Leasehold Estates

Chapters 8 through 15 constructed the estate system: the freehold estates measured by seisin, their defeasible variants, and the future interests that follow them. Chapters 16 through 20 divided those estates among concurrent owners. Chapters 21 through 24 developed nonpossessory interests in the land of another — easements, profits, promissory servitudes, and their institutional form, the common-interest community. Part VIII returns to possession. It studies the one family of possessory estates the treatise has thus far deliberately reserved: the nonfreehold, or leasehold, estates.

The reservation was deliberate because the leasehold is doctrinally awkward. It is a present possessory estate, yet it was for centuries not an estate at all; it is created by an instrument that conveys, yet the instrument is also a bargain of reciprocal promises; it is governed by common-law rules of great antiquity, yet in every American jurisdiction those rules have been displaced in part — and in the residential sector displaced heavily — by statute. A reader who approaches the lease as though it were simply a contract will misunderstand the reversion, the holdover, and the running of covenants. A reader who approaches it as though it were simply a conveyance will misunderstand habitability, constructive eviction, and the modern law of remedies. This chapter insists on both descriptions at once and explains why the law required both.

1. A lease both conveys and promises. It transfers a present possessory nonfreehold estate to the tenant and simultaneously embodies reciprocal covenants between the parties. Restatement (Second) of Property: Landlord and Tenant, Introductory Note and § 1.2 (Am. L. Inst. 1977).
2. The word “lease” is used in two senses. It denotes the transaction or the instrument, and it denotes the estate created by that transaction. Precision requires that the estate be called the leasehold, the term, or the tenancy.
3. The tenant holds the present possessory interest; the landlord holds the reversion. The landlord does not lose ownership. He retains a vested future interest in fee that becomes possessory upon the natural termination of the term (Chapter 13).
4. The leasehold is a nonfreehold estate. Historically the tenant had possession but not seisin, which remained in the landlord. That single fact explains the leasehold's late admission to the estate system, its classification as a chattel real, and much of its procedural history.
5. There are three consensual leasehold estates and one nonconsensual status. The estate for years, the periodic tenancy, and the tenancy at will arise by agreement; the tenancy at sufferance arises when rightful entry is followed by wrongful holding over. Restatement (Second) §§ 1.4–1.7.
6. An estate for years need not be measured in years. It is any leasehold of fixed or computable duration with an ascertainable beginning and end — a day, a week, a summer, a decade, or ninety-nine years.
7. A periodic tenancy continues automatically until notice. It renews for successive like periods of its own force, and it ends only by proper notice given by either party effective at the close of a period, or by another recognized mode of termination.
8. A tenancy at will is terminable at the will of the parties, but almost never without notice today. Statutes in most states impose a notice period, and many convert a tenancy at will accompanied by periodic rent into a periodic tenancy.
9. A tenant at sufferance is not a trespasser. Because entry was lawful, the occupant is not liable in trespass ab initio and ordinarily may not be removed by self-help; the landlord's remedy is summary process, and in most states the landlord may elect instead to treat the holdover as a new tenant.
10. Exclusive possession, not the parties' label, distinguishes a lease from a license. A grant of exclusive possession for a determinate period is a tenancy however the writing is captioned; a revocable permission to use land in the owner's continuing control is a license (Chapters 21 and 23).
11. The Statute of Frauds governs long leases, not all leases. The typical statute requires a writing for leases exceeding one year (in some states three years), leaving short oral tenancies enforceable and long oral tenancies subject to part performance and estoppel doctrines.
12. Rent is usual but not essential. A leasehold may be created without reserved rent; rent is the ordinary consideration and the ordinary incident, not a definitional element of the estate.
13. Jurisdictions divide on delivery of possession. The English rule implies a covenant to deliver actual possession at the commencement of the term; the American rule requires only that the landlord confer the legal right to possession. Restatement (Second) § 6.2 adopts the English rule.
14. The independence of covenants has been substantially abandoned in residential leasing. The traditional rule that lease covenants are independent survives in commercial leasing subject to important exceptions, while residential leases are treated as governed by mutually dependent obligations.
15. Landlord-tenant law is exceptionally state-specific. Notice periods, holdover consequences, deposits, habitability, retaliation, and eviction procedure are creatures of state statute; uniform acts are proposals to legislatures, not federal law.

1. Define the lease as both instrument and estate, and use the vocabulary of leasehold, term, and tenancy with precision.
2. Explain why the leasehold was classified as a nonfreehold estate and a chattel real, and what turned on the location of seisin.
3. Trace the development of the tenant's remedies from covenant and quare ejecit infra terminum to ejectment, and explain the doctrinal consequence of that development.
4. State the elements, creation, duration, termination, and notice rules of the estate for years, the periodic tenancy, and the tenancy at will.
5. Distinguish the tenancy at sufferance from the three consensual estates and from trespass, and analyze the landlord's holdover election.
6. Identify the landlord's reversion, explain its transferability, and connect it to the future-interest taxonomy of Chapter 13.
7. Apply the Statute of Frauds, the certainty-of-term requirement, and part performance to disputed lease formation.
8. Compare the English and American rules of delivery of possession and evaluate their policy justifications.
9. Distinguish a lease from a license by substantive criteria rather than by the parties' terminology.
10. Explain the conveyance model, the contract model, and the doctrinal consequences of the shift from independent to dependent covenants.
11. Differentiate residential, commercial, ground, and agricultural leasing by governing rules and by regulatory intensity.
12. Describe the movement from URLTA (1972) to the Revised URLTA (2015) and state accurately the legal status of a uniform act.

The following authorities govern the analysis in this chapter. Judicial decisions are cited for the proposition stated and are subject throughout to the jurisdictional qualifications developed in § 25.26.

• Restatement (Second) of Property: Landlord and Tenant §§ 1.1–1.7 (definitions and classification), § 2.1 (description of leased property), §§ 6.1–6.2 (delivery of possession), § 12.1 (rent), §§ 13.1–13.3 (termination) (Am. L. Inst. 1977).
• Restatement (First) of Property §§ 8, 19–23 (estates and their classification) (Am. L. Inst. 1936); Restatement (Third) of Property: Servitudes § 1.2 (license distinguished) (Am. L. Inst. 2000).
• Uniform Residential Landlord and Tenant Act §§ 1.301, 1.401, 2.101, 4.301 (Unif. L. Comm'n 1972).
• Revised Uniform Residential Landlord and Tenant Act §§ 102, 201, 301, 601, 701 (Unif. L. Comm'n 2015).
• Statute of Frauds, 29 Car. 2, c. 3, §§ 1–4 (1677) (Eng.), and its American successors in the state statutes of frauds and conveyancing acts.
• Statute of Gloucester, 6 Edw. 1, c. 11 (1278) (Eng.); Statute of Marlborough, 52 Hen. 3, c. 23 (1267) (Eng.) (waste by termors).
• Quia Emptores, 18 Edw. 1, c. 1 (1290) (Eng.) (freehold alienation; contrast with the term of years).
• State summary-process and forcible-entry-and-detainer statutes; state holdover and double-rent statutes; state notice-to-quit statutes; state recording acts as applied to leases of extended term.
• Landmark decisions analyzed in the text: Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970); Sommer v. Kridel, 378 A.2d 767 (N.J. 1977); Hannan v. Dusch, 153 S.E. 824 (Va. 1930); Adrian v. Rabinowitz, 186 A. 29 (N.J. 1936); Cook v. University Plaza, 427 N.E.2d 405 (Ill. App. Ct. 1981); Effel v. Rosberg, 360 S.W.3d 626 (Tex. App. 2012); Garner v. Gerrish, 473 N.E.2d 223 (N.Y. 1984); Crechale & Polles, Inc. v. Smith, 295 So. 2d 275 (Miss. 1974); Vasquez v. Glassboro Service Ass'n, 415 A.2d 1156 (N.J. 1980).

