« PreviousContinue »
I. DEFINITION.—A lease is a species of contract for the possession and profits of lands and tenements, either for life or a certain term of years, or during the pleasure of the parties. I
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.2
A lease is a contract for the possession and profits of lands and tenements on the one side, and the recompense of rent or other income on the other, or it is a conveyance to a person for life, or years, or at will, in consideration of a return of rent or other recompense.3
II. WHAT IS NOT A LEASE.—Several instances in which agreements have been held not to amount to leases are cited in the
cart. Said COLERIDGE, J.: “If a grant and keep buildings and fences in repair, had been put on, conferring a right to is a lease. Strain v. Gardner, 61 Wis. 'lead manure,' the term would have 174. been construed according to the usual In a receipted bill of sale of hay and mode of leading; that is, by drawing oats, wherein “A B bought of C D ” in a cart.” Brunton v. Hall, i Q.B. 792. there was this memorandum, signed by 1. Bouv. L. Dict.
CD, “Left at stable on O street, where 2. Taylor's Landlord and Tenant, A B takes possession. Rent to begin par. 14.
October ist, 1870, for one year at $150." 3. Jackson v. Harsen, 7 Cow.(N. Y.) Held to be a lease. Eastman v. Per326. (Quoting Woodfall, ch, 1, par. 1.) kins, 111 Mass. 30.
Definitions.-A contract by which a A conveyance of school lands under person is to pay an annual rent of a the Ohio law, directing to be granted certain per cent. upon the cost of a for 99 years renewable forever, reciting building, with the right of becoming the laws under which it was executed, owner on paying the price, is a lease. is to be construed a lease according to Municipality No. 1 v. New Orleans, the statute though by its terms it im5 La. An. 761.
ports a conveyance in fee. Hart v. A writing under seal, attested and Johnson, 6 Ohio 87. recorded in these words: “Know all An agreement to construct a buildmen by these presents, that I do puting to be occupied when finished by the into the hands of A.J. W. as collateral grantee at a stipulated rent, accompanied security for my board with him for the by words of present demise, operates as last three years and a half, my house a lease. People v. Kelsey, 14 Abb. (N. and lot in the town of M.; and he is Y.) Pr. 372. further authorized to control and receive A written agreement by the owner of the rents and profits, if there be any, land to lease same at a rent payable until the war is over, and some of her quarterly, to continue one year from children comes and sees to the pay- date, and on the other to pay the rent, ment of the above board, unless it and signed by both the owner and the should be sooner paid. If the said A. other party, is a lease for one year from J. W. should receive any rents or its date. Hurlbut z'. Post, i Bosw. (N. profits for the house and lot, he is to Y.) 28. give me credit with the amount on my An instrument giving one a right to account with him for board; and he occupy land for a certain considerawill also give me credit with the amount tion, payable as he occupies, as long as of sale-bill bought at Mrs. W.'s sale, he pleases to do so, is a lease at will of amounting to $672,”-operates in the the lessee and therefore at will of the nature of a lease, and is so regarded in lessor. Doe v. Richards, 4 Ind. 374. this case.
Wells v. Sheerer, 78 Ala. The resolutions of the trustees of a 142.
town, granting A, his heirs and assigns, An agreement, whereby one person the rights and privileges of certain real leases his farm for a year to another estate upon certain conditions, cannot person for one-third of the crop, such operate as a freehold conveyance, but second person to furnish seed and tools, upon the conditions being performed, is
notes, but do not admit of the deduction from them of any gen-
A grant or franchise for a limited term after which it reverts to
III. WHAT MAY BE LEASED.—What property may be leased.
IV. FORM OF LEASE.--No particular form of expression or
a lease for an indeterminate period. 2. Bridge Proprietors v. State, 21 N.
A writing which, for a valuable con- 3. Wallace ?'. leadley, 23 Pa. St.
