Hannan v. Dusch


            Hannan, plaintiff, asserts that Dusch, defendant, leased to the plaintiff certain real estate in Norfolk, Virginia for fifteen years beginning on January 1st, 1928. The lease did not include an express covenant as to the delivery of the premises nor for quiet possession of the premises by the lessee. Plaintiff further alleges that it was the defendant’s duty to see that the premises was open for entry by the beginning of the term and to put the plaintiff into actual possession of the land. The plaintiff, nonetheless, was unable to enter the leased real estate due to a holdover tenant in a portion of the land. Furthermore, the plaintiff insisted upon bringing action against Dusch, as opposed to ousting or taking other legal action against the holdover tenant. Plaintiff alleges damages for breach of contract and deed. The defendant moved to dismiss on multiple grounds, including that there was no duty on his behalf due to the lack of an express covenant.


            The prior court ruled in favor of the defendant and the plaintiff now appeals to the Supreme Court of Appeals of Virginia.


            The issue is whether a landlord, who without any express covenant as to delivery of possession leases property to a tenant, is required under the law to oust trespassers and wrongdoers so as to have it open for entry by the tenant at the beginning of the term, i.e. whether without an express covenant there is nevertheless an implied covenant to deliver possession.


            The landlord is not bound to put the tenant into actual possession, but is only bound to put him in legal possession, so that no obstacle in the form of superior right of possession will be interposed to prevent the tenant from obtaining actual possession of the demised premises.


            First off, modern courts have not imposed a precedent for the issue at hand without conflict. Courts typically revert to and debate two rules, the English and American rule, that currently exist regarding the issue of a landlord’s obligations in the absence of an express covenant. The English rule implies a covenant that requires the lessor to put the lessee into possession. Furthermore, the rule holds that every lease includes an implied covenant on behalf of the landlord that the property will be open to entry by the tenant at the time fixed by the lease for the beginning of the term. The English rule places liability on the landlord for breach of the covenant if a trespasser goes into possession of the property and prevents the tenant from taking possession. Cases, like Herpolsheimer v. Christopher, exist in modern law supporting and utilizing the English rule because it places the burden for actual possession on the landlord vs. the tenant. On the other hand, the American rule recognizes the lessee’s legal right to possession, but imposes no duty on the lessor against wrongdoers and trespassers. This rule places the burden on the lessee for preventing any obstacle from interfering with his own legal right to take actual possession of the premises, including trespassers and wrongdoers. In other words, if a former tenant or wrongdoer takes possession of the property prior to the new tenant, the new tenant must seek action against the wrongdoer or former tenant directly, as opposed to the landlord under the English rule. Therefore, the American rule better protects the interests of both parties and should be adopted.


            The Supreme Court of Appeals of Virginia affirmed the prior court’s judgment in favor of the defendant.

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