• 2 Sir Edward Coke, The First Part of the Institutes of the Laws of England §§ 57–68 (Coke on Littleton) (1628).
• 2 William Blackstone, Commentaries on the Laws of England *140–*150 (1766) (estates less than freehold).
• 2 Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I 106–117 (2d ed. 1898).
• Sir John Baker, An Introduction to English Legal History 300–318 (5th ed. 2019).
• A. W. B. Simpson, A History of the Land Law 71–79, 144–154 (2d ed. 1986).
• 4 James Kent, Commentaries on American Law *85–*118 (1830).
• 1 Herbert Thorndike Tiffany, The Law of Landlord and Tenant §§ 1–20 (1912); 2 Tiffany, Real Property §§ 158–178 (3d ed.).
• 2 Powell on Real Property §§ 16.01–16.09 (Michael Allan Wolf ed.).
• 1 American Law of Property §§ 3.1–3.30 (A. James Casner ed. 1952).
• Charles Donahue, Jr., The Future of the Concept of Property Predicted from Its Past, in Nomos XXII: Property 28 (1980).
• Mary Ann Glendon, The Transformation of American Landlord-Tenant Law, 23 B.C. L. Rev. 503 (1982).
• Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 Cornell L. Rev. 517 (1984).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 6.1–6.20 (3d ed. 2000).

A lease is a transaction by which the owner of an estate in land transfers to another the right to exclusive possession of that land for a period shorter than the transferor's own estate, retaining the balance. The interest transferred is the leasehold estate; the interest retained is the reversion. Both are property interests, both are presently owned, and only one of them is presently possessory. The central proposition of this chapter is that these two interests coexist for the duration of the term, and that nearly every doctrinal difficulty in landlord-tenant law is a question about the relation between them.

The vocabulary must be handled carefully because ordinary usage conflates three things. “Lease” may mean the transaction — the act of leasing; the instrument — the paper signed by the parties; or the estate — the interest the tenant holds. Precision is served by reserving “lease” for the transaction or instrument and using “leasehold,” “term,” or “tenancy” for the estate. “Rental agreement” is a statutory term of art in the residential acts, defined to include all agreements concerning use and occupancy whether or not styled a lease; it is a statutory category, not a distinct common-law estate.

The parties are the landlord (historically the lessor) and the tenant (the lessee). The landlord need not own the fee: any person holding a possessory estate may carve a shorter possessory interest out of it, so that a tenant for years may himself grant a sublease, and a life tenant may lease for a term that will nevertheless end at the life tenant's death unless a statute or the remainderman's consent preserves it. The landlord-tenant relation is therefore relational, not absolute; it describes the relation between two interests in the same land, not a status of ownership.

The estate system developed in Part IV divides estates into freehold and nonfreehold. Freehold estates — the fee simple, the fee tail, and the life estate — were those of which a person could be seised. Seisin was not possession in the modern factual sense but a legally recognized standing in the feudal order: the seised tenant answered to the lord for services, was the person against whom the real actions lay, and was the person from whom dower and curtesy were carved. The termor — the holder of a term of years — had possession but not seisin. Seisin remained in the landlord.

Two consequences followed, and both persist in attenuated form. First, the leasehold was classified as personalty. It was a “chattel real”: a chattel because it was not a freehold, real because it concerned land. On the tenant's death it passed to the personal representative with the other chattels rather than descending to the heir; it was subject to the rules governing bequests rather than devises; and it was not, at common law, an interest to which dower attached. Modern statutes have assimilated leaseholds to realty for many purposes — recording, taxation, condemnation, and often intestate succession — but the classification still surfaces in the construction of older instruments and in a handful of statutory definitions.

Second, and more importantly, the nonfreehold classification meant that the leasehold was measured differently. Freehold estates were of indeterminate duration: a life estate ends at a death whose date is unknown; a fee simple is potentially infinite. Nonfreehold estates are of determinate or terminable duration: they end at a fixed date, at the close of a period after notice, or at will. This distinction between estates measured by uncertain events and estates measured by ascertainable periods is the structural reason the leasehold estates form their own taxonomy rather than appearing as variants of the freeholds.

During the term the tenant has the present right to exclusive possession. That right is good against the world, including the landlord: absent a reserved right of entry, a statutory right of access, or an emergency, the landlord who enters without consent is a trespasser upon his own land. The tenant may maintain trespass and ejectment against intruders, may recover in nuisance, and — subject to the covenants of the lease and the law of waste — may use the premises as he pleases. The rules of voluntary and permissive waste developed in Chapter 11 apply to the termor as they apply to the life tenant, modified by the Statute of Marlborough and the Statute of Gloucester and by modern lease covenants.

The landlord, having transferred possession, retains a reversion: a vested future interest, ordinarily in fee simple absolute, which becomes possessory when the leasehold ends. The reversion is a present property interest in a future possessory estate. It may be sold, mortgaged, devised, or inherited; the purchaser takes subject to the lease; and the rent, unless severed by express reservation, follows the reversion as an incident of it. Chapter 13 classified the reversion as the interest left in a transferor who conveys a vested estate of lesser quantum than the one he holds. The leasehold is the paradigm case of that definition, and it is the case in which the reversion is most frequently transferred while the possessory estate continues.

It follows that the landlord does not “lose ownership” during the lease and the tenant does not “own the property.” Each owns an interest. The landlord owns a fee simple in reversion, subject to a term; the tenant owns a term of years or other leasehold, carved out of that fee. To describe either party as the owner simpliciter is to obliterate the very division that the transaction accomplished.

The term of years entered English law from outside the feudal structure. It served two functions that the freehold estates served badly: the financing of agriculture and the evasion of the usury prohibition. A lender advanced money and took a term of years in the borrower's land, taking the profits during the term in lieu of interest; this was the beneficial lease, and its lineal descendant is the mortgage by demise. Because the transaction was commercial rather than tenurial, the termor did not fit the categories of the land law. He was regarded as holding under a contract with the freeholder, and his interest was accordingly conceived as a personal right rather than as an estate.

The practical consequence was that the termor's position was weak. If the lessor ousted him, or if the lessor conveyed to a third person who ousted him, the termor's remedy was an action of covenant against the lessor for damages. He could not recover the land itself, because the real actions — the writs of right and the possessory assizes — were available only to those who claimed seisin of a freehold. A remedy that yields damages rather than possession is a contract remedy, and a right enforceable only in damages is difficult to call property.

The law moved in stages. The writ of quare ejecit infra terminum, available by the middle of the thirteenth century, allowed the termor to recover the term itself against the lessor's feoffee — that is, against a purchaser from the lessor — though not against a stranger. This was a substantial advance, since the commonest injury was ouster following a sale, but it left the termor without a proprietary remedy against third parties generally.

