Leaseholds

Front 1

Steps to Leaseholds:

Back 1

1. What is the length of the lease?
2. What rights are created?
3. How is lease terminated?

Front 2

Leasehold Sections:

Back 2

A. Conveyance of Property & Contract
B. Conveyance of an Estate
C. Writing Required Elements
D. Landlord-Tenant Relationship
E. Lease
F. Types of Leasehold Estates

Front 3

A. Conveyance of Property & Contract:

Back 3

Under Modern Law most courts treat leases more as Contracts than conveyances
-This is b/c leases contain covenants which impose contractual obligations on the parties to a lease

Front 4

B. Conveyance of an Estate (Land):

Back 4

-Falls under SoF & must be in writing
-If less than 1 yr, even if it is to commence in the future, no writing is required

Front 5

C. Writing Required Elements:

Back 5

1. Must identify the lessor & the lessee
2. Must describe the leased property (the land)
3. Must state the term of the lease
4. Must set forth the amt. of rent

Front 6

D. Landlord-Tenant Relationship:

Back 6

In order to have a landlord-tenant relationship, landlord must transfer to tenant the right of possession of the premises

Front 7

E. Lease:

Back 7

Except for Freehold Estates, lease is the only other interest that gives holder the rt. to possession:
-Other interests such as easements, license, or profit entitle the holder to use another's land, but do NOT give possession
-Future Interests Remain: Reversion & Remainder

Front 8

F. Types of Leasehold Estates:

Back 8

1. Tenancy For Years (Term)
2. Periodic Tenancy
3. Tenancy At Will
4. Tenancy At Sufferance

Front 9

Tenancy For Years (Term):

Back 9

Occurs when there is a fixed duration or time for the lease to terminate that is set forth in the lease
-6 mo, 1 yr, 5 yrs, etc.
-Terminates w/o either party giving notice
-Has definite ending, but ending can be indefinite
(O rents to A "For the duration of the war")

Front 10

Court construes a tenancy for a term b/c it is parties' intention:

Back 10

Unless there is a statute, the term can last for any period.
-Common Law: No max permitted term
-AL Statutory Limit for lease is 99 yrs

Front 11

Term of Years is Determinable:

Back 11

Term terminable upon some event or subject to condition subsequent
-O rents to A for 5 years "So long as it is used as a factory"

Front 12

Grantor's Future Interest:

Back 12

-A reversion
-Also possible to have remainder if it is specified

Front 13

Periodic Tenancy:
(Tenancy from Period to Period)

Back 13

Tenancy from period of some fixed duration that continues for succeeding periods until EITHER landlord or tenant gives notice of termination
-If NO notice given, tenancy is automatically extended for another period
-Tenancy from month to month or year to year
-Called Automatic Renewal

Front 14

Periodic Tenancy Usually Statutory Time Period to Give Notice of Intent to Terminate Tenancy:

Back 14

-If lease is <1yr, then notice must be at least = to length of lease but not exceeding 6 mo
-If lease is 1yr+ then notice must be at least 6mo in advance
-Many Jur. allow 30 days if period is yr-to-yr
-If notice is NOT given then there is an AUTOMATIC renewal
-Termination must occur on the last day of a period, unless the parties agree otherwise

Front 15

Tenancy At Will:

Back 15

A. Terminable
B. Common Law

Front 16

A. Leasehold Estate that is Terminable at the Will of EITHER the Landlord or the Tenant:

Back 16

-Both parties must have right to terminate
-If NOT allowed in the lease, the ct. will still allow either party to terminate the lease at will

Front 17

B. At Common Law it COULD be Terminated w/o Advanced Notice:

Back 17

-Most states had a statutory requirement of 30 days notice to terminate the lease at will
-Duration of the tenancy at will continues until it is terminated by 1 of the parties

Front 18

Tenancy At Sufferance:

Back 18

-Arises when there's a Holdover Tenant
-By the "Doctrine of Relation Back" the tenant will be liable to the landlord as a trespasser

Front 19

Holdover Tenant:

Back 19

When a tenant wrongfully remains in possession of the property after the expiration of the lease

Front 20

Landlord May:

Back 20

-Evict the Tenant: LL can use Self-help to evict Tenant
-Sue the Tenant for Damages: Some states allow double rent if the holdover is willful
-Hold the Tenant for Another Term as a Periodic Tenancy

Front 21

Common Law:

Back 21

No excuses for holding over

Front 22

Modern Law:

Back 22

Willful or beyond control
"Move out of 31st, but on 30th you break your leg"
-Landlord can have holdover for 1 mo

