Property: Landlord Tenant/assignments & Subleases

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Estate for years

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The key phrase is SPECIFIED TIME. This estate must specify TWO dates: a definite beginning date and a definite end date. Any tenancy for years over one year must be in writing. One year tenancy can be oral. No notice is required between landlord and tenant to terminate the tenancy for years.

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Periodic Tenancy

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Repeating. This estate rolls on and on, repeating itself for the period specified in the grant until one party gives proper notice.

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Creation of Periodic Tenancy; Express Agreement/Implication

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Express Agreement, By implication: No agreement as to duration - if lease doesn't speficy then it is presumed to be a periodic tenancy measured by the rent payment.

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Creation of Periodic Tenancy: Operation of Law

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First: Oral lease that violates the Statute of frauds - Landlord's acceptance of rent check results in a periodic tenancy. The period covered by the rent check that the landlord accepts determines the period of the tenancy. Second: Holdover Tenant When landlord accepts the rent check, a periodic tenancy is created for the period specified.

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Periodic Tenancy Termination

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Either party can terminate the periodic tenancy by giving proper notice. Must satisfy two criteria. 1) Enough time (equal to the length of tenancy except year to year -= 6 months. 2) Effective date: To be valid the effective date specified in the notice must be at the end of the tenancy.

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Tenancy at Will

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Key is that either party can terminate this tenancy any time by giving the other party proper notice of termination and a reaosnable time to vacate the premises.

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Tenancy at Will: Temrination by operation of law

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Look for Death of either party, Waste by Tenant, Assignment by tenant, transfer of title by landlord, lease by landlord to 3rd party.

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Tenancy at Sufferance:

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Arises only when the tenant has bare possession of the propery when the tenant wrongfully holds over. The landlord has two options 1) sue to evict 2) impose a new periodic tenancy - If old tenancy was for less than a year than the new tenancy will be measured by the period covered by the rent payment. In residential, usually month to month, commercial, if old was year or more, landlord may impose year to year.

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Raised Rent situation

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If the landlord gives notice of the increase in rent before the expiration of the lease, then landlord may properly demand payment of the higher rent amount if the tenant holds over.

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Duties of the Tenant

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Duty to pay rent, Duty to maintain the premises

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Duty to maintain the premises

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If lease is silent, tenant is still subject to common law duty not to commit waste. Lease includes Tenant covenant to repair - modern majority view is that once the tenant covenants to reapir, the tenant is liable for everything - including ordinary wear and tear - unless parties' agreement expressly excludes this responsibility from the tenant's reapir covenant.

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Landlord Remedies for tenant duties

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Tenant fails to pay rent - all states allow the landlord to sue for damages and to terminate the lease, thereby evicting the tenants. Unjustifiably abandons - two options 1) landlord accepts the tenant's offer of abandonmnet, tenant no further obligation. 2) landlord relets premises holding tenant liable for deficiency. (Duty to mitigate)

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Duties of the Landlord

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Duty to deliver possession of the leased premises, implied warranty of fitness or habitability (residential only), implied covenant of quiet enjoyment.

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Duties to deliver possession of the leased premises

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Landlord must deliver possession of the leased premises to the tenant when the lease begins. If landlord cannot deliver actual possession, the landlord is in total breach.

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Landlord Duty regarding condition of leased premises

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CL: No duty to deliver in habitable condition. Modern: implied warranty of fitness or habitability for residential only. Must be reasonably sutied for residential use.

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Tenant's remedies for the Landlord's Breach of the implied warranty of habitability

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1) tenant can move out and end the lease or 2) Tenant can stay on the property and sue for damages.

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Implied Covenant of Quiet enjoyment

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EVERY lease includes the landlord's implied promise not to interfere with the tenant's quiet enjoyment. Landlord breahc includes Total Eviction, Partial Eviction and Constructive Eviction

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Partial Eviction

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occurs when the landlord physically excludes the tenant from only some portion of the leased property, in whcih case tenant can stay on what's left and stay for free. May also occur when some third party holds paramount title, retakes the propery and physically excludes tenant from that portion of the premises. Here the rent is proportionately reduced to reflect amount taken.

