refers to the party making the offer. The com-
munication of the final, unqualified assent to an offer is the acceptance. If the
individual responding to the offer indicates acceptance of the offer but with some
qualification, then there is no acceptance and the original offer is no longer
available to the individual who made the qualified acceptance. The qualification
could be a change to any element of the offer such as the time period, quantity,
price, or any other element of the offer. The qualified offer is referred to as a
counter-offer, is considered as a rejection of the original offer, and is treated as
a new offer made to the original offeror.
Should the party making a counter-offer have his or her counter-offer
rejected, he or she cannot then merely accept that original offer. The original
offer, having been rejected by the making of a counter-offer, can no longer be
considered as a valid offer. Of course, the party that had their counter-offer
rejected may then indicate that they now would accept the original offer. Should
the party that made the original offer agree to acceptance of their original offer
without further conditions, then acceptance has been achieved.
To establish consideration, each party must be bound by their promises that
constitute a bargain for exchange. However, being bound to perform some
preexisting promise does not constitute consideration.
The parties to the contract must also be competent. This condition imposes
a requirement for all the parties to the contract to be mentally competent and
of legal age.
There is also a condition that the nature of the services being contracted can
be performed legally in the jurisdiction where the contracts shall be construed
and interpreted. In virtually all jurisdictions, for example, a contract with a con-
sultant to facilitate agency employees’ conduct to ensure reelection of the existing
members of the governing body would most likely not constitute a legal purpose.
All of the essential elements of a contract also apply to amendments that
modify the terms of the original contract. In the case of multiple amendments,
the essential elements of a contract also apply to amendments that modify the
Discovering Diverse Content Through
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payment is before the crop is reaped, sometimes after. “The
terms thus stipulated are called ‘the conventional terms’; the
rent payable by anticipation being called ‘forehand rent,’ that
which is payable after the crop is reaped, ‘back rent.’ Where the
rent is in grain, or otherwise payable in produce, it is to be
satisfied from the produce of the farm, if there be any. If there
be none the tenant is bound and entitled to deliver fair
marketable grain of the same kind.” (Bell’s Principles, ss. 1204,
1205). The general rule with regard to “waygoing crops” on
arable farms is that the tenant is entitled to reap the crop sown
before the term of removal (whether or not that be the natural
termination of the lease), the right of exclusive possession being
his during seed time. But he is not entitled to the use of the
barns in threshing, &c., the corn.

The Agricultural Holdings (Scotland) Acts 1883 and 1900,

already referred to incidentally, contain provisions—similar to
those of the English acts—as to a tenant’s right to compensation
for unexhausted improvements, removal for non-payment of
rent, notice to quit at the termination of a tenancy, and a
tenant’s property in fixtures. The Crofters’ Holdings (Scotland)
Acts 1886, 1887 and 1888, confer on “crofters” special rights. A
crofter is defined as “a tenant of a holding”—being arable or
pasture land, or partly arable and partly pasture land—“from
year to year who resides on his holding, the annual rent of
which does not exceed £30 in money, and which is situated in a
‘crofting parish.’” Nearly all the parishes in Argyll, Inverness,
Ross, Cromarty, Sutherland, Caithness and Orkney and Shetland
answer to this description. The crofter enjoys a perpetual tenure
subject to the fulfilment of certain conditions as to payment of
rent, non-assignment of tenancy, &c., and to defeasance at his
own option on giving one year’s notice to the landlord. A
Crofters’ Commission constituted under the acts has power to fix
fair rents, and the crofter on renunciation of his tenancy or
removal from his holding is entitled to compensation for
permanent improvements. The Small Holdings Act 1892 applies
to Scotland.

Under the law of Scotland down to 1880, a landlord had as

security for rent due on an agricultural lease a “hypothec”—i.e. a
preferential right over ordinary creditors, and extending, subject
to certain limitations, over the whole stock and crop of the
tenant. This right was enforceable by sequestration and sale. It
was abolished in 1880 as regards all leases entered into after
the 11th of November 1881, where the land demised exceeded
two acres in extent, and the landlord was left to remedies akin
to ejectment (Hypothec Abolition, Scotland, Act 1880).

II. Building or Long Leases.—Under these leases, the term of

which is usually 99 and sometimes 999 years, the tenant is to a
certain extent in the position of a fee simple proprietor, except
that his right is terminable, and that he can only exercise such
rights of ownership as are conferred on him either by statute or
by the terms of his lease. Extensive powers of entering into such
leases have been given by statute to trustees subject to the
authority of the Court (Trusts [Scotland] Act 1867, s. 3) and to
heirs of entail (Entail Acts 1840, 1849, 1882). Where long leases
are “probative,” i.e. holograph or duly tested, do not exceed 31
years, or, except as regards leases of mines and minerals, and of
lands held by burgage tenure, relate to an extent of land
exceeding 50 acres, and contain provisions for renewal, they
may be recorded for publication in the Register of Sasines, and
 such publication has the effect of possession (Registration of
Leases [Scotland] Act 1857).

Ireland.—The law of landlord and tenant was originally

substantially the same as that described for England is. But the
modern Land Acts have readjusted the relation between
landlords and tenants, while the Land Purchase Acts have aimed
at abolishing those relations by enabling the tenant to become
the owner of his holding. The way was paved for these changes
by the existence in Ulster of a local custom having virtually the
force of law, which had two main features—fixity of tenure, and
free right of sale by the tenant of his interest. These principles,
with the addition of that of fair rents settled by judicial means,
were gradually established by the Land Acts of 1870 and
subsequent years, and the whole system was remodelled by the
Land Purchase Acts (see Ireland).

United States.—The law of landlord and tenant in the United

States is in its principles similar to those of English law. It is only
possible to indicate, by way of example, some of the points of
similarity. The relationship of landlord and tenant is created, altered
and dissolved in the same way, and the rights and duties of parties
are substantially identical. A lease must contain, either in itself or by
clear reference, all the terms of a complete contract—the names of
the parties, description of the property let, the rent (see Rent) and
the conditions. The date is not essential. That is a matter of
identification as to time only. In Pennsylvania, parol evidence of the
date is allowed. The general American doctrine is that where the
contract is contained in separate writings they must connect
themselves by reference, and that parol evidence is not admissible
to connect them. The English doctrine that a verbal lease may be
specifically enforced if there has been part performance by the
person seeking the remedy has been fully adopted in nearly all the
American states. The law as to the rights and obligations of
assignees and sub-lessees and as to surrender is the same as in
England. Forfeiture only renders a lease void as regards the lessee;
it may be waived by the lessor, and acceptance by the landlord of
rent due after forfeiture, with notice of such forfeiture, amounts to
waiver. Where there is a lease for a certain period, no notice to quit
is necessary. In uncertain tenancies there must be reasonable notice
—i.e. at common law six months generally. The notice necessary to
determine a monthly or weekly tenancy is generally a month or a
week (see further under Lodger; Lodgings). In the United States, as in
England, the covenant for quiet enjoyment only extends, so far as
relates to the acts of third parties, to lawful acts of disturbance in
the enjoyment of the subject agreed to be let.

