Ls - Property Set 2

Front 1

Garner v. Gerrish:

Back 1

"Court held the landlord and tenant intended to create a life tenancy. That the tenant had a right to terminate, but the landlord did not. This doesn’t fit into any of the boxes!!! Should we have a life tenancy? Argument for – common law "

Front 2

Leases

Back 2

"Both a K and a conveyance. K containing promises of the parties. Governs relationship between L and T over the term of lease. Covenants in a lease are independent of each other. At CL, one party’s performance of a K does not depend on the other parties performance. Terms: rent amount, duration of tenancy, and location of leased premises. Lease for longer than a year must be in writing (Statute of Frauds)"

Front 3

Tenant's Duties and LL Remedies

Back 3

"T can’t damage or commit waste on the leased premises T - Duty to pay rent If T doesn’t pay rent then L can evict or sue for rent, If T abandons than L can do nothing or repossess Majority rule-L must make reasonable efforts to mitigate his damages be reletting to a new T"

Front 4

"Factors for determining if you have a lease, a license or a life estate"

Back 4

"Intention of the parties. A lease is both a contract and a conveyance. 2) The more exclusive your possession is the more likely you have a lease and not a license. 3) The more you have incidental services involved, the more likely you have a license and not a lease."

Front 5

English Rule

Back 5

"(majority rule) -in every lease, there is an implied covenant that the lessor put the lessee in actual and legal possession. L is responsible for the wrongdoings of a holdover T or 3rd party. If new T can take possession of part of the premises than he should and pay partial rent. Policy reason: L is in a better position."

Front 6

American Rule      

Back 6

"(Hannah v. Dusch)- L not obligated to deliver actual possession. T is the one who has to take action to get them off the property. In these JN, actual possession can be K’d for. Policy: L is not the wrongdoer, trespasser is."

Front 7

Define a sublease

Back 7

"T1 retains some interest. Original lessee transfers anything less than his entire interest, there is a reversion."

Front 8

Privity in subleases

Back 8

"L to T1 – P of K and P of E, T1 to T2 – P of K and P of E, L to T2 – no privity. Exception: If T2 assumes the obligations under the original lease then the L can sue T2 for privity of K. L can prevent T1 from subleasing."

Front 9

Define an assignment

Back 9

"lessee transfers his entire interest under the lease, transfers right to possession for the duration of the term"

Front 10

Privity in assignments

Back 10

"L and T1 – P of K, T1 and T2 – P of K, L and T2 – P of E. If promises run with the land, then they run to T2 so if L breaches T2 can sue. T1 can sue L over P of K issues. If L sues T1, then T1 can implead T2. EXCEPTION: There can be P of K if T2 assumes the obligations and duties under the original lease then L may sue T2 for breach of the promises. "

Front 11

Partial Assignment

Back 11

"When you assign your entire interest to someone, but only for Part of the original property."

Front 12

How to determine if there is a sublease or an assignment (jurisdictional spli:

Back 12

"General rule- formalistic test - Assignment conveys the whole term and sublease retains a reversionary interest. Modern rule - Intent test - Language of the instrument read in the light of the surrounding circumstances, but they look at what the parties actually reserved or didn’t reserve."

Front 13

Kendall v. Ernest Pestana- restrictions on lease assignability

Back 13

Majority Rule: if a lease contains an approval clause for lease assignments the lessor may arbitrarily refuse to approve a proposed assignee no matter what. Minority Rule: Consent may be withheld only where the lessor has a commercially reasonable objection to the assignment. (followed in Kendall). The restatement and California adopts the minority rule.

Front 14

What constitutes a commercially reasonable purpose for denying a lease assignment?

Back 14

"Denying consent is not commercially reasonable if it is based on: Personal taste, Convenience, Sensibility, SEEKING HIGHER RENT. Commercially reasonable reasons include: Bad credit, No sustainability of the property, Legality of the lease, Nature of the occupancy"

Front 15

Tenants in Possession who default at Common Law

Back 15

Self help can be used as long as the L is legally entitled to possession means of reentry are peaceable. For it not to be peaceable: there must be actual or the threat of violence. Landlord can get sued for wrongful eviction if he doesn’t have legal right.

Front 16

Tenants in Possession who defaults – Modern Rule

Back 16

(Minority Rule): can only use lawful means. Must resort to the judicial process. No self help.

Front 17

LL Remedies for Tenant who has Abandoned Possession at CL/Modern

Back 17

"At CL - No duty to mitigate damages by making a reasonable effort to re-let property wrongfully vacated. Modern Majority Rule (based on K law) – L has a duty to mitigate damages by making a reasonable effort to re-let an apt. wrongfully vacated. LL has burden of proving he made reasonable efforts to mitigate. However, CA puts this burden on the T."

