Full Opinion & Expert Analysis: Garner v. Gerrish (473 N.E.2d 223)

Facts

Robert Donovan owned a house located in Potsdam, New York in 1977.¹ On April 14 of that year, he leased the premises to Lou Gerrish on a printed form that neither side had counsel for when executing.² Donovan filled in the blanks himself, naming the parties, describing the property, and setting the rent at one hundred dollars a month.³ The lease provided that the term would run from the first day of May 1977 and would end at a date of Lou Gerrish's own choice for termination.⁴ It also qualified the landlord's reentry right with a handwritten note granting Lou thirty days grace for payment.⁵

Gerrish moved into the house and continued to reside there while paying the rent specified in the lease.⁶ Donovan died in November of 1981.⁷ At that point David Garner, executor of Donovan's estate, served Gerrish with a notice to quit the premises.⁸ When Gerrish refused to leave, Garner commenced this summary proceeding to have him evicted.⁹

In his answering affidavit, the tenant alleged that he had always paid the rent and that the lease granted him a tenancy for life unless he elects to surrender possession during his lifetime.¹⁰ The County Court granted summary judgment to the petitioner.¹¹ The Appellate Division affirmed for the same reasons in a brief memorandum.¹² The Court of Appeals granted the tenant’s motion for leave to appeal.¹³

Analysis

Issue #1

Issue

Whether a lease which grants the tenant the right to terminate the agreement at a date of his choice creates a determinable life tenancy on behalf of the tenant or merely establishes a tenancy at will?¹⁴

Legal Rule

Although at early common law a lease to the tenant at his will was also at the will of the lessor.¹⁵ Modern authority recognizes that a lease granting the tenant alone the right to terminate at will creates a determinable life estate in the tenant terminable at the tenant's will or on his death.¹⁶

Rule Analysis

Yes. The lease executed between Donovan and Gerrish expressly granted the tenant Lou Gerrish the privilege of terminating the agreement at a date of his own choice and did not reserve any similar right to the landlord.¹⁷ This handwritten addition to the printed form, together with Gerrish's continued payment of rent and residence in the premises until Donovan's death in 1981, shows that the parties intended a tenancy measured by the life of the named tenant unless he chose to end it sooner.¹⁸ Because livery of seisin is no longer required, the old rule converting such grants into tenancies at will has been rejected.¹⁹

Therefore, the lease created a determinable life tenancy rather than a tenancy at will terminable by the executor.²⁰

Conclusion

The lease creates a determinable life tenancy on behalf of the tenant.²¹