lease is from the first day of January, it begins on the second day
and lasts through the last day mentioned; in carefully drawn leases
the number of days is fixed to avoid all dispute. A lease for a year
with the privilege of remaining three years or longer does not mean a
single period of three years, but three yearly periods as the tenant
may elect.
A lease may be made to take effect in the future, provided the time
for taking possession is not so far away as to violate some statute to
the contrary. A lease for an hundred years in some states is deemed a
parting with the absolute title to lands though railroads make long
leases running for ninety-nine years. If the length of the term is not
definitely expressed in the lease, the time may be ascertained by
other evidence. When a lease is to run for one or more years "from" a
specified day, the corresponding day of the year is excluded from the
term, unless a contrary custom exists. A lease to a specified day ends
with its expiration. If there be a doubt on which of two days a lease
terminates, the lessee may decide. More generally, leases of doubtful
duration are construed in favor of the tenants. By statute in New York
leases which do not specify the length of occupation, extend to the
first of the following May after taking possession.
A lease must describe clearly the premises, nor can a defective
description be cured by outside evidence. Any language will suffice
that shows the intention of the parties. The words "grant," "demise,"
and "to farm let," have a technical meaning, and are generally used,
but other words may be and often are used. A memorandum expressing the
consent of the owner that another shall have immediate possession of
the premises, and shall continue to occupy them at a specified rent
and for a definite term, is a sufficient lease; in general, any
agreement under which one person obtains the right of enjoyment to
property of another, with his consent and in subordination.
A distinction exists between a lease and an agreement for a lease,
which should be understood, though it sometimes is not by the parties
themselves. If the agreement is a lease, it cannot be changed by other
evidence, for it is a completed contract; but if it is an agreement
for a lease, then it is not complete and other evidence may be
produced to show what the parties intended. How can the nature of the
agreement be tested? By ascertaining whether it is complete or not.
Thus A wrote to B that he would take his home at a stipulated rent for
two years if he would put in a furnace, with which offer B at once
complied.
This was a lease, for by putting in the furnace nothing more remained
to be done. If he had not put in the furnace, or not before the time A
was to take possession, there would have been no lease, unless A had
waived his offer and taken possession.
Of course to make a valid lease there must be competent parties. A
lease made by a minor is not void, but he may avoid or cancel it by
some positive act. Can he do this before attaining his majority? On
this the authorities differ. Again appears the risk of making
contracts with minors, though the situation many times seems clearly
to justify such action. A guardian may lease his minor's land for the
period of his minority; if leased beyond, the ward may have the lease
canceled for the excess. A lease terminates on the death of the ward,
whatever may be the length of the term. A parent cannot lease the land
of his minor child like a guardian.
By common law a lease made by a married woman was avoided after her
husband's death. The modern statutes excluding her husband's power of
control over her property and authorizing her to take and hold
property as if she were an unmarried woman, have abolished both his
power to invalidate the lease and also her power to repudiate it after
his death.
A private corporation may make a lease of its property provided that
in doing so it acts within its charter. A municipal corporation, while
it may lease property belonging thereto of a private nature, cannot
lease property which has been devoted to public use. A corporation
whether public or private may take a lease of property so far as this
may be a proper means of carrying out the purposes for which the
corporation was created.
Executors and administrators may dispose of a lease belonging to the
deceased, or make new leases for terms within the period covered by
it. Trustees have a still larger authority to lease the lands
entrusted to them, unless restricted by the terms of their
trusteeship, or by statute. Though a member of a partnership, as we
have seen, is an agent, he cannot make valid lease of partnership
land.
What may be leased? Besides land, the right to a wharf, to flow with
water the land of another, to go over another's land. An ordinary
boarder, who has a room and boards in the house of another and who
retains the possession and care of his room, is not a tenant. On the
other hand the letting of an entire floor for lodgings may create a
tenancy, and so may even a single room. A lease for an unlawful
purpose is void, for example, for the sale of spirituous liquors
contrary to law.
If the premises are occupied by the lessee and his rent is paid as
specified in the lease, this is regarded as a ratification by him of
an invalid or void lease. To this rule are some exceptions.
A rule of construction may here be added; if a blank form is used in
making a lease and the printed and written parts or agreements are
inconsistent, the matters written are regarded as expressing the
intention of the parties.
Much might be said concerning the use of the premises. If a farm is
rented and the lease is silent on the matter, the law presumes that
the tenant will use it in a proper and husbandlike manner, like other
exemplary farmers in that vicinity. He must cultivate the soil
properly, preserve the timber, consume the hay as fodder to the
cattle, if such be the custom, and keep the buildings and fences in
repair. Manure in the ordinary course of farming belongs to the farm.