Laws of other Countries.—It is impossible here to deal with the

systems of land tenure in force in other countries. Only the question
of the legal relations between landlord and tenant can be touched
upon. In France, the Code Civil recognizes two such relationships,
the letting to hire of houses (bail à loyer) and the letting to farm of
rural properties (bail à ferme). To a certain extent, both forms of
tenancy are governed by the same rules. The letting may be either
written or verbal. But a verbal lease presents this disadvantage that,
if it is unperformed and one of the parties denies its existence, it
cannot be proved by witnesses. The party who denies the letting can
only be put to his oath (Arts. 1714-1715). It may further be noted
that in the case of a verbal lease, notice to quit is regulated by the
custom of the place (Art. 1736). The tenant or farmer has the right
of underletting or assigning his lease, in the absence of prohibiting
stipulation (Art. 1717). The lessor is bound by the nature of his
contract and without the need of any particular stipulation (i.) to
deliver to the lessee the thing hired in a good state of repair; (ii.) to
maintain it in a state to serve the purpose for which it has been
hired; (iii.) to secure to the lessee peaceable enjoyment during the
continuance of the lease (Arts. 1719-1720). He is bound to warrant
the lessee against, and to indemnify him for, any loss arising from
any faults or defects in the thing hired which prevent its use, even
though he was not aware of them at the time of the lease (Art.
1721). If during the continuance of the letting, the thing hired is
entirely destroyed by accident, the lease is cancelled. In case of
partial destruction, the lessee may, according to circumstances,
demand either a diminution of the price, or the cancellation of the
lease. In neither case is there ground for damages (Art. 1722). The
lessor cannot, during the lease, change the form of the thing hired
(Art. 1723). The lessee is bound, on his side (i.) to use the thing
hired like a good head of a household (bon père de famille), in
accordance with the express or presumed purpose of the hiring; (ii.)
to pay the price of the hiring at the times agreed (Art. 1728). On
breach of the former obligation, the lease may be judicially cancelled
(Art. 1729). As to the consequences of breach of the latter, see Rent.
If a statement of the condition of the property (état des lieux) has
been prepared, the lessee must give it up such as he received it
according to the statement, except what has perished or decayed by
age or by means of force majeure (Art. 1730). In the absence of an
état des lieux, the lessee is presumed to have received the thing
hired in a good state of tenantable repair, and must so yield it up,
saving proof to the contrary (Art. 1731). He is liable for injuries or
losses happening during his enjoyment, unless he prove that they
have taken place without his fault (Art. 1732); in particular, for loss
by fire unless he show that the fire happened by accident, force
majeure, or defect of construction, or through communication from a
neighbouring house (Art. 1733). The lessee is liable for injuries and
losses happening by the act of persons belonging to his house or of
his sub-tenants (Art. 1735). A lease terminates (i.) at the expiration
of the prescribed term (Art. 1737)—if at that period the lessee
remains and is left in possession, there is, in the case of written
leases, a tacit renewal (tacite reconduction) of the lease as a verbal
lease (Arts. 1738-1739); (ii.) by the loss of the thing hired and by
the default of the lessor or lessee in the fulfilment of their respective
obligations (Art. 1741), but (iii.) not by the death either of the lessor
or of the lessee (1742). The conditions of Ejectment are stated under
that heading. The special rules (Arts. 1752-1762) relative to the hire
of houses are touched upon in Lodger and Lodgings. It only remains
here to refer to those applicable to leases to farm. The lessee is
bound to stock the farm with the cattle and implements necessary
for its husbandry (Art. 1766), and to stack in the places appointed
for the purpose in the lease (Art. 1767). A lessee, who farms on
condition of dividing the produce with the lessor, can only underlet
or assign if he is expressly empowered to do so by the lease (Art.
1763). The lessee must give notice to the lessor of any acts of
usurpation committed on the property (Art. 1768). If at least half of
the harvest in any year is destroyed by accident, the lessee (a) in
the case of a lease for several years, obtains, at the end of his lease,
a refund of rent, by way of indemnity, unless he has been
indemnified by preceding harvests; (b) in the case of a lease for a
year only, may secure a proportional abatement of the current rent.
No refund is payable if the produce was severed before the accident,
unless the lessor was entitled to a portion of it, when he must bear
his share of the loss, provided the lessee was not in morâ as regards
the delivery of the lessor’s portion. The lessee has no right to a
refund when the cause of damage was existing and known at the
date of the lease (Arts. 1769-1771). Liability for loss by “accidents”
may be thrown on the lessee by express stipulation (Art. 1772).
“Accidents” here mean ordinary accidents only, such as hail,
lightning or frost, and the lessee will not be answerable for loss
caused by extraordinary accidents such as war or floods, unless he
has been made liable for all accidents, foreseen or unforeseen (Art.
1773). A verbal lease is deemed to be for the term necessary to
enable the lessee to gather in all the produce, thus for a year in the
case of a meadow or vineyard; in the case of lands leased in tillage,
where they are divided into shifts or seasons, for as many years as
there are shifts (Art. 1774). The outgoing must leave for the
incoming tenant convenient housing and other facilities for the
labours of the year following; the incoming must procure for the
outgoing tenant conveniences for the consumption of his fodder and
for the harvests remaining to be got in. In either case the custom of
the place is to be followed (Art. 1777). The outgoing tenant must
leave the straw and manure of the year, if he received them at the
beginning of his lease, and even where he has not so received them,
the owner may retain them according to valuation (Art. 1778). A
word must be added as to letting by cheptel (bail à cheptel)—a
contract by which one of the parties gives to the other a stock of
cattle to keep under conditions agreed on between them (Art. 1800).
There are several varieties of the contract, (i.) simple cheptel
(cheptel simple) in which the whole stock is supplied by the lessor—
the lessee taking half the profit and bearing half the loss (Art. 1804);
(ii.) cheptel by moiety (cheptel à moietié)—here each of the
contracting parties furnishes half of the stock, which remains
common for profit or loss (Art. 1818); (iii.) cheptel given to a farmer
(fermier) or participating cultivator (colon partiaire)—in the cheptel
given to the farmer (also called cheptel de fer) stock of a value equal
to the estimated price of the stock given must be left at the expiry of
the lease (Art. 1821); cheptel given to the participating cultivator
resembles simple cheptel, except in points of detail (Arts. 1827-
1830); (iv.) the term “cheptel” is also improperly applied to a
contract by which cattle are given to be housed and fed—here the
lessor retains the ownership, but has only the profit of the calves
(Art. 1831).

