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Aleasehold estate is anownership of a temporary right to hold land orproperty in which alessee or a tenant has rights ofreal property by some form oftitle from a lessor orlandlord.[1] Although a tenant does hold rights to real property, a leasehold estate is typically consideredpersonal property.
Leasehold is a form ofland tenure or property tenure where one party buys the right to occupy land or a building for a given time. As a lease is a legal estate, leasehold estate can be bought and sold on the open market. A leasehold thus differs from afreehold orfee simple where the ownership of a property is purchased outright and after that held for an indeterminate length of time, and also differs from atenancy where a property is let (rented) periodically such as weekly or monthly.
Terminology and types of leasehold vary from country to country. Sometimes, but not always, aresidential tenancy under a lease agreement is colloquially known asrenting. The leaseholder can remain in occupation for a fixed period, measured in months or years. Terms of the agreement are contained in alease, which has elements ofcontract andproperty law intertwined.
Laws governing landlord–tenant relationships can be found as far back as theCode of Hammurabi. However, thecommon law of the landlord-tenant relationship evolved in England during theMiddle Ages. That law still retains many archaic terms and principles pertinent to afeudal social order and anagrarian economy, where land was the primary economic asset and ownership of land was the primary source of rank and status.
The tenancy was essential to thefeudal hierarchy after the statuteQuia Emptores prohibitedsubinfeudation (the creation of new feudal estates by existing feudal landholders) in the late 13th century; a lord would own land, and the tenants becamevassals. Leasehold estates can still beCrown land today. For example, in theAustralian Capital Territory, all private land "ownerships" are leaseholds of Crown land.[2]
A distinction may be made between a residential tenancy, offering a person a place to live, and abusiness tenancy, where premises are occupied for business purposes. There may be different statutory provisions for residential and business tenancies, for example in the UK'sLandlord and Tenant Act 1954, Part I (now largely superseded) dealt with residential tenancies and Part II dealt with business tenancies.[3]
A "fixed-term tenancy" ortenancy for years lasts for some fixed period of time. Despite the name, such a tenancy can last for any period of time – even a tenancy for one week would be called a tenancy for years. In common law, the duration did not need to be certain, but could be conditioned upon the happening of some event (e.g. "until the crops are ready for harvest", "until the war is over"). This is now disfavored, and some jurisdictions have made fixed durations a requirement.[4]
The tenancy will end automatically when the fixed term runs out or in the case of a tenancy that ends on the happening of an event when the event occurs. It is also possible for a tenant to give up the tenancy to the landlord, either expressly or implicitly. This process is known as a surrender of the lease. A tenancy may end when and if the tenant accepts a buyout agreement from their landlord. The landlord can offer to repurchase the property from their tenant as long as both parties agree upon the price (as with any otherconsideration, this need neither be market-rate, nor indeed monetary at all).[5]
Depending on the laws in force in a particular jurisdiction, different circumstances may legally arise where a tenant remains in possession of property after the expiration of a lease.
Aperiodic tenancy, also known as atenancy from year to year,month to month, orweek to week, is an estate that exists for some period of time determined by the term of the payment of rent. An oral lease for a tenancy of years that violates thestatute of frauds (by committing to a lease of more than—depending on the jurisdiction—one year without being in writing) may create a periodic tenancy, the construed term being dependent on the laws of the jurisdiction where the leased premises are located. In many jurisdictions the "default" tenancy, where the parties have not explicitly specified a different arrangement, and where none is presumed under local or business custom, is the month-to-month tenancy.
Atenancy at will orestate at will is a leasehold such that either the landlord or the tenant may terminate the tenancy at any time by giving reasonable notice. It usually occurs in the absence of alease, or where the tenancy is not forconsideration. Under the modern common law, tenancy at will can arise under the following circumstances:
In a residential lease for consideration, a tenant may not be removed except forcause, even in the absence of a written lease. If a landlord can terminate the tenancy at will, a tenant byoperation of law is also granted a reciprocal right to terminate at will. However, a lease that expressly continues at the will of the tenant ("for as long as the tenant desires to live on this land") does not automatically provide the landlord with a reciprocal right to terminate, even for cause. Rather, such language may be construed to convey to the tenant alife estate or even afee simple.
A tenancy at will terminates byoperation of law, if:
Atenancy at sufferance (sometimes called aholdover tenancy) is created when a tenant wrongfully holds over past the end of the duration period of the tenancy (for example, a tenant who stays past the expiration of his or her lease). In this case, the landlord can hold over the tenant to a new tenancy, and collect rent for the period the tenant has held over.
A tenancy at sufferance may exist when a tenant remains in possession of property even after the end of the lease, until the landlord acts to eject the tenant. The occupant may legally be atrespasser at this point, and the possession of this type may not be a true estate in land, even if authorities recognize the condition to hold the tenant liable for rent. The landlord may be able toevict such a tenant at any time without notice. Action to evict will terminate a tenancy at sufferance, because the tenant no longer enjoys possession. Some jurisdictions impose an irrevocable election whereby the landlord treats the holdover as either a trespasser, or as a tenant at sufferance. A trespasser is not in possession; but a tenant at sufferance continues to enjoy possession of the real property.
The landlord may also be able to impose a new lease on the holdover tenant. For a residential tenancy, such new tenancy lasts month to month. For a commercial tenancy of more than a year, the new tenancy is year to year; otherwise, the tenancy lasts for the same length of time as the duration under the original lease. In either case, the landlord can charge a higher rent, if the landlord, before the expiration of the original lease, has notified the tenant of the increase.
