Determination of immovable property
Section 111 lays down the modes in which lease can be terminated.in the case of lease only right of enjoyment is transferred in favour of the lessee, therefore after the termination of the lease, the lessee is bound to deliver possession of the property to the lessor. The lease may determine the time before the end of the assigned period that notice must be given by either gathering to end the lease as of the end of the period. On the off chance that no such notice of end is given, the lease will proceed for another period.
A notice to stop is key at custom-based law to end an intermittent tenure, for example, an occupancy from year to year or from month to month; and where legitimate notice is given, an occasional tenure ends at customary law toward the end of some period, and just at such time, without an arrangement for end at later or without a surrender. The general decide is that, without an assertion between the assemblies, a month's notice before the end of the leasehold time frame, when that period is a month or more, is sufficient to end the rent. Without any arrangement in the rent as to notice to end an intermittent tenure, the custom-based law required notice six months preceding the end of the period, if the period is from year to year, and notice equivalent to the length of the period in different examples. Despite the fact that the six months' notice necessity remains a sensible run in many ranges for land rented on a year to year reason for cultivating or touching purposes, the precedent-based law six months' notice prerequisite is no more extended sensible for different sorts of leases in light of broad statutory changes with regards to the time of notice required to end an occupancy from year to year. For property not rented for cultivating or brushing purposes, a month's notice preceding the end of the period, when the period is a month or more, is sufficient in all cases, and ought to be embraced judicially without an understanding by the gatherings for some other notice precondition.
The lease may specify that the notice of termination must be in writing, that the date of its receipt by the landlord or his authorized agent or by the tenant or his authorized agent will determine whether it was given in time, that the notice must state the date of termination and that date must be at the end of a period, and that other specified reasonable formalities may have to be met. In the absence of controlling provisions in the lease, the notice of termination may be oral; if it is mailed the notice is not effective until it is received by the addressee and the burden of proof is on the one giving the notice to prove when it was received; and if the date stated in the notice for termination is not the end of a period or is too short a time before the end of a period, the notice will be effective to terminate the lease at the earliest possible date after the date stated. A periodic tenancy is not terminated by the death of the landlord or of the tenant.
Efflux of time:- A lease which is granted for a fixed term and does not have statutory protection under the Landlord and Tenant Act 1954 expires when the term comes to an end. It does so automatically and without notice and at the end of the term the tenant must give up possession of the demised property. If a lease does not contain a yield up clause, it is implied by law that the tenant must deliver possession to the landlord at the end of the contractual term, together with anything that has become part of the demised property during the term. This implied obligation also includes procuring that any sub-tenant gives up possession. If the premises are still occupied by a sub-tenant on expiry, the landlord may refuse to accept the possession and hold the original tenant liable. Where only part of the property is sub-let, similar principles apply. If a landlord is effectively kept out of possession of the whole because part of it remains in the possession of a sub-tenant, the landlord may recover damages equal to the lost rental value of the whole property. The general rule that the tenant must deliver up possession to the landlord at the end of the contractual term is subject to exceptions. These are the main examples:
i) The tenant generally has the right to remove tenant's fixtures, and consequently cannot be required to give up possession of them.
ii) ii) As above, the tenant may be entitled to protection of statute.
Expressed terms:
Most written leases do not rely on the implied position. Instead they will contain an express obligation on the tenant to yield up possession at the expiry or earlier ending of the term in compliance with the covenants in the lease. The principal relevant clauses this must be read in conjunction with are the repair, decoration, alterations and signage clauses which Helen will cover later on. -6- The obligation to yield up possession will generally specify that the tenant must give up vacant possession rather than just giving up occupation. In this case the lease will usually provide that, if the tenant has left items at the property after expiry, the landlord may remove, store and dispose of them at the tenant's cost. The landlord may then sue under this clause to recover these costs. For failure to give vacant possession on expiry, the sum recoverable from the tenant is likely to be modest in comparison to the same breach where the lease has ended due to the expiry of a break notice where delivery of vacant possession was a condition of the break.