The French system just described is in force in its entirety in

Belgium (Code Civil, Arts. 1713 et seq.) and has been followed to
some extent in Italy (Civil Code, Arts. 1568 et seq.), Spain (Civil
Code, Arts 1542 et seq.), and Portugal (Civil Code, Arts. 1298 et
seq., 1595 et seq.). In all these countries there are varieties of
emphyteutic tenure; and in Italy the mezzadria or metayer system
(see Civil Code, Arts. 1647 et seq.) exists. The German Civil Code
adopts the distinction between bail à loyer (Miehl, Arts. 535 et seq.)
and bail à ferme (Pacht, Arts. 581 et seq.). Dutch law also (Civil
Code, Arts. 1583 et seq.) is similar to the French.

The Indian law of landlord and tenant is described in the article

Indian Law. The laws of the various British colonies on the subject are
too numerous and too different to be dealt with here. In Mauritius,
the provisions of the Code Civil are in force without modification. In
Quebec (Civil Code, Arts. 1605 et seq.) and St Lucia (Civil Code,
Arts. 1512 et seq.) they have been reproduced by the local law. In
many of the colonies, parts of the English law of landlord and
tenant, common law and statutory, have been introduced by local
enactments (cf. British Guiana, Ord. 4 of 1846; Jamaica, 1 Vict. c.
26). In others (e.g. Victoria, Landlord and Tenant Act 1890, No.
1108; Ontario, Rev. Stats. 1897, c. 170) consolidating statutes have
been passed.

Authorities.—English Law: Wolstenholme, Brinton and Cherry,

Conveyancing and Settled Land Acts (London, 9th ed., 1905);
Hood and Challis, Conveyancing and Settled Land Acts (London,
7th ed., 1909); Foà, on Landlord and Tenant (London, 4th ed.,
1907); Woodfall, on Landlord and Tenant (London, 18th ed.,
1907); Fawcett, Landlord and Tenant (London, 3rd ed., 1905).
Scots Law: Hunter, on Landlord and Tenant (Edinburgh, 4th ed.,
1876); Rankine, on Land Ownership (Edinburgh, 3rd ed., 1891);
Rankine, on Leases (Edinburgh, 2nd ed., 1893); Hunter,
Landlord and Tenant (4th ed. G. Guthrie, Edinburgh, 1876). Irish
Law: Kelly’s Statute Law of Landlord and Tenant in Ireland
(Dublin, 1898); Barton and Cherry’s Land Act 1896 (Dublin,
1896); Quill, Hamilton and Longworth, Irish Land Acts of 1903
and 1904 (Dublin, 1904). American Law: Bouvier, Law Dictionary
(ed. Rawle) (London, 1897); McAdam, Rights, Remedies and
Liabilities of Landlord and Tenant (New York, 1900); Wood, Law
of Landlord and Tenant (New York, 1888). Foreign and Colonial
Laws: Field, Landholding and the relation of Landlord and
Tenant in various Countries; Ruling Cases (American Notes),
(London and Boston, 1894-1901).
(A. W. R.)
 LANDON, CHARLES PAUL (1760-1826), French painter
and art-author, was born at Nonant in 1760. He entered the studio
of Regnault, and won the first prize of the Academy in 1792. After
his return from Italy, disturbed by the Revolution, he seems to have
abandoned painting for letters, but he began to exhibit in 1795, and
continued to do so at various intervals up to 1814. His “Leda”
obtained an award of merit in 1801, and is now in the Louvre. His
“Mother’s Lesson,” “Paul and Virginia Bathing,” and “Daedalus and
Icarus” have been engraved; but his works on painting and painters,
which reach nearly one hundred volumes, form his chief title to be
remembered. In spite of a complete want of critical accuracy, an
extreme carelessness in the biographical details, and the feebleness
of the line engravings by which they are illustrated, Landon’s
Annales du Musée, in 33 vols., form a vast repertory of compositions
by masters of every age and school of permanent value. Landon also
published Lives of Celebrated Painters, in 22 vols.; An Historical
Description of Paris, 2 vols.; a Description of London, with 42 plates;
and descriptions of the Luxembourg, of the Giustiniani collection,
and of the gallery of the duchesse de Berry. He died at Paris in 1826.

LANDON, LETITIA ELIZABETH (1802-1838), English

poet and novelist, better known by her initials L. E. L. than as Miss
Landon or Mrs Maclean, was descended from an old Herefordshire
family, and was born at Chelsea on the 14th of August 1802. She
went to a school in Chelsea where Miss Mitford also received her
education. Her father, an army agent, amassed a large property,
which he lost by speculation shortly before his death. About 1815
the Landons made the acquaintance of William Jerdan, and Letitia
began her contributions to the Literary Gazette and to various
Christmas annuals. She also published some volumes of verse, which
soon won for her a wide literary fame. The gentle melancholy and
romantic sentiment her writings embodied suited the taste of the
period, and would in any case have secured her the sympathy and
approval of a wide class of readers. She displays richness of fancy
and aptness of language, but her work suffered from hasty
production, and has not stood the test of time. The large sums she
earned by her literary labours were expended on the support of her
family. An engagement to John Forster, it is said, was broken off
through the intervention of scandalmongers. In June 1838 she
married George Maclean, governor of the Gold Coast, but she only
survived her marriage, which proved to be very unhappy, by a few
months. She died on the 15th of October 1838 at Cape Coast from
an overdose of prussic acid, which, it is supposed, was taken
accidentally.

For some time L. E. L. was joint editor of the Literary Gazette.

Her first volume of poetry appeared in 1820 under the title The
Fate of Adelaide, and was followed by other collections of verses
with similar titles. She also wrote several novels, of which the
best is Ethel Churchill (1837). Various editions of her Poetical
Works have been published since her death, one in 1880 with an
introductory memoir by W. B. Scott. The Life and Literary
Remains of Letilia Elizabeth Landon, by Laman Blanchard,
appeared in 1841, and a second edition in 1855.
 LANDOR, WALTER SAVAGE (1775-1864), English writer,
eldest son of Walter Landor and his wife Elizabeth Savage, was born
at Warwick on the 30th of January 1775. [He was sent to Rugby
school, but was removed at the headmaster’s request and studied
privately with Mr Langley, vicar of Ashbourne. In 1793 he entered
Trinity College, Cambridge. He adopted republican principles and in
1794 fired a gun at the windows of a Tory for whom he had an
aversion. He was rusticated for a year, and, although the authorities
were willing to condone the offence, he refused to return. The affair
led to a quarrel with his father in which Landor expressed his
intention of leaving home for ever. He was, however, reconciled with
his family through the efforts of his friend Dorothea Lyttelton. He
entered no profession, but his father allowed him £150 a year, and
he was free to live at home or not as he pleased.]

