What's good for the goose isn't always good for the gander: The inefficiencies of a single default rule for delivery of possession of leasehold estates

Delivery of possession of leasehold estates is controlled by two competing rules. The American Rule requires landlords to deliver superior legal possession of the leasehold to new tenants. The English Rule requires landlords to go a step further and deliver actual possession of the leasehold. A majority of jurisdictions and legal scholars accept the English Rule as the superior default rule. This Note argues, however, that the English Rule is only superior for certain types of leasehold estates. In many instances, particularly in the area of commercial leaseholds, the American Rule is the more efficient rule. By examining four different types of leasehold estates, this Note shows how each rule can be beneficial and lead to the most efficient outcome. The combination of the American and English Rules as penalty default rules for delivery of possession properly tailors the default rule so as to maximize efficient outcomes when a holdover tenant disrupts the new tenant from taking actual possession of the leasehold.