Where the premises are still occupied by a sub-tenant on expiry, the tenant will be liable in damages for breach, even if the sub-tenant wrongfully refused to vacate. The tenant will be liable for the period of the sub-tenant���s occupation after expiry, together with any costs incurred by the landlord in suing the sub-tenant to recover possession. If it wishes, the landlord may let the tenant off the hook by accepting the subtenant as its direct tenant. If the sub-tenant has a protected tenancy entitling it to stay in possession even after the tenant's lease has ended, the tenant will not have to pay compensation for use and occupation relating to any period after the end of its own tenancy as long as it has done everything it can to give possession to the landlord. If there is no documentation in place at expiry but the landlord consents (or acquiesces) to the continued occupation then the basis of occupation will be implied. The former tenant could be an implied tenant at will, an implied licensee or an implied periodic tenant. The applicable basis of occupation will be by reference to the circumstances and conduct of the parties. A tenancy at will is more likely to be implied where negotiations are taking place for a new lease. The terms of the new lease need not be framed by reference to the expired lease and the parties are not bound to agree a new lease in those terms. An implied tenancy at will exists until some other interest is created. It will be on terms by reference to the expired lease except where inconsistent with the nature of a tenancy at will or where there is evidence of a different intention. A periodic tenancy is more likely to be implied where there are no negotiations for a new lease (or the negotiations stall or break down) but the landlord and tenant relationship is still active. The principal example of an active landlord/tenant relationship is the demanding and acceptance of rent. Whether the occupation is under a tenancy at will or a periodic tenancy is a matter of fact and the moment a periodic tenancy exists then (provided the tenant is using the premises for business purposes) the tenant will have a protected business tenancy. It is therefore advisable to avoid any argument as to whether a protected business tenancy has arisen. The tenant may have evidential difficulties in arguing that there is a protected business tenancy where, for example:
(i) new lease negotiations are active;
(ii) (ii) during the period of time (if any) between expiry and the next rental payment or
(iii) (iii) If the landlord rejects the next rent payment (in which case the tenant would struggle to argue that it was permitted to be there at all). However, in the absence of a new lease having been entered into on or before expiry, an express tenancy at will to commence immediately after expiry is the only safe way of ensuring that a protected business tenancy will not arise.
Termination of lessor���s interest or power
If a former tenant remains in occupation unlawfully as a trespasser after the end of its lease then the former tenant is liable to pay mesne profits. A former tenant is a trespasser if the former landlord has not given consent to the occupation and, more than that, the former landlord has not done anything that might imply acquiescence to it. If it does something to consent or imply acquiescence then this will take the occupation out of the scope of ���no consent��� and into the realm of implied tenant at will or periodic. If it makes clear it has not given consent then a mesne profits claim will arise. If it demands possession then the former tenant may also be liable for double value. The liability to pay mesne profits applies even if the landlord has in fact suffered no loss, for example where the landlord would not have re-let or occupied the property during the period of the trespass. The tenant may also be liable for other losses suffered by the landlord – for example, damages payable by the landlord to a person to whom the landlord has agreed to re-let the property but cannot do so because of the former tenant holding over.
Determination by merger:
The common law doctrine of merger is statutorily embodied in clause (d) of section 111 of the Transfer of Property Act. The doctrine of merger as contemplated in clause (d) contemplates, (1) coalescences of the interest of the lessee and the interest of the lessor. (2) in the whole of the property,(3) at the same time (4) in one person and (5) in the same right. There must be a complete union of the whole interests of the lessor and the lessor in the reversion. The doctrine of merger stands statutorily incorporated in clause (d) of section 111 and has be read along with section 109 of the act and not in isolation. Under this clause a merger takes place when the tenant acquires the immediate reversion and the greater estate and the less coincide in the same person without any intermediate estate. Merger is largely a question of intention, dependent on circumstances and courts will presume against it when it operates to the disadvantage of a party. Merger is generally defined as the absorption of a thing of less importance by a greater, whereby the lesser ceases to exist but the greater is not increased and rights are said to be merged when the same the same person who is bound to pay is also entitled to receive. The maxim ���nemo potest esse tenons et dominu��� that is nobody can be both a landlord and tenant at the same time in respect of the same property.