In 1795 appeared in a small volume, divided into three books, The

Poems of Walter Savage Landor, and, in pamphlet form of nineteen
pages, an anonymous Moral Epistle, respectfully dedicated to Earl
Stanhope. No poet at the age of twenty ever had more vigour of
style and fluency of verse; nor perhaps has any ever shown such
masterly command of epigram and satire, made vivid and vital by
the purest enthusiasm and most generous indignation. Three years
later appeared the first edition of the first great work which was to
inscribe his name for ever among the great names in English poetry.
The second edition of Gebir appeared in 1803, with a text corrected
of grave errors and improved by magnificent additions. About the
same time the whole poem was also published in a Latin form, which
for might and melody of line, for power and perfection of language,
must always dispute the palm of precedence with the English
version. [His father’s death in 1805 put him in possession of an
independent fortune. Landor settled in Bath. Here in 1808 he met
Southey, and the mutual appreciation of the two poets led to a warm
friendship.] In 1808, under an impulse not less heroic than that
which was afterwards to lead Byron to a glorious death in
redemption of Greece and his own good fame, Landor, then aged
thirty-three, left England for Spain as a volunteer to serve in the
national army against Napoleon at the head of a regiment raised and
supported at his sole expense. After some three months’
campaigning came the affair of Cintra and its disasters; “his troop,”
in the words of his biographer, “dispersed or melted away, and he
came back to England in as great a hurry as he had left it,” but
bringing with him the honourable recollection of a brave design
unselfishly attempted, and the material in his memory for the
sublimest poem published in our language, between the last
masterpiece of Milton and the first masterpiece of Shelley—one
equally worthy to stand unchallenged beside either for poetic
perfection as well as moral majesty—the lofty tragedy of Count
Julian, which appeared in 1812, without the name of its author. No
comparable work is to be found in English poetry between the date
of Samson Agonistes and the date of Prometheus Unbound; and
with both these great works it has some points of greatness in
common. The superhuman isolation of agony and endurance which
encircles and exalts the hero is in each case expressed with equally
appropriate magnificence of effect. The style of Count Julian, if
somewhat deficient in dramatic ease and the fluency of natural
dialogue, has such might and purity and majesty of speech as
elsewhere we find only in Milton so long and so steadily sustained.

In May 1811 Landor had suddenly married Miss Julia Thuillier, with
whose looks he had fallen in love at first sight in a ball-room at Bath;
and in June they settled for a while at Llanthony Abbey in
Monmouthshire, from whence he was worried in three years’ time by
the combined vexation of neighbours and tenants, lawyers and
lords-lieutenant; not before much toil and money had been nobly
wasted on attempts to improve the sterility of the land, to relieve the
wretchedness and raise the condition of the peasantry. He left
England for France at first, but after a brief residence at Tours took
up his abode for three years at Como; “and three more wandering
years he passed,” says his biographer, “between Pisa and Pistoja,
before he pitched his tent in Florence in 1821.”

In 1835 he had an unfortunate difference with his wife which

ended in a complete separation. In 1824 appeared the first series of
his Imaginary Conversations, in 1826 “the second edition, corrected
and enlarged”; a supplementary third volume was added in 1828;
and in 1829 the second series was given to the world. Not until 1846
was a fresh instalment added, in the second volume of his collected
and selected works. During the interval he had published his three
other most famous and greatest books in prose: The Citation and
Examination of William Shakespeare (1834), Pericles and Aspasia
(1836), The Pentameron (1837). To the last of these was originally
appended The Pentalogia, containing five of the very finest among
his shorter studies in dramatic poetry. In 1847 he published his most
important Latin work, Poemata et inscriptiones, comprising, with
large additions, the main contents of two former volumes of idyllic,
satiric, elegiac and lyric verse; and in the same golden year of his
poetic life appeared the very crown and flower of its manifold
labours, the Hellenics of Waller Savage Landor, enlarged and
completed. Twelve years later this book was re-issued, with
additions of more or less value, with alterations generally to be
regretted, and with omissions invariably to be deplored. In 1853 he
put forth The Last Fruit off an Old Tree, containing fresh
conversations, critical and controversial essays, miscellaneous
epigrams, lyrics and occasional poems of various kind and merit,
closing with Five Scenes on the martyrdom of Beatrice Cenci,
unsurpassed even by their author himself for noble and heroic
pathos, for subtle and genial, tragic and profound, ardent and
compassionate insight into character, with consummate mastery of
dramatic and spiritual truth. In 1856 he published Antony and
Octavius—Scenes for the Study, twelve consecutive poems in
dialogue which alone would suffice to place him high among the few
great masters of historic drama.

In 1858 appeared a metrical miscellany bearing the title of Dry

Sticks Fagoted by W. S. Landor, and containing among other things
graver and lighter certain epigrammatic and satirical attacks which
reinvolved him in the troubles of an action for libel; and in July of
the same year he returned for the last six years of his life to Italy,
which he had left for England in 1835. [He was advised to make
over his property to his family, on whom he was now dependent.
They appear to have refused to make him an allowance unless he
returned to England. By the exertions of Robert Browning an
allowance was secured. Browning settled him first at Siena and then
at Florence.] Embittered and distracted by domestic dissensions, if
brightened and relieved by the affection and veneration of friends
and strangers, this final period of his troubled and splendid career
came at last to a quiet end on the 17th of September 1864. In the
preceding year he had published a last volume of Heroic Idyls, with
Additional Poems, English and Latin,—the better part of them well
worthy to be indeed the “last fruit” of a genius which after a life of
eighty-eight years had lost nothing of its majestic and pathetic
power, its exquisite and exalted loveliness.

