Selected Readings 12 a. LANDLOIIDANDTI!NAN1' A. N.\TURE OrJ.ll!A.WtOIJI A It!Isc:hoId ;. .. _ ill lII:l4 TIle _llu *~ jlOQ! .. "Y iooltesI in die ~ i'R'­ lllises. aIIII dill IondIanI b.,. 4 fUture ~ (~. Ccttain tiaJIIIi lIA4li11lti1itios flow (Mill 1M ~y rtla!icmblp btt_ b:ndklnl1III<I _ The Ihn:o IIII\iO< 1)'pC> of l--""ld _eo are-w'}tw,....~"" •• da.oad"'......... &lIriU.n-: .. ar-dl~ .... 1e4 __1tI~. a. Fbd ...... "'n- A !ella:)' for )'UI'$ ;. "'"' tIM .. '" ....1IiIM roc. fW:o.I poriW of lin... n ...y bo ri.x _ ....than .,...,(•. , .• Uld"l"' .... 10 yeotS); »1IIIIY be ""nahle lsimilarto • fee .....1<0 ....~, nt 041 ~ ~ 'I'M leI'mlIoaIion date of a len&ro:y 1« )'em is IISU8lJy cctltill. Ali • """II. lIIc ICNIIICy npim 1lI die end of die ~ period ....., tiIiB,.".,,m., IIIIIfcI ,. 1M ..... 1:Nai If dill dale 0{ terJnI.. IlIIiooI is ID1CCIIIia (e.R .• L Joascs IIIc premises to T "uaIillllc cad 0{ /be ...,")._ - hold _ iidllll'lidico hovelll<mJlltd w __ """'" pGriod of <kII:IoOOD. liNt..... c'lU1t$ a I~ fer ycm. II. CraoIiom 'IirraQcia, for yea'llille DIlrIJlOIy ~ by om-.Ieues. Tn mea 5l.1li.., Illa S!aIJJIv 0( l-ilIurk ~ duK ! lea!IC <!realms a Il:ruJIlCy r.... mun! than _ 'jeJIE be ill wrilinfl. fa REAL PROPERTY 35. addition. most states have starutes that restrict the number of years {or wh:cb a lease~ holdestale may be creared (e.g .. 51 years for farm property and 99 years for urban property). When the lease term exceeds the statutory maximum. most courts hold that the lease is enliRly void. Likewise, where the lease contains an option to renew for a period beyond the permitted maximum. most courts hold the entire lease void. c. Termioalion A IeDancy for years ends autollllllkally on its lermination dale. 1) Breach of Covenants In most tenancy for years leases, the landlord reserves the right tp tenninate if the lenant breaches any of the leasehold oovenants. This reserved power is called the landlord's right of '1II1y. 0) Failure to Pay Rent In many jurisdictions, if the lenant fails to pay the promised rent, the landlord has the right to lerminale the lease ""'. ill tIN lib""", ofa ,n.rved right of tIII1y. 2) SUJTender A IenaIlCy for years also terminates upon surreoder. Surrender consists of the tenant giving up his leasehold interest to the landlord and the landlord accepting. Usually the same fol'lllllliM. are required for the surrender of a leasehold as are necessary for its creation. Thus, a writing is necessary for the surrender of a leasehold if the unexpired teon is more than one year. 2. Periodic Tenancies A periodic tenancy is a tenancy that continues from year to year or for successive fractions of a year (e.g .. weekly or monthly) untillefmioated by proper notice by either party. The beginning date must be cenain, but the "n,.;"lIIkm dou is always uncertain until notice is given. All conditions and terms of the tenancy are carried over from one period to the next unless there is a Jease provision to the contrary. Periodic tenancies do not violate the rules limiting Ihe length of leaseholds because each pany retains the power to terminate upon giving notice. a. Creation Periodic IeDaneie, can be crealed in three ways: 1) By Express Agroemenl Periodic tenancies can be created by express agreement (e.g •• "Landlord leases to Tenant from month to month"). 2) By Jmpli<atlon A periodic lenancy will be implied if the lease has no set lermination but does provide for the payment of rent at specific periods. Example: ''Landlord leases to Tenant at a rent of$l00payabk momhly in advance." The reservation of monthly rent will give rise to a peri­ odic tenancy from month to month. Note: If the lease reserves an annual rent, payable monthly (e.g .. ''$6,000 per anount, payable $500 00 the first day of every month commencing January I"), the majority view is that the periodic IeDancy is from y_ to year. 3) By Opentioo of Law A periodic tenancy may arise even without an express or implied agreement between the parties. a) Tenant Holds Over If a tenant for years remains in (Klssession after the tennination of his ten­ ancy period, the landlord may elect to treat the tenant as a periodic tenant on the same lerms as the original lease. (See S.b., infra.) b) Lease Invalid If a lease is invalid (e.g .. because of failure to satisfy the Statule of Frauds) and the tenant nonetheless goes inlo possession, the tenant's periodic pay­ ment of rent will oonvert what would otherwise be a teuancy at will into a 36. REAL PROPERTY periodic tenancy. The period of Ibe tenancy coincides wilb Ibe period for which !he rent is paid. b. Termination-Notice R uired A periodic tenancy is tulIo"'!..nca/ly 7On.Wlld, from period to period, until proper notice of termination is given by either party. Many jurisdictions have statutorily prescribed the notice required to tenninate a periodic tenancy. In general, the guidelines are as foDows: (i) The tenancy must end at the end ofII "1UIIuIYIl" uose period. (ti) For a tenancy from year to year, six mollllu' 1IOIic. is required. (iii) For tenancies less than one year in duration, afuU".riDd in adVtlllc« of the period in question is required by way of notice (e.g., for a monlb-t<>-monlb periodic tenancy, one full month's notice is required). In generol, !he notice required to terminate a periodic tenancy must be in .,riling and must actually be tkU.,.nd to the pany in question or deposited at his residence in a manner similar to that required for service of process. 3. TeDaDcies at Will A tenancy at will is an estate in land that is tenninable at !he will of either !he landlord or Ibe tenant. To be • tenancy at will, both the landlord and !he tenant must have the right to terminate Ibe lease at will. (i) If Ibe leas. gives ollly the kut4lord !he right to terminate at will, ••_ right will generally be implied ill I"..". olthe telltJllt so that the lease creates a tenancy at wiD. (ti) If Ibe lease is only at !he will of the te""nl (e.g .. "for so long as the tenant wishes"), courts usually"" IIOt imply 0 righJ to III'1f1i11Dte ill lollt1l' 01 the 1IuuJIiJrd. Rather, most courts interpret the conveyance as creating a life estate or fee simple. either of which is terminable by the tenanL (If the Statute of Frauds is not satisfied. the conveyance is a tenancy at will.) .. Creation A tenancy at will generally arises from a specific understanding between the panics that .UMr pIIIty may termiluJte the tenancy at any time. Note that unless the parties up7Oss" agrt. to a tenancy at will,lbe payment of regular rent (e.g., monlbly, quar­ terly, etc.) will cause a court to treat the tenancy as a periodic tenancy. Thus, tenancies at will are quite rare. Although a tenancy at will can also aPse when the lease is for an indefinite period (one that does not satisfy the requirements for creating a tenancy for years), or when a tenant goes into possession under a lease that does not satisfy the requisite fonnalities (usually !he Statute of Frauds), rent payments will usually convert it to a periodic tenancy. b. Termination A tenancy at will may be tenninated by eitlu!r pIIIty wi/iwat tuJIii: •. However. a rea­ sonahle demand to quit Ibe premises is required. A tenancy at will tennin.tes by Opel'lllioll of law if: I) Either party .u.s; 2) The tenant commits was"; 3) 1be tenant attempts to asign his tenancy; 4) The landIDrd IrtlIIsle,. his llltenst in the property; or 5) The landIDrd IX.Cute. 0 term lease to a third person. 4. Terumcies at Sulfel'llDCe A tenancy at sufferance (sometimes called ··occupancy at sufferance") arises when a tenant .,TOlIgfuUy remains in possession after Ibe expiration of. lawful tenancy (e.~ .. after the stipulated date for !he termination of a tenancy for yean; or after the landlord has exercised a power of termination). Such a tenant is a wrongdoer and is IiBbkfoT rent. The tenancy at REAL PROPERTY 37. sufferance laslS only until the landlord takes steps to evict the tenant. No notice isrequired to end the tenancy. and authorities are divided as to whether this is even an estate 10 land. S. The Hold-Ov.,. DoctriDe When a tenant continues in poasession after the termination of his right to possession. the landlord bas two choices of action: a. Evictiou The landlord may treat the hold-over tenant as a trespasser and evict him under an unlawful detainer statute. b. C.... tion of Periodie Tenaocy The landlord may, in his sole discretion, bind the tenant to a new periodic tenancy. 1) Terms The terms and conditions of the expired tenancy (e.g .. rent, coven ..lS, etc.) apply to the new tenancy. If the original lease tenn was for DIU y«II' or IlUJn. a year-lo­ year tenancy resuJlS from holding over. If the original term was for kss tIum one ylt1T, the periodic term is determined by the manner in which the rent was due and payable under the prior tenancy. In ,...ilknIiIIJ leases, however, most courts would rule the tenant a month-to-month tenant (or a week-to-week tenant if the lenanl was a roomer paying weekly rent), irrespective of the term of the original lease. Exampk: A nonresidential tenant was holding under a six-month term tenancy with rent payable monthly.