[I]n the developed law the periodic

[I]n the developed law the periodic tenancy is recognized as a form of lease; the typical
example is the yearly tenancy, which will continue until it is determined by six months’
notice on either side, and such tenancies are extremely common. Such periodic or
‘running’ leases obviously pose a problem in legal analysis which is glossed over in
modern textbooks, for in a sense they do not conform to the rule which requires a lease
to be for a fixed term – they are in effect leases for an uncertain duration, determinable
by notice. They are not leases for a fixed term with an option to renew; such an analysis
is quite unrealistic. In short they are anomalous, and when they first came before the
courts at the end of the fifteenth and the beginning of the sixteenth centuries they
provoked a great deal of controversy. In 1506, a lease for one year, and then from year to
year as the parties pleased, at a fixed rent, was held to be a lease at will only. A case in
1522 on the same type of lease provoked a long discussion in the Common Pleas, and
the judges were divided. Upon grounds of convenience, for such arrangements were
common, Brudenell CJ and Pollard J were prepared to hold that by such an arrangement
a lease for one year was created at once, followed by successive one-year terms for
each year in which the arrangement was continued; if the tenant, with the consent of the
landlord, continued in possession for one day of a new year, then a fixed term for the
Leases and bailment 619
Downloaded from Cambridge Books Online by IP 137.132.123.69 on Sat Aug 30 04:36:46 BST 2014.
http://dx.doi.org/10.1017/CBO9781139051941.018
Cambridge Books Online © Cambridge University Press, 2014
whole of that year was created. Fitzherbert and Brooke JJ were not so sympathetic. Such
an arrangement, in their view, created a lease for one year and no more; thereafter the
tenant who remained in possession became a tenant at will only. If the arrangement was
expressed as a lease for years ‘at the will of the parties’, or ‘for as long as the parties
pleased’, then they would treat it as a lease for a fixed term of two years (to give effect to
the plural ‘years’) followed by a tenancy at will. For two centuries thereafter the dispute
as to the nature of periodic tenancies continued its arid course. In 1601, [in Agard v.
King Cro Eliz 775] Gawdy and Fenner JJ adopted the view of Brudenell CJ and Pollard J.
Popham CJ introduced another quaint construction, for he held that a lease ‘from year
to year as the parties pleased’ created a term of two years (from year to year ¼ two years)
followed by a tenancy at will. Popham’s view was adopted in 1606 [in The Bishop of
Bath’s Case, 6 Co Rep 35b] where the court was confronted with a lease ‘for a period of
one year and so from year to year for as long as both parties should please’; three years
are mentioned, and these are added up to confer a term of three years followed by a
tenancy at will. This sort of absurd construction would lead one to say that a lease from
‘year to year to year to year’ would create a term of four years; neither common sense
nor logic recommends it. Eventually, the view of Brudenell and Pollard triumphed
when the great Holt CJ adopted it in 1702 [in Leighton v. Theed (1702) 1 Ld Raymond
707] and in the course of the eighteenth century the dispute died out