Garner v.

Gerrish
473 N.E.2d 223
Court of Appeals of New York (1984)
Wachtler, Judge.

FACTS
SUBSTANTIVE
 Donovan leased house to tenant Gerrish (D) (both sides unrepresented by counsel)
 “for and during the term of quiet enjoyment from the first day of May, 1977 which term will end –
Gerrish has the privilege of termination this agreement at a date of his own choice.”
 Also stated that landlord had the right of reentry if rent was not paid on time (given 30day grace
period)
 Donovan died  Ganer (P) –executor of Donovan’s estate– then tried to evict D
 P argued: tenancy at will b/c it stated no definite term, thus expires upon the death of either party
 D argued: tenancy for life (allowed to continue leases it until D decides to stop, or dies)
PROCEDURAL
 Trial Court granted summary judgment for P  Tenancy at will  expired at Donovan’s death
 EVICT
 Appellate Court AFFIRMED
 Supreme Court REVERSED

ISSUE
 What type of lease did the landlord intend to form—Tenancy at Will or Life Tenancy
Determinable?

HOLDING
 Life Tenancy Determinable  Tenant can hold the lease until he decides to leave or dies

RULE
 (in common law) in order to create a life tenancy, the grantor must do livery of seisin [physical transfer
of dirt or something else to symbolize he conveyance in front of witnesses], failing to do so results in a
tenancy at will
o  this practice is ancient/outdated…no longer necessary  focus on grantor’s INTENT

RATIONALE
 Rule is archaic  must instead focus on the grantor’s intent
 This lease created a tenancy for life subject to time constrained condition (the same way a LE is
created)
 Lease stated that D had the personal right to terminate it at a date of his choice  creates a
life tenancy terminable at the will of the tenant
 When the lessee has the choice of when to terminate (and not the lessor)  must be enforced
 Holding that lease is terminable at will of either party would violate the express intent of the
parties
 Because we’re not dealing w/a transfer of title, we can be more lenient w/allowing a “life
tenancy”
 Basically a life estate that is subjected to landlord-tenant relationship

DISPOSITION – REVERSED  lease did NOT create a tenancy at will and D NOT forced to evict