This section is from the book "American Commercial Law Series ", by Alfred W. Bays. Also available from Amazon: American commercial law series.
In this chapter we will consider the estates less than freehold, and that subject involves a consideration of the rights of landlord and tenant.
The estates which are less than freehold usually (though not necessarily) involve the relationship of landlord and tenant, as those terms are used in modern law (for in one sense the owner of any estate in land, including the fee, is a tenant). We will therefore consider some phases of the modern law of landlord and tenant.
The estates less than freehold are those for years, from year to year, and at will or by sufferance.
An estate for years is any estate for a definite period of time as one year or ten years or ninety-nine years. An estate for less than a year if of a definite duration is, technically, an estate for years.
An estate from year to year is an estate running by periods of a year, and is terminable by either party by proper notice at the end of any year. An estate from quarter to quarter or month to month is an estate similar to an estate from year to year. These estates are called periodic tenancies, to indicate that they run by periods.
An estate at will is an estate terminable at the will of either party at any time, without any special notice.
An estate at sufferance is an estate by the mere sufferance of the landlord. It is an unusual estate and is very similar to the estate at will, except that it is technically used to indicate certain unusual situations.
Periodic tenancies may be created by agreement or by holding over by the tenant after an estate for years has expired.
A periodic tenancy (e. g., from year to year) may arise from the agreement of the parties that it shall run by periods until terminated by notice. Thus an estate from month to month often arises under an agreement that the tenancy shall be from month to month, that is, not for one month, but indefinitely by the month. But periodic tenancies also arise where the tenant having a tenancy for a certain length of time, holds over. In that case he holds by periods according to the period of an original letting. Thus if a tenant for a month holds over he becomes a tenant from month to month. So, if he holds for a year, by holding over, he becomes a tenant for another year, and from year to year.
It is the law that where a tenant holds over after his term has expired, the landlord may treat him as a tenant for another like period or may treat him as a trespasser.74 He must, however, treat him as one or the other, and having made his election he is bound thereby and this election may be shown by act as well as by words. Thus receiving rent or in any way treating the hold-over tenant as a tenant, shows an election upon which the landlord is bound and the tenant may then claim a tenancy for the year.
74. Goldsbrough v. Gable, 140 111. 269.
In holding over, the intent of the tenant is immaterial. He holds over at the risk of the landlord electing to hold him as tenant for the period ensuing, or a trespasser.
The tenancy thus created goes on upon the same terms as the former tenancy. Thus, if a tenant should hold over and should be recognized as a tenant, the landlord could not raise the rent, any more than he could have done so during the first year.
What is true in respect to holding over in tenancies for a year is true in respect to tenancies for a month.
Periodic tenancies also arise out of tenancies at will, as the tendency of such tenancies is to become periodic, as where one rents a residence for no stated time and afterwards it is by payment of rent or otherwise treated as a periodic tenancy. This would be evidence that it had become such.
The letting may be oral or in writing. But oral tenancies for more than one year are not enforceable unless in writing signed by the party sought to be charged. A lease is a written document setting out the fact the letting, and all the terms in reference thereto.
The contract of letting may be oral. If a longer period than one year or if it shall expire more than one year from the date of the making it is within the statute of frauds, and therefore unenforceable unless in writing and signed by the party sought to be charged. But tenancies from year to year are enforceable without any writing.
Where the contract of letting is drawn up in regular form the writing is called a lease. See a form in the appendix. This lease states the rent reserved, the terms of the tenancy, etc., and is usually more favorable to the landlord than to the tenant because provided by and drawn in the interests of the landlord.
The lease, except as we have shown, is not necessary, but desirable, and its provisions constitute the contract.
Rent is the compensation provided for the use of the premises by the tenant.
The rent is that which is agreed upon as payable by the tenant to the landlord for the use of the premises. It may be in money or produce. Farms are sometimes rented "on shares." Rent is usually stated to be an entire sum for the period, payable in monthly installments. It is usually also payable in advance by the terms of the lease. Otherwise it is not payable in advance.
The tenant must pay the rent so long as he occupies the premises as a tenant, even though the landlord is not fulfilling his obligation. But if the tenant is forced to move because of the landlord's default, or is actually ousted from all or a part of the premises, the tenant's obligation to pay rent ceases.
The covenant of the tenant to pay rent is independent of the covenants of the landlord in respect to the care of the premises. The tenant cannot hold back the rent for the landlord's neglect to repair, to furnish the proper amount of heat, etc., so long as the tenant continues to occupy the premises. The tenant's remedy is to make the repairs himself and charge the landlord, or, where he suffers damages attributable to the landlord, to sue for such damages.
Where the tenant is evctied, his obligation to pay rent-ceases. Eviction is of two sorts, actual and constructive.
and in either case the defense is good. Actual eviction is the actual ouster of the tenant by the landlord from the premises by force. In case the tenant is thus ousted from only a part of the premises, he may continue to occupy the rest without any obligation to pay rent or any part thereof. Thus if he rents a flat containing seven rooms and the landlord enters without leave and occupies one of the rooms, the tenant is under no obligation to pay rent until the landlord's occupation ceases. This is actual eviction, and might, of course, extend to the whole of the premises.
Constructive eviction exists where the landlord does an act or pursues a course of conduct which justifies the tenant in leaving the premises and on account of which he does actually leave the premises, as where the landlord is under obligation to furnish heat and fails to do so in sufficient temperature. Here the tenant may abandon the premises on the theory that the landlord has evicted him; but until he does abandon the premises, he cannot refuse to pay rent. As long as one does actually occupy premises he must pay rent, though indeed he might have counterclaims against the landlord. And in leaving the premises, the tenant must be sure that the conduct of the landlord is such as to justify him doing so. In constructive eviction, then, there must be actual abandonment of all the premises.75