Front 18

Examples of Reasonable efforts to mitigate

Back 18

"1) Advertise in local newspapers, more than one paper 2) Offer or show the apt to prospective tenants 3) If there are prospective T’s L should not say no because the prior T can rebut evidence by showing that L rejected T’s who were suitable 4) Put sign in window 5) Employ a realtor 6) Renegotiate lease"

Front 19

Consequences of a landlord’s failure to mitigate – Two views:

Back 19

LL can recover no rent subsequent to abandonment; or he can recover the difference between the agreed rent and the amount of loss that could have reasonably been avoided.

Front 20

Surrender by the T

Back 20

Surrender is a tenant’s offer to freely end a tenancy. Has to be accepted by the L. If original lease was in writing surrender must also be in writing (SoF).

Front 21

What duties did a LL have to a T at Common law?

Back 21

"(Caveat Lessee): L had no duty to repair the property, make sure water was running. There was no incentive. T took premises “as is” and L had no obligation to warrant their fitness. L could collect rent whether or not the property was suitable for living. The promises were very independent of one another."

Front 22

In LL/T – How can a dispute regarding condition of premises arise?

Back 22

2 ways: As a defense for an action for ejectment or T or his invitees can bring action against LL.

Front 23

Rules regarding Quiet Enjoyment - CL

Back 23

"Quiet enjoyment was initially limited to physical ouster. Absent provisions in the lease, the L has no duty to maintain the premises. Exceptions: furnished dwellings, implied duty to keep premises habitable, latent defects known/should have known by L, common areas, repairs the L promised to make, no fraudulent misrepresentations."

Front 24

Rules regarding Quiet Enjoyment – Modern Law

Back 24

"A covenant of quiet enjoyment is implied in a lease. Promises that the grantee or tenant of an estate in real property will be able to possess the premises in peace, without disturbance."

Front 25

Partial Eviction – Actual and Constructive

Back 25

"If actual eviction from part of the premises, T is relieved of ALL liability for rent even though he occupies of the rest. If constructive partial eviction (L breach makes part of the premises uninhabitable) and T continues to occupy the rest, most jxd’s say T is NOT relieved of his obligation to pay rent."

Front 26

Tenant’s Remedies for violations of Quiet Enjoyment

Back 26

"Stay in possession and sue for damages equal to the difference between the value of the property with and without the breach. T may also leave on theory of constructive eviction, may be relieved of liability for future rent, may recover damages (losses while in possession and those resulting from higher rent for replacement premises). This is a gamble."

Front 27

The Illegal Lease

Back 27

"When a lease is made that violates implied covenants (through violations of housing codes, or unsafe conditions) it is demed illegal. T’s cannot waive the implied covenants. The doctrine does not apply if code violations develop AFTER the making of the lease. Minor violations do not render a lease illegal, nor do violations of which the L had neither actual nor constructive notice. T uses this as a defense for nonpayment of rent."

Front 28

General Rule and Policies behind the Implied Warranty of Habitability

Back 28

"General Rule: L will deliver premises that are safe, clean and fit for human habitation. Covers all latent/patent defects in essential facilities of residential unit. Applies only to residential and cannot be waived. Does not exist in all JN. Policies: Today’s tenant lacks specialized skills needed to repair, unequal bargaining power btwn L and T."

Front 29

Three step analysis for breach Implied Warranty of Habitability

Back 29

"1) Landlord must have notice of the defective condition. 2) Defect must be substantial (courts look to local housing codes and also whether the defect has an impact on safety or health - Minor violations that don’t affect health or safety of T will not constitute breach. Housing code violations compelling, but NOT conclusive.) 3) L must be given a reasonable amount of time to repair the defect and has not done so. L not responsible for defects caused by T."

Front 30

Remedies for a breach of the Implied Warranty of Habitability

Back 30

"1) T can sit in possession, without rent, and claim breach or use as a defense. (If the T withholds rent, some courts require T to escrow the money.) 2) Remain in possession, repair and deduct repair amount from rent. 3) Remain in possession and sue for damages"

Front 31

Jxd splits on how courts measure damages for violations of the Implied Warranty of Habitability

Back 31

"1)Some courts, measure of damages is difference between the agreed rent and the market value as is. 2)Some courts, measure of the damages is the difference between the premises as warranted (probably an increased amount) and the market value as is. 3)Some courts allow damages for T discomfort/annoyance, others do not. 4) Punitive damages may be available if L, after receiving notice of defect, fails to repair the facility that is essential to health and safety."

Front 32

Retaliatory Eviction

Back 32

"At common law, it didn’t matter. Now Generally prohibited - Most jxd’s, either by statute or decision, forbid retaliatory action by L’s. T bears the burden of proof"

Front 33

Tenant’s Duty not to waste

Back 33

"Two types of waste: permissive (neglect or omission) and voluntary (purposeful) At Common Law: absent any lease provisions to the contrary, T is entitled to any use that is reasonable. Modern approach. Voluntary varies: Some courts say any changes w/o L’s consent is a breach. Other courts have said there is no breach unless the changes amount to waste. Permissive: T may have a duty to make minor repairs. No duty to make major repairs."