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 .
A transfer by the tenant of an estate in the whole premises less than his own estate is, it is generally agreed, a sublease and not an assignment,14a the transferor's estate becoming one in reversion, a "sub-reversion."15 And it is immaterial in this regard that the estate transferred is but slightly less than that of the transferor.16
Greenleaf v. Allen, 127 Mass. 248; Van Rensselaer's Ex'rs v. Platner, 2 Johns. Cas. (N. Y.) 17; Pate v. Oliver, 104 N. C. 458, 10 S. E. 709.
12. Walker's Case, 3 Coke, 22 a; Thursby v. Plant, 1 Wms. Saund. 237, note (1); Howland v. Coffin, 26 Mass. (9 Pick.) 52, 29 Mass. (12 Pick.) 125; McKeon v. Whitney, 3 Denio (N. Y.) 452.
13. Post Sec. 279.
14. Post, Sec. 56.
15. Derby v. Taylor, 1 East 502; Wheeler v. Hill, 16 Me. 329; May-hew v. Hardesty, 8 Md. 479; Doty v. Heth, 52 Miss. 530; St. Joseph & St. L. R. Co. v. St. Louis, I. M. & S. Ry. Co., 135 Mo. 173, 33 L. R. A. 607, 36 S. W. 602; Stewart V. Long Island R. Co., 102 N. Y.
601, 55 Am. Rep. 844, 8 N. E. 200.
Consequently, if a tenant for years lets premises to another to hold at will, the latter is his subtenant and not his assignee. Austin v. Thomas, 45 N. H. 113; Cross v. Upson, 17 Wis. 618. And so if a tenant for a term of a year or more lets to hold from year to year. Austin v. Thompson, 45 N. H. 113; Peirse v. Sharr, 2 Man. & R. 418. And as hereafter stated (see post Sec. 63), a tenant from year to year has a possibility of a term of indefinite duration, and consequently a lease by him for years is a sublease (Oxley v. James, 13 Mees. & W. 209), as is a lease by such a tenant to another to hold from year to year (Curtis v. Wheeler, 1 Moody & M. 493; Pike v. Eyre, 9 Barn. & C. 909).
16. See Crusoe v. Bugby, 3 Wils. 234; Sexton v. Chicago Storage Co., 129 111. 318, 16 Am. St. Rep. 274, 21 N. E. 920, rev'g
A transfer of the tenant's entire interest in the whole premises, leaving no reversion in him, has usually been regarded, not as a sublease but as an assignment, substituting the transferee as tenant of the landlord in place of the transferor.17 And the fact that the transfer is in form a sublease, or reserves rights as against the transferee similar to such as are ordinarily reserved on a lease, has been considered immaterial.18 There are, however, dicta and decisions to the contrary, that though the entire term is transferred, particular provisions in the instrument of lease may have the effect of rendering the transferee a tenant of the transferor and not of the head landlord.19 There are, for instance, occasional dicta20 and perhaps two decisions,21 to the effect that the insertion, in the instrument of transfer, of covenants different from those in
30 111. App. 95; Van Rensselaer v. Gallup, 5 Denio (N. Y.) 454; Davis v. Morris, 36 N. Y. 569; 2 Preston, Conveyancing, 124.
17. Johnson v. Thompson, 185 Ala. 666, 64 So. 554; Taylor v. Marshall, 255 111. 545, 99 N. E. 638; Craig v. Summers, 47 Minn. 189, 15 L. R. A. 236, 49 N. W. 742; Doty v. Heth, 52 Miss. 530; Hogg v. Reynolds, 61 Neb. 758, 87 Am. St. Rep. 522, 86 N. W. 479; Stewart v. Long Island R. Co., 102 N. Y. 601, 55 Am. Rep. 844, 8 N. E. 200; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481.