A complete list of Landor’s writings, published or privately printed,

in English, Latin and Italian, including pamphlets, fly-sheets and
occasional newspaper correspondence on political or literary
questions, it would be difficult to give anywhere and impossible to
give here. From nineteen almost to ninety his intellectual and literary
activity was indefatigably incessant; but, herein at least like Charles
Lamb, whose cordial admiration he so cordially returned, he could
not write a note of three lines which did not bear the mark of his
“Roman hand” in its matchless and inimitable command of a style at
once the most powerful and the purest of his age. The one charge
which can ever seriously be brought and maintained against it is that
of such occasional obscurity or difficulty as may arise from excessive
strictness in condensation of phrase and expurgation of matter not
always superfluous, and sometimes almost indispensable. His English
prose and his Latin verse are perhaps more frequently and more
gravely liable to this charge than either his English verse or his Latin
prose. At times it is well-nigh impossible for an eye less keen and
swift, a scholarship less exquisite and ready than his own, to catch
the precise direction and follow the perfect course of his rapid
thought and radiant utterance. This apparently studious pursuit and
preference of the most terse and elliptic expression which could be
found for anything he might have to say could not but occasionally
make even so sovereign a master of two great languages appear
“dark with excess of light”; but from no former master of either
tongue in prose or verse was ever the quality of real obscurity, of
loose and nebulous incertitude, more utterly alien or more naturally
remote. There is nothing of cloud or fog about the path on which he
leads us; but we feel now and then the want of a bridge or a
handrail; we have to leap from point to point of narrative or
argument without the usual help of a connecting plank. Even in his
dramatic works, where least of all it should have been found, this
lack of visible connexion or sequence in details of thought or action
is too often a source of sensible perplexity. In his noble trilogy on
the history of Giovanna queen of Naples it is sometimes actually
difficult to realize on a first reading what has happened or is
happening, or how, or why, or by what agency—a defect alone
sufficient, but unhappily sufficient in itself, to explain the too general
ignorance of a work so rich in subtle and noble treatment of
character, so sure and strong in its grasp and rendering of “high
actions and high passions,” so rich in humour and in pathos, so
royally serene in its commanding power upon the tragic mainsprings
of terror and of pity. As a poet, he may be said on the whole to
stand midway between Byron and Shelley—about as far above the
former as below the latter. If we except Catullus and Simonides, it
might be hard to match and it would be impossible to overmatch the
flawless and blameless yet living and breathing beauty of his most
perfect elegies, epigrams or epitaphs. As truly as prettily was he
likened by Leigh Hunt “to a stormy mountain pine which should
produce lilies.” His passionate compassion, his bitter and burning pity
for all wrongs endured in all the world, found only their natural and
inevitable outlet in his lifelong defence or advocacy of tyrannicide as
the last resource of baffled justice, the last discharge of heroic duty.
His tender and ardent love of children, of animals and of flowers
makes fragrant alike the pages of his writing and the records of his
life. He was as surely the most gentle and generous as the most
headstrong and hot-headed of heroes or of men. Nor ever was any
man’s best work more thoroughly imbued and informed with
evidence of his noblest qualities. His loyalty and liberality of heart
were as inexhaustible as his bounty and beneficence of hand. Praise
and encouragement, deserved or undeserved, came yet more readily
to his lips than challenge or defiance. Reviled and ridiculed by Lord
Byron, he retorted on the offender living less readily and less warmly
than he lamented and extolled him dead. On the noble dramatic
works of his brother Robert he lavished a magnificence of
sympathetic praise which his utmost self-estimate would never have
exacted for his own. Age and the lapse of time could neither
heighten nor lessen the fulness of this rich and ready generosity. To
the poets of his own and of the next generation he was not readier
to do honour than to those of a later growth, and not seldom of
deserts far lower and far lesser claims than theirs. That he was not
unconscious of his own, and avowed it with the frank simplicity of
nobler times, is not more evident or more certain than that in
comparison with his friends and fellows he was liable rather to
undervalue than to overrate himself. He was a classic, and no
formalist; the wide range of his just and loyal admiration had room
for a genius so far from classical as Blake’s. Nor in his own highest
mood or method of creative as of critical work was he a classic only,
in any narrow or exclusive sense of the term. On either side,
immediately or hardly below his mighty masterpiece of Pericles and
Aspasia, stand the two scarcely less beautiful and vivid studies of
medieval Italy and Shakespearean England. The very finest flower of
his immortal dialogues is probably to be found in the single volume
comprising only “Imaginary Conversations of Greeks and Romans”;
his utmost command of passion and pathos may be tested by its
transcendent success in the distilled and concentrated tragedy of
Tiberius and Vipsania, where for once he shows a quality more
proper to romantic than classical imagination—the subtle and
sublime and terrible power to enter the dark vestibule of distraction,
to throw the whole force of his fancy, the whole fire of his spirit, into
the “shadowing passion” (as Shakespeare calls it) of gradually
imminent insanity. Yet, if this and all other studies from ancient
history or legend could be subtracted from the volume of his work,
enough would be left whereon to rest the foundation of a fame
which time could not sensibly impair.
(A. C. S.)

Bibliography.—See The Works and Life of Walter Savage

Landor (8 vols., 1846), the life being the work of John Forster.
Another edition of his works (1891-1893), edited by C. G.
Crump, comprises Imaginary Conversations, Poems, Dialogues in
Verse and Epigrams and The Longer Prose Works. His Letters
and other Unpublished Writings were edited by Mr Stephen
Wheeler (1897). There are many volumes of selections from his
works, notably one (1882) for the “Golden Treasury” series,
edited by Sidney Colvin, who also contributed the monograph on
Landor (1881) in the “English Men of Letters” series. A
bibliography of his works, many of which are very rare, is
included in Sir Leslie Stephen’s article on Landor in the
Dictionary of National Biography (vol. xxxii., 1892).
(M. Br.)
 LANDOUR, a hill station and sanatorium in India, in Dehra
Dun district of the United Provinces, adjoining Mussoorie. Pop.
(1901) 1720, rising to 3700 in the hot season. Since 1827 it has
been a convalescent station for European troops, with a school for
their children.

LAND REGISTRATION, a legal process connected with the

transfer of landed property, comprising two forms—registration of
deeds and registration of title, which may be best described as a
species of machinery for assisting a purchaser or mortgagee in his
inquiries as to his vendor’s or mortgagor’s title previously to
completing his dealing, and for securing his own position afterwards.
The expediency of making inquiry into the vendor’s title before
completing a purchase of land (and the case of a mortgage is
precisely similar) is obvious. In the case of goods possession may
ordinarily be relied on as proof of full ownership; in the case of land,
the person in ostensible possession is very seldom the owner, being
usually only a tenant, paying rent to someone else. Even the person
to whom the rent is paid is in many cases—probably, in England, in
most cases—not the full owner, but only a life owner, or a trustee,
whose powers of disposing of the property are of a strictly limited
nature. Again, goods are very seldom the subject of a mortgage,
whereas land has from time immemorial been the frequent subject
of this class of transaction. Evidently, therefore, some sort of inquiry
is necessary to enable a purchaser to obtain certainty that the land
for which he pays full price is not subject to an unknown mortgage
or charge which, if left undiscovered, might afterwards deprive him
of a large part or even the whole of its value. Again, the probability
of serious consequences to the purchaser ensuing from a mistake as
to title is infinitely greater in the case of land than in the case of
goods. Before the rightful owner can recover misappropriated goods,
he has to find out where they are. This is usually a matter of
considerable difficulty. By the time they have reached the hands of a
bonâ fide purchaser all chance of their recovery by the true owner is
practically at an end. But with land the case is far otherwise. A
dispossessed rightful owner never has any difficulty in tracing his
property, for it is immovable. All he has to do is to bring an action for
ejectment against the person in possession. For these reasons,
among others, any attempt to deal with land on the simple and
unsuspecting principles which obtain in regard to goods would be
fraught with grave risks.

