153 S.E. 824 (Va. 1930)
On August 31, 1927, Dusch leased to Hannan certain real estate in the city of Norfolk, Virginia, for fifteen years, the term to begin January 1, 1928, at a specified rental.1 There is no express covenant as to the delivery of the premises nor for the quiet possession of the premises by the lessee.2
The declaration alleges that it thereupon became the duty of the defendant to see to it that the premises leased should be open for entry by the plaintiff on January 1, 1928.3 The petitioner was willing and ready to enter upon and take possession of the leased property and so informed the defendant.4 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.5 The defendant suffered to remain on said property a former tenant or tenants who occupied a portion or portions thereof and refused to take legal or other action to oust said tenants.6 Hannan alleged damages which he had suffered by reason of this alleged breach of the contract and deed and sought to recover such damages in the action.7
Dusch demurred to the declaration on several grounds.8 One ground was that under the lease set out in said declaration the right of possession was vested in said plaintiff. There was no duty as upon the defendant to see that the premises were open for entry by said plaintiff.9
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?10
Under the American rule followed in Virginia, a landlord who makes a lease without an express covenant to deliver possession is bound only to place the tenant in legal or constructive possession.11 This means the premises must be free of any superior right that would prevent entry.12 The landlord assumes no duty to oust trespassers or former tenants who wrongfully hold over.13 The tenant must pursue available remedies such as unlawful detainer against such wrongdoers.14
No. The lease executed on August 31, 1927, contained no express covenant requiring Dusch to deliver actual possession on January 1, 1928, and the former tenants who remained in occupation were mere wrongdoers without superior title.15 Under the American rule the landlord satisfies his obligation by conveying a legal right of possession that is free from paramount claims.16 He leaves the tenant to enforce that right against intruders through the summary remedy provided by Code section 5445.17 Hannan possessed that remedy as the party entitled to possession once the prior term ended, yet the declaration reveals he declined to pursue it.18
The distinction between the first day and later days of the term is insubstantial because the tenant bears the burden of protecting his own possession against tortious interference once the lease vests title in him.19 Virginia precedent in McGhee v. Cox confirms that the lessor need only ensure the premises are open to entry without legal obstacle, not that they are physically vacant.20 Application of the English rule would create an anomalous implied covenant of insurance against the independent tort of a third party.21 This result is unsupported by the general law of contracts or leases and is contrary to the statutory scheme that empowers the lessee to act directly.22
Related opinions on this issue
Justice Epes concurred in the result.25 The Virginia unlawful detainer statute left the lessor without power or process to evict a tenant who tortiously held over after the expiration of the prior lease.26 This made it improper to imply a covenant that the lessor could not perform.27
He nevertheless maintained that the English rule reflects the common law.28 The rule would again become the law of Virginia if the statutes were amended to restore the lessor's ability to evict such a holdover tenant.29