At the present day, one of the most important kinds of chattel or personal interests in landed property is a term of years, by which is understood, not the time merely for which a lease is granted, but also the interest acquired by the lessee. Terms of years may practically be considered as of two kinds; first, those which are created by ordinary leases, which are subject to a yearly rent, which seldom exceed ninety-nine years, and in respect of which so large a number of the occupiers of lands and houses are entitled to their occupation; and, secondly, those which are created by settlements, wills, or mortgage deeds, in respect of which no rent is usually reserved, which are frequently for one thousand years or more, which are often vested in trustees, and the object of which is usually to secure the payment of money by the owner of the land. But although terms of years of different lengths are thus created for different purposes, it must not, therefore, be supposed that a long term of years is an interest of a different nature from a short one. On the contrary, all terms of years of whatever length possess precisely the same attributes in the eye of the law.
The consideration of terms of the former kind, or those created by ordinary leases, may conveniently be preceded by a short notice of a tenancy at will, and a tenancy by sufferance. A tenancy at will may be created by parol (a), or by deed; it arises when a person lets land to another, to hold at the will of the lessor or person letting (b). The lessee, or person taking the lands, is called a tenant at will; and, as he may be turned out when his landlord pleases, so he may leave when he likes. A tenant at will is not answerable for mere permissive waste (c). He is allowed, if turned out by his landlord, to reap what he has sown, or, as it is legally expressed, to take the emblements (d). But, as this kind of letting is very inconvenient to both parties, it is scarcely ever adopted; and, in construction of law, a lease at an annual rent, made generally without expressly stating it to be at will(e), and without limiting any certain period, is not a lease at will, but a lease from year to year (f), of which we shall presently speak. When property is vested in trustees, the cestui que trust is, as we have seen (g) absolutely entitled to such property in equity. But as the courts of law do not recognize trusts, they consider the cestui que trust, when in possession, to be merely the tenant at will to his trustees (h). A tenancy by sufferance is when a person, who has originally come into possession by a lawful title, holds such possession after his title has determined.
Two kinds of terms of years.
A tenancy at will.
A lease from year to year is a method of letting very commonly adopted: in most cases it is much more advantageous to both landlord and tenant than a lease at will. The advantage consists in this, that both landlord and tenant are entitled to notice before the tenancy can be determined by the other of them. This notice must be given at least half a year before the expiration of the current year of the tenancy (i); for the tenancy cannot be determined by one only of the parties, except at the end of any number of whole years from the time it began. So that, if the tenant enter on any quarter day, he can quit only on the same quarter day: when once in possession, he has a right to remain for a year; and if no notice to quit be given for half a year after he has had possession, he will have a right to remain two whole years from the time he came in; and so on from year to year. A lease from year to year can be made by parol or word of mouth (j), if the rent reserved amount to two-thirds at least of the full improved value of the lands; for if the rent reserved do not amount to so much, the Statute of Frauds declares that such parol lease shall have the force and effect of a lease at will only (k). A lease from year to year, reserving a less amount of rent, must be made by deed (l). The best way to create this kind of tenancy is to let the lands to hold "from year to year" simply, for much litigation has arisen from the use of more circuitous methods of saying the same thing (m).
Cestui que trust tenant at will.
Tenancy by sufferance.
Lease from year to year.
(a) Stat. 29 Car. II. c. 3, s. 1.
(b) Litt. s. 68; 2 Black. Com. 145.
(c) Harnett v. Maitland, 15 Mec. & Wels. 257.
(d) Litt. s. 68; see Graves v. Weld, 5 B. & Adol. 105.
(c) Doe d. Bastow v. Cox, 11 Q . B. 122; Doe d.. Dixie v. Davies,
7 Exch. Rep. 89.
(f) Right d. Flower v. Darby, 1 T. Rep. 159, 163.
( g) Ante, p. 157.
(h) Earl of Pomfet v. Lord Windsor, 2 Ves. sen. 472, 481. See Milling . Leak, 16 C. B. 652.
A lease for a fixed number of years may, by the Statute of Frauds, be made by parol, if the term do not exceed three years from the making thereof, and if the rent reserved amount to two-thirds, at least, of the full improved value of the land(n). Leases for a longer term of years, or at a lower rent, were required, by the Statute of Frauds (o), to be put into writing and signed by the parties making the same, or their agents thereunto lawfully authorized by writing. But a lease of a separate incorporeal hereditament was always required to be made by deed(p). And the act to amend the law of real property now provides that a lease, required by law to be in writing, of any tenements or hereditaments shall be void at law, unless made by deed(q). But such a lease, although void as a lease for want of its being by deed, may be good as an agreement to grant a lease, ut res magis valeat quam pereat (r). It does not require any formal words to make a lease for years. The words commonly employed are "demise, lease, and to farm let;" but any words indicating an intention to give possession of the lands for a determinate time will be sufficient (s). Accordingly, it sometimes happened, previously to the act, that what was meant by the parties merely as an agreement to execute a lease, was in law construed as itself an actual lease; and very many law suits arose out of the question, whether the effect of a memorandum was in law an actual lease, or merely an agreement to make one. Thus, a mere memorandum in writing that A. agreed to let, and B. agreed to take, a house or farm for so many years, at such a rent, was, if signed by the parties, as much a lease as if the most formal words had been employed (t). By such a memorandum a term of years was created in the premises, and was vested in the lessee, immediately on his entry, instead of the lessee acquiring, as at present, merely a right to have a lease granted to him in accordance with the agreement (u).