The decisive development was the action of ejectment. Originating as the writ of ejectio firmae, a trespass action by which the ejected termor recovered damages for his ouster, it was extended by the fifteenth century to permit recovery of the term itself, and by the end of that century it lay against any ejector, not merely against the lessor or his feoffee. The termor thereby obtained what he had lacked: a remedy that restored possession against the world. Once that remedy existed, the classification of the interest as merely contractual could not be maintained, and the term of years took its place as an estate — a nonfreehold estate, but an estate.

The irony of ejectment is that its later career had little to do with leases. Because the action was quicker, more flexible, and free of the archaic incidents of the real actions, freeholders began to use it by means of an elaborate fiction: the claimant alleged a lease to a fictitious lessee (John Doe), an entry, and an ouster by a fictitious casual ejector (Richard Roe), so that the real question of title was tried under the guise of a leasehold dispute. By the eighteenth century ejectment had become the standard action for the trial of title to land, and the real actions had fallen into disuse. The leasehold, admitted late to the estate system, thus supplied the procedural vehicle by which the freehold estates were litigated.

For present purposes the doctrinal point is this: the leasehold became property because a possessory remedy was given for it. This is a general lesson of the common law of property, encountered already in Chapter 6 with adverse possession and in Chapter 21 with the easement — the content of a property interest is largely the content of the remedies that protect it.

The classical common law of leases assumed an agricultural tenancy in which the value of the bargain lay in the land, not in structures on it. From this assumption three related rules followed. First, the doctrine of independent covenants: the tenant's obligation to pay rent and the landlord's obligations under the lease were treated as unconnected promises, so that the landlord's breach did not excuse the tenant's rent, and the tenant's remedy was a separate action for damages. Second, caveat lessee: the tenant took the premises as he found them, the landlord making no implied warranty of condition or fitness. Third, the tenant, being in possession and holding the estate, bore the duty of repair as an incident of the law of waste.

These rules are coherent within their premises. A tenant leasing a hundred acres inspects the acres, is competent to judge them, and can repair a fence himself; his rent is paid for the land, which remains whatever the condition of the buildings. The rules become incoherent when applied to an apartment on the eleventh floor of a building whose common systems the tenant cannot inspect, cannot judge, and could not lawfully repair. The transformation of landlord-tenant law in the twentieth century is largely the story of the collision between rules formed on the first premise and a leasing economy governed by the second.

One further classical rule deserves notice because it survives in commercial leasing: destruction of the premises did not, at common law, terminate the lease or abate the rent, because the tenant had taken an estate in the land and the land remained. Statutes in most states now permit termination on substantial destruction of residential premises, and commercial leases address the question by casualty clauses; but the common-law default illustrates with unusual clarity that the tenant's estate is in land, not in a building.

Nineteenth-century urbanization inverted the economics of the lease. In the American city the tenant bargained for shelter within a structure, and the landlord controlled the structure. American courts began, cautiously, to relieve against the harshest applications of the classical rules: the doctrine of constructive eviction, developed in the middle of the nineteenth century, allowed a tenant who was driven out by the landlord's substantial interference with beneficial use to treat himself as evicted and cease paying rent. The doctrine is instructive because it achieved a contractual result — excusing performance for breach — by property reasoning: interference with possession is eviction, and eviction suspends rent.

The twentieth century abandoned the indirection. The implied warranty of habitability, adopted in the wake of Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970), holds that a residential lease carries an implied warranty that the premises comply with the applicable housing code, that the warranty is dependent upon the covenant to pay rent, and that breach gives rise to the ordinary contract remedies. Sommer v. Kridel, 378 A.2d 767 (N.J. 1977), imposed on the residential landlord the contract duty to mitigate damages upon abandonment, expressly rejecting the property premise that the landlord who has conveyed a term need do nothing. Chapter 26 develops both doctrines; they appear here only to show the direction of movement.

Statute completed what adjudication began. Municipal housing codes, state retaliatory-eviction statutes, security-deposit acts, summary-process reform, and comprehensive residential landlord-tenant acts have converted the residential lease into a regulated relationship in which many terms are mandatory and unwaivable. The commercial lease, by contrast, remains substantially a matter of negotiated allocation, governed by the classical baseline as modified by the parties' drafting. The result is not the replacement of property doctrine by contract doctrine but a bifurcated field in which the governing model depends upon the sector.

An estate for years is a leasehold of fixed or computable duration: the term has an ascertainable beginning and an ascertainable end, so that at the moment of creation the parties can determine when possession will revert. The name is a term of art and is misleading. A lease of a beach cottage for the month of July, a lease of a conference room for a single day, and a ninety-nine-year ground lease are all estates for years. What matters is not the unit of measurement but the certainty of the period. Restatement (Second) of Property: Landlord and Tenant § 1.4 states the requirement as a term whose beginning and end are fixed or are capable of being made certain.

Computability suffices; literal fixity is not required. A lease “for five years from the completion of construction” creates an estate for years, because the term will become certain upon an event that must occur and its length is fixed. A lease “until the war ends” does not, because neither the length nor the terminal date can be computed; at common law such a grant created a tenancy at will or, where rent was reserved periodically, a periodic tenancy. The requirement of certainty is enforced with some rigor in England (Lace v. Chantler [1944] K.B. 368) and rather less in the United States, where courts prefer to give effect to the parties' intention and several jurisdictions uphold terms measured by the continuation of a use or by a party's lifetime.

The estate for years expires automatically at the close of the term. No notice to quit is required at common law, because the tenant took an estate that carried its own terminal date and needs no reminder of it. This is one of the sharpest practical differences between the estate for years and the periodic tenancy. Many modern statutes nevertheless require notice of nonrenewal in the residential sector, and commercial leases often contain express notice provisions; the common-law rule remains the default only where nothing else displaces it.

Creation ordinarily requires a writing when the term exceeds the period specified by the local statute of frauds, most commonly one year. Terms of extended duration — ground leases, mineral leases, long commercial leases — are typically recorded, either in full or by a short-form memorandum of lease, both to give constructive notice to purchasers of the reversion and to satisfy statutes that make unrecorded long leases void or voidable against subsequent bona fide purchasers.

Termination before the natural end of the term may occur by surrender accepted by the landlord, by merger of the leasehold and the reversion in one person, by exercise of an express termination option, by the landlord's re-entry under a reserved power of termination for breach, by expiration of a determinable limitation, or by operation of statute. Nothing in the estate itself permits unilateral early termination; a tenant who abandons remains liable on the covenants, subject to the landlord's duty to mitigate where that duty is recognized (Chapter 27).

A periodic tenancy is a leasehold that continues for a period — a year, a month, a week — and automatically renews for successive like periods until either party gives proper notice of termination. Its distinguishing feature is not its length but its mode of ending: it has no predetermined terminal date, and it endures of its own force until affirmatively ended. A month-to-month tenancy that has run for twenty years is still a periodic tenancy; a lease for twenty years certain is an estate for years even though it is far longer.

Creation may be express (“from month to month”) or implied. The commonest implications are three. First, where a tenant enters into possession under an agreement that fixes no term but reserves rent at stated intervals, the interval of payment ordinarily supplies the period. Second, where a tenant holds over after an estate for years and the landlord elects to treat him as a tenant, most jurisdictions create a periodic tenancy measured either by the rent-payment interval or, under the older rule, by the term of the expired lease with a one-year maximum. Third, where an oral lease for a term exceeding the statute of frauds is unenforceable as such but the tenant enters and pays periodic rent, the tenancy is generally periodic rather than for the stated term.

