A request from a landlord to his tenant, to quit the premises lessed, and to give possession of the same to him, the landlord, at a time therein mentioned.
It will be proper to consider, 1. The form of the notice. 2. By whom it is to be given. 3. To whom. 4. The mode of serving it. 5. At what time it must be served. 6. What will amount to a waiver of it.
The form of the notice. The notice or demand of possession should contain a request from the landlord to the tenant or person in possession to, quit the premises which he holds from the landlord, (which premises ought to be particularly described, as being situate in the street an city or place, or township and county,) and to deliver them to him on or before a day certain, generally, when the lease is for a year, the same day of the year on which the lease commences. But where there is some doubt as to the time when the lease is to expire, it is proper to add, " or at the expiration of the current year of your tenancy." It should be dated, signed by the landlord himself, or by some person in his name, who has been authorized him, and directed to the tenant. The notice must include all the premises under the same demise;, for the landlord cannot determine the tenancy as to part of the premises demised and continue it as to the residue. For the purpose of bringing an ejectment, it is not necessary that the notice should be in writing, except when required to be so under an express agreement between the parties. But it is the general and safest practice to give written notices, and it is a precaution which should always, when possible, be observed, as it prevents mistakes, and renders the evidence certain and correct. Care should be taken that the words of a notice be clear and decisive, withloat ambiguity, or giving an alternative to the tenant, for if it be really ambiguous or optional, it will be invalid.
As to the person by whom the notice is to be given. It must be given by the person interested in the premises, or his agent properly appointed. As the tenant is to act upon the notice at the time it is given to him , it is necessary that it should be such as he may act upon with security, and should, therefore, be binding upon all the parties concerned at the time it is given. Where, therefore, several persons are jointly interested in the premises, they all must join in the notice, and if any of them be not a party at the time no subsequent ratification by him will be sufficient by relation to render the notice valid. But if the notice be given by an agent, it is sufficient if his authority is afterwards recognized.
As to the person to whom the notice should be given. When the relation of landlord and tenant subsists, difficulties can seldom occur as to the party upon whom the notice should be served. It should invariably be given to the tenant, of the party serving the notice, notwithstanding a part may have been underlet, or the whole of the premises may have been assigned unless, perhaps, the lessor has recognized the slb-tenant as his tenant. l0 Johns. 270. When the premises are in possession of two or more as joint-tenants or tenants in common, the notice should be to all; a notice addressed to all, and served upon one only, will, however, be a good notice.
As to the mode of, serving the notice. The person about serving the notice should make two copies of it, both signed by the proper person, then procure one or more respectable persons for witnesses, to whom he should show the copies, who, upon comparing them, and finding them alike, are to go with the person who is to serve the notice. The person serving the notice then in their presence, should deliver one of these copies to the tenant personally, or to one of his family, at his usual place of abode, although the same be not upon the demised premises; 2 Phil, Ev. 185; or serve it upon the person in possession; and where the tenant is not in possession, a copy may be served on him if he can be found, and another on the person in possession. The witnesses should then, for the sake of security, sign their names on the back of the copy of the notice retained, or otherwise mark it so as to identify it, and they should also state the manner in which the notice was served. In the case of a joint demise to two defendants, of whom one alone resided upon this premises, proof of the service of the notice upon him has been held to be sufficient ground for the jury to presume that the notice so served upon the premises, has reached the other who resided in another place.
At what time it must be served. It must be given three months before the expiration of the lease. Difficulties sometimes arise as to the period of the commencement of the tenancy, and when a regular notice to quit on any particular day is given, and the time when the term began is unknown, the effect of such notice as to its being evidence or not of the commencement of the tenancy, will depend upon the particular circumstances of its delivery; if the tenant having been applied to by bis landlord respecting the time of the commencement of the tenancy, has informed him, it began on a certain clay, and in consequence of such information, a notice to quit on that day is given at a subsequent period, the tenant is concluded by his act, and will not be permitted to prove that in point of fact, the tenancy has a different commencement; nor is it material whether the information be the result of design or ignorance, as the landlord is in both instances equally led into error. In like manner if the tenant at the time of delivery of the notice, assent to the terms of it, it will waive any irregularity u to the period of its expiration, but such assent must be strictly proved. When the landlord is ignorant of the time when the term commenced, a notice to quit may be given not specifying any particular day, but ordering the tenant in general terms to quit and deliver up the possession of the premises, at the end of the current year of his tenancy thereof which shall expire next after the end of three months from the date of the notice.
What will amount to a waiver of the notice. The acceptance of rent accruing subsequently to the expiration of the notice is the most usual means by which a waiver of it may be produced but the acceptance of such rent is open to explanation; and it is the province of the jury to decide with what views, and under what circumstances the rent is paid and received. If the money be taken with an express declaration that the notice is not thereby intended to be waived, or accompanied by other circumstances which may induce, an opinion that the landlord did not intend to continue the tenancy, no waiver will be produced by the acceptance; the rent must be paid and received as rent or the notice will remain in force. The notice may also be waived by other acts of the landlord; but they are generally open to explanation, and the particular act will or will not be a waiver of the notice, according to the circumstances which attend it. It has been held that a notice to quit at the end of a certain year is not waived by the landlord's permitting the tenant to remain in possession an entire year after the expiration of the notice, notwithstanding the tenant held by an improving lease, that is, to clear and fence the land and pay the taxes. 1 Binn. 333. In cases, however, where the act of the landlord cannot be qualified, but must of necessity be taken as a confirmation of the tenancy, as if he distrain for rent accruing after the expiration of the notice, or recover in an action for use and occupation, the notice of course will be waived.
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