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 .
At common law a lease of land could be made without any writing, though, if for life, livery of seisin was necessary.27 This was changed by the first section of the Statute of Frauds,28 which provided that all leases, estates, interests of freehold, or terms of years, or any uncertain interest, in, to, or out of lands, tenements or hereditaments, not put in writing and signed by the parties so making or creating the same or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only. But an exception was made, by the second section of the statute, of "leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount to two thirds parts at the least of the full improved value of the thing demised."
25. See post Sec. 53(b).
26. As to the question whether one in possession as tenant of one person can attorn to another person, see 1 Tiffany, Landlord & Tenant Sec. 19 b, c.
The English statute is in force in at least two jurisdictions in this country, while in several there are provisions substantially similar to the first section of that statute.29 In a considerable number of states it is provided in effect that no estate for over a term specified, usually one year, shall be created except by writing, such provisions being practically equivalent to the first two sections of the English statute, except that they reduce the period for which an oral lease may be made. In some states there is a provision to the general effect that an agreement or contract for the leasing of land for longer than one year is invalid if not in writing, the modes of expression varying to some extent. The distinguishing characteristic of this latter class of enactments is that they speak of an "agreement" or "contract for leasing" rather than of a lease or conveyance. As before stated,30 the reference to a lease as an "agreement" or a "contract" has the effect of obscuring the important fact that it is a conveyance, transferring an estate to the lessee, a fact which is clearly recognized by the first class of statutory provisions above referred to. Properly speaking, an "agreement (or contract) for leasing" means an agreement to make a lease, and the fact that these statutory provisions usually invalidate in terms an agreement for leasing "or for the sale of" an interest in land would seem to show that this is the proper construction of the language used, an agreement to make a lease and an agreement to sell being both executory contracts, clearly distinguishable from a lease or conveyance in fee, either of which involves the actual transfer of an estate. Thus regarded, the provisions here in question would correspond to the fourth section of the English statute, which provides that no action shall be brought on any contract or sale of lands, or any interest in or concerning them, unless the agreement or some memorandum thereof is in writing, signed by the person to be charged.31 That this was the view of the persons who prepared the Revised Statutes of New York, from which the provision has been adopted in other states, appears from their own statement.32 So far as regards either this state, or the other states in which such a provision is found in addition to a provision of the character before referred to, expressly invalidating oral leases for over one year, the provision is, if regarded as referring to a lease rather than a contract to make a lease, utterly superfluous.
27. Litt. Sec. 60; Co. Litt. 9a, 49b; 2 Platt. Leases, 1.
28. 29 Car. 2, c. 3, Sec. 1 (A. D. 1677).
29. The various statutes are referred to in detail in 1 Tiffany, Landlord & Ten. Sec. 25b.
30. Ante Sec. 39.
There is still a third form of statutory enactment bearing upon the subject of parol leases, which is found in a number of states, to the effect that "no action shall be brought upon" a lease (or contract for leasing) for a longer period than one year, if not in writing, a form of provision which has the defect of regarding a lease purely as a contract rather than as primarily a conveyance. Such a provision might mean that no action can
31. In Tillman v. Fuller, 13 Mich 113 it is clearly stated by Christiancy, J., one of the greatest of American judges, that such a clause refers to anexecutory agreement for a lease. And see be brought upon any contract made at the time of leasing or implied from the relation of landlord and tenant created thereby,33 or to obtain possession of the land upon the strength of the lease, but regarded as an intended substitute for the first section of the English statute, an enactment so worded is evidently defective in not providing for the simple case of one already in possession under such an oral lease who desires to retain possession until the end of the term named thereby. The statutory provision precludes him from bringing suit on the strength of the oral lease, but it in no way precludes him from defending his possession on the strength thereof. So far as such a provision may be found in any jurisdiction in company with a provision of the first class above mentioned, expressly invalidating an oral lease, it seems entirely superfluous, unless it be construed as referring merely to an executory contract to make a lease. Such a construction, however, does not appear to have been given it by any decision.34
Hand v. Osgood, 107 Mich. 55, 30 Y. R. A. 379, 61 Am. St. Rep. 312, 64 N. W. 867 to the same effect.
32. 1 Tiffany, Landlord & Ten. Sec. 25, note 348.
There is probably in every state a statutory provision corresponding to that of the English statute to the effect that no action shall be brought upon any agreement which is not to be performed within one year of the making thereof. In a number of states the courts have regarded such a provision as invalidating any lease which will not terminate within one year from its making, as for instance a lease for a year to begin in futuro35 while in other states it has been regarded as