18. Langford v. Selmes, 3 Kay & J. 220; Lewis v. Baker  1 Ch. 46; In re Bayley, 177 Fed. 522; Smiley v. Van Winkle, 6 Cal. 605; Lyon v. Moore. 259 111. 23, 102 N. E. 179; Liebschutz v. Moore, 70 Ind. 142, 3.6 Am. Rep. 182; Ohio Iron Co. v. Auburn Iron Co., 64 Minn. 404, 67 N. W. 221; St. Joseph & St. L. R. Co.
V. St. Louis, I. M. & S. Ry. Co., 135 Mo. 173, 33 L. R. A. 607, 36 S. W. 602; Firth v. Rowe, 53 N. J. Eq. 520, 32 Atl. 1064; Wood-hull v. Rosenthal, 61 N. Y. 382; Holden v. Tidwell, 37 Okla. 553, 49 L. R. A. (N. S.) 369, Ann. Cas. 1915C 394, 133 Pac. 54; Campbell v. Cates (Tex. Civ. App.), 51 S. W. 268; Hockersmith v. Sullivan, 71 Wash. 244, 128 Pac. 222.
19. These are discussed at length in 1 Tiffany, Landlord & Ten. Sec. 151.
20. United States v. Hickey, 84 U. S. (17 Wall.) 9, 21 L. Ed. 559; Collamer v. Kelley, 12 Iowa, 319. See Weander v. Claussen Brewing Ass'n, 42 Wash. 226, 114 Am. St. Rep. 110, 7 Ann. Cas. 536, 81 Pac. 735.
21. Drake v. Lacoe, 157 Pa. St. 17, 27 Atl. 538; McClaren v. Citizens' Oil & Gas Co., 14 Pa. Super. Ct. 167.
[ Sec. 55 the original lease, or the reservation therein of a different rent, will render the transfer a sublease and not an assignment. And there are also apparent dicta,22 and occasional decisions,23 to the effect that this will be the result of the insertion, in such transfer of the leasehold estate, of a proviso for re-entry on breach of condition, a view which seems to be based on the erroneous theory that such a right of re-entry is a reversionary interest, and which is opposed by other well considered decisions.24
It would seem on the whole that if the tenant transfers the estate which he has, and not a less estate, the transferee is properly to be regarded as an assignee and not a sublessee, for the purpose of fixing rights and liabilities as between him and the landlord, irrespective of the particular provisions of the instrument of transfer. As between the transferor and the transferee, however, the provisions of the instrument may in some cases be such as to estop either of the parties thereto from denying that as between them the relation of landlord and tenant exists.25
As regards a transfer by the tenant of his entire interest in a part of the leased premises, the great weight of authority is to the effect that this is an assignment pro tanto and not a sublease,26 apart from any
22. Fratcher v. Smith, 104 Mich. 537, 62 N. W. 832; Collins v. Hasbrouck, 56 N. Y. 157, 15 Am. Rep. 407; Ganson v. Tifft, 71 N. Y. 48.
23. Dunlap v. Bullard, 131 Mass. 161; Davis v. Vidal, 105 Tex. 444, 42 L. R. A. (N. S.) 1084, 151 S. W. 290.
24. Palmer v. Edwards, 1 Doug. 187, note; Sexton v. Chicago Storage Co., 129 111. 318, 16 Am. St. Rep. 274, 21 N. E. 920, rev'g 30 111. App. 95; Craig v. Summers, 47 Minn. 189, 15 L. R.
A. 236, 49 N. W. 742; Herzig v. Blumenkrohn, 122 N. Y. App. Div. 756, 107 N. Y. Supp. 570; Lloyd v. Cozens, 2 Ashm. (Pa.) 131; Weander v. Claussen Brewing Ass'n, 42 Wash. 226, 114 Am. St. Rep. 110, 7 Ann. Cas. 536, 84 Pac. 735. See 2 Preston, Conveyancing, 124; Co. Litt. 316a.
25. See 1 Tiffany, Landlord & Ten. Sec.Sec. 78 p. (3), 151 notes 39-46; Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451, 69 S. E. 734.
