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73 Cards in this Set
- Front
- Back
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What is a conveyance |
Conveyance is the legal process of transferring property from one owner to another. |
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Why did the landlord-tenant relationship become a conveyance |
Early English Common Law did not recognize a lease as giving the tenant any interest in the leased property. The tenant’s possession was not adequately protected, so eventually the landlord-tenant relationship reflected that the landlord (lessor) was viewed as conveying a limited possessory interest in land to the tenant (lessee) while at the same time retaining ownership interest, known as reversion. |
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What is reversion |
The landlord retains a possessory interest in the property leased to the tenant When land is conveyed for one year, after theyear, the land “reverts” to the landlord. |
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What is the difference between a freehold and a non-freehold |
In a freehold, a real conveyance of ownership occurs, vs in non-freehold (estate), or a landlord-tenant relationship. |
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What is a convenant |
Covenants are agreements for performance between landlords and tenants |
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Why did English Common Law transition from conveyances to contracts? |
Later, as buildings were leased with land, the parties ended up making more and more specific agreements about matters like utilities, maintenance, and liability for injuries, which were contracted. |
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Statute of Frauds - ENGLAND |
· The EnglishStatute of Frauds (1677) required written evidence of certain lease agreements,contracts, and conveyances. Oral leases exceeding three years in duration hadthe ‘force and effect of leases or estates at will only.’ Parol: given orexpressed orally. · In addition to therequirement that certain leases be in writing, the ESoF requires a writing foragreements not to be performed within one year of the date of ‘the makingthereof.’ |
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Statute of Frauds - MODERN |
· Contracts don’t have to be in writing unless the SoF says they have to be in writing, and must be signed by the person from whom performance is sought. · The English Statute of Frauds has been adopted in some form by every state. Most modern statutes limit the maximum length of oral leases to one year. |
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EXCEPTIONS TO THE STATUTE OF FRAUDS: lease not in writing, lease subject to statute offrauds, you give notice, they sue, you claim SoF in defense, you are consideredmonth-month or periodic tenancy. THEN the landlord has the following defenses: |
o Part performance – where one party has partially performed their promises, where noreasonable person would have done what they did without an agreement. o Estoppel – If you haven’t partly or largelyperformed your agreement, but you have done something to change your positionin reliance with this agreement, it would be unfair to raise the SoF as anexception – something at great personal loss or expense |
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On May 18, L orally rented T a house for one year term beginning July 1 and ending on June 30 the next year. Is the agreement in violation of the SoF? |
Yes, the lease should end May 18 of the next year, not June 30. the ESoF requires a writing for agreements notto be performed within one year of the date of ‘the making thereof.’ |
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SoF and oral recission |
As a general rule, theoriginal contract is required by the SoF to be in writing, and may not bemodified or varied by a subsequent oral agreement.within the statute, unless the unexpired term ofthe lease is less than that required by the statue of frauds to be in writing. 1. Always get it in writing when theSoF governs, even if there is a split of authority – the written lease cannotbe amended, modified, abrogated, or terminated orally – it must be in writing!This will help you avoid misunderstandings and litigation. – the modern trendis to accept oral modification. |
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Tenancy for a Fixed Term (Estate for Years) |
· A lease for anyset period, be it six days or six years, is a tenancy for six years. ((((Traditionally called an estate for years, the label ‘tenancy for a fixed term’conveys a more accurate image of the lease. Specific commencement andtermination date.))) · There is no commonlaw limitation on the duration of a tenancy for a fixed term. Some statestatutes set term length limits, or convert long-term leases into absoluteownership interests. · Tenancy terminatesat the end of the term. Absent a provision to the contrary, the landlord neednot give advance notice to the tenant if the term is about to expire. |
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Periodic Tenancy |
· A lease giving thetenant possession of the leased property for successive identical periods oftime – month to month tenancy. · The term ispotentially of infinite duration because it is automatically renewed forsuccessive periods, unless one of the parties gives proper notice to terminate. |
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Tenancy at Will |
