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Keywords

contractbreach of contractdefendantdamageslease
plaintiffdefendantwilllease

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Hannan v. Dusch, 154 Va. 356, 153 S.E. 824, 70 A.L.R. 141

Facts

James T. Hannan entered into a lease agreement with Walter F. Dusch for a property in Norfolk, Virginia, set to begin on January 1, 1928. Hannan was ready to take possession on that date but was denied access because Dusch failed to remove a previous tenant who was unlawfully holding over. Hannan claimed damages for this breach of contract, arguing that Dusch had a duty to ensure the property was available for his entry.

The declaration filed by the plaintiff, Hannan, against the defendant, Dusch, alleges that Dusch had on August 31, 1927, leased to the plaintiff certain real estate in the city of Norfolk, Virginia, therein described, for fifteen years, the term to begin January 1, 1928, at a specified rental; that it thereupon became and was the duty of the defendant to see to it that the premises leased by the defendant to the plaintiff should be open for entry by him on January 1, 1928, the beginning of the term, and to put said petitioner in possession of the premises on that date; that the petitioner was willing and ready to enter upon and take possession of the leased property, and so informed the defendant; yet the defendant failed and refused to put the plaintiff in possession or to keep the property open for him at that time or on any subsequent date.

Issue

The main legal issue was whether a landlord, without an express covenant to deliver possession, is required to remove a former tenant who wrongfully holds over to allow the new tenant to take possession at the beginning of the lease term.

The single question of law therefore presented in this case 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 — that is, whether without an express covenant there is nevertheless an implied covenant to deliver possession.

Rule

The court applied the American rule, which states that a landlord is not bound to put the tenant into actual possession but is only required to ensure that there are no legal obstacles preventing the tenant from obtaining possession.

It is generally claimed that the weight of the authority favors the particular view contended for. There are, however, no scales upon which we can weigh the authorities.

Analysis

The court analyzed the lease agreement and determined that since there was no express covenant requiring Dusch to deliver possession, he was not liable for the actions of the former tenant. The court emphasized that the tenant must protect himself against trespassers or former tenants wrongfully holding over, and the landlord's obligation is limited to ensuring legal possession without any superior claims.

The discussion then is limited to the precise legal duty of the landlord in the absence of an express covenant, in case a former tenant, who wrongfully holds over, illegally refuses to surrender possession to the new tenant.

Conclusion

The court affirmed the judgment for the defendant, concluding that Dusch had no obligation to remove the former tenant and that Hannan's remedy lay against the wrongdoer, not the landlord.

For the reasons which have been so well stated by those who have enforced the American rule, our judgment is that there is no error in the judgment complained of.

Who won?

The defendant, Walter F. Dusch, prevailed in the case because the court found that he had no legal duty to remove the former tenant and that the lease did not contain an express covenant for possession.

The defendant demurred to the declaration on several grounds, one of which was ‘that under the lease set out in said declaration the right of possession was vested in said plaintiff and there was no duty as upon the defendant, as alleged in said declaration, to see that the premises were open for entry by said plaintiff.’

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