Rice v. Atkinson, Deacon, Elliott Co.

Fellows, J. I am unable to agree with the result reached by my Brother Moore in this case. While a tenant paying an annual rental who holds over after his term has expired with the acquiescence of his landlord is frequently called a tenant from year to year, I am persuaded that such tenancy does not possess all the attributes of one from year to year. Where there is no express agreement for a renewal of an annual lease and the tenant remains in possession after the term has expired the landlord may treat ’him as a trespasser or may acquiesce in his continuing in possession and in the latter event the law presumes that the tenant holds for another year subject to the terms of the previous lease. It is a covenant either express or implied of all leases for a definite period that the tenant at the expiration of his lease will yield and deliver up the possession of the premises to the landlord. Both parties know when the lease, either original or .renewal, will expire. Under such — 373 — circumstances, in my judgment no notice is necessary to terminate such a tenancy. The question, however, is one of authorities and to them I shall now call attention, first considering the text-writers. The rule laid down in Cyc., as quoted by my Brother and as more fully quoted from in Faraci v. Fassulo, 212 Mich. 216, is no doubt in accordance with the weight of authority, but the author of the article on Landlord and Tenant in Cyc. was not there considering the question of necessity of notice. Later in the article he had occasion to consider that question. I quote from what he says on this subject (24 Cyc. p. 1381): “In some cases a distinction seems to have been made between those tenancies from year to year arising from leases for indefinite terms, and those arising from a holding over by the tenant after the expiration of a lease for a specified term. Thus it has been held that a tenant who occupies demised premises for several years after the termination of his lease creates each year a new term expiring at the close of the current year, and requiring no notice for its determination.” In 1 McAdam on Landlord and Tenant (3d Ed.), p. 604, it is said: “A tenancy may bear the name, ‘tenancy from year to year’ for one purpose and not for another. Where a tenant for a year, or for one or more years, holds over after the expiration of his term, without any express agreement, but with the assent of his landlord, the law implies that he holds the premises upon the former terms for another year. Hence he may be turned out of possession summarily, without any previous notice at the end of any year he so holds over, because his term, that the law fixes for him then expires, and he knows without notice, that he cannot continue in possession longer, unless he has permission from his landlord. No notice to quit is necessary in such a case.” — 374 — 2 Taylor on Landlord and Tenant (9th Ed.), p. 52, without qualifications,thus announces the rule: “When a tenant for a year, or any other ascertained period, holds over without permission, no notice is of course necessary, since, without some fresh agreement, express or implied, the tenancy by its own terms is at an end.” While Mr. Underhill (1 Underhill on Landlord and Tenant, p. 157) treats of the subject more at length and says: “A distinction has been made by the' authorities as to the necessity for a notice to quit between that class of cases where the tenancy is of an indefinite duration or for an indefinite number of years as was the universal character of these tenancies from year to year in their original condition ; and the class of tenancies from year to year which arises when a tenant holds over with the consent of his landlord after the expiration of a definite term. In the former class of cases, and particularly where the premises consisted of agricultural land, a six months’ notice to quit was required from the landlord because of the fact that the tenant from year to year could not otherwise know at any time during the existence of his holding when his landlord might determine it. In theory ,a tenant from, year to year under an indeterminate lease has in each current year a growing interest in the year next ensuing, which cannot be arbitrarily destroyed by his landlord without notice to quit. _ Where, however, a tenant holds over after the expiration of a definite term, and by so doing creates a tenancy from year to year, no year of the tenancy thus created by holding over arises out of or is connected with the year which precedes it but each year of the holding over creates a new and separate contract for a year between the parties which, being for a fixed and definite period may, according to the rule, be terminated without notice. The assent of both parties to the original lease is necessary to create the new lease from year to year by holding' over. This assent on the part of the tenant is usually implied from — 375 — the fact of his remaining in possession and paying rent after his term has expired.. His action in vacating the premises and not electing to hold over is so clear a manifestation of his intention not to create a new yearly tenancy that no other notice on his part is required. And though by remaining in possession the tenant is presumed to offer to take the premises for another year, the landlord is not bound to accept the offer, and unless he does so by accepting rent or otherwise, the tenancy is terminated and notice to quit is not required tó be given, by him.” And Ruling Case Law (16 R. C. L. p. 1167) thus points out the difference in the rule as to notice of a tenancy from year to year at common law, and a tenancy from yean to year by holding over: “In case of the common-law tenancy from year to year, it is generally recognized that where such tenancy has continued through several years, it constitutes as a whole one continuing tenancy. In case, however, of a tenancy for another term arising out of the election of a landlord so to hold a tenant who holds over his term, it is held that each tenancy arising from the holding over constitutes, a new term or tenancy distinct and separate from the preceding term or tenancy. As has been said, the only logical deduction from the choice given to the landlord of treating a hold-over tenant either as a trespasser or as a tenant for another year is that each holding over, where acquiesced in by the landlord, constitutes a new term, separate and distinct from those which preceded it, and related to each other only in the conditions of the original lease which the law reads into the new tenancy. So it is held that there is a distinction between those tenancies from year to year from which the rule requiring notice to quit had its origin, and those arising from a holding over by the tenant after the expiration of a lease for a specified term. In each year of occupancy under the former, there is, it is said, a growing interest in the ensuing year, springing out of the original contract; while in the latter case a new