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 tenancy at will may, at common law, be terminated immediately by the landlord by giving a notice to that effect, that is, by making a demand for possession;82 and a similar view has been taken in a number of states.83 Likewise, at common law, without any express notice on the landlord's part as to his desire or intention in this respect, acts of ownership by him on the premises inconsistent with the continued existence of the tenancy, such as entering and cutting down trees or carrying away stone without the tenant's consent, are ordinarily regarded as indicating the owner's will to terminate the tenancy and have that effect.84 In a number of states, however, by force usually of an express statute,85 but occasionally of judicial decision merely,86 the land81. In Doe d. Stanway v. Rock, 4 Man. & G. 30 it was said, by Tindal, C. J., that to create a tenancy at will "something must be done by the lessor." In Blum v. Robertson, 24 Cal. 127, it is said that an express grant or contract is necessary. See, also, Godfrey v. Walker, 42 Ga. 562; Moore v. Smith, 56 N. J. L. 446, 29 Atl. 159; Bodwell Granite Co. v. Lane, 83 Me. 168, 21 Atl. 829; Martin v. Knapp, 57 Iowa, 336, 10 N. W. 721; Ley v. Peter, 3 Hurl. & N. 101.
82. Co. Litt. 55b; 2 Blackst. Comm. 146; Locke v. Matthews, 13 C. B. (N. S.) 753.
83. Blatchley v. Coles, 6 Colo. 82; Herrell v. Sizeland, 81 111. 457; Sullivan v. Enders, 3 Dana.
(Ky.) 66; Withers v. Larrabee, 48 Me. 570; Curl v. Lowell, 19 Pick. (Mass.) 25; Grant v. White, 42 Mo. 285; Whitney v. Swett, 22 N. H. 10, 53 Am. Dec. 228; Den d. Howell v. Howell, 29 N. C. 496, 47 Am. Dec. 335.
84. Co. Litt. 55b; Doe d. Bennett v. Turner, 7 Mees. & W. 226; Rising v. Stannard, 17 Mass. 282; Den d. Howell v. Howell, 29 N. C. (7 Ired. Law) 496, 47 Am. Dec. 335.
85. See 2 Tiffany, Landlord & Tenant, Sec. 196b notes 25-28.
86. Cody v. Quarterman, 12 Ga. 386; Den d. McEowen v. Drake, 14 N. J. L. 523; Amsden v. Blaisdell, 60 Vt. 386, 15 Atl. 332.
Lord cannot of his own volition terminate the tenancy without a notice of some length of time, that is. the tenant is not bound to relinquish possession to the landlord immediately upon the latter's expression of a desire to take possession.
Even though the statute provides for the giving of notice in order to terminate the tenancy, such a requirement may be dispensed with by agreement of the parties.87 And it has been held that the notice is unnecessary when, at the time of making the lease, it is provided that the tenancy shall expire on the happening of some contingency.88 Furthermore, such statutes have been occasionally construed to apply only to the termination of the tenancy by the direct act of the landlord, as by entry or notice, and not to change the rule which previously existed, that the tenancy will terminate by operation of law upon the conveyance or lease of the premises by either the landlord or the tenant or upon any act of the tenant hostile to the landlord's title, or on the death of either party.89
- (b) By act of tenant. The tenant may terminate the tenancy by relinquishing possession,90 except as the statute may require a notice by him for this purpose. A mere notice by him, that the tenancy is to be regarded as at an end, without relinquishment of possession, will at least at common law, have no effect.91 Furthermore, the tenancy may be terminated at the landlord's option by any acts on the part of the tenant of a character inconsistent with bis holding as such. So it is terminated if by words or acts he disclaims holding under his landlord, as when he asserts a fee simple title to the land.92 And, likewise, the commission of voluntary waste by the tenant is regarded as being so inconsistent with his obligations as tenant at will as to terminate the tenancy at the landlord's option,93 and within this principle has been held to fall the act of the tenant in authorizing the use of the premises as a smallpox hospital to the diminution of the value of the property.94
87. Sullivan v. Enders, 3 Dana. (Ky.) 66; Davis v. Murphy, 126 Mass. 143; Lane v. Ruhl, 94 Mich. 474, 54 N. W. 175 (semble).
