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 .
As above remarked, the typical form of periodic tenancy is a tenancy from year to year, and the principles which govern in the creation of such a tenancy control also in the creation of the other classes of periodic tenancies. In view of this consideration and for the sake of convenience, we will here discuss the mode of creation of a tenancy from year to year, such discussion being applicable in substance as well to the other classes of periodic tenancies, and we will subsequently state briefly the law as to the creation of quarterly, monthly, and weekly tenancies.
A lease may be made for a fixed term, to be followed by a periodic tenancy. For instance, there may be a demise for one year certain, and so on from year to year, and this will create a tenancy for two years at the least.30 And a tenancy "for six months and so on for six months to six months, until" determined by either party, has been held to be one for twelve months at least.31
- (b) By inference on general letting. A tenancy from year to year, though it may be created by express language, more frequently arises upon a letting
28. Birch v. Wright, 1 Term R. 380; Cattley v. Arnold, 1 Johns. & H. 651.
29. Jones v. Nixon, 1 Hurl. & C. 48; Fox v. Nathans, 32 Conn. 351; Dix v. Atkins, 130 Mass. 171; Brady v. Flint, 23 Neb. 785, 37 N. W. 647; Finkelstein v.
Herson, 55 N. J. Law, 217, 26 Atl. 688.
30. Doe d. Chadborn v. Green, 9 Adol. & E. 658; Doe d. Monk v. Geckie, 5 Q. B. 841.
31. Reg. v. Inhabitants of Chawton, 1 Q. B. 247.
[ Sec. 64 with no limitation as to the duration of the tenancy, that is, a mere grant of permission to take possession followed by the payment and acceptance of a yearly rent. What would otherwise he a tenancy at will thus takes effect as a tenancy from year to year if the tenant pays a yearly rent, the theory being that such a payment by him and its aceptance by the owner shows an in-intention to create a tenancy of the latter character.32 The payment of rent must, in order to give rise to an inference of an intention to create a tenancy from year to year, be "with reference to a yearly holding," as it is expressed, by which is meant that it must be paid as rent for a year or as a part of rent computed by the year, and if paid not with reference to a yearly holding, or to a holding for some other period, the tenancy is at will.33
As above stated, the theory of the creation of a periodic tenancy by the payment and receipt of rent is that it shows an intention to create such a tenancy. But it is evidence merely of intention, and though stated to be conclusive in that regard in the absence of evidence to the contrary,34 the tenancy remains at will if it is shown that the parties did not intend thereby to create a tenancy from year to year or other periodic holding.35
32. Doe d. Martin v. Watts, 7 Term R. 85; Chapman v. Towner, 6 Mees. & W. 100; Arden v. Sullivan, 14 Q. B. 832; Judd v. Fairs, 53 Mich. 518, 19 N. W. 266; Tier-nan v. Johnson, 7 Mo. 43; Lesley v. Randolph, 4 Rawle (Pa.) 123; Hey v. McGrath, 81* Pa. 310; Woelpper v. City of Philadelphia, 38 Pa. 203; Silsby v. Allen, 43 Vt. 172; Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615; Arbenz v. Exley, Watkins & Co., 52 W. Va. 476, 61 L. R. A. 957, 44 S. E. 149; Second Nat. Bank v. O. E. Merrill Co., 69 Wis. 501, 34 N. W. 514.
33. Braythwaite v. Hitchcock,
10 Mees. & W. 494; Richardson v. Langridge, 4 Taunt. 128; Johnson v. Johnson, 13 R. I. 467; Lyons v. Philadelphia & R. R. Co., 209 Pa. 550, 58 Atl. 924; Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615; Sheldon v. Davey, 42 Vt. 637.
34. Bishop v. Howard, 2 Barn. & C. 100. It is a question for the jury. Finlay v. Bristol & E. R. Co., 7 Exch. 409; Jones v. Shears, 4 Adol. & E. 832; Johnson v. Foreman, 40 111. App. 456; Lyons v. Philadelphia & R. R. Co., 209 Pa. 550, 58 Atl. 924.
35. Doe d. Dixie v. Davies, 7
Evidence of a gross disparity between the rent actually paid and the annual value of the property has been regarded as sufficient to rebul the presumption of a tenancy from year to year.36
Attention has previously been called to decisions that a formal demise no1 naming the duration of the tenancy creates in the first place;a tenancy at will,37 and, conceding this to be the case, a holding under such a demise, if accompanied by the payment of annual (or oilier periodic) rent, would become a tenancy from year to year (or from other period to period).38 But, as before remarked, it is most doubtful whether a tenancy at will is properly created by such a demise for an indefinite time, if it is sufficient in point of execution to convey a life or greater estate, and the same may be said as regards the inference of a tenancy from year to year from the payment of rent in such a case.39
The most frequent case of a tenancy from year to year is that of a holding under a lease which fails to comply with the Statute of Frauds, the tenancy at will, which would otherwise exist in such case, becoming a tenancy from year to year by reason of the payment of an annual rent.40 It may also occur when one enters and pays an annual rent under a lease which is invalid on other grounds.41
Exch. 89; Doe d. Bastow v. Cox, 11 Q. B. 122; Waring v. Louisville & N. R. Co., 19 Fed. 863; Johnson v. Foreman, 40 111. App. 456; Pusey v. Presbyterian Hospital of Omaha, 70 Neb. 353, 113 Am. St. Rep. 788, 97 N. W. 475; Say v. Stoddard, 27 Ohio St. 478.
