A. Non-freehold estates: This chapter is about the non-freehold estates. (See supra, p. 49.) The estates that are non-freehold are: (1) the tenancy for years; (2) the periodic tenancy; (3) the tenancy at will; and (4) the tenancy at sufferance. These estates are discussed one at a time beginning infra, p. 159.
1. Landlord-tenant relationship: These non-freehold estates have one particularly important characteristic: each normally includes a duty, on the tenant’s part, to pay rent. Thus they involve the landlord-tenant relationship.
B. Conveyance aspects: The leasehold and the freehold at common law had a key feature in common: they were both estates in land, typically created by a conveyance. Until about the last few decades, the law of landlord-tenant was dominated by these estate, conveyancing, aspects.
1. Independent covenants: For instance, since a tenant was deemed to receive an estate in land, his rights and duties were treated as independent of the landlord’s rights and duties. Thus if the landlord promised to keep the property in repair (a promise which landlords seldom make), a breach of this promise did not relieve the tenant from the duty of paying rent; the rent was owed as payment for the estate, and the promise to do repairs was merely a collateral promise which could be enforced only by a separate contractual suit brought by the tenant. This doctrine is generally referred to as the independence of covenants.
2. Destruction of premises: Similarly, if buildings upon the land were completely destroyed by fire or other act of nature, the tenant still had the duty to pay rent. Again, this stemmed from the idea that the tenant was paying rent for the land itself, not the buildings on it.
3. Modern tendency: But since the late 20th century, courts have shown a strong tendency to move away from the doctrine of independence of covenants. See, e.g., Rest. 2d, Introduction to Landlord and Tenant, p. vii.
a. Warranty of habitability: The most striking example is the present willingness of most courts to hold that, at least with respect to residential premises, the landlord makes an implied warranty of habitability, the breach of which entitles the tenant to terminate the lease and move out, withhold rent, or use rent monies to make the repairs himself. See infra, p. 169.