Covenants are express or implied terms of a lease. If parties expressly agree to do certain things enumerated and set forth in the lease, the covenant is said to be express. The law implies certain obligations on the part of the parties to a lease. There is an implied covenant on the part of the tenant to pay rent, and to make all ordinary repairs subject to the reasonable wear and tear of the premises. The landlord impliedly consents to give the tenant quiet enjoyment, and to pay taxes and assessments.
334. Transfer of Leases. A landlord may transfer his interest in a lease. A tenant may, unless the lease stipulates otherwise, transfer his interest in a lease. A transfer of an interest or right in which a third person, not a party to the transfer, has an interest is usually called an assignment. For example, A owes B $100.00, B may assign his claim to C. By notifying A of the assignment, A is obliged to pay C, instead of B. Any defense that A has against B is available against C. As a rule, partial interests cannot be assigned so as to be binding upon the obligor, without the latter's consent. If A owes B $100.00 B cannot assign $10.00 of this claim to ten different parties. This would compel A to pay ten different persons, while the original obligation bound him to pay but one. A may have a counter claim amounting to $50.00. To obtain the benefit of this counter claim, he would have to set it up in five different suits, whereas if the claim were sued by the original owner, or by one owner he would have to make a defense in but one suit.
An assignment may be made orally, if not in conflict with the provisions of the Statute of Frauds. It may be made by written contract. No particular language is required to make a valid assignment. Any words expressing the intention of one party to make an assignment, accepted by the one to whom the assignment is to be made, is sufficient. A landlord may assign a lease. Upon receipt of notice of the assignment from the landlord or the assignee, the tenant must pay to the assignee the rent subsequently coming due. If an assignment is made by a landlord, and no notice is given the tenant, the latter discharges his liability under the lease by paying the original landlord. Originally at common law, a landlord could not assign his rights without the consent of the tenant. The tenant could not be compelled to recognize a new landlord. Recognition of a new landlord was called attornment. A tenant may assign his interest in a lease if the lease does not expressly provide otherwise. This does not relieve the tenant from liability under the lease, even though the landlord consents to the assignment, and accepts rent from the assignee. The original tenant is a surety for the rent. After an assignment of a lease by the tenant, the landlord, if he does not expressly release the original tenant, may collect the rent from either party.
335. Leases for Years. A lease for years is a lease for a definite and ascertained period of time. If A rents B's farm for five years commencing June 1, 1910, the lease is for years. If A leases B's house for a year, a month, or a week, to commence on a certain date, the time of the lease is definite and ascertained and constitutes a lease for years. If A rents B's house for a year commencing June 23, 1910, at $25.00 per month, the rent to be monthly in advance, the lease is one for years. The fact that the rent is to be paid in installments does not render the lease one from month to month.
A lease is regarded as personal property and, while it is an interest in real property, it is usually called a chattel real, and is treated as personal property. When the owner of a lease dies, the lease is personal property in the hands of the executor or administrator of the owner, and does not descend to the heirs of the owner as real property. In some states, long time leases, such as leases for ninety-nine years, are by statute made real property.
The practical distinction between leases for years and leases from month to month, is that in the former, the lease ends when the time covered by it expires. In a lease from month to month, a new lease is created by implication, if a tenant is permitted to hold over. This question is discussed more at length under the section, Tenancies from Year to Year.
336. Subletting. Some states by statute refuse to permit a tenant to sublet any portion of his lease, without the consent of the landlord. A landlord may stipulate in his lease that a tenant shall not sublet any portion of the premises. In the absence of statutory provisions, or stipulations in the lease, a tenant may sublet the leased premises. A transfer by a tenant of an interest in the leased premises may be an assignment, or it may be a sublease. An assignment is a transfer by a tenant of his entire interest in the premises. If A rents B's farm for five years, and sells his lease for five years to C, the transfer is an assignment. A transfer of only a portion of a tenant's interest is a sublease. If A rents B's farm for five years, and leases the farm for three years to C, the transfer is an assignment. If A leases the farm to C for five years, the transaction is a sublease. An assignment is a transfer of the tenant's entire interest in the leased premises. A sublease is a transfer of a part of a tenant's interest in the leased premises.
A tenant may mortgage his interest in the leased premises. A creditor of a tenant may levy upon the lease in satisfaction of a judgment, the same as upon any article of personal property.
The purpose of the statute and stipulations in a lease, forbidding a tenant to sublet the leased premises, is for the protection of the original lessor. A subtenant is not permitted to avoid a lease on the ground of such a statutory provision, or by reason of such a stipulation in a lease. For example, if A rents B's farm for five years, and the lease contains a stipulation that A cannot sublet, if A sublets the farm for three years to C, C cannot avoid the obligation to A by reason of the stipulation in the lease. The stipulation is a privilege in favor of B. It may be exercised by B if he chooses to avail himself of the privilege. He may waive the privilege, or refuse or neglect to exercise his right. Neither C nor anyone else can avail himself of this privilege.
It is sometimes quite difficult to tell just what constitutes a subletting in violation of a statutory provision or a provision in the lease. Mere privileges granted to others do not constitute sublettings. Permission granted a neighbor to use a barn for a short period, or taking roomers by the week, has been held not to constitute a subletting.