Gilbert Book

Front 1

Tenancy for years

Back 1

fixed period w beginning and ending dates; may be less that a years. usually calendar period is used (e.g., one year, two months). expires without notice

Front 2

periodic tenancy

Back 2

period to period (month to month) until notice of termination is given

Front 3

tenancy at will

Back 3

no stated duration, continues until LL or T desires to end

Front 4

Holdover tenancy or tenancy at sufferance

Back 4

T remains after the end of the tenancy

Front 5

LL's duties

Back 5

1. deliver possession
2. not to interfere w the tenant's quiet enjoyment
3. to provide habitual premises

Front 6

Torts and Ll liability

Back 6

LL usually not liable for torts unless the tort is related to a concealed dangerous condition, common areas, public use, or if the LL has a statutory or contractual duty to repair.

Front 7

Tenant's duties

Back 7

1. PAY RENT
2. not to damage premises
3. not to disturb other tenants
T's duties are independent of LL's duties

Front 8

LL remedies

Back 8

1. statutory liens
2. security deposits
3. rent acceleration
4. eviction

Front 9

assignment

Back 9

transfer of entire interest under the lease

Front 10

sublease

Back 10

transferor retains an interest in the leasehold

Front 11

Fair Housing Act

Back 11

LL's right to select tenants may be limited by the FHA

Front 12

building burns

Back 12

T still has the obligation to pay rent

Front 13

brach of covenant by T

Back 13

this is the only thing that gives Ll the right to reenter and repossess the land.

Front 14

Traditional property rule

Back 14

T has bought an estate in land and assumes the risks of caring for the estate

Front 15

Lease

Back 15

a contract containing promises. governs the relationship btwn the LL and T over the term of the lease

Front 16

covenants

Back 16

mutually dependent. If L does not do what L promises to do, T does not have to do what T promises to do.

Front 17

LL-T relationship

Back 17

LL must transfer to the T the right of possession of the premises. the leasehold part from the freehold estate is the only thing that gives the holder the right to possession. Easements, licenses, profits entitle use, but not possession

Front 18

guides to intention

Back 18

1. defined area- description of the boundaries
2. rent reserved
3. duration
4. uses permitted

Front 19

legal consequences of characterizing an instrument as creating a lease rather than a license or an easement

Back 19

1. a lease can be oral whereas an easement is subject to the Statute of Frauds and requires a written instrument
2. of these relationships, only a T has a possessory interest in land and can bring action such as ejectment, trespass, or nuisance.

Front 20

tenancy by years

Back 20

cannot be terminated unilaterally by either party prior to the event fixing the termination.

Front 21

termination by tenancy for years

Back 21

expires at the end of the states period without either party giving notice.

Front 22

periodic tenancy

Back 22

period of some fixed duration that continues for succeeding periods until either the LL or T gives notice of termination. (to T for month to month, or to T from year to year. If notice of termination is not given, the tenancy automatically extends for another period. NO SET ENDNIG DATE. can arise out of operation of law.

Front 23

T holds over

Back 23

LL may elect to consent to the T's staying for years after the tenancy has expired, but the lease is not renewed for another term; rather a periodic tenancy for another term is created

Front 24

Annual rent

Back 24

annual rent due monthly is usually viewed as at common law as year t year. monthly installments was mere convenience.

Front 25

termination

Back 25

notice must be equal to the length of the period itself with the exception that of the tenancy os from year to year, only 6 months' notice is required. the notice must fix the last day of the period as the date for termination.

Front 26

tenancy at will

Back 26

no stated duration that endures so long as L and T desire. Either can terminate at any time.

Front 27

Determinable tenancy

Back 27

provision for termination by one party is grafted onto a term of years or periodic tenancy, a determinable tenancy is created, not a tenancy at will.

