Martin v. Splivalo

McKee, J.: This appeal is from the judgment, and an order denying a motion for a new trial, in an action of unlawful detainer.

The action was brought for the restitution of premises which, it was alleged, had been leased by the plaintiff to the defendants, to be held and possessed by them at the will and pleasure of the lessor. There is an averment in the complaint, to the effect that the tenancy was terminated on the 31st day of December, 1878, by giving notice to the tenants in the manner prescribed by § 1162 of the Code of .Civil Procedure, as required by § 789 of the Civil Code; but there is no averment that the plaintiff, after the termination of the tenancy, made a demand upon them for possession before commencing his action, as is required by § 791 of the Civil Code; and it contended that the action cannot be maintained. It was so held in King v. Connelly, 51 Cal. 181, in an action brought under a statute passed in 1863, containing similar provisions, and the provisions of the Civil Code supra are to the same effect.

After a tenancy at will has been terminated, by giving the notice required for that purpose, the position and rights of the parties to the lease arc changed; the tenants are in the position of holding over after the end of their lease, and a right of reentry upon the premises accrues to the lessor. This right is enforceable by the lessor by one of two remedies. He may maintain ejectment against the hold-over tenants, without further notice of them; or he may commence an action of unlawful detainer against them, after he has made a demand for possession by giving them three days’ notice, as provided in §§ 1161 and 1162 of the Code of Civil Procedure. Without such a demand, the summary proceeding of an action of unlawful detainer is not maintainable. (King v. Connelly, supra; § 791, Code Civ. Proc.)

In this action no such demand was made; but it was averred and proved that the defendants themselves had, within three days after the tenancy had been terminated, served upon the [130]plaintiff a notice in writing that they would not surrender to him the possession of the premises; and it is urged that, by giving this notice, the defendants waived the service of any notice of demand of possession from the plaintiff, which, if they had not waived it, might have been necessary to the commencement of the action; and that at the same time they rendered it impossible for them to perform the covenants and conditions of their lease; so that, it is claimed, the notice in writing of a demand of possession, after the termination of the tenancy, having been waived on the one hand, was rendered unnecessary on the other by the proviso of § 1161 of the Code of Civil Procedure, as that section was amended in 1878. But the thirty days’ notice given by the plaintiff terminated the lease. There was, therefore, no lease in existence, whose covenants and conditions were impossible to be performed, and the proviso in the section referred to has no application.