A kind of action brought by a landlord against an individual who had occupancy of the landlord's land or premises under an express or implied agreement requiring payment, but not under a leasehold contract that would allow the landlord to initiate an action for rent.
For example, property might be occupied under a lease that is rendered void because it does not comply with the Statute of Frauds. In such a situation, the landlord could bring a use and occupation action for the value of the use of the property.
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. 1 Munf. R.
407; 2 Aik. R. 252; 7 J. J. Marsh. 6; 4 Day, R. 228; 13 John. R. 240; 13
John. R. 297; 4 H. & M. 161; 15 Mass. R. 270; 2 Whart. R. 42; 10 S. & R.
251.
2. The action for use and occupation is founded not on a privity of
estate, but on a privity of contract; 3 S. & R. 500; C. & N. 19; therefore
it will not lie where the possession is tortious. 2 N. & M. 156; 3 S. & R.
500; 6 N. H. Rep. 298; 6 Ham. R. 371; 14 Mass. R. 95. See Arch. L. & T. 148.