At common law the notice required is one full period, given so as to expire at the end of a period, with a special rule for the year-to-year tenancy, which required six months' notice — a rule descended from the agricultural year rather than from any principle of symmetry. Statutes have altered this comprehensively. Most states now prescribe a fixed period for residential month-to-month tenancies (commonly thirty days, in some jurisdictions sixty or ninety days for the landlord and thirty for the tenant), some abolish the requirement that notice expire at a period's end, and several distinguish between notice by the landlord and notice by the tenant. The Revised Uniform Residential Landlord and Tenant Act § 601 states a representative modern scheme. Counsel must read the local statute; the common-law rule is a fallback, not a description of current practice.

Because the periodic tenancy renews automatically, defective notice does not merely delay termination — it ordinarily leaves the tenancy in existence for another full period. A month-to-month notice given on the tenth of the month, in a jurisdiction requiring one full period ending at the close of a period, terminates the tenancy not thirty days later but at the end of the following month. Rent tendered and accepted after an ineffective notice may also be evidence of waiver of the notice.

A tenancy at will is a leasehold of no fixed duration that endures so long as both parties wish it to continue and terminates at the will of either. The tenant is in lawful possession with the landlord's consent, which distinguishes the estate from a tenancy at sufferance; but the possession is defeasible at any moment, which distinguishes it from the estate for years and the periodic tenancy. Restatement (Second) § 1.6 states the classical rule that the tenancy is terminable at the will of either party, and adds the important modern qualification that statutes and the parties' agreement may modify termination rights.

Creation may be express or implied. It is implied where a person enters into possession with the owner's permission under no agreement as to duration and without payment of periodic rent — the purchaser let into possession before closing, the occupant permitted to remain while negotiations proceed, the family member allowed to live in a house indefinitely. It arises expressly where the parties agree to an occupancy “at will” or “for so long as the parties agree.”

The classical rule held that a tenancy determinable at the will of only one party was necessarily determinable at the will of both, on the reasoning that a unilateral power was inconsistent with the nature of the estate. New York's Court of Appeals rejected that reasoning in Garner v. Gerrish, 473 N.E.2d 223 (N.Y. 1984), enforcing a lease terminable only by the tenant as a determinable life tenancy rather than converting it into a tenancy at will terminable by the landlord. The decision is the leading modern American statement that the parties' intention governs and that the symmetry requirement was a formal survival rather than a functional rule. Not every jurisdiction has followed it, and courts elsewhere continue to apply the classical conversion.

Three further incidents distinguish the tenancy at will. It terminates by operation of law upon the death of either party, upon the tenant's attempt to assign, and upon the landlord's conveyance of the reversion, because the estate is personal to the parties whose wills sustain it. It is not, at common law, subject to any notice requirement at all. And it is, today, the estate most heavily modified by statute: many states require written notice of a fixed number of days to terminate a tenancy at will, and many others convert an at-will occupancy accompanied by periodic rent into a periodic tenancy by force of statute, so that the pure common-law tenancy at will has become uncommon in the residential sector.

A tenancy at sufferance arises when a person who entered into possession lawfully remains in possession after the right to possess has ended, without the landlord's present consent. The classical writers were reluctant to call it a tenancy at all: Coke described the tenant at sufferance as one who “cometh in by lawful demise, and after his estate ended continueth in possession and wrongfully holdeth over.” Blackstone treated it as an occupancy tolerated by the law rather than an estate granted by the owner. Restatement (Second) § 1.7 accordingly treats it as a status defined by the wrongfulness of continued possession following a rightful entry.

Its analytical difference from the three consensual estates is fundamental. The estate for years, the periodic tenancy, and the tenancy at will all rest upon the landlord's grant; the tenant at sufferance holds against the landlord's will. The category exists not to describe an interest conferred but to solve two problems created by the lawfulness of the original entry.

The first problem is trespass. Because the holdover entered lawfully, he is not a trespasser ab initio, and the older authorities therefore denied the landlord the trespass remedies and — in most modern jurisdictions — the remedy of self-help. Summary process is the landlord's route to possession, and in a growing majority of states it is the exclusive route even where the lease purports to reserve a right of peaceable re-entry. The second problem is characterization: some legal label must attach to the occupant so that the incidents of occupancy — liability for use and occupation, exposure to the housing code, insurability, and standing to complain of interference — can be determined.

The landlord's election is the operative doctrine. Upon a holdover the landlord may treat the occupant as a wrongdoer and sue to recover possession together with damages for the reasonable value of use and occupation, or may elect to treat the occupant as a tenant, thereby creating a new tenancy — ordinarily periodic — on the terms of the expired lease so far as applicable. The election is the landlord's, not the tenant's; once made unequivocally it binds; and it must be made within a reasonable time. Crechale & Polles, Inc. v. Smith, 295 So. 2d 275 (Miss. 1974), is the standard illustration: a landlord who first insisted the tenancy had ended and then accepted a rent check was held to have made an election inconsistent with his earlier position and could not later assert a renewed one-year term.

Statutes intervene heavily. Many states impose holdover damages at double or treble the reserved rent, sometimes only for willful holdovers and sometimes only after written demand; several fix the character of the resulting tenancy by statute rather than leaving it to the landlord's election; and residential acts commonly cap the consequence at a month-to-month tenancy no matter what the expired lease provided. RURLTA § 701 states a representative provision. The common-law election survives principally in the commercial sector.

The following table states the common-law baseline. The final column identifies the points at which state statutes most commonly depart from it; the departures are so widespread that the baseline should be treated as an analytical framework rather than as a prediction of outcome in any particular jurisdiction.

Two cautions about the table. First, the “notice” column states the notice required to terminate, not the notice or demand required as a precondition to summary-process litigation; the two are distinct, and a landlord may satisfy the first and fail the second. Second, the holdover column assumes that the landlord has not already agreed to something else; an express holdover clause in a commercial lease, fixing the rent and character of the holdover occupancy, displaces the common-law election entirely and is enforced according to its terms.

A lease requires identifiable parties, an identified premises, an intention to transfer exclusive possession, and a term. Restatement (Second) § 2.1 requires that the leased property be described with sufficient certainty to permit its identification; a description adequate for a deed is always adequate, and a description that would fail for a conveyance may nevertheless suffice for a short tenancy where extrinsic evidence resolves the ambiguity. Rent is customary and is usually essential to the bargain, but it is not essential to the estate: a lease without reserved rent transfers a leasehold as surely as one with it, and the absence of rent bears on classification (particularly as between a tenancy at will and a periodic tenancy) rather than on validity.

Consideration, signatures, acknowledgment, delivery, and acceptance follow the ordinary rules for instruments transferring interests in land, with the qualification that a lease not required to be in writing may be created orally and by conduct. Where a writing is used, the signature of the party to be charged is the operative requirement under the statute of frauds; many state conveyancing statutes additionally require the lessor's acknowledgment for a lease to be recordable, and some require both parties' signatures for leases of extended term. Electronic leases are valid in every state under the Uniform Electronic Transactions Act or the federal E-SIGN Act, subject to the few statutory carve-outs that some states retain for residential notices.

