§17.2 - History and Nature of Leaseholds

• Jurisdiction: Washington

§17.2HISTORY AND NATURE OF LEASEHOLDS

This section outlines the historical origins of leasehold interests, discusses the landlord-tenant relation, and distinguishes leaseholds from other interests in real property.

(1) History

Although interesting in their own right, the medieval origins of landlord-tenant law have had little practical effect on the development of Washington law. The mass of Washington's landlord-tenant principles are to be found in the decisions of the state appellate courts. Except for the Residential Landlord‑Tenant Act of 1973, Chapter 59.18 RCW, there is no comprehensive statutory code on the subject. Rather, there is an assortment of statutes, most of which are located in Title 59 RCW. See §17.13, Partial List of Relevant Washington Statutes. For a general discussion of the history of landlord-tenant law, see Theodore Pluckett, A CONCISE HISTORY OF THE COMMON LAW 570-74 (5th ed. 1956), and 2 Sir Frederick Pollock & Frederic W. Maitland, THE HISTORY OF ENGLISH LAW BEFORE THE TYME OF EDWARD I §106-17 (2d ed. 1898).

(2) The landlord-tenant relation

The relation of landlord and tenant arises whenever the holder of a possessory estate in land permits another to possess it for a temporal period or at will. Cf. Hughes v. Chehalis Sch. Dist. No. 302, 61 Wn.2d 222, 224, 377 P.2d 642, 643 (1963) (containing a very similar definition). The landlord grants away a temporary possessory estate of shorter duration than its own estate. It retains a future interest with possession deferred to the end of the supervening estate. The landlord's estate is classified as a reversion. This is so even if it had only a life estate and purported to create a tenancy for 999 years. The tenant, having rightful possession, has an estate in land. It is not a freehold and is viewed as personalty, a "chattel real." In re Barclay's Estate, 1 Wn.2d 82, 95 P.2d 393 (1939). It is a present possessory estate, of temporary duration expressed as a fixed period or as a series of recurring periods. An exception is a tenancy at will, which is of indefinite duration and terminable at either party's will. A leasehold may be carved out of any estate of longer duration, even out of another leasehold (the resulting estate being a sublease). The right to possession, typically exclusive, is an essential element of a leasehold estate.

No particular formalities are necessary to create a leasehold except as required by a statute of frauds. The relation may even be implied, as when a landlord demands rent of one who otherwise would be a trespasser. Brownie v. McNelly, 134 Wash. 380, 235 P. 807 (1925) (alternative ground). Because the relationship is permissive, an adverse possessor or one claiming title cannot be a tenant. Snyder v. Harding, 34 Wash. 286, 75 P. 812 (1904). However, it is possible for a tenant in common in the fee to be a lessee of its cotenants' shares of the fee. Brydges v. Millionair Club, 15 Wn.2d 714, 132 P.2d 188 (1942). A leasehold may be of very short duration, such as one evening. Hughes, 61 Wn.2d 222.

Dictum in an early decision suggests that, if the parties have agreed on a lease, the tenant does not have to enter into actual possession for the term to begin. Schlumpf v. Sasake, 38 Wash. 278, 80 P. 457 (1905). The contrary doctrine of interesse termini, that the tenant has a right to enter but no estate until it takes possession, is not favored in American jurisprudence. 1 AMERICAN LAW OF PROPERTY §3.22 (A. James Casner ed., 1952). If the time for the term has begun according to the lease, the fact that the tenant has not physically entered should not prevent the legally protected right of possession and thus should not forestall the beginning of the leasehold estate.

(3) Leaseholds distinguished from other relationships

The concepts of "permissive," "possession," "land," and "temporal period" are essential to defining a leasehold. For lack of attention to these concepts, leases of land have been confused with bailments of chattels for hire. See Gandy v. State, 57 Wn.2d 690, 359 P.2d 302 (1961) (automobiles); St. Paul Fire & Marine Ins. Co. v. Chas. H. Lilly Co., 46 Wn.2d 840, 286 P.2d 107 (1955), judgment set aside on other grounds, 48...