· A lease may be terminated at the election of eitherparty. At common law, no advance notice was necessary. In many states, however,notice is required in many states. · If rent is paid periodically, the arrangement isgenerally treated by the courts as a periodic tenancy and appropriate notice toterminate is required. · Tenancy at will often exists because the particulararrangement in question is neither a tenancy for a fixed term nor a periodictenancy, like when a property owner permits a friend or relative to occupy theproperty rent-free for an indefinite period of time, or when a tenant takespossession of property under an invalid lease. · If the understanding that the tenancy at will in acertain situation is terminable by one party, then it is understood to beterminable at the will the other other party as well. · Also, tenancies at will terminate at the death of anyparty. There is no will when you die! |
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Tenancy at Sufferance (Holdover Tenant) |
· A tenant who remains on leased property aftertermination of the lease. · Absent lease provisions to the contrary, the landlordhas the option to treat a tenant at sufferance as either a trespasser or a newtenant. |
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Tenant’s Right to Possession and Quiet Enjoyment |
These rightsevolved from the days when tenants farmed to earn sufficient money to pay rent. The system only worked if the tenant was able to take possession and use theland without interference from the landlord. |
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Common law periodic tenancy termination rules: |
1) six month’s notice for a year-to-year tenancy; 2) notice equal to the length of the period where the period is less than a year (1 month for month-to-month); 3) date of termination must be at the end of a period. For year to year leases, the notice required is 6 months. he Uniform Residential Landlord and Tenant Act expanded the notice requirement for week-to-weeks to 10 days and month-to-months as 60 days Notice to terminate a periodic tenancy may be oral unless required to be in writing by the lease or by statute. Statutes in several states require only the landlord to give written notice. COMMON LAW RULE, where the lease is silent: Notice given in the middle of the period may be effective if It terminates as of the end of the next period – Notice given on Jan 15th for Feb 15th , then the tenant may leave Feb 28th. Not the middle! COMMON LAW RULE: If the tenant dies in the middle of the period, the tenant’s estate owes for the next period until proper notice can be given. But in modern times, if the tenant dies, the lease terminates |
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Landlord signs a lease with T2 on 1/29 and a lease to T1 on 1/31 for the same property. T2 did not disturb T1. Landlord did not deliver legal possession to T1, but T1 lived there. |
Landlord breached duty to give legal possession to T1 but T1 was not disturbed because he had quiet enjoyment – T1 cannot get all his rent back. However, T1 can move out because he is technically tenancy at will. If T1 does not want to terminate, and wont move, and wont pay rent, Under the American rule, T2 has to get him out. T1 has to pay rent if he continues to stay, because as long as he in possession of the premises and T2 hasn’t disturbed him, then there hasn’t been any breach of the covenant of quiet enjoyment. |
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English Rule of Possession |
implies a covenant requiring the lessor to put the lessee in possession. Implies a covenant but practically prohibits the landlord from leasing the premises while in the possession of a tenant because he may lie and hold over. Implies a covenant on the part of the landlord to protect one tenant from the torts of another. THE ENGLISH RULE IS PROBABLY THE MAJORITY RULE. |
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American Rule of Possession |
recognizes the lessee's legal right to possession, but implies no such duty upon the lessor as against wrongdoers. This rule puts the new tenant in legal possession, so that he may oust the holdover legally with superior possession. Then the remedy is not against the landlord, but the holdover tenant. If the landlord gives thetenant a right of possession he has done all that he is required to do by theterms of an ordinary lease, and the tenant assumes the burden of enforcing suchright of possession as against all persons wrongfully in possession, whetherthey be trespassers or former tenants wrongfully holding over. |
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Covenant of quiet enjoyment |
Absent a reservation to thelandlord, the tenant has the sole and exclusive right to undisturbed possessionduring the term of the lease and the landlord has no right to take possessionof a part of the demised premises to the exclusion of the tenant. implied in leases in virtually all states, and isexpressly included in many written leases. Aslong as the tenant is performing under the lease, the landlord does not havethe right to evict the tenant, fully, partially, or constructively. Landlordcant fail to perform duties required by law. |
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Eviction by paramount title |
the landlord does not own the leased propertyand the true owner demands possession, or when the mortgage on the property isforeclosed. Someone with paramount title who interferes with tenant also breaches the landlords duty of quiet enjoyment |
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De minimis |
too trivial to meritconsideration by the law |
