LANDLORD AND TENANT. A term used to denote the relation which subsists by virtue of a contract, express or implied, between two or more persons, for the posses sion or occupation of landa or tenements either for a definite period, for life, or at will.
2. When this relation is created by an ex press contract, the instrument made use of for the purpose is called a lease. See LEASE. But it may also arise by necessary implication from the circumstances of the case and the re lative position of the parties to each other ; for the law will imply its existence whenever there is an ownership of land on the one hand and an occupation of it by permission on the other ; and in all such cases it will be presumed that the occupant intends to com pensate the owner for the use of the pre mises. 4 Conn. 473; 4 Pet. 84 ; 3 Wend. N. Y. 219; 7 La. 83 ; 6 Ad. & E. 854 ; Taylor, Landl. & Ten. 19.
3. The intention to create. This ielation may be inferred from a variety of circum stances ; but the most obvious acknowledg ment of its existence is the payment of rent ; and this principle applies evn after the ex piration of' an express terni of years ; for if a tenant continues to hold over, after his term has run out, the landlord may, if he chooses, consider him a tenant, and he is, in fact, understood to do so, unless he proceeds to eject him at once. If the landlord suffers him to remain, and receives rent from him, or by any other act acknowledges him as tenant, a new tenancy springs up, of so defi nite a character that it cannot be terminated by either party, except by a reasonable notice to quit. 15 Juhns. N. Y. 505; 1 Den. N. Y. 113 ; 4 M'Cord, So. C. 59 ; 2 Esp. 528; 4 Campb. 275 ; 2 Carr. P. 3-18.
The payment of money, however, is only a prima facie acknovvledgment of the exist ence of a tenancy ; for if it does not appear to have been paid as rent, but stands upon some other consideration, it will not be evi dence of a subsisting tenancy. 3 Barnew. & C. 413 ; 10 East, 261 ; 11 Ad. & E. 307 ; 4 Singh. 91. Neither does a mere participa
tion in the profits of land, where the owner is not excluded from possession, nor the let ting of land upon shares, unless the occupant expressly agrees to pay a certain part of the crop a.s rent, in either case amount to a. ten ancy. 16 Mass. 443 ; 1 Speers, So. C. 408 ; 3 IVPCord, So. C. 211 ; 1 Gill & J. Md. 266 ; 3 Zabr. N. J. 390; 2 Rawle, Penn. 11; 3 Hill, N. Y. 90 ; 15 Wend. N. Y. 379.
4. But the relation of landlord and ten ant will not be inferred from the mere occu pation of land, if the relative position of the parties to each other can, under the circum stances of the case, be referred to any other distinct cause: as, for instance, between a vendor and vendee of land, where the pur chaser remains in possession after the agree ment to purchase falls through. For the pos session in that case was evidently taken with the understanding of both parties that the occupant should be owner, and not tenant ; and the other party cannot without his consent convert him into a tenant, so as to charge him vvith rent. 6 Johns. N. Y. 46; 16 Pet. 25 ; 21 Me. 525 ; 8 Mees. & W. Exch. 118 ; 10 Cush. Mass. 259. The same principle applies to a mortgagor and mortgagee, as well as to that of a mortgagor and an as signee of the mortgagee ; for no privity of estate exists in either case ; and, as a gene ral rule, a tenancy by implication can never arise under a party who has not the legal estate of the premises in question. 2 Mann. & R. 303 ; 6 Ad. & E. 268 ; Taylor, Landl. & Ten. 25.
5. Generally, the rights and obligations of the parties vvill be considered as having aim nienced from the date of the lease, if there be one, and no other time for its commence ment has been agreed upon ; or, if there be no date, then from the delivery of the papers. lf, however, there be no writings, it will take effect from the day the tenant entered into possession, and not with reference to any particular quarter-day. 4 Johns. N. Y. 230; 15 Wend. N. Y. 656; Coke, Litt. 46 a.