Three questions must be kept separate. Whether the lease is enforceable between the parties is a question of contract formation and the statute of frauds. Whether it is valid against third parties — a purchaser of the reversion, a mortgagee, a judgment creditor — is a question of the recording acts and of the notice imparted by the tenant's possession. Whether it has priority over a competing interest is a question of the recording act's operative language and of the timing of the competing conveyance. A lease may be perfectly enforceable between landlord and tenant and yet be extinguished by the foreclosure of a mortgage recorded before it.

Sections 1 through 3 of the Statute of Frauds, 29 Car. 2, c. 3 (1677), required leases exceeding three years to be in writing, treating shorter leases as effective at will unless in writing, and § 4 required a writing for contracts concerning interests in land. American statutes vary the threshold: the common modern provision requires a writing for a lease for a term exceeding one year, several states use three years, and a few states require writings for leases exceeding a stated term measured from the making rather than from the commencement of the lease. That last variation matters: a one-year lease to commence three months hence exceeds one year from the date of making and is unenforceable in the states following that formulation, though enforceable in those measuring from commencement.

Noncompliance does not make the transaction a nullity. Where the tenant enters into possession under an unenforceable long lease and pays rent, the almost universal result is a periodic tenancy measured by the rent-payment interval, on the terms of the oral agreement so far as consistent with a periodic tenancy. Part performance may take an oral lease out of the statute where the tenant's acts — entry, payment, and substantial improvements — are unequivocally referable to the lease and where restitution would be inadequate; the doctrine is equitable, is applied narrowly to leases, and is unavailable in the several states whose statutes expressly abolish it for leases. Estoppel supplies a further exception where a party has been induced to change position in reliance on the oral agreement.

The certainty-of-term requirement is a separate formality and is not cured by a writing. A written lease “for so long as the tenant desires to remain,” or “until the landlord requires the premises,” fails as an estate for years for want of an ascertainable end. American courts diverge on the consequence: some create a tenancy at will, some a periodic tenancy where rent is reserved periodically, and some — following Garner v. Gerrish — enforce the parties' intention as a determinable life estate or a lease determinable by one party. Effel v. Rosberg, 360 S.W.3d 626 (Tex. App. 2012), illustrates the more conservative treatment, holding that a lease for the tenant's lifetime terminable by the landlord for cause did not create a term of years and analyzing it under the rules governing leases of uncertain duration.

Exclusive possession is the substantive core of the leasehold. It means the right to exclude all persons, including the landlord, from the demised premises for the duration of the term. It is not defeated by the landlord's reservation of a limited right of entry to inspect, repair, or show the premises, nor by the landlord's retention of control over common areas, nor by the provision of services. It is defeated where the arrangement leaves the owner in general control of the space and gives the occupant only a right to use it in common with others or subject to the owner's direction.

Delivery of possession raises a question distinct from the grant of the estate: what must the landlord do at the commencement of the term if a prior tenant is wrongfully still in occupation? Two rules answer it. Under the English rule the landlord impliedly covenants to deliver actual possession at the beginning of the term, and his failure to do so is a breach entitling the tenant to terminate and to recover damages, including the cost of substitute premises. Adrian v. Rabinowitz, 186 A. 29 (N.J. 1936), is the leading American adoption of the rule, reasoning that the incoming tenant bargained for occupancy, that the landlord is better placed to know of and deal with a holdover, and that the landlord can protect himself by the terms of the outgoing lease.

Under the American rule the landlord's obligation is discharged by conferring the legal right to possession; the incoming tenant, having received the estate, must himself proceed against the wrongful occupant. Hannan v. Dusch, 153 S.E. 824 (Va. 1930), states the classical justification: the landlord has performed his side of the conveyance, the holdover's wrong is a wrong to the tenant's own estate, and the tenant has adequate remedies — ejectment or summary process — against the holdover. Restatement (Second) § 6.2 rejects this position and adopts the English rule as the better default, subject to contrary agreement.

The policy arguments are worth stating precisely, because they recur throughout the field. The English rule allocates the risk to the party better able to prevent it and better able to bear it, and it spares the incoming tenant from litigation with a stranger before he has ever occupied. The American rule respects the conveyance model — the landlord sold an estate and delivered it — and avoids imposing on the landlord a warranty against the misconduct of third persons. Modern statutes largely resolve the debate in the residential sector in favor of the tenant: URLTA § 2.101 and RURLTA § 301 require the landlord to deliver possession at the commencement of the term and give the tenant termination and damages remedies for failure. Commercial leases commonly address the question expressly, and where they do not, the state's default rule governs and must be researched rather than assumed.

Chapter 21 defined the easement as a nonpossessory right to use the land of another and distinguished it from the license, a revocable permission that creates no interest in land. The lease completes the triad: the tenant has possession; the easement holder has a use; the licensee has permission. The distinction matters enormously in practice, because tenancy carries with it the summary-process protections, the housing codes, the habitability warranty, the security-deposit statutes, the anti-retaliation statutes, and the prohibition on self-help; a licensee ordinarily has none of these.

The controlling criterion is exclusive possession for a determinate period. Courts examine whether the occupant may exclude the owner; whether the owner retains keys, control, and the right to relocate the occupant; whether the space is defined; whether services are supplied that require the owner's continuous presence; whether the arrangement is terminable at will; and whether the occupant's rights are personal or assignable. The parties' terminology is evidence of intention but is not dispositive: an instrument captioned “license agreement” that gives an occupant the exclusive use of a defined apartment for a year at a monthly rent is a lease, and courts have said so repeatedly, particularly where the label appears designed to evade residential protections.

Applications: a hotel guest is a licensee, because the innkeeper retains control, supplies services, and may relocate the guest — but a long-term resident of a residential hotel may cross the line into tenancy, and many jurisdictions fix the point by statute at a stated number of days. A lodger who occupies a room in the owner's own dwelling is generally a licensee for the same reason. A monthly parking arrangement in an attended garage is a license (the operator controls the space and may assign any stall); a lease of a designated, exclusive, gated parking area is a tenancy. Self-storage arrangements are typically classified as licenses or bailments by statute, with their own lien and default regimes. Coworking memberships giving access to unassigned space are licenses; a private office demised exclusively for a term is a lease. Concession agreements in airports, stadiums, and department stores are the classic borderline: courts examine whether the concessionaire has a defined exclusive space or merely a right to operate within space the owner controls.

Vasquez v. Glassboro Service Ass'n, 415 A.2d 1156 (N.J. 1980), shows what turns on the question. A migrant farmworker housed by his employer was held not to be removable without judicial process, the court declining to permit the employment relationship to strip the occupant of possessory protection. The case is not authority that every employee-occupant is a tenant — many are licensees whose occupancy is genuinely incident to service — but it establishes that the characterization must serve the protective policies of possessory law rather than the drafting convenience of the stronger party.

On the conveyance model the lease is a transfer. The landlord grants a possessory estate for a term and retains the reversion; the transaction is complete on delivery; and the parties' relation thereafter is the relation of two owners of successive interests in the same land. Everything that follows from that premise is familiar from Parts IV and V of this treatise. The tenant's estate is alienable, subject to restraints in the lease. The landlord's reversion is alienable, and the assignee of the reversion succeeds to the benefit of covenants that touch and concern the land through privity of estate. Covenants running with the land bind assignees of the term. Waste doctrine limits the tenant's use. Destruction of improvements does not, of itself, discharge the tenant.