Front 28

notice of tenancy at will termination

Back 28

usually 30 days

Front 29

Tenancy assignment

Back 29

tenancy at will cannot be assigned, and it terminates if either the T or LL try to assign it

Front 30

term of years, periodic tenancy and tenancy at will

Back 30

may be created by express provision in a written lease. where there is no instrument, problems arise concerning the application of the Statute of Frauds and the type of tenancy that can be created by an oral agreement. Most American states require that lease over 1 year must be in writing. an oral lease for more than one year creates only a tenancy at will

Front 31

oral lease not complying w the statute of frauds

Back 31

void, but entry by a tenant creates a tenancy at will. as soon as the T pays rent, a periodic tenancy is created. Majority view is that a year to year is created

Front 32

Tenancy at sufferance.

Back 32

lasts until the LL evicts, or elects to hold the T to another term.

Front 33

Excuses to hold overs

Back 33

relief typically given where the T does not intend to hold over but is forced to do so by circumstances beyond the T's control.

Front 34

Holdovers

Back 34

in most jurisdictions, hold overs give rise to a periodic tenancy. some courts hold it is the way rent is reserved in the original lease, and other courts hold it is the length of the original term or period, but the maximum length in each case is limited to one year.

Front 35

provisions of a new term

Back 35

new tenancy is governed by the provisions in the old lease, including provisions for payment of rent and any covenants made by the parties. If L notifies T that rent has increased if he holds over, T is liable unless he notifies LL that he refuses to pay. Silence from the T is usually deemed implied consent.

Front 36

willful holdovers

Back 36

URLTA penalizes only a tenant who willfully holds over.

Front 37

LL cannot discriminate who he rents or sell to

Back 37

CRA 1982 applies to sale or rental of all property, nit just housing. FHA applies only to housing.

Front 38

FHA

Back 38

makes it unlawful to refuse to sell or rent a dwelling to any person bc of race, color, religion, or national origin. Also protects discrimination against sex, against persons w children except senior citizens housing, and against handicapped persons. the Act also prohibits advertising or making any public statement that indicates any discriminatory preference.

Front 39

Exemptions from FHA

Back 39

private clubs, dwellings for religious purposes, and certain specified persons are exempt from the Act.

Front 40

single family dwellings

Back 40

FHA exempt if she does not own more than 3 dwellings, does not use a broker, and does not advertise in a manner that indicates her intent to discriminate

Front 41

small owner-occupied multiple unit

Back 41

offering to lease a room or apt in her building of four units or less, one unit of which she occupies and she does not advertise in a discriminatory manner

Front 42

No exceptions under 1982

Back 42

any person denied under single family or small owner occupied must sue under 1982 and not FHA

Front 43

Kinds of discrimination

Back 43

disproportionate effect on one race, sex discrimination, familial status, disabilities

Front 44

FHA

Back 44

bars racial and ethic discrimination and discrimination based on religion, national origin, sex, disability and against persons w children.

Sale or rental of dwelling only

Front 45

CRA 1982

Back 45

bars racial and ethnic discrimination only

Sale or rental of all property.

No exceptions.

Front 46

admission to public housing

Back 46

empowered to adopt "desirability standards", but these standards must offer the prospective tenants due process of law.

Front 47

Eviction

Back 47

tenant in a public housing project sells drugs, the tenant may forfeit apt. however, the apt is not forfeited if the drug seller is one of several occupants and the owner of the leasehold knew nothing about the drug activity. only the drug dealer can be evicted.

Front 48

Legal right to possession

Back 48

LL has the duty to transfer to the T at the beginning of the tenancy the legal right to possession. If another person has paramount title and is legally entitled to possession, the LL s in default.

Front 49

paramount title

Back 49

title or interest in land that is held by a third party that is paramount to the interest of the LL

Front 50

Tenant's remedy prior to entry

Back 50

if T is unaware when he signs and has not entered, T may terminate the lease if there is paramount title

If T knows paramount title exists when he signs, he waives possibility of eviction of paramount title holder.