A merger at law is defined to be where a greater estate and a lesser coincide and meet in one and the same person, in one and the same right, without any intermediate estate. The less estate is immediately annihilated or in the law phrase is said to be merged that is sunk or drowned in the greater. Thus if there be a tenant for years and the reversion in fee simple descends to or is purchased by him, the term of years is merged in the intendance. The rule in equity is the same as at law. With this modification that at law it is invariable and inflexible in equity it is controlled by the expressed or the principle that two estates one larger and one smaller cannot and need not coexist if the smaller estate can in equity and must in law sink or merge into the larger estate. The principle of merger enunciated in this clause equally applies whore the merger takes place by virtue of transfers by operation of law.
Determination by Surrender
Surrender means that the tenant���s leasehold estate is acquired by the landlord. It is a type of conveyance and operates to bring the term to an end. Surrender is not effective unless it is accepted by the landlord. A landlord will therefore not agree to accept surrender unless it is on terms acceptable to it. A well-recognized method for the termination of a lessee's interest is by surrender to his landlord. In accordance with general principles of merger this has the effect of utterly destroying the lesser interest, which is swallowed up by the greater reversion. An exception is made, however, when the rights of a third person intervene, and the merger will not be per- mitted to injure one who has acquired from the lessee an interest connected with the lease. To allow a surrender of a lease to terminate the rights of a sub lessee would be obviously inequitable and would open the door to endless fraud and collusion. It was early decided, therefore, that a subtenant retains his interest in the property until it expires either by the terms of his own lease or of that of his immediate lessor. There have been attempts to justify this on grounds of strict logic, on the theory that the subtenant has a vested right which cannot be affected by any merger of interests held by other parties. But at early common law a tenant had nothing more than a contract right against his immediate overlord, and even today the subsistence of his interest seems to be totally dependent upon a continuance of the interest under which he holds. An illustration of this proposition is found in the familiar principle that a sublease is ended upon the termination by its terms of the interest of the immediate lessor. Therefore, if the surrender of a lease works the destruction by means of merger, the contemporaneous destruction of all subleases would seem to be a necessary consequence. The true explanation of the continued existence of the sublease probably results in a disparagement of the doctrine of merger; that since this is merely a technical rule of law its operation will not be permitted to injure the rights of the sub- tenant, and the lease will therefore be regarded as having sufficient. Continuance for the protection of the sublease. This theory conforms also to those cases which protect the interests of third persons other than sub lessees. Though the rule that a subtenant's right is not destroyed by merger prevails practically everywhere, many jurisdictions have reached an apparently inconsistent result in holding that a surrender by his immediate lessor exempts him from all obligations connected with his lease. The original lessee cannot recover the rent agreed upon, for rent is an incident of the reversion which he has parted with; nor can the landlord enforce its payment, because the reversion to which the rent was incident at the time of the surrender merged in the greater reversion of which he was already possessed. Further- more, attempts to recover in an action for the reasonable value of use and occupation must be unsuccessful, as was recently held in Buttner v. Kasser, for this action has, for historical reasons, never been extended to cases where there is no contract, either express or implied in fact.
Express Surrender:
Express surrender must be made by deed otherwise it is not valid. No particular words are necessary in an express surrender if it appears to be the intention of both parties that the term should immediately end. To be safe, the words 'surrender and yield up' should be used. The surrender must take effect immediately it is made. If it is expressed to take effect at a later date then it will operate as an agreement to surrender at that date. An express surrender will usually contain a mutual release of the lease covenants, either past, present and future or leaving open the possibility for action in respect of breaches existing at the date of surrender.