The conveyance model also explains rules that appear harsh. Rent at common law “issues out of the land”: it is a return for the estate conveyed, payable whether or not the landlord does anything further, and payable in arrears at the end of the period unless otherwise agreed. The tenant who abandons has not returned the estate, and therefore, on strict conveyancing principles, remains liable for rent as it falls due without any obligation on the landlord's part to re-let. The landlord's covenants are independent because they are collateral to a transfer that has already occurred.

On the contract model the lease is an exchange of continuing promises: the tenant promises to pay rent and to use the premises within stated limits; the landlord promises quiet enjoyment, and in modern residential leasing, habitability, repair, essential services, and compliance with codes. Once the promises are treated as mutually dependent, the ordinary apparatus of contract law becomes available: material breach excuses counterperformance, substantial performance measures liability, anticipatory repudiation permits acceleration, the aggrieved party must mitigate, and unconscionable terms may be denied enforcement.

The consequences are concrete and can be tabulated against their conveyancing counterparts. Under independent covenants a tenant confronted by a defective heating system must pay rent and sue for damages; under dependent covenants he may withhold rent, repair and deduct where authorized, or terminate for material breach. Under conveyancing rules the landlord facing abandonment may sit idle and sue for rent as it accrues; under contract rules he must make reasonable efforts to re-let, as Sommer v. Kridel holds. Under conveyancing rules the tenant's covenant to pay survives destruction of the building; under contract rules frustration and impracticability are available. Under conveyancing rules the parties may allocate every risk by agreement; under the modern residential statutes, certain landlord duties are nonwaivable and a purported waiver is void.

The important analytical point is that neither model has displaced the other. The lease remains a conveyance — that is why the reversion, the running of covenants, privity of estate, and the tenant's possessory remedies still operate exactly as Part IV would predict. The lease is also a contract — that is why habitability, mitigation, and unconscionability now operate. Modern American landlord-tenant law is a hybrid in which the conveyancing rules supply the structure of the interests and the contract rules supply the law of performance and breach. A reader who insists on one model to the exclusion of the other will get the wrong answer in half the cases.

Chapter 13 defined the reversion as the interest remaining in a transferor who conveys less than his entire estate, and classified it as vested and therefore exempt from the Rule Against Perpetuities analyzed in Chapter 15. The landlord's interest during a lease is that interest. Three practical consequences deserve separate statement.

First, transfer. The landlord may sell, mortgage, devise, or die intestate as to the reversion, and in each case the transferee takes subject to the outstanding leasehold. The tenant's possession is itself constructive notice of the tenant's rights in most jurisdictions, so a purchaser who fails to inquire of an occupant takes at his peril; recording a memorandum of lease removes the doubt. The transferee of the reversion succeeds to the landlord's covenants that touch and concern the land and may enforce the tenant's, because privity of estate now exists between the transferee and the tenant.

Second, rent. Rent is an incident of the reversion and passes with it unless expressly severed. Rent accrued before the transfer belongs to the transferor; rent accruing afterwards belongs to the transferee; and rent may be assigned separately from the reversion, an arrangement common in financing and now generally governed by statutes on the assignment of rents. Attornment — the tenant's acknowledgment of the new landlord — was required at common law and has been abolished by statute in most states, surviving chiefly as a contractual device in subordination, nondisturbance, and attornment agreements between tenants and mortgagees.

Third, termination of the leasehold. When the term ends, no conveyance is necessary: the reversion simply becomes possessory by its own limitation, exactly as the reversion following a life estate does. And when leasehold and reversion come into the same hands, the leasehold merges into the reversion and is extinguished, which is why a tenant who buys the fee ceases to be a tenant and why a landlord who accepts a surrender takes back the term by merger rather than by reconveyance.

A leasehold may end in several ways, and the mode of ending determines the parties' remaining rights. Expiration ends an estate for years automatically at the terminal date. Notice ends a periodic tenancy or, where statute requires notice, a tenancy at will. Surrender ends any leasehold by the tenant's yielding up of the term to the landlord and the landlord's acceptance of it; both elements are required, and acceptance may be express or implied from conduct inconsistent with the continuation of the tenancy, such as re-letting for the landlord's own account. Merger ends a leasehold when it and the reversion vest in one person in the same right. Statutes add termination for the landlord's material breach, for destruction of residential premises, and for specified tenant defaults after notice and opportunity to cure.

Abandonment must be distinguished from surrender. Abandonment is the tenant's unilateral act of vacating with intent not to return and ceasing to pay rent; it does not, by itself, end the tenancy, because the landlord has not accepted a surrender. The landlord facing abandonment classically had three options: accept the surrender and end the tenancy, thereby releasing the tenant from future rent; leave the premises vacant and sue for rent as it accrued; or re-let on the tenant's account, holding the tenant for any deficiency. The second option has been curtailed in the many jurisdictions that impose a duty to mitigate, and it has been abolished for residential tenancies by statute in others. Whether a landlord's re-letting is an acceptance of surrender or a re-letting on the tenant's account turns on the landlord's manifested intention, and prudent landlords give written notice of the basis on which they act.

Death and destruction terminate leaseholds only in defined circumstances. Death of either party terminates a tenancy at will but not an estate for years or a periodic tenancy, both of which pass to the estate. Destruction of the premises terminates nothing at common law but terminates residential tenancies under most modern statutes when the premises are rendered substantially unfit; leases of a described space in a building — as distinct from leases of land with improvements — are more readily treated as terminated on destruction of the building, because the subject matter of the demise has ceased to exist.

A holdover is a tenant who remains in possession after the right of possession has ended. Until the landlord acts, the occupant is a tenant at sufferance under § 25.11. The landlord's election then determines the character of what follows: eviction, or a new tenancy.

The mechanics of election repay attention. The landlord elects to create a new tenancy by any act unequivocally treating the occupant as a tenant — most commonly by accepting rent for a period after expiration, but also by serving a notice to quit appropriate to a periodic tenancy, by demanding rent at a new rate the tenant then pays, or by negotiating renewal terms while accepting payment. The landlord elects to treat the occupant as a wrongdoer by demanding possession and commencing summary process within a reasonable time, and by accepting payments expressly as use and occupation rather than as rent — a distinction that most jurisdictions honor if the landlord makes it clearly and contemporaneously.

The resulting tenancy's length is contested. The older American rule, inherited from the agricultural year-to-year tenancy, created a tenancy for a period equal to the term of the expired lease, capped at one year. The prevailing modern rule measures the new tenancy by the rent-payment interval, producing a month-to-month tenancy in the ordinary case. Many residential statutes now fix the result at month-to-month regardless of the expired term, and many commercial leases fix it by an express holdover clause, frequently at 150 or 200 percent of the prior rent with the occupancy expressly at sufferance and without renewal.

Statutory holdover damages are common and are a trap for the unwary. Double-rent and treble-rent statutes may require willfulness, may require written demand before the term ends, and may be unavailable where the landlord has accepted rent. Crechale & Polles illustrates the interaction: the landlord's inconsistent conduct forfeited both the renewed term he later claimed and the clean posture he would have needed for holdover damages. The disciplined practice is to choose a position at the moment of holdover, communicate it in writing, and act consistently with it.