Front 23

Fair Housing Act:

Back 23

A. Civil Rights Act of 1866
B. Civil Rights Act of 1968 (FHA)
C. Fair Housing Amendments Act 1988

Front 24

A. Civil Rights Act of 1866:

Back 24

Prohibited racial discrimination in housing but lacked a method of enforcement
-Actually allowed gender & religious discrimination b/c there was no penalty

Front 25

B. Civil Rights Act of 1968 (FHA):

Back 25

Established methods of enforcement & expanded the scope of protected classes

Front 26

C. Fair Housing Amendments Act of 1988:

Back 26

Further expanded the scope of protection

Front 27

2 Question for Fair Housing Act:

Back 27

1. Who is Protected?
2. What are They Protected From?

Front 28

1. Who is Protected?

Back 28

Race, color, religion, sex, familial status, disability, & national origin

Front 29

2. What Are They Protected From?

Back 29

-Prohibits discrimination in: sale, rental, financing, & advertising
-Still allows discrimination for obj bus. reasons:
>Credit checks, criminal history (Enforce evenly)
(Document Carefully: Don't just check Blacks)

Front 30

Sublease v. Assignment:

Back 30

For there to be a privity of Contract b/w landlord & sublease, there must be an assignment, NOT a sublease
A. Methods
B. Privities
C. Surrender & Abandonment

Front 31

Sublease:

Back 31

Give a portion of a lease to someone else
-Original Contract still exists

Front 32

Assignment:

Back 32

Assign all of your property interests to a 3rd Party

Front 33

A. Methods to Determine Whether Assignment or Sublease:
(What Interests are Transferred?)

Back 33

-Assignment: ALL interests transferred
-Sublease: PARTIAL interests transferred

Front 34

B. Privities:

Back 34

-Privity of Contract
-Privity of Estate

Front 35

Privity of Contract:

Back 35

Must be a party to the contract
-Based on Contract

Front 36

Privity of Estate:

Back 36

Relationship b/w landowner & occupant when occupant is NOT a party to lease or Contract
-Based on possession
-A right to be in possession (Sublease)

Front 37

C. Surrender & Abandonment:

Back 37

-Surrender
-Abandonment
-Reasonable Effort
-In LL-T relationship, it is the duty of the NON-BREACHING party (LL) to Mitigate Damages!!

Front 38

Surrender:

Back 38

Tenants offer to end a tenancy
-LL must accept to be a surrender
-No more responsibility
-Bilateral

Front 39

Abandonment:

Back 39

"Just leave as is"
-Unilateral
-Responsibility may exist if:
(1) LL Can't Mitigate
(2) State law doesn't force non-breaching party to mitigate

Front 40

LL Must Make Reasonable Effort to Release the Apartment Including:

Back 40

(1) Not saying no to potential renters
(2) Advertising
(3) Acting as if apt. is not leased & vacant

Front 41

Types Evictions:

Back 41

1. Regular Eviction
2. Constructive Eviction

Front 42

Regular Eviction:

Back 42

Legal action served by notice to tenant, usually posted on door
-Due to a breach of Contract (Failure to pay, parties, illegal pets)

Front 43

Constructive Eviction:

Back 43

"No Notice": Any act or omission of the LL or of anyone who acts under authority or legal right from the LL, which renders the premises substantially unsuitable for the purpose for which they are leased, or seriously interferes w/ the beneficial enjoyment of the premises, is a breach of covenant of quiet enjoyment

Front 44

Constructive Eviction Elements:

Back 44

(1) Unlawful disturbance of tenant's use & possession
(2) Amts. to Eviction
(3) Tenant must abandon the property to rise to the level of eviction

Front 45

Quiet Enjoyment:

Back 45

Freedom from interference in possession of land

Front 46

Implied Warranty of Habitability:

Back 46

New Common Law innovation which applies only to residential leases
-Tenant CANNOT cause the problem
-Problem must go to the safety & health of tenant

Front 47

Elements to Prove Breach of IWH:

Back 47

(1) Whether defect has effect on safety & health of tenant
(2) Tenant does NOT have to abandon property, but only give reasonable notification of time to repair

Front 48

Leaseholds:

Back 48

Interest in land according to the terms of a lease agreement, in the form of duties owed b/w a LL & renter of the land

Front 49

Periodic Tenancy:

Back 49

-How Created: Created by lease; contractual agreement
-Interest Owned: Rt. to occupy tenancy for fixed period
-Unique Features: Automatically renews for a like period at the end of the preceding period
-How Terminated: Notice must be given by either landlord or tenant a min of 1 whole period before last day of current period; death does not terminate.