Apart from very early and primitive social conditions, there appear
to be only two ways in which the required certainty as to title to land
can be obtained. Either the purchaser must satisfy himself, by an
exhaustive scrutiny and review of all the deeds, wills, marriages,
heirships and other documents and events by which the property
has been conveyed, mortgaged, leased, devised or transmitted
during a considerable period of time, that no loophole exists
whereby an adverse claim can enter or be made good—this is called
the system of private investigation of title—or the government must
keep an authoritative list or register of the properties within its
jurisdiction, together with the names of the owners and particulars
of the encumbrances in each case, and must protect purchasers and
others dealing with land, on the faith of this register, from all
adverse claims. This second system is called Registration of Title. To
these two alternatives may perhaps be added a third, of very recent
growth—Insurance of Title. This is largely used in the United States.
But it is in reality only a phase of the system of private investigation.
The insurance company investigates the title, and charges the
purchaser a premium to cover the expense and the risk of error.
Registration of deeds is an adjunct of the system of private
investigation, and, except in England, is a practically invariable
feature of it. It consists in the establishment of public offices in
which all documents affecting land are to be recorded—partly to
preserve them in a readily accessible place, partly to prevent the
possibility of any material deed or document being dishonestly
concealed by a vendor. Where registration is effected by depositing a
full copy of the deed, it also renders the subsequent falsification of
the original document dangerous. Registration of deeds does not
(except perhaps to a certain extent indirectly) cheapen or simplify
the process of investigation—the formalities at the registry add
something to the trouble and cost incurred—but it prevents the
particular classes of fraud mentioned.

The history of land registration follows, as a general rule, a fairly

uniform course of development. In very early times, and in small and
simple communities, the difficulty afterwards found in establishing
title to land does not arise, owing to the primitive habit of attaching
ceremony and publicity to all dealings. The parties meet on the land,
with witnesses; symbolical acts (such as handing over a piece of
earth, or the bough of a tree) are performed; and a set form of
words is spoken, expressive of the intention to convey. By this
means the ownership of each estate in the community becomes to a
certain extent a matter of common knowledge, rendering fraud and
mistake difficult. But this method leaves a good deal to be desired in
point of security. Witnesses die, and memory is uncertain; and one
of the earliest improvements consists in the establishment of a sort
of public record kept by the magistrate, lord or other local authority,
containing a series of contemporary notes of the effect of the
various transactions that take place. This book becomes the general
title-deed of the whole community, and as long as transactions
remain simple, and not too numerous, the results appear to be
satisfactory. Of this character are the Manorial Court Rolls, which
were in the middle ages the great authorities on title, both in
England and on the continent. The entries in them in early times
were made in a very few words. The date, the names of the parties,
the name or short verbal description of the land, the nature of the
transaction, are all that appear. In the land registry at Vienna there
is a continuous series of registers of this kind going back to 1368, in
Prague to 1377, in Munich to 1440. No doubt there are extant
(though in a less easily accessible form) manorial records in England
of equal or greater antiquity. This may be considered the first stage
in the history of Land Registration. It can hardly be said to be in
active operation at the present day in any civilized country—in the
sense in which that term is usually understood. Where dealings
become more numerous and complicated, written instruments are
required to express the intentions of the parties, and afterwards to
supply evidence of the landowner’s title. It appears, too, that as a
general rule the public books already described continue to be used,
notwithstanding this change; only (as would be expected) the
entries in them, once plain and simple, either grow into full copies of
the long and intricate deeds, or consist of mere notes stating that
such and such deeds have been executed, leaving the persons
interested to inquire for the originals, in whose custody soever they
may be found. This system, which may be regarded as the second
stage in the history of land registration, is called Registration of
Deeds. It prevails in France, Belgium, parts of Switzerland, in Italy,
Spain, India, in almost all the British colonies (except Australasia and
Canada), in most of the states of the American Union, in the South
American republics, in Scotland and Ireland, and in the English
counties of Yorkshire and Middlesex. Where it exists, there is
generally a law to the effect that in case of dispute a registered deed
shall prevail over an unregistered one. The practical effect is that a
purchaser can, by searching the register, find out exactly what deeds
he ought to inquire for, and receives an assurance that if, after
completion, he registers his own conveyance, no other deeds—even
if they exist—will prevail against him.

The expenses and delays, not to mention the occasional actual

losses of property through fraud or mistake, attendant on the system
of making every purchaser responsible for the due examination of
his vendor’s title—whether or not assisted by registration of deeds—
have induced several governments to establish the more perfect
system of Registration of Title, which consists in collecting the
transactions affecting each separate estate under a separate head,
keeping an accurate account of the parcels of which each such
estate is composed, and summarizing authoritatively, as each fresh
transaction occurs, the subsisting rights of all parties in relation to
the land itself. This system prevails in Germany, Austria, Hungary,
parts of Switzerland, the Australasian colonies, nearly the whole of
Canada, some of the states of the American Union, to a certain
extent in Ireland, and is in course of establishment in England and
Wales. The Register consists of three portions:—(1) The description
of the land, usually, but not necessarily, accompanied by a reference
to a map; (2) the ownership, giving the name and address of the
person who can sell and dispose of the land; and (3) the
encumbrances, in their order of priority, and the names of the
persons for the time being entitled to them. When any fresh
transaction takes place the instrument effecting it is produced, and
the proper alterations in, or additions to, the register are made: if it
be a sale, the name of the vendor is cancelled from the register, and
that of the purchaser is entered instead; if it be a mortgage, it is
added to the list of encumbrances; if a discharge, the encumbrance
discharged is cancelled; if it is a sale of part of the land, the original
description is modified or the plan is marked to show the piece
conveyed, while a new description or plan is made and a new
register is opened for the detached parcel. In the English and
Australian registries a “land certificate” is also issued to the
landowner containing copies of the register and of the plan. This
certificate takes the place more or less of the old documents of title.
On a sale, the process is as follows: The vendor first of all produces
to the purchaser his land certificate, or gives him the number of his
title and an authority to inspect the register. In Austria and in some
colonial registries this is not necessary, the register being open to
public inspection, which in England is not the case. The purchaser,
on inspecting this, can easily see for himself whether the land he
wishes to buy is comprised in the registered description or plan,
whether the vendor’s name appears on the register as the owner of
the land, and whether there are any encumbrances or other burdens
registered as affecting it. If there are encumbrances, the register
states their amount and who are entitled to them. The purchaser
then usually1 prepares a conveyance or transfer of the land
(generally in a short printed form issued by the registry), and the
vendor executes it in exchange for the purchase money. If there are
mortgages, he pays them off to the persons named in the register as
their owners, and they concur in a discharge. He then presents the
executed instruments at the registry, and is entered as owner of the
land instead of the vendor, the mortgages, if any, being cancelled.
Where “land certificates” are used (as in England and Australia), a
new land certificate is issued to the purchaser showing the existing
state of the register and containing a copy of the registered plan of
the land. The above is only a brief outline of the processes
employed. For further information as to practical details reference
may be made to the treatises mentioned at the end of this article.

