Daily Development for
Wednesday, July 23, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

COTENANCIES; RIGHTS OF COTENANTS: A joint tenant may lease her undivided one-half interest in property without the consent of the other joint tenant. Where such a landlord executes a lease and delivers possession, but the landlord lacks title to support continuous undisturbed possession under the lease, the lessee may not later void the lease, but is entitled only to damages for the portion of time that the lessee is dispossessed, if the lessee could have discovered the title defects by checking the record.

Bangen v. Bartleson, 553 N.W.2d 754 (N.D. 1996).

Lessor owned farm property jointly with ex-husband and executed a three year farm lease without his consent in an alleged effort to assist their son. Lessor also included in the lease certain other property owned solely by her daughter, but most of the case is about the cotenancy property.. After the first year, the former husband refused to consent to the lease and, during settlement negotiations, the former husband and others farmed most of the land. In a declaratory action filed by the lessees, the trial court held the lease "void from the outset" because the Lessor lacked "ownership in a portion of the land leased."

On appeal, the lessees argued for affirmation of the trial court's decision based on mutual mistake of fact. The Supreme Court, however, noted that because the lessor knew she did not own all the property described in the lease, there was no mutual mistake. Only the lessees were mistaken in their belief regarding the ownership of the property. Furthermore, this unilateral error by the lessees was caused by their failure to check the title to the property. By statute, a mistake of fact cannot be "caused by the neglect of a legal duty on the part of the person making the mistake. . . ." Thus, the lease was not void from the outset.

The lessor indeed had the right of occupancy of the bulk of the property pursuant to her joint tenancy interest, subject to a duty to share occupancy with the other cotenant. The lessees of the lessor's cotenancy estate therefore were entitled to an accounting for the fair share of rents and profits accumulated during the time of the lease.

Reporter's Comment: Tenants do not normally consider it a "legal duty" to check the title of the premises they hope to rent. The law is generally favorable to tenants against the fraudulent Lessor who does not hold the legal right to lease. The court here seems to say that tenants do have to check the title to their prospective leasehold.

Editor's Comment 1: Lost in the court's discussion of the cotenancy property is the fact that approximately 25% of the property the lessor purported to lease was in the sole ownership of her daughter. The lessor clearly had no right to confer a possessory interest in that property.

Editor's Comment 2: After the other joint tenant asserted his possessory rights in the lessor's cotenancy property, the lessor had no right to confer exclusive possessory rights to that property either, as the lease purported to do. Clearly, therefore, there was a breach of the covenant of quiet enjoyment that is implicit in every lease. If the court here is saying that a tenant has a duty to check the title or there is no breach of the implied covenant of quiet enjoyment when the lessor's lack of title is a matter of record, then indeed this is a precedent setting case.

Also, would there no be a breach of the implied covenant of right to demise, which involves an implied representation at time of letting that the landlord has the legal power to let?

Should not major breaches of either of these covenants justify rescission (with restitution back for possession enjoyed)? Perhaps the tenant, phrasing the claim as one for voiding the lease, rather than for the remedy of rescission, had a minor semantic problem that led to a major difference in outcome. But shouldn't the equity court have treated the request as a request for rescission?

Editor's Comment 3: Although probably not a good remedies precedent, the case likely should be viewed as based upon special facts of an interfamily dispute where the court was trying to do rough justice. It should be tossed into the precedentless scrapheap of hard cases that make weak law.

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