HOLDING OVER 62. Where a tenant continues possession of the demised premises after the expiration of the term of the lease, without the consent of the landlord, he is said to hold over. When a proper notice has been given, this injury is remedied by ejectment, or, under local regulations, by summary proceedings."** 296 Generally, there is an implied duty on the part of the tenant to relinquish the possession of the premises at the expiration of the lease. Failure to do so will subject him to a suit by the landlord for any damages the latter may sustain by reason of the tenant's unwarranted holding over." Thus, if the landlord be unable to relet the premises by reason of the tenants's holding over, he may recover from the tenant whatever damages he may suffer thereby." So, also, where a tenant sublets the premises during the term, it is his duty. to require the sublessee to give up possession; for a holding over by his subtenant is a holding over by the tenant, and subjects the latter to liability for damages incurred by reason of the wrongful act.' 298 Where premises are demised to colessees, a holding over by one with the consent of the other is a holding over by both, but one colessee cannot impose any liability upon the other by holding over without the latter's consent. And it seems that holding over by an assignee is to be considered a holding over by the lessee.299 The duty of a tenant to yield up possession of the demised premises at the termination of the lease is not dependent upon notice to quit, or any proceedings to be taken or done by the landlord, where it is agreed in the lease to deliver possession on its termination; nor will holding over by the tenant be justified by the pending of negotiations for an = 2952 Black. Comm. 150; 3 Black. Comm. 210; 4 Rawle (Pa.) 123 (1833). 296 148 Ill. 192 (1893). 297 30 Ark. 156 (1875). 299 Am. & Eng. Encyc. Law (2d Ed.), Vol. 18, p. 403, citing 9 M. & W. (Eng.) 438 (1842); 151 N. Y. 253 (1896); 156 Pa. 178 (1893); 8 Mo. App. 431 (1880). 2989 Conn. 334 (1832); 51 N. Y. 309 (1873); 28 Am. St. Rep. 634 (1879). extension of the term, which fail and are abandoned, so as to relieve the tenant from his covenant to yield up possession at the end of the term.' 300 In the event of holding over by the tenant, it is optional with the landlord to treat the former as a tenant at sufferance, or as a trespasser. If the holding over be continued for so long a time as to raise the implication of assent on the landlord's part, the tenant may claim to be a tenant at will, or at sufferance. Where the holding over is by the express or implied consent of the landlord, the tenant becomes either a tenant at will or a periodical tenant, according to the circumstances of the case, and entitled to all the rights of such tenants. 301 Under certain circumstances, according to the rule in operation in most of the United States, the landlord may hold a tenant liable as for a second term. Thus, where a tenant for a year or years, after the expiration of his term, holds over, or if a periodical tenant hold over after the termination of his tenancy by notice to quit, he may be held liable by the landlord as for a renewal of another term equal in point of time to the original term; and the fact that the holding over is accidental or involuntary, and not intentional or wilful, will not relieve the tenant from liability for a second term.302 In England, and in some jurisdictions of the United States, the tenant will not be held for a second term without his assent, express or implied."" 303 63. In England, by statute, which has been either adopted or reenacted in some of the United States, certain penalties are imposed on tenants in cases of wrongful holding over. If the tenant wilfully hold over after notice by the landlord to quit, the tenant is liable for double the annual value of the lands; and, if a tenant give the landlord notice of his 300 148 Ill. 192 (1893). 301 Am. & Eng. Encyc. Law (2d Ed.). Vol. 18, pp. 404, 405, citing 66 Cal. 446 (1885); 70 Am. Dec. 499 (1858); 51 N. Y. 539 (1873); 98 Ind. 50 (1884); 85 Ky. 260 (1887); 100 Pa. 206 (1882). 302 Ibid., p. 405, citing 99 Ill. 151 (1881); 54 Ind. 392 (1876); 103 Mich. 617 (1895); 133 N. Y. 287 (1892); 113 Mich. 151 (1897). 