Surrender by operation of law
While usually a conveyance must be made by deed, this does not apply where the surrender is made by operation of law. It is inferred from the conduct of the landlord and tenant. In effect, there must be some act done which is inconsistent with the continuance of the lease. To be sufficient, the conduct of both parties must unequivocally amount to an acceptance that the lease has ended. This means the tenant handing back possession of the property and this being accepted by the landlord, or other conduct only consistent with the end of the lease. Mere vacation of the property by the tenant is not enough. The -19- circumstances must be so clear as to mean it would be ridiculous for either the landlord or tenant to subsequently argue that the lease has not ended.
Surrender and re-grant this is a type of surrender by operation of law but the surrender operates due to the landlord granting a valid new lease to the tenant. It operates this way because the landlord would not be able to grant a new lease unless the old one had been surrendered. Prime examples of this are where the landlord purports to extend the term of the lease or add land to the demise. Neither of these can be done if the lease continues to exist as there would, purportedly, be two leases of the same land for the same term and both taking effect in possession. In each case the nature of the legal estate is changing and the situation can only be explained as a surrender of the lease and the grant of a new lease for the extended term or demise. The new lease must be valid. It cannot in law be the intention of the parties for a lease that was void or voidable to replace a good lease. If the new lease is in some way not a valid document then the first lease will remain in force. The new lease must be expressed to begin during the term of the existing lease. If it begins afterwards then there is no inconsistency between the two interests and therefore no need for surrender.
Determination by Forfeiture:
Where the landlord has proceeded to forfeit the lease by way of court proceedings, relief from forfeiture for non-payment of rent will automatically be granted if the tenant pays all the arrears (including mesne profits due since the court proceedings were issued) and costs of the action not less than five clear days before the hearing. If not, the court will make an order for possession to take effect not less than four weeks from the date of the order unless the tenant pays into court all arrears and costs by that date. If he does not qualify for this automatic relief and possession is granted he may apply for relief within six months of the landlord obtaining possession where the landlord has proceeded to forfeit by peaceable re-entry, the tenant must make an application to court without ���undue delay��� and probably within 6 months. The court has discretion as to whether to grant relief on such terms as it thinks fit including costs, expenses and damages. It will usually grant the tenant relief where the tenant has already remedied the breach or will grant relief conditional upon the tenant remedying within a specific time. The tenant will ordinarily be responsible for the costs of the proceedings.
In case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter. A break is in the nature of an option and it operates to end the lease before the fixed term expires. This may be an unconditional right or subject to conditions set out in the lease. Options are always strictly construed and this is particularly important in respect of time limits and conditions for exercise of the option. Time will be of the essence unless the lease says otherwise. A break right is exercised unilaterally and may be available to the landlord, the tenant or both. It may be drafted to be personal to the original tenant or it may also be available to its successors in title. If the lease includes a break right but is silent as to who may exercise that right then only the tenant may exercise it. Unless the lease expresses the option as being personal to one particular party, it is exercisable by successors in title to the original parties. This is the case even if the lease does not define the landlord and tenant as including successors in title. Unless the lease says something different, then where there is more than one landlord or tenant party, e.g. joint tenants, the notice must be served by and on all the relevant parties. Otherwise, the notice will be ineffective. In case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself or the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event and in any three of these cases the lessor or his transferee.
Determination by notice to quit;
A breach of condition only makes the lease voidable. It is to be remembered that the forfeiture is not complete unless and until the lessor gives notice that he has exercised his option to determine the lease.
the notice given by a landlord to a tenant to leave the premises either by a certain date, usually thirty days orto pay overdue rent or correct some other default within a short time usually three days. A notice to quit must contain certain information,such as: names of the persons to leave, whether their tenancy is by written or oral agreement, an amount of any financialdelinquency and the period it covers, and to whom they should surrender the premises.
If the tenant is month-to-month, anotice to quit without reference to default usually requires no reason. Although state laws vary, generally the notice must beserved personally on the tenant or posted in a prominent place like the front door with a copy sent by certified mail. Suchnotice, and failure of the tenant to quit, is a requirement to bring a lawsuit for unlawful detainer often referred to as ���eviction".
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