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Enjoinder |
a prohibition ordered by aninjunction |
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Partial eviction |
According to Smith v. McEnany, if a landlord moves a wall in the middle of the night without telling the tenant, the tenant is not required to pay rent – the tenant was supposed to be given the enjoyment of all the square footage, and apportionment should not be expected for this ‘wrong’ – the whole rent is charged for the whole land. Later court decisions concluded that partial taking of space could mean partial abatement of rent. |
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Constructive eviction |
· A tenant does not have to pay rent of the landlordinterferes with the tenant’s possession (quite enjoyment) of the premises. · Constructive eviction happens where the landlordbreeches some duty to the tenant, and the duty is outside the covenant of quietenjoyment which imposes no specific obligation on the landlord, requiring onlythat the landlord not interfere with the tenant’s possession. · Once it is established that the landlord has breached aduty (like to make repairs as required under the lease), the tenant may be ableto claim constructive eviction and recover damages. The tenant will still haveto pay rent, though. example: A landlord opening windowsand peaking into the tenant’s apartment violates the right of quiet enjoyment becausethat is intrusion onto property possessed by the tenant. |
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Complete eviction |
When a landlord wrongfully evicts the tenant from the entire premises, the tenant does not have to pay rent, and can seek to regain possession or termination the lease and may recover damages. |
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How do contract law and property law conflict when a landlord violates a covenant in a lease? |
· Under the old school common law conveyance view, leasecovenants are considered independent undertakings (this is the Property view) –the landlord is still conveying the land to the tenant, even in breach of aseparate covenant. This is complicated by contract law, which views covenantsas a whole. |
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Is constructive eviction a violation of the covenant of quiet enjoyment? |
· Constructive eviction is not a violation of thecovenant of quiet enjoyment – it is a violation of a covenant provided foroutside of the covenant of quiet enjoyment, like in the common law or in thelease, that the breach is essentially the same as an eviction. |
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What is a caveat for constructive eviction? |
· The tenant has to move out in a reasonable amount oftime. There can be noconstructive eviction without the vacating of the premises. Where a tenant fails to surrender possession after the landlord's commission of acts justifying the abandonment of the premises the liability for rent will continue so long as possession of the premises is continued. |
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The old common law rule for maintenance |
· caveat emptor –the tenant takes the premises “as is,” and the landlord has no duty to repair.This approach originated at a time when the economy was primarily agrarian andraw land was the principle object of the lease. Buildings on the land wereincidental to the and a generally experienced workman was expected to make hisown repairs. |
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For the landlord's duty to repair, traditional common law does recognize exceptions for... |
· short-term leasesof furnished dwellings, leases of buildings under construction, and cases wherethe landlord fraudulently misrepresents or conceals the condition of theproperty. The landlord is also required to maintain common areas. · The law recognizesstated exceptions to the caveat rule because in those cases, the tenant wouldhave to bear significant cost where they gain little possession. |
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Common law covenant to repair: what if the premises are destroyed, does the lessee have to pay rent? |
At common law the lessor was, without express covenant to that effect, under no obligation to repair, and if the demised premises became, during the term, wholly untenantable by destruction thereof by fire, flood, tempest or otherwise, the lessee still remained liable for the rent unless exempted from such liability by some express covenant in his lease. MODERN: There is a trend to relievethe tenant of the duty to pay rent in a catastrophic loss, even in the absenceof a term in the lease. |
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Common law covenant to repair: tenantable repairs by the lessee |
the lessee is under animplied covenant, from his relation to his landlord, to make what are called"tenantable repairs,” or ordinary repairs as were necessary to preventwaste and decay of the premises. If a window in a dwelling should blow in, thetenant could not permit it to remain out and the storms to beat in and greatlyinjure the premises without liability for permissive waste; and if a shingle orboard on the roof should blow off or become out of repair, the tenant could notpermit the water, in time of rain, to flood the premises, and thus injure them,without a similar liability. He being present, a slight effort and expense onhis part could save a great loss; and hence the law justly casts the burdenupon him. |
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Permissive waste |