Front 51

English Rule- Actual possession (majority)

Back 51

LL has the duty to deliver to the T actual possession as well as the right to possession at the beginning of the term.

Front 52

Remedies for violation of english rule

Back 52

can terminate lease and recover damages sustained by having to obtain quarters somewhere else, affirm the lease and refuse for the portion of the term during which he was kept out of possession

Front 53

English rule rationale

Back 53

carries out intention of parties bc the T bargains for use property, not a lawsuit against the prior T. Further, LL is more likely to know if the previous T will move out and is in a better position to pressure him to do so. Lastly, LL is usually more familiar w eviction process

Front 54

American rule (minority)

Back 54

LL has no duty to deliver actual possession at the commencement of the term, and hence is not i default under the lease when the previous tenant continues wrongfully to occupy the premises.- Hannan v. Dusch

Front 55

American rule rationale

Back 55

the lease conveys a leasehold to the tenant. it is up to the tenant to take possession of his property if he wants it. The T has the right to evict the holdover by summary proceedings and needs no additional remedy against the L. Additionally, the LL should not be held lialbe for the tortious act of a holdover. Bc a LL is not required to evict a trespasser after the tenant takes possession, the LL should not be required to evict a trespasser before the T takes possession

Front 56

Remedies against a holdover

Back 56

has the same rights against a holdover that a LL would have. The incoming T can sue the holdover for damages. The incoming T can treat the holdover T as a T for another term w rent payable to the incoming T.

Front 57

Covenant of quiet enjoyment

Back 57

if not express, it is implied in every lease.

Front 58

Actual eviction

Back 58

if a T is physically evicted from the entire leased premises--either by LL or someone w paramount title--the T's rental obligation ceases.

Front 59

Partial eviction by LL

Back 59

if T is evicted from any portion of the leased premises by the LL, his rent obligation abates completely until possession thereof is restored to him. The T may stay in possession and refuse to pay rent

Front 60

Abating rent

Back 60

Rationale: to impose a penalty on the LL who interferes w the tenant;s use of any part of the premises.

Front 61

Restatement view

Back 61

rejects the rule f complete rent abatement for partial actual eviction on the grounds that this is unjust to the LL. It adopts a rule of partial rent abatement and gives the T other remedies for termination or damages for breach of the covenant.

Front 62

partial eviction by paramount title

Back 62

T does not have the option of staying in possession and paying no rent

Front 63

Constructive eviction

Back 63

where, through the fault of the LL, there occurs a substantial interference with the T's use and enjoyment of the leased premises, so that the T can no longer enjoy the premises as the parties contemplated, the T may terminate the lease, vacate the premises, and be excused from further rent liability.

Front 64

Constructive eviction

Back 64

applies where the T is left in possession but the T's use and enjoyment is disturbed. GIves T right to terminate the tenancy.

if the LL interferes w enjoyment, but does not bar entry, the eviction is constructive

Front 65

Constructive eviction

Back 65

If T wishes to stop paying rent, he must abandon the premises and terminate the tenancy

Front 66

CE- substantial interference

Back 66

what a reasonable person would regard as fundamentally incompatible w the use and enjoyment for which the parties bargained. purposes for which the premises were leased, the foreseeability of this type of interference, potential duration, the nature and degree of harm caused, and the availability of means to abate- Reste Realty Corp

Front 67

Disclosure prior to lease

Back 67

If LL knows of defects in the premises, she may be under a duty to disclose them to the tenant. Under tort law, LL is obligated to disclose concealed dangers. it's usually held that it is fraudulent for LL not to tell T of concealed and known substantial defects.

Front 68

Tenant's knowledge

Back 68

If T knows of the interference before taking possession, and then takes possession, the T has waived the interference.

Front 69

Notice to LL

Back 69

Before claiming CE, the T must give notice to LL of the objectionable conduct and LL must fail to remedy the situation within a reasonable time.

