Opinion
No. 29989.
April 25, 1932.
1. LANDLORD AND TENANT.
Tenant continuing to occupy property without new lease becomes liable under rates and terms of expired lease.
2. LANDLORD AND TENANT.
Tenant, when lease expires, should surrender premises or else procure new contract.
3. LANDLORD AND TENANT.
If tenant fails to surrender premises or procure new contract on expiration of lease, landlord may treat tenant as trespasser or tenant under previous terms.
4. LANDLORD AND TENANT. Notwithstanding tenant before expiration of lease told landlord's agent that, unless tenant could procure reduction in rent, he would only hold from month to month, tenant holding over held bound by original lease.
Tenant was bound by terms of original lease, since the only response made by the landlord's agent to the tenant was that agent would take matter up with landlord, and the conversation in respect to a new lease had not brought the transaction into such a state of progress as it might be considered as having attained to the dignity of negotiations for new lease, which would have effect of preventing terms of old lease from becoming binding on tenant.
APPEAL from circuit court of Washington county. HON. S.F. DAVIS, Judge.
Wynn Hafter, of Greenville, for appellants.
A renewal by the month, and not by the year, is to be implied from a tenant's mere continued possession and payment of a monthly rent beyond the period of a lease, though for a year or term of years, which reserves the rent as a monthly one.
Kaufman v. Mastin, 66 S.E. 92, 25 L.R.A. (N.S.) 855.
To create a yearly tenancy by implication, the property must be occupied under a rent payable as a yearly one.
Kaufman v. Mastin, 66 S.E. 92, 25 L.R.A. (N.S.) 855.
The reservation of rent, with its payment at stated periods, is the principal, but not the only, criterion to determine the implied term. The intention of the parties should prevail.
Kaufman v. Mastin, 66 S.E. 92, 25 L.R.A. (N.S.) 855.
As a general rule if the holding over is with the consent of the landlord for some particular purpose or for a specified time, the tenant cannot be held for another term. Thus where the holding over is with the consent of the landlord pending negotiations for a new lease which fell through, the holding over does not render the tenant liable for another term.
16 R.C.L. 1165; Leggett v. Louisiana Purchase Exposition, 157 Mo. App. 108, 137 S.W. 893; Schilling v. Klien, 41 Ill. App. 209; Kentwood Hotel Company v. Hiland, 153 Ill. App. 108.
The question of whether or not a tenant holds over under the terms and conditions of a former lease is a question of fact for the jury.
Montgomery v. Willis, 45 Nebr. 434, 63 N.W. 79.
Where a tenant for years holds over with the consent of his landlord, his tenancy will be one from year to year, or for a shorter period, according to the intention of the parties. Such intention should in each case be found and determined as a question of fact, by the triers of the fact, and in so doing they may take into consideration the character of the property and the use to which the same is put, as well as the periods at which the rent is to be paid.
Withnell v. Petzold, 17 Mo. App. 669, 25 L.R.A. 856; Grant v. White, 42 Mo. 285; Phoenixville v. Walter, 147 Pa. 501; Faust v. Akron Iron Company, 37 N.Y.S. 374; Gerhart Realty Company v. Brecht, 109 Mo. App. 25, 84 S.W. 216; Thomas Hinds Lodge No. 58 F. A.M. v. Presbyterian Church, 103 Miss. 130, 60 So. 67.
Percy, Strauss Kellner, of Greenville, for appellee.
Appellant entered into possession of the apartment, knowing that appellee was contending for a new lease of twelve months at fifty-five dollars per month, and knowing that appellee did not assent to his occupancy of the apartment on a month to month basis.
Appellant took his chances that appellee would come to his terms but if he did not appellee was bound for the lease of one year at a rent of fifty-five dollars per month.
Wachenfeld v. Favre, 152 Miss. 1.
Argued orally by Jerome S. Hafter, for appellant, and by Ernest Kellner, Jr., for appellee.
It is firmly established that where, without a new contract, a tenant continues to occupy the property which he has held under an annual lease, he becomes liable as tenant for another year at the same rate and under the same terms. Love v. Law, 57 Miss. 596; Usher v. Moss, 50 Miss. 208. It is the duty of a tenant when his period of tenancy has expired to surrender the premises to his landlord or else to have procured a new contract, and, if he fails to do either, the landlord may treat him as a trespasser or as a tenant under the previous terms, according to the option of the landlord. In consequence of the foregoing principles, it is immaterial that the tenant may have notified the landlord that he will not renew the lease, or that he will remain only for a lesser period than that of the original lease or that he will pay a lesser amount in rent. Wolffe v. Wolff, 69 Ala. 549, 44 Am. Rep. 526; 35 C.J., pp. 1029, 1030, 1101, 1102, unless the landlord thereupon consents that the holding over shall be upon new or different terms, or unless the equivalent of consent shall arise out of the fact that the tenant has remained in possession pending negotiations for a new lease. 35 C.J. 1032, 1104; Thos. Hinds Lodge v. Fayette Church, 103 Miss. 130, 60 So. 66. And in order that the negotiations shall be fairly and justly the equivalent of, or a substitute for, consent, the negotiations in the particular case must be actual and substantial negotiations, not mere suggestions or requests or demands therefor or tentative approaches thereto, but upon which there has been no actual or substantial entry and upon which there has been no commitment that the landlord will in fact enter.
The proof in behalf of appellant shows that during the month preceding the expiration of the lease appellant told the agent of the landlord that appellant desired a reduction in rent, and that, unless appellant could secure a reduction, he would hold only from month to month and until he could find another place. In response to this, the agent made no agreement one way or the other. The only response made by the agent to the appellant was that the agent would take it up with the landlord, but the agent made no commitment in regard to the attitude that the landlord would take. Whether, before the expiration of the term, the agent communicated with the landlord, is not shown as a fact. The term elapsed, and the new period of possession was begun without any further material contact or progress in the matter between the tenant and the landlord or between the tenant and the landlord's agent. In our opinion, this did not fulfill the requisite legal measure in respect to negotiations for a new lease. Such negotiations must amount to more than a request for the consideration of new terms on the side of the tenant and the promise by the agent without any further commitment to refer the question to the landlord on the other, and that was all that happened here. The conversation between the tenant and the agent in respect to a new lease had not brought the transaction into such a state of progress as that it may be considered as having attained to the dignity of negotiations. This was the view taken by the trial courts, and the judgment will be affirmed.
Affirmed.