Memory Tenant And Landlord

Front 1

Non-Freehold Estate

Back 1

• Tenancies or leaseholds
• Leaseholders didn’t hold seisin and therefore did not have certain political rights.
• As opposed to freeholders who had access to the king’s courts and had greater political rights.

Front 2

Term of Years

Back 2

• Lasts for some fixed period of time – the end date is set prospectively.
• Can be a month, a year, or 3,000 years.
• At common law there was no limit on number of years permitted. Since it can be determined at the outset of the agreement when it ends, no notice of termination is required (both parties know when it is going to end).
• Notice of termination can be modified by the agreement in the lease and in some states it has been modified by statute.
• The death of landlord or tenant has NO effect on the duration.

Front 3

Periodic Tenancy

Back 3

• A set time period within it that repeats automatically absent notice that it is not going to repeat automatically.
• At common law if it was a year to year period, then a half year’s notice would have to be given. The notice must termination the tenancy on the final day of the period.
• Statutes in many states have shortened the notice period because they find it overly burdensome. Most states allow 30 day notices.
• The death of landlord or tenant has NO effect on the duration.

Front 4

Tenancy at Will

Back 4

• No fixed period that endures so long as both landlord and tenant desire.
• At common law, if lease says tenancy can be terminated by one party then it is necessary to allow the other party to terminate the tenancy as well. Tenancy at will ends when one party terminates it.
• Modern notice of termination is usually 30 days or time equal to interval between rent payments.
• The death of landlord or tenant will effectively end the tenancy.

Front 5

Holdovers

Back 5

• When a tenant remains in possession after termination of the tenancy.
• Under common law, a landlord dealing with a holdover can:
(1) evict tenant (with damages – usually double the rent)
(2) consent (express or implied) to the creation of anew tenancy.
• Example: Crehale & Polles, Inc. v. Smith

Front 6

Fair Housing Act

Back 6

• Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents of legal custodians, pregnant women, and people securing custody of children under the age of 18 NOT marital status), and handicap (disability).
• Example: Soules v. U.S. Dept. of Housing

Front 7

Sublease

Back 7

• Granting tenant retains a reversionary interest in their tenancy then the secondary tenancy

Front 8

Assignment

Back 8

• Granting tenant retains no reversionary interest in their tenancy

Front 9

Privity of Contract (PK)

Back 9

• Requires both parties to agree.
• Privity is the connection or relationship between two parties, each having a legally recognized interest in the same subject matter.
• You have to have privity in order to be in a lawsuit.
• Example: Ernest v. Conditt

Front 10

Privity of Estate (PE)

Back 10

• Whoever the landlord receives possession of the land from at the end of the lease
• Example: Ernest v. Conditt

Front 11

Third Party Beneficiary (3rdPB)

Back 11

• Test: Does the agreement between the tenant and the third party clearly indicate an intention to benefit the landlord who is a creditor of the tenant
• Two types
1. Donee Example: C tutor A in Con Law if A tutors her D in Spanish. C doesn’t owe to her D to pay for a Spanish tutor for her. If A breaches the agreement, then can D bring lawsuit against A? As a third party donor, then courts would be less likely to enforce that contract. C would have to sue A.
2. Creditor Example: T1’s agreement with T says that I promise to pay C the rent that you are liable for. Every court in the US will let C go in and enforce that contract. The contract was made to benefit C as a creditor. That is the difference between donee 3rd party contract and creditor 3rd party contracts.
• Example: Ernest v. Conditt

Front 12

Novation

Back 12

• Substitution of a third party in a contract

Front 13

Dumpor’s Rule

Back 13

• Once you take an assignee there is no longer a requirement to get the landlord’s permission
• Terminates the prohibition against assignment when the landlord consents to an assignment unless he specifically reserves the right to prohibit future assignments

Front 14

Abandonment

Back 14

• Where tenant departs the premises with no intent to return.
• It is the landlord’s acceptance of the tenant’s right to depart and not return that converts an abandonment to a surrender
• Example: Berg v. Wiley

Front 15

Surrender

Back 15

• Tenant and landlord agree that the tenant may depart the premises and the landlord may re-take the premises for lawful occupation.
• It is the landlord’s acceptance of the tenant’s right to depart and not return that converts an abandonment to a surrender.
• Example: Berg v. Wiley

Front 16

Deposit as Advance Rent

Back 16

• Landlord retains on termination for default on the theory that rent is nonapportionable.

