Hannan v. Dusch Supreme Court of Appeals of Virginia, 1930. Facts: Hannan (plaintiff) entered into a lease with a landowner, Dusch (defendant), to begin on January 1, 1928. On the day the lease was to begin, Hannan was unable to enter onto the premises in question due to the presence of a holdover tenant. Hannan brought suit against Dusch, claiming that Dusch had a duty to deliver actual possession of the property, even though there was no express covenant in the lease that would guarantee this delivery. Dusch moved to dismiss on multiple grounds, including the lack of an express covenant. The court found for Dusch. Hannan appealed to the Supreme Court of Appeals of Virginia. Issue: Is there an implied covenant to deliver actual possession of a leasehold absent any such explicit mention of one in a lease? Holding: No, there is no implied covenant to deliver possession in American law. Reasoning: Hannan is not entitled to damages from Dusch for Dusch’s failure to deliver actual possession of the leased premises, because there was no express covenant in the lease guaranteeing that such delivery would take place. The authorities are divided on this issue between the so-called English and American rules. Under the English rule, a landlord is under an implied covenant to deliver actual possession of property to a new tenant, whether there is an express covenant in the lease or not. The reasoning behind this is that the landlord is in a better position to know whether a previous tenant is likely to holdover and protect against it, and because of this, the landlord is the one who would be required to testify on such matters in legal proceedings. Herpolsheimer v. Christopher, 107 N.W. 382 (N.S.) Thus, those authorities believe the English rule comports best with “good conscience, sound principle, and fair dealing.” Id. In contrast, proponents of the American rule suggest the English rule is unduly burdensome on landlords and requires that they either refrain from leasing occupied premises until the tenant has vacated or be subject to legal action for the wrongdoing of another. Further, there is nothing to prevent parties from including an express covenant for delivery of actual possession in the terms of the lease. The American rule is the better rule. Therefore, an implied covenant to deliver actual possession of a premises does not exist in real estate leases. Here, Hannan could have negotiated an express covenant from Dusch to deliver actual possession. It should not be left up to courts to impose an implied provision could have, but opted not to include in the contract. Hannan was delivered legal possession of the property had a right to sue the holdover tenant to gain possession. Therefore, Hannan is not entitled to damages from Dusch. The judgment of the court below is affirmed.