Simply leaving property behind on the premises does not constitute possession; thus, a tenancy at sufferance cannot be established. E.g.,Nathan Lane Assocs. v. Merchants Wholesale, 698 N.W.2d 136 (Iowa 2005);Brown v. Music, Inc., 359 P.2d 295 (Alaska 1961).
In some jurisdictions, the tenant has a legal right to remain in occupation of the premises after the end of a lease unless the landlord complies with a formal process to dispossess the tenant of the property. For example, inEngland and Wales, a business tenant has a right to continue occupying theirdemise after the end of their lease under the provisions of sections 24–28 of theLandlord and Tenant Act 1954 (unless these provisions were formally excluded by agreement before the lease was completed). At the end of their lease they need do nothing but continue payment of rent at the previous level and uphold all other relevantcovenants such as to keep the building in good repair. They cannot be evicted unless the landlord serves a formal notice to end the tenancy and successfully opposes the grant of the new lease to which the tenant has an automatic right. Even this can only be done under prescribed circumstances, for example the landlord's desire to occupy the premises himself or to demolish and redevelop the building.
Leasehold land is a land holding leased to a person or company by the relevantstate (as the Crown); however, all mineral rights are reserved to the Crown. There are different types of leasehold tenure from state to state.[6]Pastoral leases cover about 44% ofmainland Australia, mostly in arid and semi-arid regions and the tropicalsavannahs.[7]
There are three types of leasehold tenure in Australia:[6]
All land in theAustralian Capital Territory (ACT) is leasehold, issued with99-year leases. The rent on the leases was abolished by theGorton government in 1970, with the leasehold system now "almost identical in operation" to the freehold tenure typical of residential properties in other Australian jurisdictions.[8]
Australian residential tenancies differ from state to state, governed by local legislation.[9][10]
Modern leasehold estates inEngland andWales can take one of four forms—thefixed-term tenancy ortenancy for years, theperiodic tenancy, thetenancy at will, and thetenancy at sufferance. Forms no longer used[citation needed] includesocage andburgage.
When a landowner allows one or more persons, called "tenants", to use the land in some way for some fixed period, the land becomes a leasehold, and the resident- (or worker-) landowner relation is called a "tenancy". A tenant paysrent (a form ofconsideration) to the landowner. The leasehold can include buildings and other improvements to the land. The tenant can do one or more of: farm the leasehold, live on it, or practise a trade on it. Typically, leasehold estates are held by tenants for a specific period of time.
In England in recent years, some new homes and apartments have been sold by large housebuilders with a leasehold where theground rent payable doubles every 10 to 25 years, with consequently a very high price to buy out the lease. This has caused some recently built homes to be complicated to sell.[11] In 2017, the British government launched a consultation on legal reforms to end such exploitative schemes.[12]
Scotland has different laws, and underScots Law it has been forbidden by statute since 1974 to create a lease of a dwelling lasting longer than 20 years or to grant any other lease of over 175 years.[citation needed]
In the US, foodco-ops supply tenants with a place to grow their own produce.Rural tenancy is also a common practice. Under a rural tenancy, a person buys a large amount of land, and the rural community uses it agriculturally as a source of income.
The termestate for years appears to be a US term. This refers to a leasehold estate for any specific period of time (the word "years" is misleading, as the duration of the lease could be a day, a week, a month, etc.). An estate for years is not automatically renewed.
The first duty of thelandlord is to put the tenant in physical possession of the land at the outset of the lease (theEnglish andmajority rule, as opposed to theAmerican rule which only requires the tenant be givenlegal possession, or theright to possess); the second is to provide the premises in ahabitable condition—there is an implied warranty of habitability. If landlord violates either, the tenant can terminate the lease and move out, or stay on the premises, while continuing to pay rent, and sue the landlord for damages (or withhold rent and use breach of implied warranty of habitability as a defense when the landlord attempts to collect rent).
The lease also includes an implied covenant of quiet enjoyment – landlord will not interfere with tenant's quiet enjoyment. This can be breached in three ways.
Under the common law,[where?] the landlord had no duties to the tenant to protect the tenant or the tenant'slicensees andinvitees, except in the following situations:
Under the common law, the tenant has a number of duties to the landlord:
A tenant is liable to third-party invitees for negligent failure to correct a dangerous condition on the premise – even if the landlord was contractually liable.
If land under lease to a tenant is seized byeminent domain, the tenant may be able to earn either a reduction in rent or a portion of the condemnation award (the price paid by the government) to the owner, depending on the amount of land taken, and the value of the leasehold property.[where?]
With apartial taking of the land, the tenant may claim apportioned rent for property taken. For example, suppose a tenant leases land for six months for¤1,000 per month, and that two months into the lease, the government condemns 25% of the land. The tenant will then be entitled to take a portion of the condemnation award equal to 25% of the rent due for the remaining four months of the lease—¤1,000, derived from ¤250 per month for four months.
Afull taking, however, extinguishes the lease and excuses all rent from that point. The tenant will not be entitled to any portion of the condemnation award, unless the value of the lease was greater than the rent paid. In this case, the tenant can recover the difference. Suppose in the above example that the land's market value was actually ¤1,200 a month, but the ¤1,000 per month rate represented a break given to the tenant by the landlord. Because the tenant is losing the ability to continue renting the land at this bargain rate (and probably must move to more expensive land), the tenant will be entitled to the difference between the lease rate and the market value – ¤200 per month for a total of ¤800.
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