Simons, I Root Conditional Sales.--A lease does not
apply to personal property unconnected
month, until a certain amount is paid,
vol. 3, p. 426; CHATTEL MORTGAGES,
Morrill 7'. Mackman, 24 Mich. 279; A contract between the owner of Watson 7'. O'Hern, 6 Watts (Pa.) 362; land and another person that such other State 7'. Page, i Spear (S. Car.) 408. person shall raise a single crop on In estimating the language which shares, upon the land of the former, constitutes a lease, the form of words does not amount to a lease of the land. used is of no consequence; and it is not Bishop z'. Doty, i l't. 38.
necessary that the term " lease" should An agreement by the municipal au- be used.
be used. Whatever is equivalent will thorities with a party, that if he would be equally available, if the words assume erect a market house for the town he the form of a licence, covenant or should occupy it for twelve years, with agreement, and the other requisites of exclusive right to keep it under ordi- a lease are present. Moore 7'. Viller, nances requiring stalls to be rented of 8 Pa. St. 272; Bussman 2'. Ganster, 72 him for a fixed price. Hcld, not to be a Pa. St. 256; Steel zi. Frick, 56 Pa. St. lease, and to imply no covenants of quiet 172; Moshier i'. Reding, 12 Me. 478; enjoyment. Brookhaven z. Baygett, 61 kunkle 2. Phila. Rifle Club, io Phila. Miss. 393.
(Pa.) 52; Jackson i'. Ilughes, i Blackf. 12 C. of L-62
And the word “lease ” may vest a lease for years or for life according to the intention of the parties.1
A receipt expressing the terms and the nature of the tenancy may be a lease. 2
V. PAROL LEASES.—A parol lease is where the parties agree, either orally or by a writing not under seal.3
Mickie 7'. Lawrence, 5 the lessor may elect to treat him as Rand. (Va.) 571; Waller 7'. Morgan, tenant from year to year, and recover IS B. Mon. (Ky.) 142; Brauch z'. Doane, the value of the premises as upon a 17 Conn. 411; Ball 7'. Peck, 43 Ill. 482; lease from year to year. Shepherd v. Boone z'. Stover, 66 Mo. 430; Smith v. Cummings, i Coldw. (Tenn.) 354. Simons, 1 Root (Conn.) 318; People v. A parol lease "by the year” is for Kelsey, 38 Barb. (N. Y.) 269; Bacon 7. one year and binds the parties no Bowdoin, 22 Pick. (Mass.) 401.
longer. Pleasants z'. Claghorn, 2 Miles 1. Jamaica Pond Aqueduct Co. 7'. (Pa.) 302.
? Chandler, 9 Allen (Mass.) 159; Ber- Although a lease may be void by the ridge v. Glassey, 112 Pa. St. 442. statute of frauds if the tenant goes into
2. Berrington 2. Casey, 78 Ill. 317; possession thereunder and remains for Eastman 7. Perkins, 111 Nass. 30; Gib- a time, the lease may be looked to in bons v. Dayton, 4 Hun (N. Y.) 451; determining the amount of rent due. Munn v. Wray, 7 Blackf. (Ind.) 403; Evans v. Winona Lumber Co., 30 Alcorn 2'. Morgan, 77 Ind. 185; Moring Minn. 515. v. Ward, 5 Jones (N. Car.) 272.
There may be a parol reservation of 3. Paroi Leases.—A letting by parol the landlord's share in growing wheat for a sumn certain per month, nothing from a written lease, under which the being said about a year, constitutes a lessee takes possession before the matulease from month to month, and the rity of the crop. Hisey v. Troutman, fact that the tenant holds over for more 84 Ind. 115. than a year cannot niake him a tenant Where the owner of certain lands from year to year. Hallis 2'. Burns, enters into an agreement with another 100 Pa. St. 206.
person by which the last named party A verbal agreement to give a lease is is to raise a crop of wheat, corn and not binding if any essential matter af- fodder upon the land, the owner to furfecting the rights of the parties—as nish all the teams, horses, etc., all seed, here the time of commencement—is left wheat and corn, and all the carts, etc., open to future consideration and re- and some guano; the second party to mains unsettled. Sourwine 7'. Truscott, do all the labor and cultivate and tend 17 Hun (N. Y.) 432.
the crops, etc; the owner to have a A lessee who occupies premises can- certain portion of the crop and the not avoid paying the rent agreed upon other person the residue; held not to in a parol lease for five years made by be a parol lease. Currey v. Davis, I a married woman without her husband's Houst. (Del.) 598. concurrence. Ilis liability for rent re- Where a party enters into possession sults from his occupancy, and the terms of premises under a verbal letting, are properly regulated by a lease other which is voidable under the statute of wise void. Nash v. Berkmeir, 83 Ind. frauds, agreeing to pay rent monthly, 536.
