2. Creation of periodic tenancy: It is possible to create a periodic tenancy by express agreement (i.e., L and T explicitly agree that T will have a month-to-month tenancy of Blackacre.) Normally, however, a periodic tenancy is created by inference.
a. Lease with no stated duration: For instance, the parties may make a lease without setting a duration, and also provide that the rent is to be, say, $400 per month. The fact that the rent is to be payable monthly will probably be enough to make the tenancy a month-to-month periodic one. See Rest. 2d §1.5, Comment d.
b. Void lease: Similarly, the parties may make an invalid lease. This would probably be due to a failure to comply with the Statute of Frauds, but might be due to a state’s requirement that the lease be notarized or in the form of a deed. When the tenant first enters, a tenancy at will is created (infra, p. 161), but as soon as the first rent payment is made, a periodic tenancy will generally be deemed to exist.
i. Length of period: However, courts are not in agreement as to how the length of the period is to be determined. Most courts would probably hold that the period is the one that is used in the void lease for calculating rent. Thus if the rent in the lease is stated on an annual basis, the tenancy will be year-to-year, even though the rent is payable each month.
c. Arising from holdover: Another way a periodic tenancy can arise is when a tenant holds over at the end of a lease. In the holdover situation, the landlord has the choice of either evicting the tenant or permitting him to stay; in the latter event, the tenancy is usually treated as a periodic one. This is discussed more fully infra, p. 161.
3. Termination of tenancy: A periodic tenancy will automatically be renewed for a further period unless one party gives a valid notice of termination. At common law, six months notice was necessary to terminate a year-to-year tenancy, and a full period’s notice was necessary where the period was less than a year (e.g., thirty days notice for a month-to-month tenancy). Rest. 2d §1.5, Comment f. Today, most states have statutes modifying this rule; many of these statutes require only thirty days notice for any tenancy, even yearto-year. (But the parties are free to agree upon longer or shorter notice.)
a. Notice must specify end of period: At common law, the notice also had to set the end of a period as the termination date.
Example: T and L orally agree that T will rent Blackacre from L “at a rent of $2,000 per month.” No duration is specified. The parties agree that the lease will start July 1. T moves in on July 1. On Oct. 15, T sends L a letter stating, “I have moved out, and the lease is terminated effective immediately.”