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Constructive eviction

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occurs where landlord fails to provide some service that the landlord is obligated to provide and that failure makes the property uninhabitable. Three requirements 1) must be landlord's failure to provide some service, not some 3rd party failure. 2) must be substantial interference with the tenant's quiet enjoyment, 3) Tenant must abandon within a reasonable time.

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Assignment and Sublease

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Assignment transfers all. Sublease transfers part.

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Key to answering assignments

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A lease involves both of the following 1) a contract creating privity of contract between the parties to the lease agreement. 2) A conveyance of an estate, of an interest in land, thereby creating privity of estate between the parties. 3) These are separate and independent grounds for liability on lease obligations

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Assignment: Liability of successive assignees for payment of rent

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The general rule is that a tenant is liable to the landlord for rent if there is either privity of contract or privity of estate.

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Privity of Estate

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Exists only between present landlord and present tenant

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Privity of contract

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Only exists where there is evidence of an agreement between the Landlord and the particular Tenant from whom the Landlord seeks to recover the rent.

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Assignment: Assignee's liability on other lease covenants

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Promise to pay rent always runs with the land. Other covenants - general rule is that a covenant will run with the land if it touches and concerns the land. Common sense approach. If performance makes the land more valuable or useful, then covenant touches and concerns the land.

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Liability of successive Landlords on the Lease obligation

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Where the original tenant sues the original landlord, the original landlord continues to be liable to origina ltenant because of privity of contract. On the other hand, the successor landlord may be laibilt to the original tenant if there is either privity of contract or privity of estate ad the lease obligation to be enforced runs with the land.

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Sublease

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The geneal rule is that the Landlord can recover rent from anyone with whom he is in privity (either estate or contract). In the cae of a sublease the sublessor keeps the estate; the estate is not transferred to the Sublessee. Generally speaking, the Sublessee will not be liable to the Landlord on any of the lease covenants, but the Sublessor continues to be liable.

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Non-Assignment Clauses

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This is a clause in the lease that says the tenant may not assign or sublet without the express consent of the landlord. Today all courts say that such a clause is valid and enforceable. Strictly construed so a non-assignment clause will not brohibit a sublease and vice versa. Violation creates a voidable contract at the discretion of the landlord.

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Condemnation

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Two issues arise. Is the tenant's rent obligation excused? Will the tenant share in the condemnation award?

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Partial Condemnation

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Partial taking by eminent domain does not release the tenant from the obligation to pay full rent. In the case of a partial taking, the tenant will get an amount equal to the rent that was to be paid over the remainderof the lease term for that portion of the property that was condemned.

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Complete taking

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extinguishes the lease and the tenant is thereby excused from paying any further rent. In the case of a complete taking, the tenant will share in the condemnation award only to the extent that the fair rental value of the property exceeds the amount of rent due under the lease.

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Tort Liability of Landlord Tenant

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CL No duty imposed on the Landlord for injuries sustained on the premises during the period of lease.

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Five exceptions to Tort Liability of Landlord Tenant

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Latent Defects, Short Term Lease of a Furnished Dwelling, Common Passageways under Landlord Control, Negligent Repairs undertaken by Landlord, Public Use

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Latent Defects:

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Landlord is under a duty to disclose latent defects which the landlord either knows or has reason to know of.

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Shrot Term Lease of a Furnished Dwelling

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The rental of a furnished dwelling for a short term makes the Landlord liable for defects, even if the landlord neither knows nor has reason to know of such defects. Short term = 3 months or less

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Common Passageways Under Landlord Control

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Landlord will be liable for injuries that occur in common areas if the landlord failed to exercise reasonable care.

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Negligent Repairs Undertaken by Landlord

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Courts treat the Landlord's conduct in voluntarily undertaking to make the earlier repairs as creating the deceptive appearance of safety and the courts treat this conduct as negligence.

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Public Use Exception

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Three requirements to invoke 1) Landlord must know (or should) of major defects, 2) Landlord must know (or should) tenant will not fix the defect 3) Landlord must know (or should) that the public will be using the premises.

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Tenant's tort liability

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Tentant is always liable to a third party invitee for negligent failure to correct dangerous conditions on the leased premises, regardless of whether the landlord may be held liable as well.