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restricted to those holdings which amount to the hiring of land. That tenure has nowhere the same importance as in the British Isles,[1] where practically the whole agricultural land of the community is cultivated by persons who merely hire it for a limited time from the owners. The social and political bearing of this fact does not fall within the scope of the present article, but it shows the important application of the rules of law which we proceed to state.
Dismissing the tenant character of the landlord, and regarding him as owner pure and simple, we have to deal with him as contracting to give up the occupation of his land to another person, the tenant, for a consideration. In Roman law, the tenure of emphyteusis (a kind of perpetual lease originally used by corporations but afterwards by private owners), and precarium (or tenancy-at-will) occupied to some extent the place of the law of landlord and tenant in our system. The proper contract of letting and hiring (locatio-conductio) as applied to land had the following incidents. The conductor (tenant) was not technically regarded as possessor; i.e., he had not the aid of the interdicts in case of eviction either by the landlord or by strangers. The locator alone could sue in respect of the land, but the conductor had a personal action against the locator on the contract. The landlord was bound to make delivery to the tenant and permit him to occupy for the term agreed upon, and to keep the premises in proper repair. The landlord was answerable for any injury arising to the tenant from the defective condition of the premises. Finally, "the landlord must permit the tenant to carry away not only movables but even fixtures placed by the tenant, provided the tenant did not injure the house. A tenant of land was entitled to compensation for unexhausted improvements except such as he had specially agreed to execute in consideration of a lower rent" (see Hunter's Introduction to Roman Law, p. 121). On the other hand, the conductor had to pay the rent subject to deductions for the total or partial loss of the crops, to exercise due care during his term, and give up possession at its expiration.
In English law the following terms are of fundamental importance. The landlord so contracting is said to demise his lands, and the instrument by which the contract is expressed would be a demise or lease. The word lease is very generally limited to the writing in which the agreement to let is expressed, but any contract of letting is as on the side of the landlord a demise, and as between the parties a lease. A lease or demise means a grant of the exclusive possession of the thing in question for a definite time; permission merely to use the thing for a particular purpose or on a particular occasion is a licence and not a lease. A lease further implies that the lessor intends to give up possession to the defendant for a determinate time, no matter how it may be expressed, and is so distinguishable from a mere agreement contemplating that the parties shall on some future occasion enter into the relations which a lease creates. The consideration promised by the tenant or lessee is termed the rent. The period of occupation prescribed is the term.
The Statute of Frauds (29 Car. II. c. 3) enacts that "all leases, estates, interests of freehold, or terms of years, not put in writing by the parties so making or creating the same or their agents thereunto lawfully authorized by writing, shall have the effect of leases or estates at will," – except leases for a term not exceeding three years, whereon the reserved rent amounts to two-thirds of the improved value. When rent is accepted by the landlord, the tenancy-at-will is enlarged into a tenancy from year to year. By a later Act, 8 & 9 Vict. c. 106, a lease required by law to be in writing must now be made by deed.
A lease, like other written contracts, should clearly indicate the parties to and the effect of the contract. A date is not necessary, and, in the absence of a date, it will take effect from the day of delivery. But it must contain the names or other sufficient description of the parties, a description of the premises to be demised, words appropriately expressing the fact of a present demise (demise or lease being the usual words), the date at which the term is to begin and end, and the rent. The rent or other services created in favour of the landlord by the lease are said to be reserved. And when things that would otherwise belong to the tenant under the lease, as woods, timber, trees, minerals, &c., are expressly withheld, they are said to be excepted. But these expressions do not apply to conditions giving to the landlord the right of shooting, fishing, and so on over the land, or any right of way or other easement thereon. That can be vested in the landlord only by a re-grant from the tenant, no matter by what expression the right is created. Such grant must be by deed; and, where a lease of the land would be effectual without a deed, a reservation of such rights as we have mentioned would not. There is a good deal of misconception on this point, for landlords are not generally understood to hold their right to game on grant from their tenants.
In point of length of term tenancies are distinguishable as being either at sufferance, or at will, or from year to year, or for a term of years. A tenancy by sufferance exists where a person having obtained possession on a lawful title holds over after the title has determined, e.g., a tenant on lease for a term of years after the expiration of the lease. It has been said that this is not an estate at all but a fiction to prevent the continued possession being regarded as a trespass. It is not created by contract, but arises by implication of law; it is not assignable; and possession of the land can be resumed without previous demand to the so-called tenant. A tenancy-at-will exists when the tenant holds by agreement with the landlord, determinable at the will of either. Any signification of a desire to terminate the tenancy, whether expressed as "notice" or not, will bring it to an end. A tenancy from year to year is a tenancy for one year certain, and is determinable only by a six months' notice to quit, such notice terminating on an anniversary of the date of the beginning of the tenancy. A tenancy from year to year must last at least one year, but may be determined then, if a six months notice have been given; if not so determined it must endure for another year, again determinable in like manner, and it will so endure until terminated by such a notice. Apart from express agreement, it will be implied in law when, for example, the landlord accepts rent yearly or by parts (e.g., quarters) of a year. Similarly monthly tenancies, chiefly of furnished houses or lodgings, would be implied from the fact of rent being paid once a month. But that is a matter of presumption only. If it were proved that the parties agreed to a tenancy-at-will only, payment of rent by the quarter or any other period would not enlarge the nature of the tenancy. Lastly, a lease may be for a specified term, and the tenancy in that case comes to an end by the lapse of time, without notice to quit or any other formality.
These are the agreements by which the relations of
- ↑ In the United States the law is substantially the same as in England. The remedy by distress is said to be "becoming unpopular in the United States, as giving an undue advantage to landlords over other creditors." In New England the law of attachment on mesne process has superseded the law of distress. In New York, North Carolina, Georgia, Ohio, Alabama, Tennessee, Mississippi, and Louisiana, it is modified or abolished (see Bouvier's Law Dictionary, art. "Distress"). On the other hand, a speedier remedy than ejectment has been provided for landlords, by which they may be "reinstated, upon notice of a day or two, in cases where a tenant abandons the premises before the end of the term without surrendering the lease, leaving rent in arrear, continues to hold over after the expiration of his term, or has become unable or unwilling to pay for the use of the premises" (Bouvier, art. "Landlord and Tenant").