an injury caused by anomission, rather than an affirmative act, on the part of the tenant. This typeof waste might occur, for example, if a tenant permits a house to fall intodisrepair by not making reasonable maintenance repairs |
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Voluntary waste |
Voluntary (commissive) wasteis waste caused by willful destruction or carrying away of something attachedto the property or deliberate and active change to the property. |
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What, generally, is waste? |
A tenant, whether rightfully in possession or not, cannot, without the consent of the landlord, make material changes or alterations in a building to suit his taste or convenience, and, if he does, it is waste. Any material change in the nature or character of the buildings made by the tenant is waste, although the value of the property should be enhanced by the alteration. |
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What is an exception to the general rule about waste? |
In the absence of a provision to the contrary, the tenant had the right to make such temporary changes as were consistent and proper for the utilization of the leased premises. The landlord can protectagainst unwanted changes by specifying in the lease what changes are notpermissible |
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Implied Warrantyof Habitability |
· Mostly,residential leases have an implied warranty of habitability, or a warrantyimplied by law in all residential leases that the premises are fit andhabitable for human habitation and that the premises will remain fit andhabitable throughout the duration of the lease. · It varies fromstate to state whether a breach of the implied warranty of habitability is astrict liability offense or whether a good faith effort on the landlord’s partis arguable |
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Policy behind the implied warranty of habitability |
To protect the tenant asthe party in the less advantageous bargaining position and is in harmony withthe widespread enactment of housing and building codes which reflect alegislative desire to ensure decent housing. |
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Do code violations mean a violation of the implied warranty of habitability? |
A code violation is not necessary to establish a breach so long as the claimed defect has an impact on the health or safety of the tenant. |
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How does rent play into the implied warranty of habitability? |
Under the prevailingcontemporary view of the residential lease as a contractual transaction,however, the tenant's obligation to pay rent is conditioned upon the landlord'sfulfilling his part of the bargain. The payment of rent by the tenant and thelandlord's duty to provide habitable premises are, as a result, dependentcovenants. SO: · If the tenant continues to pay full rent to the landlord during the period of uninhabitability, the tenant can bring an affirmative action to establish the breach and receive a reimbursement for excess rents paid. · Rent withholding, on the other hand, deprives the landlord of the rent due during the default, thereby motivating the landlord to repair the premises. |
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When is the implied warranty of habitability waivable? |
Not in residential situations - people would pay crazy low rent for squalor |
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Intersection of permissive waste and warranty of habitability |
The doctrine of permissive waste should beabolished in residential tendencies and that the landlord’s duty under thewarranty of habitability should include the duty to make minor repairs. |
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Doesthe creation of the implied warranty of habitability render the doctrine ofconstructive eviction unnecessary? |
Thereare other ways a landlord court interfere with the right of quiet enjoyment(outside of the health and safety of the tenant), moving is costly Atenant may need constructive eviction theory because: · Commercial tenant (only tx has implied warranty of suitability) · Residential tenant – even though implied warranty of habitability isbetter and gives tenants various options that constructive eviction theory doesnot (terminate the lease in a reasonable amount of time OR deduct repairs fromrent) |
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Is there an impliedwarranty by a commercial landlord that the leased premises are suitable fortheir intended commercial purpose? |
TX TX TX TX TX TX TX TX TX TX TX Minority ruuuuuuuuuuuuuuuuuule: There is an implied warranty of suitability by the landlord in a commercial lease that the premises are suitable for their intended commercial purpose. This warranty means that at the inception of the lease there are no latent defects in the facilities that are vital to the use of the premises for their intended commercial purpose and that these essential facilities will remain in a suitable condition. If, however, the parties to a lease expressly agree that the tenant will repair certain defects, then the provisions of the lease will control. In Texas, the courts have held that the landlord's covenant to repair the premises and the tenant's covenant to pay rent are independent covenants. Thus, a tenant is still under a duty to pay rent even though his landlord has breached his covenant to make repairs. |
