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contract implied from the acts of the parties. And although a lease is void under the statute of frauds, yet if followed by possession acquiesced in by the landlord, the relation of landlord and tenant exists. The occupation by a servant of a house owned by the master, if connected with the service, usually does not create a tenancy.
Use and occupation. If the relation of landlord and tenant exists, the landlord can recover a reasonable satisfaction for the use and occupation of the premises, even though there was no amount of rent fixed or the lease for some reason was void. Thus, a grantor of land continuing in possession after a conveyance, holds as tenant for his grantee until he explicitly disclaims such relation and an action for use and occupation would lie.
KINDS OF TENANCIES.
There are many kinds of tenancies, each of which has its peculiar and distinguishing features, which must be borne in mind.
A tenancy at will arises when lands are let to the lessee to hold at the will of either party, by force of which the lessee is in possession. In such a tenancy both the entry and occupancy are lawful, but for no definite term, subject to be determined at the will of either party. The duration of the term is uncertain. Allowing another the use of premises so long as he pays rent, creates a tenancy at will. One who operates a farm, making improvements and paying some interest, but with no agreement as to how long to continue, is a tenant at will. One who peaceably goes into possession under the direction of the mortgagee, after default, thereby becomes a tenant at will. One who is placed on lands without a term prescribed or a rent reserved, is a tenant at will. Persons holding under void deeds, contracts or leases are tenants at will. A tenant at will has no interest in the land which he can assign to another. The relation of landlord and tenant exists only between the original parties and does not pass to the assignee of the tenant. The assignee, may, however, be recognized as a tenant by the landlord, as by the acceptance of rent.
A tenancy at sufferance is said to exist where a person comes into possession of lands lawfully, and after his estate
is ended, holds over wrongfully. It arises from the laches of the landlord. Such a tenant came into the possession lawfully, but after his estate had ended, he without authority wrongfully held over and was not entitled to notice to quit at common law. But the doctrine that a tenacy by sufferance necessarily arises where a person comes into possession of lands lawfully but holds over wrongfully after the termination of his interest therein, has been qualified in this state in an important particular; namely, in order to create a tenancy by sufferance in favor of a tenant holding over after the expiration of his term, the consent of the landlord, either express or implied, to the continuance of the tenancy is essential. This narrows the distinction which has sometimes been supposed to exist in this state between tenancies at will and by sufferance. But since our statutes on the subject of terminating tenancies at will and by sufferance puts them on the same basis, it is not unjust or unreasonable to narrow the distinction between them. It was accordingly held that where, after the expiration of a lease, the tenant failed to perform his part in arranging for a new lease of the premises, the lessor having repudiated the tenancy by refusing to accept further rent from the lessee after the term, the possession of the latter became wrongful and he was not entitled to the notice required to terminate a tenancy by sufferance, although the parties had been trying to agree upon the terms of a new lease. The relation of landlord and tenant was held not to exist between them.
Periodical Tenancies, are estates for an uncertain number of fixed periods. In consequence of the many hardships which resulted from the fact that at common law no notice was necessary to terminate a tenancy at will, there grew up by a course of judicial legislation the tenancy from year to year. This tenancy differs from tenancies at will in that it is a tenancy for an uncertain number of fixed periods of time, the duration of each period being generally regulated by the manner of paying the rent, for instance, by the month, quarter or year, and these periods continue as long as the required notice to quit is not given by either party. The term "tenancy from year to year” refers to periodical tenancies generally, "year to year" expressing only a unit of time. A tenancy for a period less than a year is usually governed by the same rules as tenancies from year to year, except that
the notice to terminate them is correspondingly shortened at common law.
By far the greatest number of estates from year to year are created by the holding over of a tenant after his lease has expired. Our statutes provide:
“Section 2187. If a tenant for a year or more shall hold over after the expiration of his term he may, at the election of his landlord, be considered a tenant from year to year upon the terms of the original lease. But such tenancy may be terminated at the end of any year after the expiration of said term by either party to said lease upon giving to the other party thereto a notice in writing, not less than thirty days prior to the date of such expiration, that he elects to terminate such lease at the end of such year.”