88. Post Sec. 62(e).
89. Howard v. Merriam, 5 Cush. (Mass.) 563; Curtis v. Gal-vin, 1 Allen (Mass.) 215; Apple-ton v. Ames, 150 Mass. 34, 5 L. R. A. 206, 22 N. E. 69; Seavey v. Clondman, 90 Me. 536, 38 Atl. 540. See Simpson v. Applegate, 75 Cal. 342 17 Pac. 237; Amick v. Brubaker, 101 Mo. 473, 14 S. W. 627. Contra German State Bank v. Herron, 111 Iowa 25, 82 N. W. 430.
90. Chandler v. Thurston, 27 Mass. (10 Pick.) 205; Shaw v. Hill, 79 Mich. 86, 44 N. W. 422; Say v. Stoddard, 27 Ohio St. 478; Warner v. Page, 4 Vt. 291, 24 Am. Dec. 607; Dolan v. Scott, 25 Wash. 214, 65 Pac. 190.
91. Co. Litt, 55b, Hargrave's note.
- (c) By death of party. The relation between the owner and the tenant at will is regarded as personal in its nature, and consequently the tenancy is terminated by the death of either the landlord or the tenant.95 But this is not the case when one of two joint lessors or joint lessees dies.96 The dissolution of a corporation party to the relation will likewise, it has been decided, terminate the tenancy.97
92. Simpson v. 'Applegate, 75 Cal. 342, 17 Pac. 237; McCarthy v. Brown, 113 Cal. 35 L. R. A. 267, 45 Pac. 14; Isaacs v. Gearhart, 51 Ky. (12 B. Mon.) 231; Currier v. Earl, 13 Me. 216; Apple-ton v. Ames, 150 Mass. 34, 5 L. R. A. 206, 22 N. E. 69; Ramsey v. Henderson, 91 Mo. 560, 4 S. W. 408; Russel v. Fabyan, 34 N. H. 218; Den d. Love v. Edmonston, 23 N. C. (1 Ired. Law) 152.
93. Co. Litt. 56a; Esty v. Baker, 50 Me. 325, 79 Am. Dec. 616; Daniels v. Pond, 38 Mass. (21 Pick.) 367, 32 Am. Dec. 269; Chalmers v. Smith, 152 Mass. 561, 11 L. R. A. 769, 26 N. E. 95; Pet-tengill v. Evans, 5 N. H. 54; Perry v. Carr. 44 N. H. 118; PhilR. P. - 15.
Lips v. Covert, 7 Johns. (N. Y.) 1.
94. Hersey v. Chapin, 162 Mass. 176, 38 N. E. 442.
95. Co. Litt. 57b, 62b; 2 Blackst. Comm. 146; Turner v. Barnes, 2 Best. & S. 435; Radican v. Hughes, 86 Conn. 536, 86 Atl. 220; Manchester v. Doddridge, 3 Ind. 360; Reed v. Reed, 48 Me. 388; Rising v. Stannard, 17 Mass 282; Say v. Stoddard, 27 Ohio St. 478. And this even in the case of a lease to one "and his heirs," to hold at the will of the lessor. Litt. Sec. 82; Co. Litt. 62b.
96. Co. Litt. 55b; Henstead's Case, 5 Coke 10a.
97. Lea v. Hernandez, 10 Tex. 137.
- (d) By transfer. A conveyance by the landlord will terminate the tenancy as soon as the making of the conveyance is known to the tenant,98 and a conveyance of merely part of the premises will have the same effect.99 Nor need the conveyance be of the whole interest of the landlord, but a written lease by him, retaining a reversion, is equally effective for this purpose,1 as is the conveyance of an undivided interest.2 A mortgage by the landlord has also been held to terminate the tenancy,3 but this could, it seems, be the case only where the mortgage transfers the legal title to the mortgagee.
A transfer of the landlord's interest by operation of law, as by sale under a judgment,4 or the vesting of the property in a trustee in bankruptcy,5 has the same effect as a voluntary conveyance in terminating the tenancy. The taking of a mere easement, however, in the exercise of the right of eminent domain, not followed by actual eviction, is without any such result.6
While it is recognized that a conveyance or lease by the landlord does not terminate the tenancy till the tenant receives notice thereof in one way or the other,7 the notice to the tenant need not be in any particular form.8 There are suggestions in the decisions of one state to the effect that such a notice does not give the landlord a right to proceed against the tenant as wrongfully holding over until the lapse of a day or two after it is given, but no clear rule has been stated in this regard.9
98. Doe d. Davis v. Thomas, 6 Exch. 854; Esty v. Baker, 50 Me. 325, 79 Am. Dec. 616; Curtis v. Galvin, 83 Mass. (1 Allen) 215; Lash v. Ames, 171 Mass. 487, 50 N. E. 996; Davis v. Brocklebank, 9 N. H. 73; Den d. Howell v. Howell, 29 N. C. (7 Ired. Law) 496.