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SEVEN FACTORS TO DETERMINE BREACH OF WARRANTY OF SUITABILITY: |
the nature of the defect; its effect on thetenant's use of the premises; the length of time the defect persisted; the ageof the structure; the amount of the rent; the area in which the premises arelocated; whether the tenant waived the defects; and whether the defect resultedfrom any unusual or abnormal use by the tenant. |
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Caveat to the implied warranty of suitability |
As always, tenant must leave the property within areasonable time. davidow didn’t pleadconstructive eviction because he had been in the lease for four years of complaining about theproblems but never moved out – he didn’t move out quickly enough! The courtessentially gave him a judgment of constructive eviction though. |
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Can the implied warranty of suitability be waived? |
Yes in commercial leases. Tenant takes on responsibility of maintaining premises' suitability for its purpose |
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Why would the texas supremecourt say that there is no reason to imply a warranty of habitability inresidential leases and not commercial leases, and then say that the warranty iswaivable in commercial leases? |
must mean they don’t thinkthat commercial tenants don’t need the same protection as residential tenantsbecause people would get themselves into dangerous living conditions for cheaprent |
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Covenantto Repair by landlord in residential lease: |
if the lease is silent then thelandlord has the responsibility to maintain the property due to the impliedwarranty of habitability |
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COMMON LAW RULE: Covenant to rebuild |
A lessor / landlord is notrequired to rebuild on substantial destruction by fire unless he is obligatedto do so by the terms of the lease. If the landlord expressly agrees toundertake that duty, then the landlord will ordinarily just take out insuranceand pass the cost along to the tenant. |
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Covenant to repaire: commercial lease |
· In thecommercial area, tenants often covenant to keep the leased property in repairand may undertake exceedingly broad obligations in this regard. CL Rule: tenanthas to maintain in a suitable condition (waivable)(unless we are in TX thenit’s the landlord) |
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· Must a commercial tenant, who has agreed to make repairs, bear theexpense of cleaning up environmental hazards on the leased premises? |
In long-term leases, yes. |
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What is a net lease? |
· A “net” lease is common in long-term commercial leases,especially of entire buildings. o Strictly Net /Triple Net: A net lease presumes the landlord will receive a fixed rent, andadditionally the tenant pays repairs, taxes, insurance, or any other charges,other than the landlord’s income taxes. o The repair clauserequires the tenant to make all repairs, inside and out, structural andotherwise, and to comply with existing improvement requirements by law. o The lease is not‘net’ in that the tenant agrees to keep up the property and gambles on thevalue of the location and the improvements being economically rewarding insteadof a detriment. |
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COMMON LAW: under a commercial lease, does the covenant to repair property include the obligation to rebuild structures destroyed during the lease term? |
At common law, a lessee’s covenant to repair property included an obligation to rebuild structures destroyed during the lease term, regardless of the lessee’s fault in causing the destruction. (Under the covenant to return the leased property in the same condition as it was at the time of the letting, often combined with a covenant to repair, also imposed an obligation to rebuild, unless the lessee limited the covenant.) (This rule arose because, at common law, the landlord conveyed an interest in the land to the tenant, who became the “owner” for the lease term. Agricultural improvements were merely incidental at the time. Damage to a house or structure still rendered the land tillable.) |
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What is the modern trend for a commercial lease - is there a covenant to repair property include the obligation to rebuild structures destroyed during the lease term? |
Jurisdictions are split over whether a general repair and delivery covenant requires a tenant to rebuild where the tenant is not at fault. Some states have modified the rule by statute. Some courts have refused to apply the common law rule because one cannot repair that which does not exist, which would be creating something which did not exist before. A repair would be a partial restoration. |
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What is an assignment? (common law) |
Transfer for the balance of the lease term: assignment. In other words, in an assignment one transfers his whole estate without reserving a reversionary interest to himself, and a privity of estate is immediately created between his transferee and the original lessor. If you reserve any reversionary interest (transfer back at some point in the lease term, then a sublet) if the transferor retains or reserves any reversionary interest, the privity of estate between the transferee and the original lessor is not established and there is no assignment. |
