SECTION 1001. Form for replevin bond. 1005. Form for notice to tenant to SECTION 1006. Form for notice to quit after rent due. 1007. Form for notice to quit tenancy on farm. 1008. Form for affidavit of service of notice to quit. Sec. 953. Preliminary statement. There is but little procedure to be given here on this subject. The practice questions growing out of the topics treated in this chapter are found elsewhere in this work. The most important are forcible entry and detainer, and ejectment. It is sufficient now to say, that the questions of the method of acquiring possession of real estate, and the defenses thereto, as to practice and substantive law, will be treated under the subjects last named. While a few forms are here given for the practitioner, to replevin and attach crops under landlord's lien for the payment of rent, yet, the reader is referred for general forms to the treatment of the subjects of replevin and attachment found in other textbooks on this subject.1 At the concluding part of this chapter will be found forms suggesting the manner of the preparation of many kinds of leases which the practitioner is called upon to prepare, together with various forms for notice to vacate premises. Sec. 954. Tenant defined. Any person in possession of real property, with the assent of the owner, is presumed to be a tenant at will, unless the contrary is shown, except as herein otherwise provided.* 1 See, also, Kinkead's Code Pleading, Vol. 1, Secs. 255 to 268; Ibid, Vol. 2, Secs. 1078 to 1093; also Bates' Pleading and Practice Forms, Vol. 1, Secs. 672 to 713; Ibid, Vol. 3, Secs. 2,600 to 2,604. *Snyder, 4,075; Wilson, 3,320. A person who goes into possession of a town lot or upon public lands, as a tenant of one who has improved the lot by erecting a building thereon, will not be heard to assert a claim adverse to his landlord, by reason of occupancy, settlement or improvement, until he shall have vacated the premises and surrendered possession to his landlord.2 Sec. 955. Tenancy from year to year-Month to month. When the premises are let for one or more years, and the tenant with the assent of the landlord, continues to occupy the premises after the expiration of the term, said tenant shall be deemed to be a tenant from year to year.3 When premises are let for one or more years, and the tenant with the assent of the landlord, continues to occupy the premises after the term, such tenant will be deemed to be a tenant at will: Provided, that no lease or rental contract of premises shall be continued, unless the original contract was in writing, and all other lease contracts shall expire by limitation with the calendar year, without notice.* It has been held that a tenancy from month to month is created where the parties enter into a lease which provides that after a certain period, the lease shall be so considered, and the tenant continues to occupy under said lease." Again, it has been held that the general rule of law that when a tenant, with the consent of the landlord, express or implied, holds over his term, the law implies a continuation of the original tenancy upon the same terms and conditions, does not obtain in a case where the rent reserved in the original lease for the most part consists of the performance by the tenant of labor upon the premises of such a nature 2 Hagar v. Wikoff, 2 Okla. 580, 39 Pac. 281. 3 Snyder, 4,076; Wilson, 3,321; Kansas Statutes identical. 4 Act of March 8, 1911. 5 Pappe v. Trout, 3 Okla. 260, 41 Pac. 397; Intfen v. Foster, 56 Pac. 1,125; Nelson v. Ware, 47 Pac. 540; Ware v. Nelson, 45 Pac. 923; Bard v. Elston, 1 Pac. 565. that, being once performed during the original term, becomes incapable of further performance by the tenant while holding over.R Sec. 956. To hold from one period to another, when. When rent is reserved, payable at intervals of three months or less, the tenant shall be deemed to hold from one period to another, equal to the intervals between the days of payment, unless there is an express contract to the contrary." Where a tenant goes into possession of real estate under a written lease, for one year, with the privilege of two years, executed by the landlord, and accepted and complied with by him, and remains in possession thereof four years, without any new agreement except as to the amount of rent payable, this will constitute a tenancy from year to year; and the nature of such tenancy is not changed by the fact that the annual rental was payable in equal monthly installments.R Sec. 957. Notice to terminate tenancy. Thirty