Front 70

Restatement view on CE`

Back 70

Rejects requirement tha T must abandon the property before claiming constructive eviction. Restatement gives tenant the right to: terminate, or stay and receive damages or a rent abatement or employ certain self-help remedies. The T should get what he bargained for. If T's only remedy is to vacate, the doctrine of CE has limited usefulness in giving the T what he bargained for

Front 71

Fault of LL

Back 71

The interference w T's quiet enjoyment must result form some act or failure to act by the LL. Generally, a T cannot claim a CE growing out of the wrongful acts of a third party unless the party's acts were induced by, or committed with express or implied consent of the LL

Front 72

Acts of LL

Back 72

Any acts of LL or any failure to act that substantially interferes w the T's use and enjoyment is sufficient for CE. Where the T claims CE for the LL failure to act, the LL must have some legal duty to act., the breach which deprives the T of use and enjoyment.

Front 73

Acts of other T's

Back 73

Usually, the LL is not responsible for the acts of other T's annoying another T. Depends on whether LL can control the behavior of the other T.

Front 74

Exceptions to acts by other T's

Back 74

LL has a duty not to permit a nuisance. Thus if Ll allows prostitutes whose conduct is lewd or immoral would breach LL's duty. LL also has a duty to control common areas. If objectionable conduct takes place in common areas, the conduct is attributable to the LL.

Front 75

Modern trend

Back 75

If LL has ability to control other T's behaviors, he is held liable if he has the legal ability and fails to do so. he Ll is in a better position to stop the objectionable conduct than the T

Front 76

Covenant not to compete

Back 76

LL makes covenant that he will not compete with or rent to a competitor of the T. Usually deemed t be so important to T's use and enjoyment that breach can create CE.

All significant promises, express and implied are dependent and breach by the LL relieves the T of performance.

Front 77

Common law- Caveat lessee

Back 77

let the lessee beware- before he purchases the land, the T is able to inspect the premises and the protect himself.

Exceptions- furnished houses for a short time, hidden (latent) defects, common areas, building under construction

Front 78

Implied covenant of habitability

Back 78

there is an implied covenant of initial habitability and fitness in leases of urban dwellings, including apts. the dependent covenant doctrine applies, and a T is relieved of his obligations when the Ll breaches the implied covenant.

applies mostly to residential lease, but some courts are starting to apply it to commercial leases

Front 79

Implied covenant of habitability

Back 79

Rationale: 1. modern T does not have time to inspect the premises and put them in tenantable condition. 2. The LL knows more about the defects than the T does. 3. Housing codes, imposing duties on Ll's have not been effectively enforced. 4. T's have less bargaining power than LL' s 5. CC implies a warranty of fitness for the purpose intended in a sale by a merchant.

Front 80

Scope of warranty

Back 80

some courts have held LL is responsible for latent defects only. The standard housing code also sets the standard of the LL's duty

Front 81

Remedies for breach of WOH

Back 81

Damages, restitution, rescission. may also include using the rent for repair and rent withholding

Front 82

Waiver of WOH

Back 82

T can waive minor defects, but it may be against public policy to allow T to waive defects that make the premises unsafe or unsanitary. The cases so far DO NOT allow a waiver.

In refusing to allow a waiver, courts are trying to force LL's to rehabilitate dwellings. A way to upgrade the housing stock

Front 83

Illegal lease

Back 83

if the LL leases a premises that the LL knows are in substantial violation of a municipal housing code, it is an illegal agreement if the code prohibits rental of the premises in violation of the code. If a lease is an illegal agreement, the LL cannot enforce any covenant to pay rent

Front 84

Continuing covenant of habitability

Back 84

implied on part of the LL. Violation by the LL is a defense to action by LL for pmt of rent. An LL has a duty of delivering habitable premises and of maintaining them i habitable shape. - Hilder v. St. Peter