26. Congham v. King. Cro. Car. 221; Wollaston v. Hakewill, 3 question which may arise from the fact that the transfer is in the form of a sublease, in which case its character would be determined by the same considerations as in the case of a similar transfer of the whole premises. In two jurisdictions, however, it has been decided, without any discussion of the question, that a transfer by the tenant of his whole interest in part of the premises leased is necessarily a sublease.27
- (b) Effect. The sublessee is not in privity of contract with the head landlord, since there are no contractual relations between them, and he is not in privity of estate with him, since there is no relation of tenancy between them and he merely holds possession for the lessee. Consequently, he is not liable to the landlord on the covenants of the original lease,28 nor on the covenants of the sublease,29 nor can there be any recovery against him by the head landlord in use and occupation,30 since for this a relation of tenancy is necessary.31 But though the subtenant is not personally liable to the lessor, the making of the sublease does not affect any rights which the lessor might otherwise have in regard to the premises, as, for instance, that to the possession thereof upon the expiration of the term named in the head lease32 or that of entry for breach of a condition subsequent contained in such lease.33
Man. & G. 297; Ellis v. Bradbury, 75 Cal. 234, 17 Pac. 3; Bab-cock v. Scoville, 56 111. 461; Cook v. Jones, 96 Ky. 283, 28 S. W. 960; Hollywood v. First Parish in Brockton, 192 Mass. 269, 78 N. E. 124; Lee v. Payne, 4 Mich. 106; Harris v. Frank, 52 Miss. 155; Hogg v. Reynolds, 61 Neb. 758, 87 Am. St. Rep. 522, 86 N. W. 479; Dartmouth College v. Clough, 8 N. H. 22; Den d. Luns-ford v. Alexander, 20 N. C. (3 Dev. & B. Law) 166; Gulf, C. & S. F. Ry. Co. v. Settegast, 79 Tex. 256, 15 S. W. 228; Pingrey v. Wat-kins, 15 Vt. 479; Hockersmith v. Sullivan, 71 Wash. 244, 128 Pac. 222.
27. Fulton v. Stuart, 2 Ohio, 215, 15 Am. Dec. 542; Shannon v. Grindstaff, 11 Wash. 536, 40 Pac.
123, and there is a dictum to that effect in Fratcher v. Smith, 104 Mich. 537, 62 N. W. 832.
28. Holford v. Hatch, 1 Doug. 183; Mayhew v. Hardesty, 8 Md. 479; Haley v. Boston Belting Co., 140 Mass. 73, 2 N. E. 785; Field v. Mills, 33 N. J. L. 254; McFarlan v. Watson, 3 N. Y. 286; Crowe v. Riley, 63 Ohio St. 1, 57 N. E. 956; Kimbriel v. Montgomery, 28 Okla. 743, 115 Pac. 1013; Moline v. Portland Brewing Co., 73 Ore. 532, 144 Pac. 572; Harvey v. McGrew, 44 Tex. 412.
29. Derby v. Taylor, 1 East, 503; Ashley v. Young, 79 Miss. 129, 29 So. 822; Martin v. O'Connor, 43 Barb. (N. Y.) 514.
30. Krider v. Ramsay, 79 N. C. 354.
31. Post Sec. 414 note 49.
A sublease does not, as does an assignment consented to by the lessor,34 relieve the lessee making it from liabilities based on privity of estate, since the sublessor still remains the tenant of the lessor. Nor is an assignee relieved from liability for subsequent breaches of covenant by the making by him of a sublease, as he is by the making of a reassignment, since he still remains in privity with the landlord.
As a lessee is not relieved from his contractual liabilities by his assignment to another, even though the latter becomes also liable, so a fortiori he is not relieved from such liabilities by the fact that he makes a sublease.35 The continuance of the lessee's liability on his covenant to pay rent is not affected even by the fact that the sublessee agrees to pay rent to the original landlord.36 The lessee is, however, relieved from liability if the sublessee is substituted as tenant by a new demise, effectuating a surrender of the former term.37