days' notice in writing is necessary to be given by either party before he can terminate a tenancy at will, or from one period to another of three months or less; but where in any case, rent is reserved, payable at intervals of less than thirty days, the length of notice need not be greater than such interval between the days of payment." Where a tenant leases a dwelling house from his landlord, without any definite time being fixed for the expiration of the lease, and agrees to pay a specified sum every month, to be paid monthly, and the tenant continues in possession of the premises for over two years, with the consent of his landlord, but fails to pay any rent, although frequently re Martin v. Hamersky, 65 Pac. Kan.) 637, 12 Am. and Eng. Enc. 758q (1st ed.); Dilles v. Roberts, 13 Serg. and R. 63; Ives v. Williams, 50 Mich. 106, 15 N. W. 36. 7 Snyder, 4,077; Wilson, 3,322; Pappe v. Trout, 3 Okla. 260, 41 Pac. 397. 8 Intfen v. Foster, 56 Pac. (Kan.) 1,125. 9 Snyder, 4,078; Wilson, 3,323; Kansas, 2,284, identical. quested so to do, and his landlord then finally decides that he wants possession of the premises, and gives the tenant formal notice to quit, it was held, that the action of unlawful detainer is not barred because of such possession by the tenant with the consent of the landlord for over two years.10 In construing this section of the statute, the Supreme Court of Kansas held that thirty days' notice in writing is necessary to be given by either party before he can terminate a tenancy at will, or from one period to another for three months or less; that the thirty days' notice prescribed by statute to be given by a tenant to terminate a tenancy at will, like almost every other species of notice required by law, may be waived by the landlord, and that where the landlord has actual notice that a tenant at will, who is to pay his rent monthly, is about to remove and vacate his premises without written notice, as prescribed by the statute, and the landlord brings an action against him for rent, and recovers for one month, being one rent period, after actual notice and for the full time of occupancy, such actual notice and conduct of the parties terminate the tenancy at will, and the landlord cannot recover any rent for the vacated premises, in another action, for the subsequent month or rent period.11 Sec. 958. Tenancy from year to year-How terminated. All tenancies from year to year may be determined by at least three months' notice, in writing, given to the tenant prior to the expiration of the year.12 Sec. 959. Notice to terminate farm tenancy. In case of tenants occupying and cultivating farms, the notice must fix the termination of the tenancy to take place on the first day of January.13 10 Moran V. Moran, 38 Pac. (Kan.) 268. 11 Betz V. Maxwell, 29 Pac. (Kan.) 147. 12 Snyder, 4,079: Wilson, 3.324; Kansas, 3,849, identical; Nelson v. Ware, 47 Pac. 540. 13 Snyder, 4,080; Wilson, 3,325. Sec. 960. Rent not paid-Notice to quit-Ten days. If a tenant for a period of three months or longer neglects or refuses to pay rent when due, ten days' notice in writing to quit shall determine the lease, unless such rent be paid before the expiration of said ten days.1 Sec. 961. Rent not paid-Notice to quit-Five days. If a tenant for a period of less than three months shall neglect or refuse to pay rent when due, five days' notice in writing to quit will determine the lease, unless such amount be paid before the expiration of said five days.15 Sec. 962. Notice not necessary, when. When the time for the termination of the tenancy is specified in the contract, or where a tenant at will commits waste, or in the case of a tenant by sufferance, or in any case where the relation of landlord and tenant does not exist, no notice to quit is necessary.10 This statute regulates the method of terminating a tenancy from year to year, and in order to terminate such a tenancy, the tenant is not required to give notice to the landlord of his intention to sever the relation, and to quit the premises.17 Sec. 963. Notice-How served. Notice, as required in the preceding paragraph, may be served on the tenant, or if he cannot be found, by delivering the same to some person over twelve years of age, residing on the premises, having first made known to such person the contents thereof.18 14 Snyder, 4,081; Wilson, 3,325; Kansas, 3,851, identical. 15 Snyder, 4.082; Wilson, 3,327. 16 Snyder, 4,083; Wilson, 3,328; Kansas, 3,853, identical. 17 Nelson v. Ware, 47 Pac. (Kan.) 540. 18 Snyder, 4,084; Wilson, 3,329. |