To manure made in livery stables a different rule applies and the
tenant can remove it. If the lease be of a mill it usually provides
how it shall be run, if it be a house in the city and nothing is said
about its use the law implies that there shall be no waste or
destruction beyond the ordinary wear and tear. To use the doors for
firewood is not uncommon with tenants, unless they are not burnable,
though surely it is not a proper use of a leased house.
A farm tenant has the right to take and use material found on the land
suitable and needful to repair the buildings, fences, also dead and
fallen timber for fuel. He cannot use shrubbery and ornamental trees
for this purpose, nor cut standing timber for this purpose. He is
entitled also to the way going crop, but must remove it during his
lease. He cannot go on the land afterward and remove crops, unless he
was prevented by some good reason from removing them while he was in
possession.
Can a lessee assign or sublet his lease? Of course this may be
forbidden, and often is by the lessor, without his consent. If the
lease is silent this can be done. If the lessee die, his executor or
administrator can assign the remainder of his term. A lease may also
be assigned if the lessee become insolvent, also by a new partnership
created by the addition or retirement of a member. A transfer by the
lessee of the whole or a part of his interest for a part of the time
is a sublease and not an assignment. And whenever a sublease is made,
the rights of the original lessor are not changed, nor does he
recognize in any way the sub-tenant unless by agreement, nor has he
any right of action against him. Of course there is nothing to prevent
the parties from making any arrangement that may be agreeable to
them.
As the lessee may assign or sublet unless forbidden, so may the lessor
part with his interest in the leased premises. When an assignment of
it is made, the assignee may sue in his own name for rent accruing
after the assignment.
The lease of a private residence is not a warranty that it is
reasonably fit for occupancy. Thus saith the law. Nor can a lessee,
unless the lessor has misrepresented the healthfulness of the place,
leave after the unwelcome discovery that it is not healthful. This
seems to be rather harsh, but the rule is founded on the presumption
that the lessee will examine the house before leasing and make proper
inquiries about its healthfulness.
By the common law the lessor was not required to make repairs. This
has been changed in some states by statute. He is not required to make
repairs needed and known to the tenant at the time of making his
lease. Hallways, staircases, elevators, and the like that are used in
common by the tenants of a building and are under the landlord's
control, must be kept in repair by him. If he shall let a many storied
building to several tenants, to each tenant a story, who have
exclusive possession thereof, the lessor will not be liable to any
lessee for the damage caused by another.
If the landlord agrees to make repairs and keep the tenement in good
condition, he is required to keep it in essentially the same condition
as it was when the tenant took possession. Should the house or other
building be destroyed by fire what then? An agreement to keep it in
good repair imposes an obligation on the landlord's part to rebuild.
But an agreement by the lessee to keep and leave it in good repair,
does not require him to rebuild should it be destroyed by fire, or
other cause without any fault of his own. If the lease provides that
the insurance money, when the landlord has insured the premises, shall
be applied to rebuild in the event of fire, he must regard his
agreement, but if there be no such agreement, the tenant cannot compel
his landlord to thus apply it. Should the lessor fail to fulfill his
agreement to repair, the tenant is not excused from paying his rent,
nor justified in leaving the premises. His remedy is to sue his
landlord for the damages or injury to himself. And even if the
premises be destroyed by fire the tenant must continue to pay his rent
unless he has been wise enough to relieve himself by a proper clause,
or unless some kindly statute has been passed relieving him on the
happening of such an event. No oral stipulation, that the parties
should make covering the effect of loss by fire or other contingency,
would be binding if contrary to the terms of the written lease. As
this is the highest form of the agreement, all verbal stipulations to
the contrary must give way.
A tenant can make no permanent alteration without his landlord's
consent; and should he do so and injure the premises the landlord may
recover damages, or, if such an alteration is feared or threatened, he
may prevent it by obtaining an injunction from a court ordering the
tenant not to make it and penalizing him should the order be
disobeyed.
When a lease is renewed, the new lease may be regarded in two
different ways. It may be considered as the continuation of the lease,
and thereby protecting all the interests created under it. And this
will be the case whenever the old lease clearly shows that if a
renewal should be made this was the intention of the parties. When
nothing is said, a renewed lease is a surrender of the old one and
different conditions may arise. It is important therefore when
providing for the renewal of a lease to specify what the parties
intend, whether a renewal or continuation on the old terms, or a
renewal on other terms to be fixed at another time.
Usually a lease specifies not only the amount of rent to be paid, but
the time of payment. If silent, yearly rent is not due until the end
of the year, quarterly rent at the end of the quarter, monthly rent at
the end of the month. When a lessee is evicted or turned out of
possession by his landlord, he is excused from paying rent. What,
therefore, is an eviction? Any act by the landlord, or by his agent,
impairing the worth of the premises to the tenant, for example, the
destruction of a summer house, turning rooting pigs into the premises,
the erection of a new building rendering the leased premises unfit for
occupation. One of the curious cases is the lease of a distillery
which could not be run because the landlord prevented the lessee from
getting a license. In like manner if the landlord is to furnish heat
and fails to do so, the tenant is justified in leaving. More
generally, any act by the landlord whereby the leased premises are
rendered unfit or impossible for the purpose intended, and affecting
the health and comfort of the tenant, is an eviction.