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What is a sublease? |
tenant conveys the leasehold estate to a newtenant who takes responsibility for a period of the lease and is responsible tothe first tenant |
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Privity of estate |
the landlord transfers the property to the tenant during the lease. Privity of estate moves to the second tenant during an assignment. Landlord could look to first tenant for rent if the first tenant is retained as a surety. |
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Privity of contract |
The tenant has the abilityto contract for a sublease or assignment. |
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If a T1 transfers her interest inthe leasehold to T2, reserving the right to reenter if T2 does not performtheir obligations, |
the courts are split on whether that makes this an assignment or a sublease |
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Under the common law, if the lease is silent, does the tenant have the right to sublet or assign the lease? |
Because there is a public policy againstrestraints on alienation, if a lease is silent on the subject, a tenant mayfreely sublease or assign. Restraints on alienation are permitted in leases, but are looked upon with disfavorand are strictly construed. If a clause in a lease is susceptible of twointerpretations, public policy favors the interpretation least restrictive ofthe right to alienate freely. |
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Percentage rent clause |
percentage rental in addition to the base rental based on profits |
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What is the exception to the common law rule about assignments when the lease is silent? |
An implied covenant limiting the right toassign will often be found in those situations in which it is evident that thelandlord entered into the lease in reliance upon some special skill or abilityof the lessee which will have a material effect upon the fulfillment of thelandlord's reasonable contractual expectations. |
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What is a silent consent clause? |
A silent consent clause provides that the premises may not be assigned or sublet without the written consent of the lessor.
In a silent consent clause requiring a landlord's consent to assign or sublease, there is no standard governing the landlord's decision. Courts must insert a standard. The choice is usually between requiring the landlord to act reasonably when withholding consent, or permitting the landlord to act arbitrarily and capriciously in withholding consent. |
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Covenants (provisions of acontract) that run with the land |
repairs, maintenance or minor repairs, rent payment, insurance, duty to pay property taxes, other obligations where the landlord gets the benefits. Tenant may get benefit of landlord expressly undertaking / law imposing repairs, maintenance, habitability or suitability. |
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Does assignment give privity of estate to the new tenant? |
Yes - for all covenants that run with the land – New tenant has to have notice of the obligations. Covenants that touch and concern the land – must sufficiently relate to the premises. New tenant wont have to paint tenants portrait but would have to maintain premises, pay rent, insurance, property taxes, etc. Must be an intent on the original parties that these covenants run to successors. Nothing personal. Landlord has PK with the first tenant. |
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IF there is an assignment, does the landlord have privity of contract with the assignee? |
No, only with the first tenant. |
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If a holdover tenant holds over because they are negotiating a new lease, what is the duration of this new tenancy? |
When a landlord treats a holdover tenant as a tenant rather than a trespasser, a question arises about the duration of the tenancy. The courts look at the length of the original lease and the manner in which rent was reserved. Month-month, year-year, etc. Most commonly month-month. |
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What is summary eviction? |
Every states has a statuteallowing a landlord to evict a holdover (trespasser) tenant or a lease defaultobligation tenant. (most common failure to pay rent) called summary eviction bcthey are intended to go quickly and not get tied up in court. In TX it is 3days. Sometimes they are called forceable detainer, forceable entry and detainerstatutes. Tenant now wrongfully on the premises when originally rightfully onthe premises. |
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When a tenant holds over, what are the landlord's remedies? |
Treat tenant as a trespasser: summary eviction (or threaten to treat as trespasser to get the tenant to sign the renewal orleave.) Or he can treat the holdover as a tenant for a new term The court will follow the intention of the parties |
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What is self help? |
Changing the locks and seizing / throwing property off the premises Modern rule; landlord may not engage in self help and must use the summary eviction process to evict tenant under a terminated lease. Exclusive nonwaivable means by which the landlord may recover the property. Some state do permit self help under the common law rule TX residential tenancies can only be terminatedby summary eviction, commercial leases you can use self help |
