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CHAPTER VII.

TERMINATION OF THE RELATION.

$ 109. Necessity of action for possession. If the tenant does not surrender possession without notice at the end of the term for years, the lessor may lawfully enter and take peaceable possession without any notice to quit or judicial aid; and according to the decisions of Massachusetts, Maryland, New Hampshire, and Rhode Island, the tenant cannot maintain any civil action for damages if the lessor enters and forcibly ejects him without process when he holds over the end of his term; for he has no right there, and the injury, if any, is due to his wrongful opposition and not to the force of the landlord, provided no unnecessary force is used. Even in these states it is held that the landlord is liable to a criminal prosecution for breach of the peace for such a forcible entry. But in a large number of the states it has been held that if the lessor forcibly ejects a tenant wrongfully holding over he is liable to at least nominal damages in a civil action by the tenant for the trespass. See the article on Torts, $69, in Volume III of this work. As a rule the tenant surrenders and abandons when his term is up; but if he does not the lessor may either elect to treat him as tenant for another term at the same rent, or he may make a formal entry and then sue him in trespass, or he may sue him in ejectment without making any formal entry, or he may bring summary proceedings under the statute of the state to have him ejected. These statutory proceedings enable the owner with the aid of the sheriff to get possession in much less time than could be done by the regular action of ejectment.

§ 110. Notice to quit: When necessary. No notice to quit is necessary to terminate a tenancy for life or years. In these cases the estate is ended by the mere death of the tenant for life, or the lapse of time for which the term was to endure. The representative of the life tenant has only a reasonable time to remove the goods of the life tenant. The tenant for years is bound to know when his time is up without any notice from the lessor or his grantee; and if he does not quit the landlord may hold him for another term's rent, or have him summarily ousted. But a tenancy at will, from year to year, month to month, or the like, can only be terminated by due notice.

$ 111. Same: Service and contents of notice. This notice must be given by the landlord or tenant or the authorized agent of either; to the landlord anywhere, to his wife or agent at his residence, to the tenant if found on the premises, or to the person he has left in charge of the premises. If there are several tenants in common, notice to one is notice to all. If the possession has been given over to assignees or subtenants, the notice may be served on them or their 'agents. Service should be made on the tenant in person when this can conveniently be done, otherwise it may be left with his wife, servant, or agent at his residence though not on the demised premises. It may be made by mail, but such service in absence of registry lacks proof of receipt by the other party. It may be given on Sunday or a holiday. Any manner of service will do which clearly informs. It may be by word of mouth only, but should be by writing, for the sake of making proof, and the person making the service should keep a copy to prove what the notice was. Proof of notice may be made by anyone knowing the fact, or may be waived by the tenant denying that he is tenant, by the landlord accepting another as tenant, or the like. The notice should specify clearly who is to quit, when, and from what premises. Any defects in the notice are waived by the party notified leading the other to believe that he waives the irregularity. If it is the tenant who wishes to terminate the lease, he must serve a notice on the lessor or his grantee, whichever is landlord, specifying who intends to quit, what premises, and when. Mere abandonment of possession by the tenant is not notice to the landlord that he intends to quit the premises, and the lessor may hold him for rent till the lease is terminated by due notice. When a lease is terminable at the option of either party, notice of intention to exercise the option must be served on the opposite party, but the time and manner of the notice may be regulated by the lease in any way the parties agree.

§ 112. Same: Length of notice. The length of notice is generally controlled by statute. At the common law a tenancy at will is terminable at any time, but many statutes now require a certain notice, frequently six months, served by either party on the other. Where the tenancy is from year to year ($ 3, above), it could be terminated only by notice to quit or of intention to quit, at a rent day not less than six months from the time of service of the notice. In a leading case on this subject, ejectment was brought against a tenant holding from year to year under an implied lease of a public house resulting from holding over under a lease for one year commencing at midsummer. On the trial, proof was made of notice served by the landlord on the tenant March 26 to quit Sept. 29. Of this Lord Mansfield, C. J., said: “When a lease is determinable on a certain event, or at a particular period, no notice to quit is necessary, because both parties are equally apprised of the termination of the term. If there be a lease for a year, and by consent of both parties the tenant continue in possession afterwards, the law implies a tacit renovation of the contract. They are supposed to have renewed the old agreement, which was to hold for a year. But then it is necessary, for the sake of convenience, that if either party should be inclined to change his mind, he should give the other half a year's notice before the expiration of the next or any following year. Now this is a notice to quit in the middle of the year, and therefore not binding, as it is contrary to the agreement. As to the case of lodgings, that depends on a particular contract, and is an exception to the general rule. The agreement between the parties may be for a month or less time, and there, to be sure, much shorter notice would be sufficient, where the tenant has held over the time agreed upon, than in the other case. The whole question depends upon the nature of the first contract” (1). Since this was not a notice to quit in the middle of the summer, it was

(1) Right d. Flower v. Darby, 1 Term, 159.

not even a good notice to quit in the middle of the next summer. That might not be desired.

Where the periodical tenancy is for a time shorter than a year, as from quarter to quarter, month to month, or week to week, it is generally held in America that a notice equal to the length of the period must be given to quit at the end of a period (2).

§ 113. Termination by death of parties. The death of either lessor or lessee terminates a tenancy at will in the absence of statute on the question. But a tenancy from year to year or for years is not terminated by the death of either party. The heir succeeds to the inheritance of the lessor and the executor or administrator to his term if he had but a term; and if it was the tenant who died his representative stands in his place. Of course the lease for life is ended by the death of the tenant for life; but in the absence of statute the representative of the tenant for life has a reasonable time to remove the goods and crops of the tenant.

§ 114. Termination by destruction, sale, or eviction. The tenancy is not terminated by any destruction of the thing demised short of a total destruction of it, as in the case of the burning of a building when the premises was a room in the building.

The termination of the lessor's estate ends the relation; likewise the grant by the landlord of his reversion, or the assignment of the term by the tenant, terminates the relation between the original parties by substituting another, but in none of these cases are the contract rights of

(2) 18 Am. & Eng. Ency. (20. od.) 204 (collecting cases).

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