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32 Cards in this Set
- Front
- Back
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PROPERTY - LANDLORD AND TENANT
§ 15.02 What Is a Leasehold Estate? |
IT is a legal interest entitling tenant to immediate possession of designated land, for either a fixed period of time or for so long as the tenant (or lessee) and the landlord (or lessor) desire.
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PROPERTY - LANDLORD AND TENANT
§ 15.03 Leasehold Estate Key distinction btw a leasehold estate and licenses or easements is |
that the holder of a leasehold estate has the right of exclusive possession. One holding a license or easement merely has a right to use the land.
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PROPERTY - LANDLORD AND TENANT
15.05 Categories of Leasehold Estates (Term of Years Tenancy) |
Endures for a designated period that is either fixed in advance (e.g., five years) or computed using a formula that is agreed upon in advance.
This tenancy automatically expires when the agreed period ends, without any notice of termination. |
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PROPERTY - LANDLORD AND TENANT
15.05 Categories of Leasehold Estates (Periodic Tenancy) |
Lasts for an initial fixed period (e.g., one month) and then automatically continues for additional equal periods until either the landlord or the tenant terminates the tenancy by giving advance notice.
The classic example is the “month-to-month” residential lease. |
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PROPERTY - LANDLORD AND TENANT
15.05 Categories of Leasehold Estates (Tenancy at Will) |
Has no fixed duration and endures only so long as both the landlord and the tenant desire.
Today most tenancies at will arise from implication, not from an express agreement. |
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PROPERTY - LANDLORD AND TENANT
15.05 Categories of Leasehold Estates (Tenancy at Sufferance) |
Arises when a person in rightful possession of land wrongfully continues in possession after the right to possession ends.
Most authorities agree that this is not technically an estate in land, but rather a convenient label. The landlord is free to evict the “tenant” at any time. |
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PROPERTY - LANDLORD AND TENANT
Fair Housing Act of 1968 |
bars discrimination based on race, color, religion, sex, familial status, national origin, or handicap in connection with the sale or rental of most dwellings.
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PROPERTY - LANDLORD AND TENANT
§ 16.03 Tenant’s Duty to Pay Rent |
In general, the rental amount and other lease terms result from private negotiation between the parties. Some jurisdictions, however, have enacted rent control ordinances that limit the amount of rent a landlord may charge and otherwise regulate the landlord-tenant relationship.
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PROPERTY - LANDLORD AND TENANT
§ 16.04 Landlord’s Duty to Deliver Possession |
Two views:
Majority /“English” view requires the landlord to deliver actual possession of the leased premises to the tenant when the lease term begins, in addition to the legal right to possession. Minority / “American” view is that the landlord need only deliver the legal right to possession, and thus has no duty to oust a holdover tenant. |
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PROPERTY - LANDLORD AND TENANT
§ 16.05 Tenant’s Duty to Occupy |
Tenant has no duty to take possession unless an express lease covenant so requires.
However, an implied covenant to occupy and operate a business will be found in a commercial lease where all or most of the rent is computed as a percentage of the tenant’s sales. |
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES The common law tended to impose the duty to repair on... |
The tenant.
If the lease was silent on the issue, the tenant had the duty to repair, except under narrow circumstances, because of his duty to avoid permissive waste. Even where the lease expressly assigned the repair duty to the landlord, the early English tenant often had little effective recourse for breach because the law viewed lease covenants as independent of each other. Thus, the landlord’s breach did not excuse the tenant from his duty to pay rent. |
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES § 17.04 Constructive Eviction occurs when wrongful conduct of the |
landlord substantially interferes with the tenant’s use and enjoyment of the leased premises.
For example, if a Minnesota law requires the landlord to supply heat to a rented dwelling during the winter, then his failure to do is wrongful conduct which renders the dwelling unusable. If the landlord fails to fix the problem within a reasonable time after receiving notice, then the tenant may vacate the premises without further rent liability under the lease. Alternatively, most states allow the tenant to remain in possession and sue for damages, while continuing to pay rent. |
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES § 17.05 Under the illegal lease doctrine, a lease of unsafe and unsanitary premises that violate the local housing code is deemed |
An illegal—and thus unenforceable—contract, allowing the tenant to withhold rent but remain in possession. This doctrine was initially adopted by some jurisdictions in the 1960s and 1970s, before the development of the implied warranty of habitability.
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES § 17.06 The Implied Warranty of Habitability: New Common Law |
Residential lease is deemed to contain an implied warranty that the landlord will deliver the premises in habitable condition and maintain them in that condition during the lease term.
For example, broken windows, leaky roofs, or rodent infestation normally render a rented dwelling uninhabitable. |
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES § 17.06 The Implied Warranty of Habitability: In general, the tenant must notify the landlord of the defect and allow... |
A reasonable time for repairs to be completed.
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES § 17.06 The Implied Warranty of Habitability: If the landlord fails to act, the tenant may |
(1) withhold rent;
(2) sue for damages; or, in some jurisdictions, (3) repair the defects and deduct the cost from rent due the landlord. Alternatively, the tenant may terminate the lease and sue for damages. |
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES § 17.07 The Statutory Warranty of Habitability |
Statutes in more than 30 states now impose a warranty of habitability in residential leases. Statutory warranty can be waived by the tenant, while the common law warranty cannot.