Finally, acceptance of rent does not always have the same effect. Whether it creates a new tenancy, waives a prior notice to quit, waives a forfeiture for breach, or merely compensates for use and occupation depends upon the jurisdiction's rules, upon whether the payment is for a period before or after the termination date, upon whether the landlord reserved his rights, and upon whether summary process is already pending — many statutes expressly provide that acceptance of rent during a pending eviction does not waive the proceeding. The proposition that “accepting rent creates a new tenancy” is a useful first approximation and an unreliable rule.

The single word “lease” covers transactions of radically different character, and the governing law differs accordingly. Residential leasing is characterized by disparities of bargaining power, standardized forms, short terms, and comprehensive statutory regulation: habitability, repair duties, essential services, security-deposit limits and accounting, notice and cure requirements, anti-retaliation rules, restrictions on self-help, and nonwaivable obligations. Commercial leasing is characterized by negotiated allocation of risk, longer terms, sophisticated parties, and comparatively light regulation; the classical common law survives there, subject to whatever the parties have drafted.

The comparison should be stated concretely. Habitability is implied in residential leases in nearly every state and is implied in commercial leases almost nowhere. Waiver of the landlord's duties is void in residential leasing under the uniform acts and most state statutes, and is routine and enforceable in commercial leasing. Assignment and subletting are frequently regulated in residential tenancies (consent not to be unreasonably withheld, by statute in several states) and in commercial leases are governed by the negotiated clause, though a growing number of jurisdictions imply a reasonableness standard even there. Security deposits are capped, escrowed, and subject to statutory accounting and penalties in the residential sector, and are unregulated in the commercial. Eviction procedure is more protective for residential tenants, with longer cure periods and, in some jurisdictions, a right to counsel. These distinctions are developed in Chapters 26 and 27; they are introduced here so that the reader does not carry a residential rule into a commercial problem.

Two further sectors deserve mention because their doctrinal profile differs from both. The ground lease is a long-term lease of land, typically fifty to ninety-nine years, under which the tenant constructs and owns improvements for the term and surrenders them at its end; it is financed as though it were ownership, is invariably recorded, and is drafted to be substantially unamendable without the leasehold mortgagee's consent. The agricultural lease retains distinctive common-law and statutory incidents: emblements (the outgoing tenant's right to harvest crops planted before termination), the year-to-year default with its six-month notice, statutory landlord's liens on crops, and, in many states, a separate statutory code for farm tenancies. Statutory tenancies — public housing tenancies, rent-stabilized tenancies, mobile-home-park tenancies, and tenancies protected by manufactured-housing acts — form a fourth category in which the estate is common-law but the incidents of possession, renewal, and termination are wholly statutory.

The Uniform Residential Landlord and Tenant Act, promulgated by the Uniform Law Commission in 1972 in the wake of Javins and the housing-code movement, was the first comprehensive attempt to state residential landlord-tenant law as an integrated statutory regime rather than as a set of common-law rules with statutory patches. Its architecture is worth knowing: general provisions and definitions including “rental agreement” and “dwelling unit”; obligations of the landlord, principally the duty to maintain fit premises and to comply with building and housing codes; obligations of the tenant; remedies of each party, including repair-and-deduct, rent abatement, and termination for material noncompliance; and a prohibition on retaliatory conduct. Section 1.401 makes designated obligations nonwaivable, which was the Act's most consequential structural choice.

The Revised Uniform Residential Landlord and Tenant Act (2015) restates the subject for a leasing economy the 1972 Act did not anticipate. Among its principal features are updated provisions on the form and delivery of notices including electronic delivery, more detailed treatment of security deposits and their accounting, provisions addressing abandonment and disposition of personal property left behind, express provisions on domestic-violence protections and lease bifurcation, treatment of foreclosure of the landlord's interest and its effect on the tenancy, and clarified remedies with defined cure periods. Section 601 addresses termination and notice; § 701 addresses holdover and its consequences.

The legal status of these instruments must be stated with precision, because it is the single most frequent error in student and practitioner writing about them. A uniform act is a legislative proposal drafted by a nongovernmental body. It has no force anywhere until a legislature enacts it, and it is not federal law. Roughly twenty states adopted URLTA in some form, and every one of them modified it. Adoption of the 2015 Revised Act has been limited. Consequently three separate texts must always be distinguished: the uniform text and its Official Comments, which are persuasive only; the adopting state's enacted statute, which is the law in that state and which may depart from the uniform text in important particulars; and the law of non-adopting jurisdictions, which continue to govern by their own residential statutes and common law.

The Restatement (Second) of Property: Landlord and Tenant (1977) occupies a related but different position. It is not legislation and does not purport to be; it states the law as the American Law Institute found it and, in places, as the Institute thought it should develop. Its influence on delivery of possession (§ 6.2), on the classification of the leasehold estates (§§ 1.4–1.7), and on the treatment of the lease as a contract has been considerable, but it binds no court and several of its positions remain minority ones.

Leases interact with the recording system in ways that surprise those who think of them as merely contracts. Most recording acts permit leases to be recorded, and many require recording — or the recording of a memorandum — for leases exceeding a stated term, commonly one, three, five, or seven years, to be effective against subsequent purchasers and mortgagees without notice. A memorandum of lease, stating the parties, the premises, the term, any options, and any rights of first refusal, is the standard device: it perfects the tenant's priority without disclosing the rent and other commercial terms.

Possession supplies notice independent of recording. In nearly every jurisdiction a purchaser is charged with notice of the rights of a person in open and visible possession, and is put on inquiry as to the terms under which that person holds. The rule protects short-term tenants who never record, but it protects imperfectly: it may not extend to unusual terms a purchaser could not reasonably discover, and in several states it does not reach options to purchase or renewal rights not disclosed on inquiry.

Priority against mortgagees is the point of greatest practical consequence. A lease made after a mortgage is junior to it and is ordinarily extinguished by foreclosure, leaving the tenant without a leasehold — subject to statutory protections for residential tenants in foreclosure that exist in many states. A lease made before a mortgage is senior, survives foreclosure, and binds the purchaser at the sale. Commercial practice manages this by subordination, nondisturbance, and attornment agreements, under which the tenant subordinates to the mortgage in exchange for the mortgagee's promise not to disturb possession on foreclosure, and agrees in advance to attorn to the purchaser.

The decisions below are analyzed for their bearing on leasehold classification and the landlord-tenant relation. Cases concerning habitability, transfer, and eviction remedies are reserved to Chapters 26 and 27.

Landlord-tenant law is more state-specific than any other field treated in this volume. The reason is institutional: it is the field in which legislatures have intervened most persistently, because it governs housing, and housing is regulated locally. A researcher who states a landlord-tenant rule without a jurisdictional citation has almost certainly stated something inaccurate somewhere.

The variation is concentrated in identifiable places, and the practitioner should treat each as requiring express verification: the notice period to terminate a periodic tenancy and whether it must expire at a period's end; the writing threshold in the statute of frauds and whether it is measured from making or from commencement; whether the state follows the English or the American delivery rule; the character and length of the tenancy created by a holdover and the availability of statutory multiple rent; whether self-help is permitted, restricted, or prohibited outright; the existence, scope, and waivability of the habitability warranty; security-deposit caps, escrow requirements, accounting deadlines, and penalties; the presence and reach of anti-retaliation statutes; whether a duty to mitigate exists and whether it extends to commercial tenancies; the rules for abandonment and for disposing of personal property left behind; recording thresholds for long leases; and the procedure, timetable, and defenses available in summary process.