England and Wales.—The first attempt to introduce general

registration of conveyances appears to have been made by the
Statute of Enrolments, passed in the 27th year of Henry VIII.
But this was soon found to be capable of evasion, and it became
a dead letter. A Registration Act applying to the counties of
Lancaster, Chester and Durham was passed in Queen Elizabeth’s
reign, but failed for want of providing the necessary machinery
for its observance. The subject reappeared in several bills during
the Commonwealth, but these failed to pass, owing, it would
seem, to the objection of landowners to publicity. In 1669 a
committee of the House of Lords reported that one cause of the
depreciation of landed property was the uncertainty of titles, and
proposed registration of deeds as a remedy, but nothing was
done.
 During the next thirty years numerous pamphlets for and
against a general registry were published. In 1704 the first Deed
Registry Act was passed, applying to the West Riding of
Yorkshire. In 1707 the system was extended to the East Riding,
and in 1708 to Middlesex. These Middlesex and Yorkshire
registries (modified considerably in practice, but not seriously in
principle, by the Yorkshire Registries Acts 1884, 1885, and Land
Registry [Middlesex Deeds] Act 1891) remain in operation, and
are greatly valued by the smaller proprietors and mortgagees,
owing to the security against fraud which they provide at a
trifling cost. The selection of these counties seems capricious: its
probable explanation is that in them trade was flourishing, and
the fortunes made were frequently invested in land, and a
protection against secret encumbrances was most in demand. In
1728 and 1732 Surrey and Derby petitioned, unsuccessfully, for
local registries. In 1735 the North Riding Deed Registry Act was
passed. In 1739 a General Registry bill passed the Commons,
but did not reach the Lords. Next year the Lords passed a similar
bill, but it did not reach the Commons. In 1759 a General
Registry bill was thrown out by a majority of one. In 1784
Northumberland unsuccessfully petitioned for a local registry.
After this the subject went almost out of sight till the Real
Property Commission of 1828. They reported in 1830 in favour
of a general register of deeds, but though several bills were
introduced, none were passed. In 1846 a committee of the
House of Lords reported that the marketable value of real
property was seriously diminished by the tedious and expensive
process of the transfer of land, and that a registry of title to all
real property was essential to the success of any attempt to
simplify the system of conveyancing. In 1850 a Royal
Commission reported in favour of a general register of deeds,
and in 1851 Lord Campbell introduced a bill accordingly, but it
was opposed, and was dropped. In 1853 Lord Cranworth
introduced a bill, which passed the Lords but not the Commons.

Hitherto only registration of deeds had been considered, but

in 1854 a new Royal Commission was appointed, which reported
in 1857 in favour of a register of title. The scheme they
recommended was substantially embodied in a bill introduced in
1859 by Lord Cairns—then Solicitor-General—but a dissolution
stopped its progress. In 1862 Lord Westbury had the satisfaction
of carrying the first act for registration of title. This act enabled
any landowner to register an indefeasible title on production of
strict proof. The proof required was to be such as the court of
chancery would force an unwilling purchaser to accept. Only a
few hundred titles were registered under this act, and in 1868 a
Royal Commission was appointed to inquire into the causes of its
failure. They reported in 1870, making various suggestions of
detail, and especially adverting to the great expense caused by
the strictness of the official investigation of title before a
property could be admitted to the register. In the same year
Lord Hatherley introduced a Transfer of Land Bill, but it was not
proceeded with. In 1873 Lord Selborne introduced a Land Titles
and Transfer Bill, following more or less the recommendations of
the report of 1870, proposing for the first time compulsory
registration of title upon every next sale after a prescribed date.
Lord Cairns again introduced this bill (with some modifications)
in 1874, but it had to be dropped. In 1875 Lord Cairns’s Land
Transfer Act of that year was passed, which was much the same
as the former bill, but without compulsion. This act had no
better success in the way of voluntary general adoption than the
act of 1862, but as its adoption has since been made
compulsory, its provisions are important. Its most noticeable
feature, from a practical point of view, is the additional
prominence given to an expedient called “Possessory”
registration (which also existed under another name in Lord
Westbury’s Act), whereby is removed the great initial difficulty of
placing titles on the register in the first instance. Two sorts of
registration were established, “Absolute” and “Possessory.” The
effect of an absolute registration was immediately to destroy all
claims adverse to the registered title. But this was only to be
granted on a regular investigation of title, which, though not so
strict as under the former act, yet necessarily involved time and
cost. Possessory registration, however, was to be granted to any
one who could show a prima facie title—a quick and cheap
process. But the effect of such registration would not be
immediately felt. It would not destroy existing adverse claims. It
would only prevent new difficulties from arising. In course of
time such a title would be practically as good as an absolute
one. In 1885 the duke of Marlborough introduced a bill for a
registry of titles, and in the following vacation Lord Davey wrote
three letters to The Times advocating the same thing on the
general lines afterwards adopted.2 In 1887 Lord Halsbury, by
introducing his Land Transfer Bill, commenced a struggle with
the opponents of reform, which, after ten years of almost
continuous effort, resulted in the passing of his act of 1897,
establishing compulsory registration of title. Lord Halsbury
introduced bills in 1887, 1888 and 1889. Lord Herschell, who
succeeded him after the change of government, introduced bills
in 1893, 1894 and 1895, these last three being unanimously
passed by the House of Lords on every occasion. The bill of
1895 reached committee in the Commons, but was stopped by
the dissolution of parliament. In 1897 Lord Halsbury (who had
returned to the woolsack) again introduced the same bill with
certain modifications which caused the Incorporated Law Society
to withdraw its opposition in the House of Commons, and the
act was finally passed on the last day of the session. Under it
the Privy Council has power to issue orders declaring that on a
certain date registration of title is to be compulsory on sale in a
given district. The effect of such an order is to oblige every
purchaser of land in the district after that date to register a
“possessory title,” immediately after his purchase. The
compulsory provisions of the act extend to freeholds and (by a
rule afterwards made) to leaseholds having forty years to run.
No order except the first can be made, save on the request of a
county council. The first order was made in July 1898. It
embraced the whole administrative county of London (including
the City of London), proceeding gradually by groups of parishes.
Under this order upwards of 122,000 titles had been registered
by 1908, representing a value exceeding one hundred millions
sterling.

Under the operation of this act, at the expense of a slightly

increased cost on all transactions during a few years, persons
dealing with land in the county will ultimately experience great
relief in the matter both of cost and of delay. The costs of a sale
(including professional assistance, if required) will ultimately be
for the vendor about one-fifth, and for the purchaser (at the
most usual values) less than half, of the present expenses. The
delay will be no more than in dealings with stock. Mortgagees
will also be protected from risks of fraud, which at present are
very appreciable, and of which the Redgrave and Richards cases
are recent examples. Further particulars of the practical
operation of the acts will be found in the Registrar’s Reports of
1902 and 1906, embracing the period from 1899 to 1905
inclusive, with comments on the general position, suggestions
for future legislation, &c. In the autumn of 1908 a Royal
Commission under the chairmanship of Lord St Aldwyn, was
appointed to inquire into the working of the Land Transfer Acts.
The evidence given before them in October, November and
December 1908 comprised a general exposition by the registrar
of the origin and history of the acts, and the principles of their
working, and suggestions for amendments in certain details. It
also comprised the experience of several landowners and others,
who had found the acts highly beneficial, and who had carried
through a large number of dealings under absolute titles,
without professional help, very quickly, and at a greatly reduced
cost.