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES § 17.09 Fixtures |
chattel permanently affixed to the premises by the tenant was a fixture, and thus became the property of the landlord. In order for a chattel to become a fixture today, the tenant must intend for it to become a permanent part of the premises.
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PROPERTY - LANDLORD AND TENANT
CONDITION OF LEASED PREMISES § 17.08 Landlord Liability for Personal Injury |
At common law, the landlord was generally not liable for personal injury to tenants or others caused by dangerous conditions on leased premises, even if the landlord was negligent.
The modern trend, however, is to require a residential landlord to exercise reasonable care to prevent such injuries. |
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PROPERTY - LANDLORD AND TENANT
TRANSFER OF LEASEHOLD INTEREST Distinguishing Between Assignment and Sublease |
If a tenant transfers the right of possession for the entire remaining term of the lease, the transfer is an assignment.
However, if only part of the remaining term is transferred, a sublease arises. |
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PROPERTY - LANDLORD AND TENANT
TRANSFER OF LEASEHOLD INTEREST A sublease creates a |
New landlord-tenant relationship. Suppose A leases to B, and B (as sublessor) leases to C (as sublessee). Privity of contract and privity of estate remain between A and B; privity of contract and privity of estate arise between B and C.
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PROPERTY - LANDLORD AND TENANT
TRANSFER OF LEASEHOLD INTEREST An assignment creates a triangle of relationships among the |
the original lessor, the original lessee who transfers her right (the assignor), and the person who receives the right (the assignee).
Privity of contract continues between the lessor and the assignor; privity of contract is created between the assignor and the assignee; and privity of estate arises as a matter of law between the lessor and the assignee. |
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PROPERTY - LANDLORD AND TENANT
TRANSFER OF LEASEHOLD INTEREST The assignor remains liable to the |
original lessor for all covenants in the original lease, because they remain in privity of contract, absent a novation. The privity of estate between the lessor and assignee requires both of them to perform those covenants in the original lease that “run with the land,” and, as a practical matter, most lease covenants do so run. For example, suppose that A leases to B who assigns to C. If no one pays rent to A, both B and C are liable.
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PROPERTY - LANDLORD AND TENANT
TRANSFER OF LEASEHOLD INTEREST The sublessor remains liable to the |
the original lessor for all covenants in the original lease. Similarly, the sublessee is liable to the sublessor for the covenants in the sublease. However, the sublessee has no obligations to the original lessor.
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PROPERTY - LANDLORD AND TENANT
TRANSFER OF LEASEHOLD INTEREST § 18.06 Tenant’s Right to Assign or Sublease |
Tenants are free to assign or sublease their interests in theory, absent a contrary agreement. However, the vast majority of leases expressly restrict this freedom. Some lease clauses flatly prohibit transfer; others give the lessor the sole discretion to approve or deny a transfer; still others require the lessor to act reasonably in deciding whether to consent.
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PROPERTY - LANDLORD AND TENANT
TRANSFER OF LEASEHOLD INTEREST Silent Consent Clause |
Complexity arises when the lease requires landlord consent but is silent on the standard for granting consent. The traditional approach applies the sole discretion standard in this situation. However, the modern trend is to require that the landlord act reasonably in deciding whether to grant or deny consent
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PROPERTY - LANDLORD AND TENANT
TRANSFER OF LEASEHOLD INTEREST § 18.07 Transfers by Landlord The landlord’s future interest in the premises (a reversion) is |
freely transferable to third parties in almost all cases. Lease clauses restricting this right are rare.
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PROPERTY - LANDLORD AND TENANT
TERMINATION OF THE TENANCY An abandonment occurs when the tenant |
(1) vacates the premises without justification, (2) lacks the present intent to return, and (3) defaults in the payment of rent.
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PROPERTY - LANDLORD AND TENANT
TERMINATION OF THE TENANCY An express surrender arises when |
the landlord and the tenant mutually agree to terminate the lease, ending their respective rights and duties.
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PROPERTY - LANDLORD AND TENANT
TERMINATION OF THE TENANCY At common law, both the landlord and the tenant were free to terminate a periodic tenancy for any reason or for no reason. Today there are two main restrictions. |
A landlord may not terminate a tenancy for a discriminatory reason (e.g., because of the tenant’s race). Similarly, in most jurisdictions a landlord cannot engage in retaliatory eviction—usually defined as evicting a tenant in retaliation for complaining about housing conditions or taking other action to correct such conditions.
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PROPERTY - LANDLORD AND TENANT
TERMINATION OF THE TENANCY § 19.05 Self-Help Eviction - When the tenant defaults under the lease, most jurisdictions still allow the landlord to exercise self-help to |
retake possession of the premises. Some allow the landlord to use reasonable force for this purpose, while others insist that any self-help eviction must be peaceable. There is clear movement, however, toward abolishing the self-help remedy, and requiring the landlord to evict through judicial process.
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PROPERTY - LANDLORD AND TENANT
TERMINATION OF THE TENANCY § 19.07 Summary Eviction Proceedings |
Statutes in all states now offer the landlord a special, expedited proceeding to recover possession from the breaching tenant, usually called summary eviction or unlawful detainer. These actions are characterized by short deadlines and simplified procedures.
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