Front 85

Continuing covenant of habitability

Back 85

T bargains for, and expects to get, continuing services, inlacing maintenance, from the LL

Front 86

Commercial leases

Back 86

Covenants of habitability have in a few cases been implied in commercial leases when it appears that the commercial tenant has bargained for continuing maintenance by the LL

Front 87

Scope of warrants- standard

Back 87

some courts hold that standard are those in the housing code. If there is substantial violation w housing code, LL has breached

some courts require that the premises be fit for human habitation

Front 88

Notice to LL

Back 88

fault standard- LL must have reasonable time to repair after notice is given. LL is not in breach until a reasonable time has passed after the T has given the LL notice.

Front 89

T remedies for breach of continuing covenant of habitability

Back 89

1. Terminate lease, vacate premises, and recover damages. Damages may include relocation costs and the fair market value of the lease.
2. continue lease and recover damages- damages may be a reduction in rent, but calculation of damages is not yet clear. One method is paying the fmv for the premises "as-is". Another method would be to attempt to give T what he bargained for. Difference between rental values if they had been warranted and fmv as-is

Front 90

T remedies for breach of continuing covenant of habitability

Back 90

continue lease and use rent to repair. use reasonable amount of rent to repair, and T first gives notice to the LL and makes only reasonable expenditures.

Front 91

T remedies for breach of continuing covenant of habitability

Back 91

continue lease and withhold rent. T, after notice to LL, may place his rent n escrow until the default is eliminated

Front 92

T remedies for breach of continuing covenant of habitability

Back 92

T may defend that the agreed rent is not due bc of the Ll's breach. this defense rests on the dependent-covenants rule--the duty to pay rent is dependent on the LL's performance

Front 93

Non-rent action

Back 93

Breach of warranty is not a defense to a possessory action based on notice to quit. ie when a tenancy has expired.

Front 94

Waiver by tenant

Back 94

waiver of LL's obligation under the implied warranty covenant of habitability is not permitted. The primary purpose of implying the obligation is to give T's the power to enforce housing code, and it would be against public policy to permit T's to waive that power. The parties may agree to decrease the LL's obligations unless the agreement is unconscionable or significantly agains public policy.

Front 95

Unconscionably against public policy

Back 95

1. interferes w enforcement of housing code 2. whether the waiver serves a reasonable business purpose and is a result of conscious negotiations 3. whether the waiver is part of a boilerplate document 4. whether the waiver imposes unreasonable burdens on a tenant who is poor and has unequal bargaining power 5. whether the parties were represented by counsel

Front 96

Retaliatory eviction

Back 96

LL, acting under a retaliatory motive, cannot evict a tenant

proof of motive is T to show the LL's action was discriminatory against T, and followed the T's reporting of violations at first opportunity.

A tenant in default for rent cannot assert a retaliatory eviction. However, a T is not in default if the T is acting legally in withholding rent.

Front 97

LL stop utilities

Back 97

many states hold that the LL cannot refuse to pay utilities in an attempt to evict. the LL must use the judicial process. self-help measures are forbidden.

Front 98

Common law LL tort liability

Back 98

The T is buying a term and takes it in the condition it is in. Therefore the Ll is liable for injuries to the T due to a dangerous condition on the premises. Nor is the LL liable to T's guests bc T has assumed the risk of warning guests.

Front 99

Exceptions to common law tort liability

Back 99

1. If LL knows or should have known of a dangerous condition and has reason to believe T will not discover, LL has duty to disclose.
2. Public use- where the lease contemplates that the premises will be used as a place of public admission, the LL is liable for injuries to the public if the LL knows or should have known of the dangerous condition, has reason to expect that the T will probably not correct the condition before admitting the public, and fails to exercise reasonable care to remedy the condition.
2a. defect must exist at beginning of the lease. if it arises after the T takes possession, the LL has no liability under the public use exception.
2b. T promises to repair- LL is liable if he has reason to believe T will admit the public before repairing

Front 100

Negligent repairs

Back 100

If LL makes repairs in a negligent manner, LL is liable to those who do not know of her negligence and are injured b her careless or unskillful workmanship. If T knows LL's repairs have been negligently made, LL is not liable.