The organizing method used throughout this chapter — state the common-law baseline, then identify the characteristic statutory departures — is not a stylistic preference. It is the only method that produces a stable framework in a field whose operative rules are legislative. The baseline explains why a rule exists and what problem it solves; the statute supplies the answer.

Each illustration identifies the possessory interest, the landlord's retained interest, the applicable common-law rule, the statutory issues, the likely classification, and the jurisdictional qualifications.

1. “A lease is only a contract.” It is also a conveyance. The reversion, privity of estate, the running of covenants, waste, and the tenant's possessory remedies all follow from the transfer of an estate and cannot be derived from contract doctrine.
2. “A lease is only a conveyance.” It is also a contract. Habitability, dependency of covenants, mitigation, material breach, and unconscionability are contract doctrines now firmly embedded in residential leasing.
3. “An estate for years must last at least a year.” No. Any leasehold of fixed or computable duration is an estate for years, including a lease for a single day.
4. “Month-to-month means tenancy at will.” No. A month-to-month tenancy is periodic: it renews automatically, requires notice to terminate, survives the death of a party, and survives transfer of the reversion. A tenancy at will does none of these things at common law.
5. “A tenant at sufferance is just a trespasser.” No. Entry was lawful, so the occupant is not a trespasser ab initio, is generally not removable by self-help, and may be converted into a tenant by the landlord's election.
6. “The landlord owns the property, so the tenant has no property interest.” The tenant holds a present possessory estate good against the world, including the landlord.
7. “The tenant owns the property during the lease.” The tenant owns a leasehold carved out of the landlord's estate, not the fee.
8. “The landlord's reversion disappears during the lease.” It is a present vested interest throughout, transferable, mortgageable, devisable, and inheritable; only its possessory enjoyment is postponed.
9. “A lease must always require rent.” Rent is the usual consideration and the usual incident, not an element of the estate. A rent-free leasehold is valid.
10. “Every lease must be written.” Only leases exceeding the statutory threshold — commonly one year, sometimes three — require a writing; shorter oral tenancies are fully enforceable.
11. “A landlord may enter leased premises whenever desired.” The tenant has exclusive possession. Entry requires a reserved right, statutory authority with notice, consent, or emergency; unauthorized entry is a trespass and in many states a statutory violation.
12. “Acceptance of holdover rent always creates the same type of tenancy.” The consequence depends on jurisdiction, on whether the payment covers a period after expiration, on the landlord's reservation of rights, on statutory caps, and on whether summary process is pending.
13. “Residential and commercial leases are governed by identical rules.” They are not. Habitability, waiver, deposits, notice, self-help, mitigation, and eviction procedure differ materially by sector.
14. “Uniform landlord-tenant acts are federal law.” They are proposals of the Uniform Law Commission with no force until enacted by a state legislature, and adopting states modify them.
15. “Calling an agreement a license prevents a tenancy.” Substance governs. Exclusive possession of a defined space for a determinate period creates a tenancy whatever the caption says.
16. “Expiration and eviction are the same event.” Expiration ends the estate by its own limitation; eviction is a judicial proceeding to recover possession from an occupant who will not leave. A tenancy may expire without any eviction, and an eviction may occur long before a term would have expired.
17. “Abandonment ends the lease.” Abandonment is unilateral; the tenancy ends only on the landlord's acceptance of surrender, by operation of statute, or at the end of the term — subject to the landlord's duty to mitigate where recognized.

A lease conveys a present possessory nonfreehold estate and retains a reversion, and it simultaneously embodies reciprocal promises. The word names both the transaction and the estate; the estate is properly called the leasehold, the term, or the tenancy. Because the termor had possession without seisin, the leasehold was long classified as a chattel real outside the estate system, and it became an estate only when ejectment gave the tenant a remedy that restored possession against the world.

Three consensual leasehold estates exist. The estate for years has a fixed or computable duration of any length and expires automatically without notice. The periodic tenancy renews of its own force for successive like periods and ends only by proper notice, which at common law was one full period and is now fixed by statute nearly everywhere. The tenancy at will endures while both parties will it and is terminable without notice at common law, though modern statutes usually impose notice and frequently convert rent-paying at-will occupancies into periodic tenancies. The tenancy at sufferance is not consensual: it describes an occupant whose lawful entry is followed by wrongful holding over, and it exists to solve the trespass and characterization problems that lawful entry creates.

Creation requires identified parties and premises, an intention to transfer exclusive possession, and a term; rent is customary but not essential. The statute of frauds requires a writing above a threshold measured in years, and noncompliance ordinarily produces a periodic tenancy rather than a nullity. Certainty of term is a separate requirement whose breach produces divergent results across jurisdictions. Whether the landlord must deliver actual possession divides the English and American rules, with the Restatement and the residential uniform acts favoring the English rule.

Exclusive possession distinguishes a lease from a license, and substance governs over the parties' label; the consequences of the distinction — summary process, habitability, deposits, retaliation protection — are substantial. The landlord's reversion is a present vested interest, transferable and inheritable, carrying the rent as an incident and becoming possessory by its own limitation at the end of the term.

The conveyance model explains the structure of the interests; the contract model explains the modern law of performance and breach. Neither has displaced the other, and the operative model depends on sector: residential leasing is heavily regulated with nonwaivable landlord duties, while commercial leasing remains substantially a negotiated allocation of risk governed by the classical baseline. The holdover doctrine turns on the landlord's election, whose consequences are increasingly fixed by statute. URLTA (1972) and the Revised Act (2015) mark the movement toward an integrated statutory residential regime, but they are proposals to legislatures, not federal law, and the field remains among the most state-specific in American property law.

Chapter 26 — Tenant and Landlord Duties; Habitability takes up what this chapter has deliberately reserved: the content of the parties' obligations during the term. It develops the covenant of quiet enjoyment and constructive eviction, the implied warranty of habitability and its statutory analogues under URLTA § 2.104 and RURLTA § 301, the allocation of repair duties, the tenant's duties as to rent and use, the law of waste as applied to tenants, and the remedial consequences of the shift from independent to dependent covenants. The estates classified here supply the framework within which those duties operate.

• Restatement (Second) of Property: Landlord and Tenant, Introductory Note and §§ 1.1–1.7, 2.1, 6.1–6.2, 12.1, 13.1–13.3, with Reporter's Notes (Am. L. Inst. 1977).
• Uniform Residential Landlord and Tenant Act (Unif. L. Comm'n 1972) with Official Comments; Revised Uniform Residential Landlord and Tenant Act (Unif. L. Comm'n 2015) with Official Comments.
• 2 William Blackstone, Commentaries on the Laws of England *140–*150 (1766).
• A. W. B. Simpson, A History of the Land Law 71–79, 144–154 (2d ed. 1986).
• Sir John Baker, An Introduction to English Legal History 300–318 (5th ed. 2019).
• 2 Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I 106–117 (2d ed. 1898).
• Mary Ann Glendon, The Transformation of American Landlord-Tenant Law, 23 B.C. L. Rev. 503 (1982).
• Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 Cornell L. Rev. 517 (1984).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 6.1–6.20 (3d ed. 2000).
• 2 Powell on Real Property §§ 16.01–16.09 (Michael Allan Wolf ed.).
• 1 Herbert Thorndike Tiffany, The Law of Landlord and Tenant §§ 1–20 (1912).
• 4 James Kent, Commentaries on American Law *85–*118 (1830).