The eviction must be done by the lessor. An act done by a wrongdoer,
not under the lessor's order, will not justify the lessee in quitting.
Thus the darkening by an adjacent owner of the lessee's premises by
erecting a structure, however injurious it might be, would not justify
the lessee in quitting and refusing to pay his agreed rent. This is
one of the risks taken when making the lease.
Suppose a person occupying state land is evicted by the state, must
he continue to pay rent? In Missouri the rent ceases, or if evicted of
a part, he must pay rent on the remainder. In some states he must
still continue to pay his rent and then demand compensation for his
loss.
Sometimes land is rented on shares, a very common way in the olden
time. When this is done, the relation of landlord and tenant may be
created, or perhaps a partnership relation. If the farmer is to do the
work of a servant of the owner of the farm, receiving in return
therefor, a specified part of the crops, the agreement is one of
hiring and not a lease. If the farmer has rightful possession of the
use of the land, then the payment of his rent in produce does not
affect his relation as a tenant. The natural increase of stock leased
with a farm belongs to the tenant, and a landlord cannot recover for
the death of cattle in the tenant's possession, unless he can prove
his tenant's negligence. And if a lessee should sell part of the stock
contrary to the lease, the purchaser would be liable therefor.
A landlord often leases separate parts of a building to different
tenants, while the stairways and passages to them, though intended for
their use, are still under his control. He thus invites the tenants
and other persons having relations with them to use the approaches to
obtain access to their rooms or apartments, and is accordingly liable
when they are not kept in proper repair; the same as any owner of
structures either expressly or impliedly invites persons to enter
them. If therefore he should leave elevator shafts, or hatchways
unguarded, he would be clearly liable for the consequences. So, too,
should a mill owner have a defective bridge to his mill, forming part
of a common way thereto, he would be liable for the consequences.
The lessor is liable if he leaves his premises with a way or cellar
entrance, or coal hole inadequately guarded at the time the lessee
takes possession, but not if the guard or covering gets out of repair
during the tenancy, or is temporarily left unguarded by the tenant or
some third person. If the hole or other dangerous place is made
without proper authority, it is considered a nuisance and the owner is
liable for all injuries whether he has rented the premises or not. Who
is liable for injuries caused to travelers by ice and snow on the
pavement? This is a hard question to answer in a short space. If the
ice or snow has accumulated by reason of a defective roof, then the
landlord is liable because of its faulty construction. In some parts
of the country it is most difficult to keep the walks safe in winter.
Experience has led the parties to make stipulations defining and
fixing their liability. Many states also have statutes and cities
ordinances regulating the duties and liabilities of landlords and
tenants.
When a lease is about to expire a difficult question sometimes arises,
what can the tenant take away with him? Of course he can remove all
his furniture and the things that can be separated without injury to
the premises, but during his tenancy, he may have added things
possessing a more permanent nature, called fixtures, these he cannot
remove. The courts have had great difficulty in deciding in some cases
what these are. In a general way it may be said that whatever a tenant
adds to the premises can be removed, while he is still in possession,
without material injury to it, but he cannot remove anything
afterwards. Suppose the tenant erects a building, can he remove it?
One would not think of his building this for the benefit of his
landlord. Suppose he had built it on a foundation from which it could
be easily removed, a court would have no difficulty in deciding that
it belonged to the tenant. Many cases have arisen about ranges and
stoves. An ordinary stove of course can be removed; suppose it is
affixed to the house in such a way that some portion of the wall will
be detached by the removal, can this be done? Not if the wall will be
badly injured. How badly? This is a question of fact to be answered by
inquiry in every case. Among the fixtures that can be removed are
hangings and tapestries, ornamental chimney pieces, wooden cornices,
wainscoting affixed to the wall by screws and spikes, bells and bell
wires, chandeliers, cisterns and sinks though fastened by nails and
set into the floor, fire frame fixed in the fireplace, pipes for gas
or water, grates removable without injury to the building, pumps,
stoves, ranges and furnaces, gas ranges and water closet appliances,
washtubs fastened to the house, gas fixtures and shelves. A greenhouse
is not removable, nor gutters placed in the roof of a dwelling, nor a
stairway, nor flowers, shrubs, or bushes planted for ornamental
purposes.
