§ 158 Leases
Having now considered the different kinds of rights in re propria which fall within the law of property, we proceed to deal with the various rights in re aliena to which they may be subject. As already stated,427 the chief of these are four in number, namely Leases, Servitudes, Securities, and Trusts. The nature of a trust has been sufficiently examined in another connexion,428 and it is necessary here to consider the other three only.429 And first of leases or tenancies.
Although a lease of land and a bailment of chattels are transactions of essentially the same nature, there is no term which, in its recognised use, is sufficiently wide to include both. The term bailment is never applied to the tenancy of land, and although the term lease is not wholly inapplicable in the case of chattels, its use in this connexion is subject to arbitrary limitations. It is necessary, therefore, in the interests of orderly classification, to do some violence to received usage, in adopting the term lease as a generic expression to include not merely the tenancy of land, but all kinds of bailments of chattels, and all encumbrances of incorporeal property which possess the same essential nature as a tenancy of land.
A lease, in this generic sense, is that form of encumbrance which consists in a right to the possession and use of property owned by some other person. It is the outcome of the rightful separation of ownership and possession. We have seen that possession is the continuing exercise of a right, and that although a right is normally exercised by the owner of it, it may in special cases be exercised by some one else. This separation of ownership and possession may be either rightful or wrongful, and if rightful it is an encumbrance of the owner’s title.430
The right which is thus encumbered by a lease is usually the ownership of a material object, and more particularly the ownership of land. Here as elsewhere the material object is identified in speech with the right itself. We say that the land is leased, just as we say that the land is owned or possessed. The lessee of land is he who rightfully possesses it, but does not own it. The lessor of land is he who owns it, but who has transferred the possession of it to another. Encumbrance by way of lease is not confined, however, to the right of ownership of a material object. All rights may be leased which can be possessed, that is to say, which admit of continuing exercise; and no rights can be leased which cannot be possessed, that is to say, which are extinguished by their exercise. A servitude appurtenant to land, such as a right of way, is leased along with the land itself. The owner of a lease may encumber it with a sub-lease. The owner of a patent or copyright may grant a lease of it for a term of years, entitling the lessee to the exercise and use of the right but not to the ownership of it. Even obligations may be encumbered in the same fashion, provided that they admit of continuing or repeated exercise; for example, annuities, shares, money in the public funds, or interest-bearing debts. All these may be rightfully possessed without being owned, and owned without being possessed, as when they are settled in trust for a tenant for life with remainder to some one else.
Is it essential that a lease should be of less duration than the right which is subject to it? This is almost invariably the case; land is leased for a term of years or for life, but not in perpetuity; the owner of a thing owns it for ever, but the lessee of it possesses it for a time. We may be tempted, therefore, to regard this difference of duration as essential, and to define a lease as a right to the temporary exercise of a right vested in some one else. But this is not so. There is no objection in principle to a lease of land in perpetuity, or to a lease of a patent or copyright for the full term of its existence. It may be objected that a lease of this description would not be a true lease or encumbrance at all, but an assignment of the right itself; that the grantee would become the owner of the right, and not a mere encumbrancer; and in favour of this contention it may be pointed out that a sub-lease for the whole term is construed in English law as an assignment of the term, a sub-lease being necessarily shorter than the term, if only by a single day.431
Whatever the actual rule of English law may be, however, there is nothing in legal theory to justify us in asserting that any such difference of duration is essential to the existence of a true lease. A lease exists whenever the rightful possession of a thing is separated from the ownership of it; and although this separation is usually temporary, there is no difficulty in supposing it permanent. I may own a permanent right to exercise another right, without owning the latter right itself. The ownership may remain dormant, deprived of any right of exercise and enjoyment, in the hands of the lessor. I am not necessarily the owner of a patent, because I have acquired by contract with the owner a right to the exclusive use of it during the whole term of its duration. So far as legal principle is concerned, I may still remain the owner of a lease, although I may have granted a sub-lease to another for the whole residue of the term. To assign a lease and to sublet it for the whole term are in the intention of the parties and in legal theory two entirely different transactions. The assignment is a substitution of one tenant for another, the assignor retaining no rights whatever. The sub-lease, on the contrary, is designed to leave the original relation of landlord and tenant untouched, the sub-lessee being the tenant of the lessee and not of the original lessor.432