Thus, a lessee for a year at a fixed rate who holds over without agreement, except for increased rent in case new buildings are erected and the landlord does not object to his holding over is a tenant from year to year, unless terminated by the subsequent act of the parties; and where the City of Milwaukee took a lease of land temporarily for one year for a street and failed to surrender the land at the end of the term, but continued its use and occupancy, it became, at the option of the landlord, a tenant holding over from year to year under the lease, the same as a tenant under the original lease. The lessor elects that a tenancy is from year to year in case of a lease of one year or more at a stipulated annual rent, where he accepts rent from the tenant holding
Again, while an oral lease for two years is void under the statute of frauds, yet where a tenant entererd under the lease and paid rent for a year and a half, it was decided he became a tenant from year to year under its terms. The holding over of a tenant from quarter to quarter implies a term of the same duration as the original term under a like rent and condition. A tenancy from year to year is for a term not exceeding one year within the meaning of the statute of frauds.
Tenancy for life. Whenever lands are rented for the life of the lessor, lessee or a third person or persons, the interest of the lessee is a tenancy for life. There must be a regular payment of rent or interest to the owner of the reversion. The interest of the lessee is a freehold interest.
THE LEAS E.
A lease is a contract, express or implied, between two or more persons for the possession of lands or tenements in consideration of a certain rent to be paid therefor. The general rules regarding contracts apply regarding the competency of parties, execution, etc. No particular form of expression is necessary. Any terms or mode of expression will be sufficient which show the intention of the lessor to transfer to the lessee the possession of land during a certain period of time. The words usually used in the granting clause of a written lease are "demise and lease.” An oral lease for a term not exceeding one year is good, but if for a longer term than one year or if the lease is not to operate until after one year from the time of execution, it is void under the statute of frauds unless in writing. A lease made on Sunday is absolutely void and cannot be ratifled. The formal parts usually found in a lease are: The date, but if no date is given the time will run from the delivery of the lease; the names of the parties thereto, stating who is lessor and who lessee. Some consideration must appear. Any consideration which will support an ordinary contract is sufficient.
It may be rent paid periodically or in a gross sum. There must be a definite description of the premises-such a description that the premises can be identified-or the lease will be void for untertainty. The lease must also show the term, that is, its duration, or the period of time for which it is to run. At common law a lease may be for any period, but the Wisconsin constitution pro vides that all leases and grants of agricultural land for a longer term than fifteen years, in which rent or service of any kind shall be reserved, shall be void. Such a lease would not be void in toto, but the excessive time would be cut off. There is, however, no restriction on the time for which a lease may be made of other property. The lease is usually signed by both parties and must be signed by the party against whom an express covenant is sought to be enforced. The statute of frauds is satisfied, however, if the lease is subscribed by the party making it or by his lawful agent thereunto authorized in writing. There must also be a delivery of the lease to the lessee and an acceptance by him. The latter may be presumed when it is for his benefit to accept, or he
has taken possession of the premises. As between the parties a seal is not necessary, but in case it is desired to record the lease, it must be “in writing, under seal, attested by two witnesses, and acknowledged.” A lease being a contract, the parties may insert any lawful condition or provision therein. Such a condition is called a "covenant. Covenants are either express or impied. The express covenants may be made to meet the wants of the parties, and are therefore unlimited in number. Only the more important ones will here be noted and explained.
The landlord may be compelled by express covenant to keep the premises in repair. In the absence of agreement, the tenant must keep the premises in repair.
If there is an express covenant to pay rent, the tenant would have to do so for the whole term, whether the premises had been destroyed by fire or not, but our statutes now provide: “Where any building which is leased or occupied, is destroyed or so injured by the elements or any other cause as to be untenantable and unfit for occupation, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises and of the land so leased or occupied, and he is not liable to pay to the lessor or owner rent for the time subsequent to the surrender."
The lessee is bound under a covenant to re-deliver the premises “in as good condition as when received", or "as they now are”, and he will be required to restore the building in case of accidental fire. Unless such is the intention such covenant should read, that he will re-deliver the premises ''in good order and condition, reasonable wear and tear thereof and damage by accidental fire or other accidents not happening through the negligence of the lessee only excepted.”
A covenant to pay all taxes and assessments assessed during the term, is also binding on the lessee.
Without a covenant for protection against incumbrances, if the lessee should be evicted by a mortgagee, he would lose his right under the lease, if the lease is one for more than three years.
If a lessee covenants to insure, he must do so.