¶1dissenting in part.
¶2I concur in the judgment of the court but dissent from that part of the opinion which holds that a tenant in common may terminate a lease as to his interest without the concurrence of the other tenants in common. I believe the rule is unsound and will lead to confusion and uncertainty in an area of the law where certainty is of utmost importance.
¶3Although some authority may be found to support the rule stated in the majority opinion, Cook v. Boehl, 188 Md. 581, 53 A.2d 555 (1947), and Matteo v. Ginger Estates, Inc., 94 Misc. 2d 302, 404 N.Y.S.2d 533 (1978), cited in the majority opinion, do not support the position taken. In the Cook case, the lessee’s interest in the property was not affected by the notice of termination by one cotenant and the interests of the cotenants were determined after the partition of the property. The Matteocase involved the right of one tenant in common to maintain a holdover action without joining the other tenant in common. This is a well-established rule relating to joinder in such cases, but has no application in this case.
¶4I believe the correct rule is expressed in the following statement in Fredeking v. Grimmett, 140 W. Va. 745, 762-63, 86 S.E.2d 554, 564 (1955), relating to termination of a lease by forfeiture: “A forfeiture provision in a contract of lease upon real estate owned jointly by tenants in common is indivisible and such lease can not *135be forfeited by less than all the owners of the undivided interests for the reason that if the lease could be forfeited by less than all the owners of the undivided interests the lessee would be bound by the lease as to some of such owners and discharged as to other such owners. Eurengy v. Equitable Realty Corporation, 341 Mo. 341, 107 S.W.2d 68.
¶5“In Howard v. Manning, 79 Okla. 165, 192 P. 358, 12 A.L.R. 819, the Court used this pertinent language:
“Tf the right to enforce a forfeiture accrues and a part of the tenants in common are allowed to elect to enforce the forfeiture, then the lessee is placed in the inequitable position of being bound by the lease as to part of the tenants and discharged by a part, which means that the lessee is still liable as a lessee to some of the tenants in common, although he cannot enjoy any of the benefits of his lease without becoming a trespasser and liable for damages to the other owners of the land. A fair conception of honesty and fair dealing negatives a construction of the lease imputing to the lessor and lessee an understanding or intention that the lessee’s covenants of the character involved in this case are subject to apportionment by the death of the lessor leaving more than one heir. If the death of the lessor operates to apportion the benefits of the covenant among his heirs, then there can be a partial forfeiture, leaving the lessee bound to part of the heirs but denied all practical benefits under the lease. This would create a sort of tenancy which, we believe, it would be unreasonable to hold that the lessor and lessee intended or contemplated.
“‘Under the American authorities the lessee’s covenants, unless expressed otherwise, are joint and indivisible under a lease executed jointly by all the tenants in common. The heirs of a deceased lessor are in no higher position with respect to the covenants in the lease than they would be if they jointly executed the same lease, although the lease may expressly reserve to each his proportionate interest in the rents.’”
¶6*136See, also, 51C C.J.S. Landlord & Tenant § 103 (1968).