Front 101

common areas controlled by LL

Back 101

If LL lease part of the property and retains control f common areas, the LL is liable for physical injury if the LL could have reasonably discovered the condition and made it safe

Front 102

criminal intrusion

Back 102

if the Ll can reasonably foresee the risk of criminals coming into the building by way of common read under the control of the LL, the LL may be liable for physical harm caused by criminal intrusion if necessary precautions are not made.

Front 103

LL contracts to repair

Back 103

modern view- an LL who contracts to repair is liable in tort to the tenant and his guests. by holding LL liable in tort, privity of contract issue is circumvented.

Front 104

LL under legal duty to repair

Back 104

LL may have the statutory duty to repair the premises, or the jurisdiction may imply a covenant of habitability.

Front 105

Exculpatory clause

Back 105

Traditional view- EC relieving the LL of liability for personal injury is valid because of freedom to contract. Public policy is not offended by the parties bargaining to limit their rights and duties regarding each other at the time they enter the leasehold
Modern view- EC in residential lease are against public policy and void

Front 106

T's duties

Back 106

pay rent. modern trend is that rent payment is dependent o Ll's duties to perform his obligations.

Front 107

Rent

Back 107

if rent is not reserved, the T has a duty to pay reasonable rental value of the use of the property.

If no agreement, the rent falls due on the last day of the month. Rent does not accrue day to day, but accrues and falls due at the end of the term.

Front 108

illegal agreement

Back 108

if the agreement is illegal, T has no duty to pay rent

Front 109

Rent passes w reversion

Back 109

the right to rent is attached to the LL's reversion. if LL sells to another, that person is entitled to future rent payments.

Front 110

Rent control

Back 110

the LL cannot evict a T and then rent to another at the market value.

Front 111

duty to occupy

Back 111

unless failure to occupy constitutes permissive waste, the T does not have a duty to occupy.

Front 112

duty to repair

Back 112

n the absence of a duty on the LL to repair, the T has a duty to make ordinary repairs o keep the property in the same condition it was in at the commencement of the term ordinary wear and tear excepted.

to the extent that T has a duty to repair, the T is liable to persons injured as a result of his failure to repair.

Front 113

duty not to damage

Back 113

if the tenant substantially damages the premises by an affirmative act, the T is liable to the LL. this is sometimes known as voluntary or affirmative waste

Front 114

changing the premises

Back 114

modern view- long-term tenants may change a structure if the economic value is not diminished.

Front 115

duty not to disturb others

Back 115

there is not common law duty not to disturb others, however, T cannot commit a nuisance. Lease typically provide a covenant against substantially interfering w the use and enjoyment of others. Breach permits eviction.

Front 116

Acts of third party relieving T of duty

Back 116

where the parties intend that the premises be used for one particular purpose and that purpose becomes illegal, the T is excused from further liability for the rent. if premises is made for several uses and only one becomes illegal, t is not excused from rent liability. It is not considered oppressive when he can make other uses of the property.

if permit is required and zoning board does not grant permit, T CANNOT terminate lease.

Front 117

frustration of purpose

Back 117

T may terminate the lease in case of extreme hardship if the purpose of the lease is frustrated. the most frequent form is governmental action that makes the intended use of the premises extremely difficult.

Front 118

frustration of purpose requirements- purposes are frustrated, but performance is still possible

Back 118

1, the use that has been frustrated must have been contemplated by both L and T as the use for which the premises were let 2. the frustration must total or near total, imposing extreme hardship on the T 3. the frustrating event must not have been foreseen or foreseeable by the parties.