303 Ibid., p. 408, citing 9 Ad. & Ell. (Eng.) 849 (1839); 45 Cal. 154 (1872); 13 Bush (Ky.) 232 (1877). intention to quit and hold over, the landlord may recover double rent." 304 As to the English rule, fixed by statute, it is further explained that before the landlord can invoke the benefit of the statute he must give notice to the tenant to quit, which is a sufficient demand for possession; that the notice may be given before the termination of the tenancy, so as to take effect upon its termination; and that if the demand for possession be made after the expiration of the term, and in the middle of the quarter, the landlord cannot recover single rent for the time preceding the demand. Under the English rule, the tenant may quit at any time, and will only be held for double value or rent for the time during which he actually held over; but it is held in Alabama that under the statute of that state, which makes the tenant liable for "double the amount of the annual rent agreed to be paid," double rent for a whole year may be recovered, irrespective of the length of time during which the tenant holds over after notice and demand for possession.30 304 Stats. 4 Geo. II. c. 28, Sec. 1: 11 Geo. II, c. 19, Sec. 18; N. Y. Laws (1896), c. 547, Secs. 194, 200. 305 Am. & Eng. Encyc. Law, Vol. 18, pp. 409, 410, citing 8 East (Eng.) 358 (1807); 20 Ill. 120 (1858); 6 M. & W. (Eng.) 393 (1840); 1 T. R. (Eng.) 53 (1785); 1 B. & Ad. (Eng.) 904 (1831); 94 Ga. 527 (1894); 91 Ala. 458 (1890). TERMINATION OF THE RELATION 64. The relation of landlord and tenant may be terminated by forfeiture, merger, surrender, notice to quit, and for various other causes. FORFEITURE, MERGER, SURRENDER 65. A tenant is, under no circumstances, permitted to deny the title of his landlord; and he is bound to inform his landlord of any occurrence touching his title, such as an attempt to dispossess him." If, therefore, a tenant disclaim, disaffirm, or impugn his landlord's title by some positive act, he thereby forfeits his term. 307 If a lessee commit a breach of covenant in a lease that expressly stipulates that there shall be a forfeiture in case of a breach, it will work a forfeiture. The forfeiture does not depend upon the fact that the act of the lessee was wilful; but courts of equity will not relieve against forfeiture incurred by the wilful neglect on the part of the tenant to fulfil the terms of his covenant." If, through accident or mistake, or misleading conduct of the lessor, the lessee have failed to comply with the covenants of the lease, and adequate compensation can be made for the breach, relief will be offered, there being no wilful or culpable neglect on the part of the lessee. 308 309 Where the forfeiture is for non-payment of rent and the lessor reenters, he cannot be compelled to pay for the improvements under his covenant; for, the value of the buildings, at the end of the term, might differ considerably from the value at the time of the breach by the tenant. 3061 N. Y. R. S. (1821), Sec. 27. 3073 Pet. (U. S.) 43 (1830); 28 Cal. 59 (1865); 14 Atl. Rep. 426 (1888). 308 51 S. W. Rep. 297 (1899). 30911 Cal. 298 (1858); 92 N. Y. 172 (1883). Moreover, in cases of this kind, all that a lessee will have to do to rid himself at any time of a bad bargain would be to refuse to pay his rent, and claim at once payment for his improvements, an operation by which he might reap an unfair profit. The lessee is not without a remedy, but he must wait until the time fixed by the contract expires. He cannot, by his own fault, change in his own favor the terms of the contract, and fix upon the lessor a contract he has never made. 66. Termination of tenancy by merger happens where the tenant purchases the fee of the reversion, or where it descends to him as heir-at-law, the lease becoming thereby merged in the inheritance, the lesser estate being absorbed in the greater. To produce this result, however, it is necessary that the two estates should meet in the same person and in the same right; for, if he who has the reversion in fee marry the tenant for years, or if a tenant make the landlord his executor, the term of years is, in neither case, merged, because in either case, he holds the fee for his own benefit, while the term of years is taken, in one case, for his wife's use, and, in the other, for the benefit of the estate he represents as executor." The current of opinion now sets against the operation of the doctrine of merger wherever a result will be produced contrary to the intentions of the parties, or prejudicial to the interests of third parties."" A court of equity will not allow a merger where to do so would operate against the intention and interest of the party in whom the two estates coincide, or where it would work injustice.""" 67. A surrender is the yielding up of an estate for life or for years to him who has an immediate estate in reversion or remainder, by which the lesser is merged in the greater by mutual agreement." The term is also applied to 310 Bouv. Law Dict., citing Woodf. L. & T. 1,188; 12 N. Y. 519 (1855); 13 Pa. 16 (1850); 35 N. Y. 279 (1866). 311 Ibid., citing 34 N. Y. 320 (1866); 15 Gray (Mass.) 385 (1860). 312 (1892) 3 Ch. (Eng.) 110; 42 Cal. 559 (1872). 313 Co. Litt. 337 b; 25 Am. St. Rep. 145 (1891); 92 Pa. 444 (1880). |