specially concurring:
I concur in the result, but I wish to express the line of reasoning by which I reach that result.
An essential element of tenancy is that, as between landlord and tenant, the tenant is either in lawful actual possession of the leased premises (whether personally or through a sub-tenant) with the landlord’s assent and in subordination to tire landlord’s title, or he has the legal right to the immediate possession of the said premises by the landlord’s assent and in subordination to the landlord’s title. Wood, A Treatise on the Law of Landlord & Tenant § 1 (1881); Taylor, The American Law of Landlord & Tenant § 14 (9th ed. 1904); Merki v. Merki (1904), 113 Ill.App. 518, 520, aff'd (1904), 212 Ill. 121, 72 N.E. 9; Lasher v. Redevelopment Authority (1967), 211 Pa. Super. 408, 236 A.2d 831, 833; Gates v. Herberger (1938), 202 Minn. 610, 279 N.W. 711, 712.
In the instant case, the “assignment” of the assignor’s leasehold estate under each of the two prime leases contained the following relevant sentences:
“Assignor does hereby assign to Assignee all of the Assignor’s right, title and interest as lessee in the following leases subject to Assignor’s right to occupy the premises demised thereunder. Assignee does hereby accept and assume and agree to observe and perform all of the terms, covenants and condition of the [said] Leases 8 8 8 on the lessee’s or tenant’s part to be performed thereunder subject to the rights of Assignor to occupancy under the Leases 8 8 8.”
It is conceded that the estate purported to be transferred was to endure for the entire remaining balance of the term of each prime lease.
Our supreme court has had occasion to define the phrase “subject to” as meaning “subordinate to,” “subservient to,” or “limited by.” (Englestein v. Mintz (1931), 345 Ill. 48, 61, 177 N.E. 746.) Hence, in a transfer of property rights in which the transferor expressly makes the transfer “subject to” the continuation in himself of one of his then existing rights in and to the premises, the phrase “subject to” operates as a reservation of the said right by the transferor. (Dagrosa v. Calabro (Sup. Ct. 1951), 105 N.Y.S. 2d 178, 181.) In the words of our supreme court, the instant transfer was expressly made “subordinate to,” and is expressly “limited by,” the continuation of the said right in the transferor for the entire remaining balance of the term of the prime lease. We note further that, in the instant cage, not only did the assignor expressly make the transfer “subject to” the continuation in itself of the right of occupancy which it tiren held under the respective prime leases, but the “Assignee” also expressly accepted the transfer “subject to” the continuation in the “Assignor” of the said right under the prime leases. Under the language of the “assignment,” therefore, it is clear that the assignors right to occupy the leased premises derived, not from the assignee, but from the landlord by and through the prime leases.
Under the terms of a companion instrument by and between Rothschild and Botany (which the parties designated a “sublease”), Botany promised Rothschild that Botany would pay the rent reserved under the prime lease to the landlord therein, and Rothschild promised to pay a different rent to Botany. Rothschild also agreed that Botany was to have the power to terminate Rothschild’s occupancy in either of two specified events, neither of which ever occurred. It is significant that this “sublease” did not purport to transfer any right of or to occupancy from Botany to Rothschild. When the companion instruments are read together, they confirm each other in establishing that the parties intended Rothschild’s right to occupy the leased premises to be, and to continue to be, the right to occupancy which Rothschild then had under the prime lease involved. Even assuming, without deciding, that the “sublease” created a power in Botany to terminate- Rothschild’s occupancy, that power is irrelevant to the continuation of the landlord-tenant relationship between Rothschild and its landlord under the prime leases, since the power never became exercisable.
For the purposes of this case, I do not think it necessaiy to decide what property rights, if any, were transferred to or created in Botany and were subsequently “released” by Botany to the landlords under the prime leases. It suffices that the reserved right derived from the prime lease is the very right which is the essence of tenancy: the actual possession of the leased premises with the assent of the landlord and subject to his ownership right. Assignor Rothschild expressly reseived its right to occupancy of the premises, which was one of the rights it then had as against the landlord under the respective prime leases; and assignee Botany accepted the transfer subject to the right of assignor Rothschild to occupancy under the respective prime leases. Hence, under the terms of the assignment, assignee Botany never was in actual possession of the leased premises. Nor did it ever have, as against either the landlord or Rothschild, the right to the immediate possession of the leased premises. For that reason, assignee Botany never became the tenant under the prime leases.
Conversely, assignor Rothschild was, and was to continue to be, in actual possession of the leased premises under the right to occupy them which it then held under the prime lease, and, as against both the landlord and Botany, had and was to continue to have the right to immediate possession of the said premises for tire entire remaining balance of the term of the respective prime leases. Hence, Rothschild remained the tenant under the prime leases. Since it is conceded that Rothschild never went into bankruptcy, the respective landlord’s power to terminate the prime lease in that event never became exercisable.