Use And Occupation

The character of the holding of another's land where there is no lease; also the name of an action of assumpsit by which a recovery is had for use and occupation.

When a contract has been made, either by express or implied agreement, for the use of a house or other real estate, where there was no amount of rent fixed and ascertained, the landlord can recover a reasonable rent in an action of assumpsit for use and occupation; Gunn v. Scovil, 4 Day (Conn.) 228, 4 Am. Dec. 208; Abeel v. Radcliff, 13 Johns. (N. Y.) 297, 7 Am. Dec. 377; Fitchburg Cotton Manufactory Corp. v. Melven, 15 Mass. 270; McGunnagle v. Thornton, 10 S. & R. (Pa.) 251. This is under the Stat. of Westm. 2. See 2 Harv. L. Rev. 377. The action for use and occupation is founded not on a privity of estate, but on a privity of contract; Wood, L. & T. 1332; Henwood v. Cheeseman, 3 S. & R. (Pa.) 500; therefore it will not lie where the possession is tortious; Ryan v. Marsh, 2 N. & McC. (S. C.) 156; Henwood v. Cheeseman, 3 S. & R. (Pa.) 500; Hill v. U. S., 149 U. S. 593, 13 Sup. Ct. 1011, 37 L. Ed. 862; or where the party is in possession by the license of the owner; Reed v. Lammel, 40 Minn. 397, 42 N. W. 202. It will lie for the occupation of land in another state; Henwood v. Cheeseman, 3 S. & R. (Pa.) 502.

This is the name of an action, being a variety of assumpsit, to be maintained by a landlord against one who has had the occupation and enjoyment of an estate, under a contract to pay therefor, express or implied, bnt not under such a lease as would support an action specifically for rent

Defined under Use in Black's Law Dictionary.