Scotland.—In Scotland registration of deeds was established

by an act of 1617, which remained unaltered till 1845. There are
also acts of 1868 and 1874. The registry is in Edinburgh. Deeds
are registered almost invariably by full copy. The deeds are
indexed according to properties—each property having a
separate number and folio called a “search sheet,” on which all
deeds affecting it are referred to. About 40,000 deeds are
registered annually. The consequence of the existence of this
register is to render fraud in title absolutely unknown. Forty
years is the usual period investigated. The investigation can, if
desired, be made from the records in the registry alone. The
fees are trifling, but suffice to pay the expenses of the office,
which employs between 70 and 80 permanent officers in
addition to temporary assistants. The total costs of conveyancing
amount, roughly speaking, to between 1 and 2% on the
purchase money, and are equally shared between vendor and
purchaser. In 1906 a royal commission was appointed, with Lord
Dunedin as chairman, to inquire into the expediency of
instituting in Scotland a system of registration of title.

Australia and New Zealand.—These states now furnish the

most conspicuous examples in the British empire of the success
of registration of title. But prior to the year 1857 they had only
registration of deeds, and the expense, delay and confusion
resulting from the frequent dealings appear to have been a
crying evil. Sir Robert Torrens, then registrar of deeds in South
Australia, drew up and carried an act establishing a register of
title similar to the shipping register. The act rapidly became
popular, and was adopted (with variations) in all the other
Australasian states in the years 1861, 1862, 1870 and 1874.
Consolidating and amending acts have since been passed in
most of these states. Only absolute title is registered. All land
granted by government, after the passing of the several acts, is
placed on the register compulsorily. But voluntary applications
are also made in very large numbers. It is said ordinary
purchasers will not buy land unless the vendor first registers the
title. The fees are very low—£1 to £3 is a usual maximum—
though in some states, e.g. Victoria, the fees rise indefinitely, ad
valorem, at a rate of about 10s. per £1000. Insurance funds are
established to provide compensation for errors. At a recent date
they amounted to over £400,000, while only £14,600 odd had
been paid in claims. All the registries pay their own expenses.
Bankers and men of business generally are warm in their
appreciation of the acts, which are popularly called Torrens Acts,
after their originator, who, though not a lawyer, originated and
carried through this important and difficult legal work.

Canada.—Registration of title was introduced in Vancouver

Island in 1861, was extended to the rest of British Columbia in
1870, and was in 1885 adopted by Ontario, Manitoba and the
North-West Territories. Only Quebec, Nova Scotia, New
Brunswick and Prince Edward Island retain the old English
system, plus registration of deeds. The three provinces which
have adopted registration of title have adopted it in somewhat
different forms. In British Columbia it is similar to Lord
Westbury’s Act of 1862. The North-West Territories follow closely
the Torrens Acts. The Ontario Act is almost a transcript of Lord
Cairns’s Act of 1875. The fees are very low, seldom exceeding a
few shillings, but all expenses of the office are paid from this
source. The Ontario registry has five district offices, as well as
the central one at Toronto. This is apparently the only colonial
registry not open to public inspection.

Other British Colonies.—In the other British colonies private

investigation of title, plus registration of deeds, is the prevailing
system, but registration of title has been introduced in one or
two instances.

Germany and Austria-Hungary.—By far the most important

examples of registration of title at present existing—because
they show how the system works when applied to large
European communities, with all the intricacies and complications
of modern civilized life—are to be found in Germany and Austria-
Hungary. In some parts of these countries registration of title
has been established for several centuries—notably in Bohemia;
in most parts it has existed for the greater part of the 19th
century; in some districts, again, notably Tirol and the Rhine
Provinces, it is still in course of introduction. In all cases it
appears to have been preceded by a system of deed
registration, which materially facilitated its introduction. In some
cases, Prussia, for instance, the former registers were kept in
such a way as to amount in themselves to little short of a
registry of title. Very low scales of fees suffice to pay all official
expenses. In Prussia the fees for registering sales begin at 5d.
for a value of £1; at £20 the fee is 2s 7d.; at £100 it is 7s. 3d.;
at £1000 it is £1, 10s.; at £5000, £4, 5s., and so on. In case of
error, the officials are personally liable; failing these, the state.
Other states are very similar. In 1894, 1,159,995 transactions
were registered in Prussia. In 1893, 938,708 were registered in
Austria. Some idea of the extent to which small holdings prevail
in these countries may be gathered from the fact that 36% of
the sales and mortgages in Austria were for under £8, 6s. 8d.
value—74% were for under £50. Owing to the ease and
simplicity of the registers, it is not always necessary to employ
professional help. When such help is required, the fees are low.
In Vienna £1 is a very usual fee for the purchaser’s lawyer. £10
is seldom reached. In Germany the register is private. In Austria
it is open to public inspection. In these registers may be found
examples of large estates in the country with numerous charges
and encumbrances and dealings therewith; peasants’ properties,
in numerous scattered parcels, acquired and disposed of at
different times, and variously mortgaged; town and suburban
properties, flats, small farms, rights to light and air, rights of
way, family settlements, and dealings of all sorts—inheritances
and wills, partitions, bankruptcies, mortgages, and a great
variety of dealings therewith. The Continental systems are
usually administered locally in districts, about 20 to 30 m.
across, attached to the local law courts. In Baden and
Württemberg every parish (commune) has its own registry. All
ordinary dealings are transacted with the greatest expedition.
Security is absolute.3

The United States.—Up to a late date the ordinary English

system, with registration of deeds, was universal in the United
States. The registries appear to go back practically to the
original settlement of the country. Registration is by full copy. It
is said that in the large towns the name indexes were often
much overgrown owing to the want of subdivision into smaller
areas corresponding to the parishes into which the Middlesex
and Yorkshire indexes are divided. In the New York registry not
many years ago 25,000 deeds were registered annually. At the
same time 35,000 were registered in Middlesex. Complaints are
made by American lawyers of want of accuracy in the indexes
also. In 1890 an act was passed in New York for splitting the
indexes into “blocks,” which is believed to have given much
relief. The average time and cost of an examination of title, as
estimated by a committee of the Bar Association of New York in
1887, was about thirty days and 150 dollars (about £30). A later
State Commission in Illinois estimates the law costs of a sale
there at about 25 dollars (£5); the time may run into many
months. Allusion has already been made to the insurance of title
companies. The rates of insurance are substantial, e.g. 65
dollars (£13) on the first 3000 dollars (£600), and 5 dollars (£1)
on each additional 1000 dollars (£200). This would amount to
£20 on £2000 value, £110 on £20,000, £510 on £100,000. The
guarantee given is very ample, and may be renewed to
subsequent owners at one-third of the fee. Registration of title
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