Chattels placed by a tenant on leased premises for the purpose of
carrying on his business or trade are generally regarded as personal
property. Annexations of this kind are called trade fixtures and the
law is liberal in permitting their removal. Show cases, counters and
shelves, engines, boilers, machinery, tanks in a distillery, a bowling
alley, bar fixtures, even buildings are removable. The same liberal
rule applies to agricultural implements. A tenant, therefore, if
wishing to remove whatever he may have added, should be careful about
their nature, or protect himself by an effective agreement.
=Legal Remedies.=--Elsewhere we have shown how civil and criminal law
differ. In criminal proceedings the state is a party and prosecutes
offenders through agents or attorneys who are chosen or appointed for
that purpose. In all civil offenses the person injured prosecutes the
offender, through the courts established by the state for that
purpose. Suppose A owed B one hundred dollars for which he gave his
promissory note payable in ninety days from date, and which on its
maturity A declined to pay. B could then have recourse to a court of
law to collect the money. If knowing nothing about the mode of
proceeding he would employ a lawyer; if he was familiar with legal
proceedings he could do this himself.
What is the first step taken by a lawyer? He makes out a writ or
complaint stating B's course of action against A--that he has loaned
him a sum of money which he has not paid as he promised to do, and he
is summoned to appear in court at a certain time and place and answer
why he does not pay and the court is asked to render judgment against
him, if there is no defense, for the money due with the addition of
the costs incurred in seeking the aid of the court to collect the
money. This writ, declaration, or complaint is given to the sheriff of
the court where either A or B lives, who "serves" it on A. This
service consists in reading a copy of it by the sheriff, or by one of
his deputies or a constable, or other authorized person, to A, or in
leaving a true and attested copy thereof with him, which has become
the universal practice. This is the ordinary mode of beginning a legal
action against a person or corporation.
An action thus begun is followed by a trial of the case unless it is
settled. Usually the trial comes off within a few months, but not
infrequently long delays occur. If, after the introduction of
testimony, judgment is rendered in favor of B, an "execution" or order
is issued by the court directing the sheriff to levy on A's property,
whatever he may have, save a small sum, household furniture and the
like, and sell it and turn over the proceeds to B in payment of his
debt. If there was a balance left from the sale of A's property after
satisfying the judgment of the court and the costs of the legal
proceedings, it would be paid to A. This, in fewest words, is the mode
of proceeding in a court of law to obtain redress in a civil suit or
action.
There are several kinds of actions or remedies used in different cases
and these will now be explained. First, is the action of assumpsit.
This is the form of action used whenever one sues to recover on all
kinds of promises, those implied by the law as well as express
promises, not under seal. They include all ordinary promises to do
things either orally or in writing. Next, is the action of covenant.
This is used whenever one sues to recover for some failure on the part
of a person who has given a deed or other sealed writing. Suppose the
purchaser of land discovered there was an unpaid mortgage thereon,
though the deed covenants or declares that it is free from all
encumbrances. The vendee or purchaser would sue to recover for a
broken covenant. Another action is replevin which is used to recover
specific goods. Suppose someone had taken my horse and refused to
deliver the animal to me. The proper remedy would be replevin. Suppose
I did not wish to have the horse back, but only its value or worth.
Then the proper remedy would be an action of trover. Another form of
action in much use is called trespass. This is used to recover
damages for injuries to persons and property. If a person knocked me
down and I sued him to recover for the injury, trespass would be the
proper form of action. In many states an action in tort instead of
trespass is the proper remedy. If one should come upon my land and
take away wood, grass, stone, or in any way injure it, trespass also
would be the form of action. Ejectment is the action employed to eject
or turn out a wrongful possessor and recover possession of land. In
this action the title or ownership of the land lies at the foundation;
and the title to many a piece has been settled in an action of
ejectment. One of the most familiar actions is habeas corpus, which is
employed to recover a person's liberty from illegal restraint. As the
actions of slander and libel have been described, only two others
require notice, mandamus and quo warranto. The first of these is used
to compel one to do something. A familiar example is that of a city
which refuses to pay a judgment that has been rendered against it. The
court in this action commands the city to pay, and it must obey unless
there exists a legal defense. A quo warranto is the form of legal
action to which a person resorts to get possession of an office to
which he is entitled, but is denied him. Suppose one is elected mayor
of a city, but for some reason or other, the one in possession is
determined to keep him out. He would bring this action and a court
would then decide whether he was entitled to it or not, and if he
were, the court would proceed to put him in possession.
In many of the states, especially the newer ones, not all of these
different forms of action are used. Only one form, called a complaint,
includes most of them. While the substitution of this has simplified
the modes of redress, the substance of the complaint really embodies,
as before, the different kinds of injuries above explained.
=Life Insurance.=--The contract of life insurance is a mutual
agreement whereby the insurer agrees on the payment of a fixed sum or
premium to pay to a person designated in the policy on the happening
of a contingency, usually death, a sum of money. By another form of
insurance the insurance may be made payable at a fixed time, or
before, should the insured die before that period.