Front 17

Deposit as Liquidated Damages

Back 17

• Amount in question is reasonable and especially when actual damages are difficult to determine. Usually regarded as an unenforceable penalty.
• Not ideal from the landlord’s standpoint.
• Once default has occurred the tenant has little incentive to minimize damages.

Front 18

Rent Acceleration

Back 18

• Provision that upon the tenant’s default all the rent for the entire term is due and payable.
• This is accepted by the majority of courts.
• If rent is accelerated, the landlord usually cannot take possession as well.

Front 19

Moral Hazard

Back 19

• Originally meant to deal with insurance relationships: “Tendency of an insured to relax his efforts to prevent the occurrence of the risk that he has insured against because he has shifted the risk to an insurance company.”
• Once a lease is entered into, the landlord has an incentive to neglect everyday repairs because the costs of neglect are borne primarily by tenants.
• Tenants, in turn, have incentive to neglect maintenance (especially toward the end of the term) because the neglect with soon shift to the landlord.

Front 20

Doctrine of Constructive Eviction

Back 20

• Common law (prior to this doctrine): promises expressed in leases were independent such that if the landlord breached the promise then the tenant could sue for damages (but not the right to suspend rent or terminate the tenancy).
• Obligation to pay rent was dependent upon the tenant’s having possession undisturbed by the landlord (or someone claiming through the landlord – i.e. property manager).
• 1) If one could claim landlord unlawfully disturbed then a breach of the implied covenant of quiet enjoyment applied, and 2) if the disturbance was substantial enough that it amounted to eviction and 3) tenant thereafter abandoned the premises, then it was though the tenant had been evicted and was relieved of the obligation to pay rent.
• With this doctrine breach allows tenant to abandon premises if breach is substantial.

Front 21

Covenant of Quiet Enjoyment

Back 21

• Originally: limited to cases where tenant was actually ousted physically.
• Nowadays: expanded to include beneficial enjoyment.
• Implied covenant of quiet enjoyment could be breached only when the landlord’s conduct had “the effect of depriving the lessee of the beneficial use of the demises premises, whether by positive acts of interference or by withholding something essential to full enjoyment and included within the terms of the lease.”
• Without this doctrine breach would only allow tenant to sue for damages.
• With this doctrine breach allows tenant to abandon premises if breach is substantial.

Front 22

Duty to Mitigate

Back 22

• Under Common Law: landlord has no duty to mitigate damages caused by a defaulting tenant.
• Modern trend toward requiring mitigation.
• In determining whether a landlord has mitigated the court looks at: whether ads have been placed in the newspaper, if the apartment being treated as open stock, if there was substantial alteration of tenant’s obligations, if landlord has refused to rent to suitable tenants, if the landlord is asking for increased rent, etc.

Front 23

Illegal Lease Doctrine

Back 23

• When the leased premises is in violation of a law that relates to your occupation of the land and effects your health or safety, it can be found that an illegal contract was made therefore it is unenforceable.
• Doesn’t apply if code violations develop after taking possession of the property.
• Doesn’t apply if only minor technical violations, or violations of which landlord had no actual or constructive notice.
• A tenant under an illegal lease is a tenant at sufferance, and the landlord is entitled to the reasonable rental value of the premises (given their condition).

Front 24

Warranty of Habitability

Back 24

• Any property the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation.

Front 25

Warranty of Habitability

Back 25

• For Court to Find Breach: 1) look at local housing code (need prima facie evidence), and 2) whether the claimed defect has had an impact on safety or health of the tenant.

Front 26

Warranty of Habitability

Back 26

• Tenant must show that 1) notified landlord, and 2) allowed reasonable time for its correction.

Front 27

Landlord/Tenant Property Law under Common Law

Back 27

• Relationship between landlord and tenant was caveat lessee (tenant took possession of demised premises irrespective of their state of disrepair).

Front 28

Attornment

Back 28

• Landlord gives notice to tenant of a change in ownership and then tenant has to pay a new owner.