What Constitutes the Relationship of Landlord and Tenant - Tenancy on Sufferance - Tenancy at Will - Yearly Tenancy - Definition of a Lease - An Assignment - A Licence
Whenever a person, whether the owner of the freehold or not, who is possessed of an interest in real property, grants to another, for an annual or some other periodical consideration, an estate or interest less than freehold, and less than he himself possesses, the relationship of landlord and tenant is created.
Of estates less than freehold there are three kinds - estates or tenancies at will, tenancies from year to year, and tenancies for a term of years. There is also an estate or "tenancy at sufferance," but that can only arise when a tenant under one of the first three heads holds over, or continues in possession at the end of his term without the consent, either express or implied, of his landlord, and is a mere fiction of the law to prevent what would otherwise be an act of trespass.
A tenancy at will, which must be founded on contract binding both parties and endures at the will of both, may be created by express words - e.g., to hold " at the will and pleasure " of the lessor, or whilst the lessee "shall be permitted to remain tenant," or "as long as both parties please." It is ended by the death of either the grantor or the tenant, and the latter is entitled to the emblements produced by his sowing unless he concludes his tenancy by his own act during his life.
The grantor of an estate at will may also end the tenancy by giving his tenant express notice to that effect, or by doing some act as owner of the land, such as distraining for rent or entering on the land and cutting timber. The tenant may terminate his tenancy by notice to the landlord, or by giving up possession, or by assigning the estate, or by doing some act of ownership, such as committing waste - e.g., felling timber, or doing or neglecting to do other acts which injure the value of the property, such as damaging buildings, or suffering them to decay for want of repairs.
Where a tenancy at will arises by implication as from a mere general letting, it may be readily converted into a tenancy from year to year.
A tenancy from year to year, like tenancy at will, may be created by express agreement between the parties, or may arise by implication of law. A lease from year to year simply, "so long as both parties please," is only a lease for a year certain. A letting " for a year, and so on from year to year," is one for two years at least. A tenancy "for six months, and so from six months to six months until determined by either party," is one for twelve months at least. But a letting "for twelve months certain and six months' notice to quit afterwards" has been held a tenancy for one year certain only, and determinable at the end of that time.
A lease by which land is demised at an annual rent (whether payable quarterly or otherwise), but no term is expressly limited, impliedly creates a tenancy from year to year.
If the rent is described as a yearly rent, or so much "per year," even though it be payable quarterly or weekly, the tenancy will be presumed to be a yearly one. And the fact that power is given to the parties to end the tenancy during the year makes no difference. But if there is an express stipulation
Law that the tenant may always be turned out at a quarter's notice or upon a month's notice, the presumption will be that the tenancy is a quarterly or a monthly one.
This estate or tenancy is one which is limited to some fixed and certain period of time, and is sometimes called a "term." It may be for a specified number of years, or for a single year, or for any less period. An estate for years is, in a legal sense, inferior in quantity to an estate in fee simple, or in tail or for life; even though the term be practically a perpetuity, as where land is granted for 1,000 years. The explanation of this inferiority carries us back to the early feudal law by which the tenant was not entitled to the ownership of the land during the term, but had merely a right of possession as against his- landlord. The grantor of this estate is called the "lessor" or" landlord," and the grantee the "lessee" or "tenant," the estate itself being popularly known as leasehold.
A conveyance is the instrument by which estates and interests in land are transferred, and a lease is a conveyance by which a person having an estate in lands or other hereditaments, transfers a portion of his interest to another, usually in consideration for rent or other recompense, retaining what is called the "reversion." Such a demise is a lease, and the parties to it are respectively lessor and lessee, but not necessarily landlord and tenant, for a lease may be of incorporeal hereditaments such as a right of way or an advowson.
A distinction must be drawn between a lease and an assignment, and a licence and an agreement for a lease.
Should the lessor grant the whole of his interest without retaining the reversion it would not be a lease, but an assignment; and unless the grantee gets exclusive possession of some defined portion of land, or of a house or room, for some definite period, the agreement, although in the form of a lease and described as a letting, will be nothing more than a mere licence. Thus, the letting of a stall at an exhibition between certain hours of the day for several weeks confers a licence only, and so, too, in many cases does the letting of lodgings. According to the authorities it would appear that in the case of lodgers whose landlords reside on the premises, and furnish service or attendance in their apartments, that there is no exclusive occupation, and, consequently, there is no tenancy, no rateability, and no distress. A licence cannot, unless coupled with an interest in land, be assigned like a lease to a third party; it confers upon the licensee no right or title to sue strangers in respect of it in his own name, and it is at once determined on the grantor ceasing to own the property over which it is exercised.
A lease is usually under seal, and by the Statute of Frauds the power to make leases by parol is limited to those not exceeding three years from the making, and where the rent is two-thirds at least of the improved value of the premises. A lease required by law to be in writing is void unless made by deed.
An agreement for a lease is not of quite the same value as a lease unless the tenant is in possession, and has expended money on the premises on the faith of a promise to grant a lease, in which case the courts will enforce specific performance, i.e. - make the landlord give him a lease and restrain him from ousting his tenant. Agreements for leases should be accompanied by a memorandum or note in writing, signed by the landlord or his representative.
Agreements for letting portions of houses, such as flats, or even furnished apartments, where the exclusive enjoyment of specified rooms is stipulated for, should also be made in writing.
Composition of a Lease
The instrument intended for a lease should contain the parties to the deed by name and description, the date of its execution, the recitals of its purpose (if required), the parcels or description of the land, the declaration of the commencement and term of letting, the consideration and receipt, the covenant for quiet enjoyment, and proviso for re-entry.
As a general rule, all persons may be parties by making or accepting leases. But inasmuch as all contracts made by minors are voidable and require ratification after the infant has attained his majority to make them enforceable against him, when dealing with an infant landlord or infant tenant, as the case may be, it is advisable to carry through the business with his guardian or trustees. An infant can, however, make a valid lease of his lands, and an infant lessee who occupies until his majority is liable for arrears of rent which have accrued during his minority.
An infant hired a house, and agreed to pay the landlord 100 for the furniture, paying down £60 cash and giving a promissory note for the balance. After some months' use of the house and the furniture he came of age, and then brought an action to have the contract and the promise to pay the 40 set aside, and to recover the money he had paid. He was successful in getting the contract and the note rescinded, but not in recovering the money paid for the furniture of which he had enjoyed the benefit.
An infant member of a building society received an allotment of land, and for four years after he came of age paid instalments of the purchase money. He then endeavoured to repudiate the contract, but was not allowed to do so.