99. Emmes v. Feeley, 132 Mass. 346.
1. Disdale v. Iles, 2 Lev. 88; Hinchman v. Iles, 1 Vent. 247; Seavey v. Cloudman, 90 Me. 536, 38 Atl. 540; Hildreth v. Conant, 51 Mass. (10 Mete.) 298; Mentzer v. Hudson Sav. Bank, 197 Mass.
325, 83 N. E. 1102; Eclipse Oil Co. v. South Penn. Oil Co., 47 W. Va. 84, 34 S. E. 923.
2. McFarland v. Chase, 73 Mass. (7 Gray) 462.
3. Jarman v. Hale  1 Q. B. 994.
4. Marsters v. Cling, 163 Mass. 477, 40 N. E. 763.
5. Doe d. Davies v. Thomas, 6 Exch. 854.
6. Emmes v. Feeley, 132 Mass. 346.
7. Doe d. Davies v. Thomas, 6 Exch. 854; Pratt v. Farrar, 92 Mass. (10 Allen) 519; Furlong v. Leary, 62 Mass. (8 Cush.) 409.
The tenant has no interest which he can transfer, and an attempted assignment or sublease by him is regarded as inconsistent with the continued existence of the tenancy and terminates it.10 Such termination does not, however, become effective until the owner acquires knowledge of the transfer.11 But though the tenant cannot transfer his interest as against the owner, a transfer by him is effective as against himself, making the transferee a tenant at will to that extent,12 and the owner may recognize the transferee as tenant and so create a new tenancy at will.13
- (e) By special limitation. We have previously spoken of the cases in which a tenancy for life or years may by force of an express limitation come to an end upon the happening of some contingency before the expiration of the life or term named, such a limitation being known as a "special" or "conditional" limitation.14 Under the common-law doctrine that a tenancy at will is terminable immediately at the will of the landlord, a special limitation in connection with such a tenancy would have been almost useless, and the possibility of its presence in that connection appears never to have been suggested. Such a provision, however, may become of importance when the statute requires a notice to terminate the tenancy, and it has been held to be effective for this purpose, although the statutory notice is not given.15
8. Mizner v. Munroe, 76 Mass. (10 Gray) 290; Pratt v. Farrar, 92 Mass. (10 Allen) 519.
9. See Pratt v. Farrar, 92 Mass. (10 Allen) 519; Arnold v. Nash, 126 Mass. 397; Hooton v. Holt, 139 Mass. 54, 29 N. E. 221.
10. Co. Litt. 57a, and Har-grave's note; Birch v. Wright, 1 Term R. 378; Pinhorn v. Sous-ter, 8 Exch. 763; McLeran v. Benton, 73 Cal. 329, 2 Am. St. Rep. 814; Dean v. Comstock, 32 111. 173; Cunningham v. Holton, 55 Me. 33; Cooper v. Adams, 60
Mass. (6 Cush.) 87; Austin v. Thomson, 45 N. H. 117; Doak v. Donelson's Lessee, 10 Tenn. (2 Yerg.) 249, 24 Am. Dec. 485.
11. Carpenter v. Colins, Yel. 73 Pinhorn v. Souster, 8 Exch. 763.
12. Holbrook v. Young, 108 Mass. 85; Meier v. Thiemann, 15 Mo. App. 307.
13. Landon v. Townshend, 129 N. Y. 166, 29 N. E. 71; Cunningham v. Holton, 55 Me. 33; Austin v. Thomson, 45 N. H. 117; King v. Lawson, 98 Mass. 309.
14. Ante Sec. 59b.
- (f) Tenant's rights on termination. Not only has the tenant at will, upon the termination of the tenancy otherwise than by his own act, the right to emblements,16 but he also has the right for a reasonable time to enter to remove his goods from the premises.17 If he fails to remove his goods within a reasonable time, the landlord may, it has been held, remove the goods and store them subject to the tenant's order, in which case they are at the latter's risk.18
II (C) Periodic Tenancies.