Front 119

Doctrine of impossibility of performance

Back 119

performance must be literally impossible or extremely difficult or illegal

Front 120

Destruction of the premises

Back 120

if the lease does not provide to the contrary, the T may terminate the lease and cease paying rent if the premises are destroyed by fire, the elements, or any other than the tenant's own negligence.

Front 121

Eminent domain

Back 121

a permanent taking of all the leased property by condemnation extinguishes the leasehold. However, if the gov't takes the property for a limited period of time, shorter than the leasehold, the lease is not terminated. The T is entitled to recover from the govt the value of the occupancy taken.

Front 122

fixtures-common law

Back 122

fixtures belong to the LL bc they become a part of the land. a fixture depends on the intention of the party,i.e., the nature of the article, the manner in which it is attached, and the amount of damage that would be caused by its removal.

Front 123

exceptions to fixtures

Back 123

trade fixtures- those installed for the purpose of carrying on a trade or business

Front 124

fixtures- modern law

Back 124

very liberal in permitting the T to remove and chattel he installs on a leased premises, whether or not used for trade or business, as long as substantial damage is not caused.

Front 125

Removal of fixtures

Back 125

if the annexations do not belong to the LL (the are not "fixtures), the T must remove them before the end of his term or they become property of the LL

Front 126

LL remedies- distress (seizure of chattels)

Back 126

many states have abolished the common law right of distress and have substituted thereof a statutory right similar to distress. These statutes usually require peaceable entry and eliminate the self-help feature. "no state shall deprive an y person of his property without due process of law"

Front 127

Statutory liens

Back 127

a lien is placed on T's personal property

Front 128

security deposits

Back 128

LL promises to return money at the end of the term if T has not breached the covenant. must be retuned at the end of the lease if exceeds LL's actual damages

Front 129

rent acceleration

Back 129

rent for the balance of the term shall become payable on the tenant's default in payment of rent or some other obligation. If a LL elects to accelerate rent, the LL cannot terminate the lease and demand possession also. Nor can she retake possession on abandonment by the T and accelerate the rent. this would allow double recovery and be unconscionable

Front 130

Eviction

Back 130

may evict for nonpayment of rent during the term of the lease or a T who holds over after the term has expired.

Front 131

forfeiture clause

Back 131

allows LL to terminate the lease on breach of any covenant by T. pay rent, repair, keeping dogs, making noise--whatever the T promises to do or not do

Front 132

waiver

Back 132

LL may waive right to terminate breach. accepting rent from T with knowledge of a breach generally constitutes a waiver

Front 133

suit in ejectment

Back 133

ll may bring action in ejectment to recover possession of the premises

Front 134

summary proceedings

Back 134

ll can recover possession quickly and at a low cost. usually called a "forcible entry and detainer" action. Notice to quit must be given, but is generally short (3 days or so)

Front 135

modern trend

Back 135

where LL has been in breach of a statutory duty to repair or an implied covenant of habitability, courts have permitted theT to defend on grounds that no rent is due. The theory os that they duty to pay rent is dependent upon the performance of the LL's duty to maintain the property in habitable condition

Front 136

Self-help

Back 136

some permit reasonable force without court process of any kind is permitted, some hold that entry is only permitted by peaceable means, some hold that self-help is not permitted- Berg v Wiley, a lease may provide LL is authorized in using self-help to retake possession.

Front 137

abandonment by T

Back 137

LL can 1. terminate the lease (T's "surrenders"), 2. let the premises idle and sue the tenant for rent, 3. retake possession and attempt to relet the premises.

