This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
An estate for years is almost invariably created by a lease, though it may be created by a will, or by a conveyance which disposes of the estate of the grantor by way of remainder upon the estate for years.
The word "lease" unfortunately, is used in different senses. Its primary signification is well given by Black-stone13 as properly a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor hath in the premises." And that a lease is a conveyance has been frequently judicially recognized.14 The word lease is also used in a more extended sense to describe not only the legal act, the conveyance, by which a lesser estate is ves11. Co. Litt. 118a; 2 Blackst. Comm. 386; 2 Pollock & Maitland, Hist. Eng. Law 115, 329.
12. In a few states, however, statutes have been passed giving terms for a considerable number of years the character of real property for certain purposes. See 1 Tiffany, Landlord & Ten. Sec. 12, note 19.
13. 2 Blackst. Comm. 317. See also, to the same effect, 1 Platt, Leases, 1; Sheppard's Touchstone 266; Comyn, Landlord & Ten. 51; Woodfall, Landlord & Ten. (16th Ed.) 132.
14. Carlton v. Williams, 77 Cal. 89, 11 Am. St. Rep. 243, 19 Pac. 185; Chandler v. Hart, 161 Cal.
405, Ann. Cas. 1913 B 1094, 119 Pac. 516; McKee v. Howe, 17 Colo. 538, 31 Pac. 115; New York, C & St. L. Ry. Co. v. Randall, 102 Ind. 453, 26 N. E. 122; Matting-ly's Ex'r v. Brents, 155 Ky. 570, 159 S. W. 1157; Craig v. Summers, 47 Minn. 189, 15 L. R. A. 236, 49 N. W. 742; Crouse v. Mitchell, 130 Mich. 347, 97 Am. St. Rep. 479, 90 N. W. 32; In re Tuohy's Estate, 23 Mont. 305, 58 Pac. 722; Shimer v. Inhabitants of Town of Phil-lipsburg, 58 N. J. L. 506, 33 Atl. 852; Averill v. Taylor, 8 N. Y. 44; Wren v. Simpson, 2 Phila. (Pa.) 158; State v. Morrison, 18 Wash. 664, 52 Pac. 228; Shepard v. Sullivan, 94 Wash. 134, 162 Pac. 34; ted in another, but, in addition, the legal act or acts by which various contractual obligations are created in connection with such conveyance, that is, it is applied to an aggregate of simultaneous legal acts, by one of which a lesser estate is transferred to another, and by another or others of which the transferor or transferee, or both, contract to do or leave undone certain things. In other words, it describes a lease in the sense first referred to plus what are usually described as the "covenants of the lease." A third sense in which the word "lease" is frequently used is to describe the written instrument in which such a conveyance, and the covenants connected therewith, may be incorporated. When we speak of the execution of a lease, for instance, we evidently use the word lease in a sense different from that in which we use it when we say that a lease for less than three years need not be in writing. Any ambiguity in this respect can be avoided by the use of the expression "instrument of lease." The word lease is also used, as before remarked, by a sort of metonymy, to describe the estate rated by the lease.
Not infrequently the courts use the expression "contract of lease" instead of "lease," thus ignoring the fact that a lease is, primarily, not a contract but a conveyance. The expression "contract of lease," if used at all, should be applied merely to the aggregate of the covenants into which the parties may have entered in connection with the making of the conveyance by way of lease. By the making of a lease an interest in land is transferred, and such an interest cannot be transferred by a contract, the function of which is to create an obligation. Similar to the use referred to of the expression "contract of lease" is the expression, used in some of the Southern states, "rental contract," and we not infrequently see the expression "breach of lease" or "breach of lease contract," meaning thereby the breach of some contractual stipulation contained in the instrument of lease. The use of such expressions in jurisdictions in which the common law view of the subReal Property.
[ Sec. 40 ject is supposed to control, is to be regretted as calculated to obscure the real nature of the transaction. There is, in the absence of a statutory provision to the contrary, no limit to the length of the term which may be created15 but in several states there are such provisions.16 The Alabama statute, providing that no leasehold estate can be created for a longer term than twenty years, has been regarded as invalidating the lease only as to the excess over the period named17 but a different view has been taken in New York as to a provision that no lease of agricultural lands for over twelve years, reserving rent, shall be valid, and such a lease was there held to be void in toto.l8