36. Roe d. Brune v. Prideaux, 10 East, 158; Denn d. Brune v. Rawlins, 10 East. 261; Smith v. Widlake, 3 C. P. Div. 10; Hinton Foundry, Mach. & Plumbing Co. v. Lilly Lumber Co., 73 W. Va. 477, 80 S. E. 773.
37. Ante Sec. 61(b) .
38. Wall v. Stimpson, 83 Conn. 407, 76 Atl. 513; Ridgeley v. Stillwell, 25 Mo. 570; Lesley v. Randolph, 4 Rawle (Pa.) 123; Garrett v. Clark, 5 Ore. 464; Holmes v. Wood, 88 Mich. 435, 50 N. W. 323.
39. See Kusel v. Watson, 11 Ch. Div. 129; Doe d. Warner v. Browne, 8 East, 165; Holmes v. Day, 8 Ir. R. C. L. 235. But in Hey v. McGrath, 81* Pa. 310, it was clearly decided, without any discussion however, that a sealed lease not naming any particular period, reserving an annual rent, created a tenancy from year to year, and not for life.
40. Ante Sec. 40(c).
In Maine and Massachusetts, by the construction of the statutes there in force providing that a lease not in writing shall have the effect of a lease at will only, a tenancy from year to year or other periodic tenancy does not arise from the payment and acceptance of a yearly or other periodic rent, but the tenancy remains one at will.42 But even in those jurisdictions a periodic tenancy may be created by express provision to that effect.43
The reservation of a periodic rent may be as effective as the actual payment of such a rent to evidence a periodic tenancy,44 though ordinarily the reservation is accompanied by one or more payments. The presumption of a periodic tenancy, in case of the reservation of a periodic rent, may be rebutted by other language in the instrument of demise showing a contrary intention,45 and such effect has been given to a provision that the tenancy should continue so long as both parties agree thereto.46 Obviously, the reservation of such a rent has no effect if the duration of the tenancy is validly specified, as when there is a written lease for years
41. Lockwood v. Lockwood, 22 Conn. 425; Tiernan v. Johnson, 7 Mo. 43; Farley v. McKeegan, 48 Neb. 237, 67 N. W. 161; Ker-nochan v. Wilkens, 3 App. Div. 596, 38 N. Y. Supp. 236; Lithograph Bldg. Co. v. Watt, 96 Ohio 74, 117 N. E. 25; Jamison v. Reilly, 92 Wash. 538, 159 Pac. 699.
42. Ellis v. Paige, 18 Mass. (1 Pick.) 43; Davis v. Thompson, 13 Me. 209, 214; Withers v. Larra-bee, 48 Me. 570; Thomas v. San-ford S. S. Co., 71 Me. 548; Sprague v. Quinn, 108 Mass. 553; Lyon v. Cunningham, 136 Mass. 532, 540.
43. Dix v. Atkins, 130 Mass. 171.
44. Richardson v. Langridge,
4 Taunt. 128; Doe d. Hull v. Wood, 14 Mees. & W. 682; Williams v. Apothecaries Hall Co., 80 Conn. 503, 69 Atl. 12; Ridgely v. Still-well, 25 Mo. 570; Jackson v. Bradt, 2 Caines (N. Y.) 169; Doe d. Patton v. Axley, 50 N. C. (5 Jones Law) 440; Lesley v. Randolph, 4 Rawle (Pa.) 123; Hey v. McGrath, 81* Pa. 310; Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615; Second Nat. Bank v. O. E. Merrill Co., 69 Wis. 501, 34 N. W. 514; But see Benfey v. Cong-don, 40 Mich. 283.
45. Doe d. King v. Grafton, 18 Q. B. 496.
46. Say v. Stoddard, 27 Ohio St. 478.
Occasionally a stale statute provides expressly that the reservation of a periodic rent shall create a periodic tenancy.47
It has occasionally been said that a general holding, that is, a holding for no specified time, involves a tenancy from year to rear without reference to whether
• • there is the reservation of an annual rent or whether there are circumstances to show a tenancy from year to year, in other words, that tenancy from rear to year has entirely superseded tenancy at will.48 This may be the law in some few jurisdictions, but ordinarily, as we have seen, tenancies at will are still fully recognized.49