Front 138

mitigating damages

Back 138

LL has a duty to mitigate damages. If LL has the duty to mitigate damages, the LL cannot leave the premises vacant and sure for rent as it comes due.- Sommer v. Kridel

Front 139

Assignment

Back 139

unless a lease prohibits it, the T or LL may freely transfer his interest in the premises. if T transfer his ENTIRE REMAINING term of his leasehold, he has made an assignment, and the ASSIGNEE comes into PRIVITY OF ESTATE w the LL. POE makes the LL and assignee liable to one another on the covenants that run with the land,

Front 140

Privity of estate

Back 140

parties in privity of estate have a landlord-tenant relationship

Front 141

Privity of contract

Back 141

LL may sue T(original tenant) and T2(assignee)

Front 142

sublease

Back 142

T transfers less than the entire remaining term of his leasehold, he has made a sublease and he becomes the LL of the sublessee. SUBLESSEE is NOT in PRIVITY OF ESTATE w LL and CANNOT be sued by the LL bc he has not made a contract w the LL, he cannot be sued on a contract either.

Front 143

common law sublease

Back 143

if a T retains a reversion, the transfer if a sublease. if the tenant does not retain a reversion, the transfer is an assignment

Front 144

Duty to pay rent

Back 144

runs w the land, so promisee can sue anyone on the covenant with whom she is in privity of estate.

The general rule is that the LL can sue for rent any person who is either in privity of contract with the LL as to the rent obligation,or who has come into privity of estate w the LL so as to be bund by the rental covenants in the lease.

Front 145

assignment

Back 145

establishes privity of estate between LL and assignees and therefore assignee is personally liable for the rent even though no mention is made of it in the assignment.

Although the assignee is liable for rent, the original T also remains liable for rent, in the event the assignee fails to pay, bc the original T contracted w the LL

Front 146

Release by LL

Back 146

the only way to release his duty to pay rent is by an express or implied release from the LL

Front 147

novation

Back 147

there is a new agreement btwn L and T2, and the agreement btwn L and T is extinguished

Front 148

Sublease

Back 148

if the T subleases, the sublessee is not personally liable to the LL for rent

Front 149

Third party beneficiary suits

Back 149

if the assignee or sublessor assumes the covenants of the master lease, the assignees or sublessee is directly liable to the LL, who is a 3rd party beneficiary between the T and his assignee or sublessee

Front 150

Covenant not to transfer

Back 150

a lease containing a covenant not to transfer without the LL's consent, the older view is that the LL may arbitrarily refuse to accept a new tenant.

in a growing number of jurisdictions, the LL's denial of consent must be reasonable, i.e., financial responsibility of the proposed new tenant, and suitability for the building, but cannot look at his general economic advantage,

Front 151

Waiver of covenant

Back 151

LL may expressly, or by her acts, waive the covenant against assignment of sublease

Where the LL expressly consents to one assignment, the Rule in Dumpor's card states that the covenant thereafter becomes unenforceable. Once waived, the covenant is destroyed.

Front 152

Exceptions to Rule in Dumpor's case

Back 152

If the covenant not to assign without LL's consent is expressed as binding on the lessee and his assigns, an assignment by the lessee with consent of the LL does not free the assignee from the binding force of the covenant

LL's limited consent- if the LL, when consenting, expressly states that hew consent is to this assignment only and not to future assignments as well, the RID does not apply.

Front 153

Covenants running to assignees

Back 153

1. parties to the lease must intend that the covenant runs to assigns
2. privity of estate- assignee must be in privity of estate or privity of contract w person who is suing or being sued.
3. Touch and concern- the covenant directly affects the party in the use or enjoyment of the property

Front 154

burden of a promise

Back 154

whoever makes the promise

Front 155

benefit of a promise

Back 155

whoever has the benefit of the promise.

Front 156

personal covenant

Back 156

if a covenant does not touch and concern the promisor's interest, it is personal to the promisor. The promisor continues to be liable on the personal promise after assignment is the parties so intend.

Front 157

covenants

Back 157

runs w the leasehold and run w the reversion.

a covenant to pay taxes and insurance run w both the leasehold and reversion

Front 158

Implied covenants

Back 158

an implied covenant, such as the covenant of quiet enjoyment or an implied warranty of habitability, can be enforced against whoever is the LL at the time of the breach