Front 50

Tenancy For Years:

Back 50

o How Created: Created by lease; contractual agreement
-Interest Owned: Rt. to occupy tenancy beginning on a fixed date & ending on a fixed date
-Unique Features: Can also last for a period measured by the happening of an event or condition
-How Terminated: Fixed end date arrives, or ending event takes place; no notice required

Front 51

Tenancy At Will:

Back 51

-How Created: Created by lease; contractual agreement
-Interest Owned: Rt. to occupy tenancy “at will” as long as both the landlord & tenant so desire
-Unique Features: Law disfavors; some states have statutes requiring notice to terminate
-How Terminated: May be terminated by either party w/o notice; death of either party can also terminate

Front 52

Tenancy At Sufferance:

Back 52

-How Created: Created by operation of law when tenant wrongfully remains in possession after end of lawful lease term
-Interest Owned: Holdover tenant is treated as trespasser & evicted, or new periodic tenancy is imposed
-Unique Features: Landlord has rt. to elect wither eviction or creation of new tenancy
-How Terminated: If landlord chooses to evict, tenancy ends

Front 53

The Lease:

Back 53

The interest in property b/w a LL & Tenant is controlled by the lease

Front 54

Formal Lease Requirement:

Back 54

-Identification of landlord & tenant;
-Adequate description of the premises;
-Amt. of rent/dates to pay rent (if no rent amt, reasonable value); and
-Duration of lease.

Front 55

Statute of Frauds:
(If Lease >1 yr)

Back 55

-Must be in writing; and
-Signed by the party to be charged.

Front 56

Lease:

Back 56

-Lease terms create the type of estate ("Leasehold")
-Lease defines rts. & duties b/w LL & T

Front 57

Periodic Tenancy:

Back 57

Rt. to occupy tenancy for fixed period (yr, mo, week, or day)

Front 58

Tenancy for Years:

Back 58

Rt. to occupy tenancy beginning on a fixed date & ending on a fixed date

Front 59

Tenancy at Will:

Back 59

Rt. to occupy tenancy "at will" as long as both LL & T so desire

Front 60

Tenancy at Sufferance:

Back 60

Holdover tenant is treated as a trespasser & evicted, or new periodic tenancy is imposed

Front 61

Lease Terms & Duties are Independent:

Back 61

Failure to perform by 1 party does not excuse other party from performing
-Exception: if warranty of habitability is breached

Front 62

Landlord's Rights & Remedies:

Back 62

-Security Deposit
-Rent Acceleration Clause
-Sue for Unpaid Rent
-Eviction

Front 63

Security Deposit:

Back 63

LL retains amt. of posted deposit for T's costs & damages

Front 64

Rent Acceleration Clause:

Back 64

If T defaults on rent, all future rents become immediately due & payable

Front 65

Sue for Unpaid Rent:

Back 65

In the absence of an acceleration clause, LL may only sue for the rental amt. owed for the current lease period

Front 66

Eviction:

Back 66

If T materially breaches any lease term, including failure to pay rent timely; may evict T; ejectment, self-help (physical ouster), or summary proceedings

Front 67

Duties of Landlord:

Back 67

-Duty to Deliver Possession
-Covenant of Quiet Enjoyment
-Warranty of Fitness for Particular Purpose
-Warranty of Habitability
-Retaliatory Eviction

Front 68

Duty to Deliver Possession:

Back 68

-Right to Possess
-Actual Possession

Front 69

Right to Possess:

Back 69

Breach if someone has superior rt. to possess at time of commencement of lease
-T not required to move in

Front 70

Actual Possession:

Back 70

Under English Rule: LL must deliver actual possession
Under American Rule: (Minority) LL's NOT required to deliver

Front 71

Covenant of Quiet Enjoyment (Implied):

Back 71

LL promises that neither LL nor 3rd party will interfere w/ T's use & enjoyment of premises
-Actual Eviction
-Partial Eviction
-Constructive Eviction

Front 72

Actual Eviction:

Back 72

Physical expulsion or exclusion from possession

Front 73

Partial Eviction:

Back 73

Denial of possession for only party of the premises
-Common Law: T's obligation to pay entire rent is suspended until possession of entire premises restored
-RST: T can abate rent or terminate lease & seek damages; cannot remain in possession & pay no rent

Front 74

Constructive Eviction:

Back 74

LL wrongfully performs or fails to perform some duty that substantially deprives T of use & enjoyment of premises
-CL: LL has NO duty to repair premises unless LL&T so agree
-Statutory/Case Law: LL makes reasonable repairs