which he pays as it accrues, he becomes A verbal agreement changing a con- a tenant from month to month. Browtract under seal is valid if supported by cell v. Welch, 91 lil. 523. a new consideration and not within the A parol lease of premises for a year to statute of frauds. Wilyes v. White- commence in futuro, is not an executory head, 89 Pa. St. 131.
contract prior to the time of taking A parol licence by lessor to lessee to possession. It vests a present interest remain in possession after the expira- in the term and cannot be rescinded tior of the lease, made without con- by either party alone. In case theresideration, is subject to revocation. fore, of a refusal of the lessee to perWalker v. Wilson, 52 Ill. 352.
form the lessor is not required to lease A parol lease for one year is valid, to another if he has an opportunity, and if the tenant under such a lease and is not confined to his remedy for holds over for a portion of another year actual damages, but may refuse to ac
cept a rescission and hold the lessee menced till a future date. A lease void liable for the rent. Becar 2. Flues, 64 by the New York statute of frauds is X. Y. 518.
deemed valid until the ist day of May Statute of Frauds. For the operation next after possession given. Taggard of the statute of frauds upon parol 7'. Roosevelt, 2 E. D. Snith (N. Y.) 100. leases, see FRAUDS, STATUTE OF, vol. 8, Delarrare.- A lease for a year may P 664 et seq., in connection with which be by parol. Himesworth v. Edwards, the following cases may be examined: 5 Härr. (Del.) 376.
llabama.—A verbal contract for the A parol contract that a party should rent of a house for the term of one year have a certain meadow for three years to commence at a future day is void as a compensation for clearing it-he under the statute of frauds. Parker 2. seeding it-was held not admissible Hollis, 50 Ala. I.
in evidence, the Delaware statute of !n Alabama under the statute of frauds requiring that all contracts relatfrauds (Code, 212, subd. I, 5) a ing to lands be in writing. Scotten 2. parol agreement for a lease of land for Brown, 4 Ilarr. (Del.) 324. the term of one year to commence in Massachusetts.--A parol agreement future is void. Oliver v. Ala. Gold Life between the parties to a lease, in writIns. Co., 82 Ala. 417.
ing entered into before the expiration A verbal lease or an unsigned writ of the lease, that the lessee would take "ing in the form of a lease granting the the premises for another year on the right to enter on lands and mine ore for same terms is within the Massachusetts the term of two years is void under the statute of frauds, as an agreement not statute of frauds and cannot amount to to be performed within a year and no - more than a parol licence, which is rev- action can
be maintained thereon. ocable. Hammond v. Winchester, 82 Delano 7. Montague, 4 Cush. (Mass.)
42. Missouri.–Tenancies at will may be Indiana.-Under the Indiana Rev. created without writing, and are not Stat. 1843, ch. 28, par. 16, a suit by a within the Missouri act regulating con- lessee against the lessor for refusing veyances. Murray V. Armstrong, II deliver possession will not lie upon a
verbal agreement to lease land for two A parol lease for a term of years, years the occupation to commence at a though by the Missouri statute of frauds future day. Stackberger v. Mosteller, declared to create a tenancy at will, has 4 Ind. 461. the effect of creating a tenancy from Under the Indiana laws a parol lease vear to year. Kerr z'. Clark, 19 Mo. for a year, to commence thirty days 132.
after the making of the contract, is The Missouri statute of frauds pro- valid within the statute of frauds. vides that all leases, etc., made by parol Hoffman v. Starks, 31 Ind. 474. shall have the force and effect of leases By Massachusetts Stat. 1783, ch. 37, at will only. Notwithstanding this par. 1, all parol leases have the effect :statute the doctrine in Missouri is, that of leases at will only. Ellis v. Paige, after the expiration of a written lease a i Pick. (Mass.) 43. tenancy from year to vear may arise Georgia.-Under the Georgia statby verbal permission to hold over and ute of frauds, a paroi lease for more receipt of yearly rent. Hammon v. than three years has the effect of an Douglas. 50 Mo. +34.
estate at will. Cody 2. Quarterman,
7. Nezl Jersey.-A parol demise for a 12 Ga. 386. longer term than three years is void as New Hampshire. — A licence or a lease for such term, but it operates privilege to be exercised upon land is as a demise from vear to year. Drake not within the statute of frauds and may 7. Newton, 23 N. J. L. (3 Zab.) 111. be granted by parol. Woodbury New York.--A parol lease of lands Parshley, 7 N. H. 237.