contract arises each year of the holding over, by implication from the conduct of the parties. — 376 — And therefore notice to quit is not necessary to terminate a tenancy arising from the tenant’s holding over.” In Kennedy v. City of New York, 196 N. Y. 19 (89 N. E. 360, 25 L. R. A. [N. S.] 847), Mr. Justice Werner, speaking for the court, thus stated the question before the court: “The question to be decided is whether the defendant’s liability for the rent of the years 1898 and 1899 arose out of a single contract or out of two distinct contracts; and that depends upon the underlying question whether a holding over from year to year, after the expiration of a definite term, is merely an extension or enlargement of the original term, or whether such a holding over constitutes a new term for each year that it continues.” After considering the authorities he said: “Upon principle and authority we conclude that a tenancy from year to year, created by the tenant’s holding over after the expiration of his original term, is a new term for each year of such holding “over, upon the terms of the original lease so far as they are applicable to the new relation.” A much cited case involving the question now under consideration is Gladwell v. Holcomb, 60 Ohio St. 427 (54 N. E. 473, 71 Am. St. Rep. 724). The court there said: “A distinction has been made between those tenancies from year to year from which, as has been seen, the rule requiring notice to quit had its origin, and those arising from a holding over by the tenant after the expiration of a lease for a specified term. In each year of occupancy under the former, there is, it is said, a growing interest in the ensuing year springing out of the original contract; while in the latter case, a new contract arises each year of the holding over, by implication from the conduct of the parties. * * * “As the assent of both parties is necessary to the creation of this new contract at the beginning of each — 377 — year, it is obvious that if the tenant chooses not to hold over, and vacates the premises at the end of any year, the tenancy ceases, without liability for rent for the ensuing year, though no notice of his intention to remove be given, as- certainly as it does upon the expiration of a lease expressly made for a specific term. So it does, though he hold over, unless the landlord chooses to accept him as a tenant for another year. By remaining in possession' without any new arrangement, the tenant is regarded as offering to take the premises for another year upon the terms of his tenancy which has just expired. But the landlord is not bound to accept the offer; and, unless he does so, by receiving rent, or some other act of assent or acquiescence, the tenancy is terminated, and notice of his intention not to renew it for another year is unnecessary. The holding over after the end of any year, without the landlord’s consent, is equivalent to holding over after the expiration of a lease for a specific term. And, if the landlord does not choose to accept the proffered tenancy for another year, he is at liberty to treat the occupant as a trespasser, and may maintain ejectment against him, without previous notice of his intention not to prolong the tenancy. This result necessarily follows from the fact that the tenancy terminates at the close of the year, unless the parties, by some new agreement, express or implied, extend it for a longer period.” Turning now to some of our own cases: Ganson v. Baldwin, 93 Mich. 217, grew out of a written contract set out in the opinion. It was held that plaintiff was bound only in so far as she had acquiesced in it. It being a contract for an indefinite period, strictly a tenancy from year to year, it was held that a year’s notice should be given. It was not a case of holding over. Nor was Grady v. Warrell, 105 Mich. 310, a case of holding over. The executors had executed a lease for two years. Under the statute they were empowered only to lease “from year to year.” They had exceeded their power. The lease was good only as one from year to year and a year’s — 378 — notice was necessary. In Scott v. Beecher, 91 Mich. 590, the question of holding over was involved. It was there said: “It is well settled that when a tenant enters under a parol lease for a year, and holds over, - and when a tenant under a valid lease for years holds over, the law implies a contract on his part to renew the tenancy on the same terms for another year; but the landlord may treat him as a trespasser, or as a tenant holding upon the terms of the original lease.” In Schneider v. Lord, 62 Mich. 141, the question involved was whether the payment of rent by the month made a tenancy from month to month or from year to year. It was held under the facts that the tenancy was from year to year. Mason v. Wierengo’s Estate, 113 Mich. 151, was a hard case, but it was held that the occupancy of the premises by the tenant for a few days after the end of the term with the acquiescence of the landlord operated to renew the lease for another year. To my mind Teft v. Hinchman, 76 Mich. 672, is precisely in point. There had been a verbal lease for two years which was not valid for the two years under the statute of frauds; it was good for a year. The tenant held over for the second year with the acquiescence of the landlord. The question involved was whether he could be evicted at the end of the second year without a notice to quit. This question was answered in the affirmative, the court saying: “It is true, many cases are found in the books so full of various subtleties, refinements, and technicalities of terms as to the law of notice to quit between landlord and tenant that a study of them leads to almost hopeless confusion and uncertainty as to the manner of procedure to get rid of a tenant; but under our statute and practice, as defined by our own courts, the matter is simple enough. There is probably no other branch of the law so full of doubt and perplex — 379 — ity to the profession as this one, if resort is had to numerous authorities. “But apply the law of this State to the case in hand, and the solution is easy. The second year Hinchman was'holding the same as under a verbal lease for one year. At the end of it he required no notice to determine it. The complainants could have proceeded against him the next day, without notice to quit, to obtain possession.” In the case of Ryan v. Mills, 129 Mich. 170, it was said by Mr. Justice Grant, speaking for the court: “Defendant’s counsel urged that defendant, by entering upon another term, had obtained the right of 'occupancy for a year, and was entitled to one year’s notice before complainant could legally proceed to terminate the tenancy. The court held that the case was controlled by Teft v. Hinchman, 76 Mich. 672, and in this it was correct.” See, also, Murphy v. McIntyre, 152 Mich. 591. In my judgment the decree should be reversed and the bill dismissed, with costs of both courts. Steere, C. J., and Stone, Clark, Bird, and Sharpe, JJ., concurred with Fellows, J.