Front 75

Warranty of Fitness for Particular Purpose (Implied):

Back 75

CL: In the absence of express lease provision, no warranty by LL that premises would be fit for any purpose
Exceptions: Short-term lease of furnished residence & bldg. under construction when rented

Front 76

Warranty of Habitability (Implied):

Back 76

LL required to take all reasonable action to maintain premises in habitable condition, including duty to repair residential leases only; for commercial leases implied warranty of suitability for intended commercial purpose

Front 77

Retaliatory Eviction:

Back 77

LL may NOT evict T, refuse to renew lease, terminate a periodic tenancy, or increase T's rent in retaliation for T's prior actions
-Not applicable to commercial leases
-Tenant bears burden of demonstrating retaliatory motive of LL

Front 78

Landlord's Tort Liabilities:

Back 78

Generally, LL not liable to T or 3rd parties for injuries sustained on the premises
Exceptions:
-Common Areas
-Latent Defects: LL fails to disclose
-Negligent Repairs: Only is LL vol. undertakes to make repair

Front 79

Duties of Tenant:

Back 79

-Duty to Pay Rent
-Duty to Take Possession
-Restrictions on Use of Leased Premises
-Duty to Repair
-Duty to Deliver Premises at End of Lease

Front 80

Duty to Pay Rent:

Back 80

T's obligation to pay rent is independent of LL's duties; therefore, T must continue to pay rent even if LL fails to fulfill duties, unless warranty of habitability is breached

Front 81

Duty to Take Possession:

Back 81

No duty unless express or implied in lease

Front 82

Restrictions on Use of Leased Premises:

Back 82

-Cannot use property for illegal purposes
-Cannot commit waste

Front 83

Duty to Repair:

Back 83

No duty unless T expressly agrees; if premises completely destroyed, T might be obligated to rebuild

Front 84

Duty to Deliver Premises at End of Lease:

Back 84

-T must give premises over timely or be treated as holdover
-Wrongful Abandonment

Front 85

Wrongful Abandonment:

Back 85

If T fails to pay rent & abandons the premises, LL may:
-Accept the abandonment as a surrender & end the lease,
-Leave premises vacant & sue for rent owed, or
-Re-let premises to min T's damages

Front 86

Tenant's Rights & Remedies:

Back 86

-Remain in Possession
-Terminate Lease

Front 87

Remain in Possession:

Back 87

-Abate Rent, or
-Suspend Rent

Front 88

Terminate Lease:

Back 88

-Sue for Damages, or
-Quit Premises

Front 89

Demurrer:

Back 89

The assertion that the opposing party's pleadings are insufficient & that the demurring party should NOT be made to answer

Front 90

Express Covenant:

Back 90

A promise created by the express words of a document

Front 91

Implied Covenant:

Back 91

A promise inferred by law from a document as a whole & the circumstances surrounding its implementation

Front 92

Holdover Tenant:

Back 92

A tenancy that arises upon the expiration of a lawful tenancy & the tenant remains in possession of the property

Front 93

Legal Possession:

Back 93

Party having possession of property that it is legally entitled to

Front 94

Tortious Acts:

Back 94

Acts that constitute legal wrongs, resulting in breach of a duty

Front 95

Unlawful Detainer:

Back 95

The unlawful withholding of real or personal property from an individual who is lawfully entitled to it

Front 96

Assignment:

Back 96

A transaction in which a party conveys his or her entire interest in property to another

Front 97

Right of Re-Entry:

Back 97

An interest in property reserved in the conveyance of a fee that gives the holder the right to resume possession of property upon the happening of a condition subsequent

Front 98

Sublease:

Back 98

A transaction in which a tenant or lessee conveys an interest in the leased premises that is less than his own or retains a reversionary interest

Front 99

Free Alienability:

Back 99

Unrestricted transferability

Front 100

Self-Help:

Back 100

Acting w/o recourse to the legal system

Front 101

Tenant in Possession:

Back 101

A party in possession of property by title or right

Front 102

Wrongful Eviction:

Back 102

The unlawful dispossession of a person from property

Front 103

Default:

Back 103

Failure to carry out a legal obligation

Front 104

Mitigation:

Back 104

Reduction in penalty

Front 105

Demised Premises:

Back 105

Leased property

Front 106

Commerce Clause:

Back 106

Grants congress the power to regulate commerce w/ foreign countries & b/w the states

Front 107

Takings Clause:

Back 107

Provision of the 5th Amendment prohibiting the Gov. from taking private property for public use w/o providing just compensation therefor