. for one year to commence in futuro is
Ohio. Possession given under a void, being a contract relative to lands parol lease of lands and part performand a contract not to be performed ance by the lessee, takes it out of the within a year from the making thereof. Ohio statute of frauds. Wilber 7'. Crosswell 2. Crane, 7 Barb. (N. Y) Paine, i Ohio 251; Grant z'. Ramsey, 7 191.
Ohio St. 159; Moore v. Beasley, 3 A parol lease for a term of one year is not void by the statute of frauds, Connecticut. - An agreement realthough the term is not to be com- specting the leasing of real estate not
VI. AGREEMENT FOR LEASE.—It is sometimes
It is sometimes quite difficult to distinguish a lease from an agreement for a lease. In determining whether an instrument is a present lease or simply an agreement for a future lease, the whole tenor and effect of the instrument must be considered, and in such considerations the intentions of the parties must be respected, for if it manifestly appear that it was the intention of the parties to the instrument that it should be simply an agreement for a lease, although some portions thereof import a present demise, the law will construe it to be an agreement for a lease. 1
An agreement for a lease can be amended or altered to suit the intentions of the parties thereto, while in a complete lease the parties are bound by its implied as well as its express covenants. An agreement leaves something further to be done by the parties in the future, while a lease leaves nothing undone, and is a demise complete in its provisions and terms.2 to be performed in one year is not soon as convenient,” held to be an within the Connecticut statute of executory agreement for a lease. Harfrauds. Janes Finny, Root rison v. Parmer, 76 Ala. 157. (Conn.) 519
A writing having been drawn up at Tennessee.—A verbal lease under the second interview between the parthe Tennessee statute of frauds for six ties, which specified particularly the years is void and cannot be construed duties and obligations of the lessee, was as a lease from year to year.
Porter . signed by him and delivered, with his Gordon, 5 Yerg. (Tenn.) 100.
notes for the rent as specified, to the Illinois.-A parol lease for a term lessor, who thereupon surrendered to not exceeding one year is valid. Bull him the original writing; this, without v. Griswold, 19 111. 631.
more, would amount to an executed A verbal agreement to lease land for lease, and the lessor would be held to one year, which by its terms, is not to have waived any stipulations not conbe performed within one year from the tained in the writing. But, it being making thereof, is void. Olt further shown that the parties sepaLohnas, 19 Ill. 576.
rated with the understanding that they North Carolina.—A verbal agree- were to meet a third time, when a ment for land for more than three duplicate of the writing signed by the years, and those for mining for any lessee was to be prepared and signed term though less than three years, are by the lessor, and the first writing was void under the North Carolina statute to be then surrendered by the lessee, of frauds. Briles r. Pace, 13 Ired. and that this was not done at the third
' (N. Car.) L. 279.
meeting; these facts show that the parMississippi.-A verbal contract for ties considered the transaction as still a lease of land for more than a year is incomplete, and the writings operate void. Phipps z'. Ingraham, 41 Miss. only as an executory agreement for a 256.
lease. Ilarrison z. Parmer, 76 Ala. 1571. Hallett 2'. Wylie, 3 Johns. (N. Y.) A written contract of lease for cer44; Jackson 1!. Clark, 3 Johns (N. Y.) tain rent, with an agreement that the 424; Jackson z'. Myers, 3 Johns. (N. Y.) lessor would pay for repairs and for 388; Bacon
Bowdoin, 22 Pick. the support of it, but no provision for (Mass.) 401; State '. Page, 1 Spear the duration of the contract, the kind of (S. Car.) +08; Goodlittle z'. May, 1 T. repairs, or for the support of A, held to
be a contract partly written and partly 2. Kabley 7'. Worcester Gas. Co., parol. Gordon z'. Gordon, 96 Ind. 13+. 102 Mass. 391.
An entry under a written agreement An agreement in writing drawn up for a lease for a definite term, and at a at the first interview and signed at that specified rent, and the payment and retime, describing the premises to be let, ceipt of the rent, constitute a valid the term and the rent, with a clause lease between the parties for the term “notes and papers to be drawn up as therein named, and at the rental speci