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Bar Property > 4) LLT > Flashcards

4) LLT Flashcards

1
Q

lease: how to form

A

oral
writing (req’d for term more than 1 year)
implied (by conduct–periodic payments)

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2
Q

leases: kinds

A

1) term of years
2) periodic
3) at will
4) at sufferance

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3
Q

term of years: def

A

tenancy w fixed start and end date (dnn to be years)

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4
Q

term of years: how to create

A

only by express agreement btwn LL + T

must be in writing if more than a year

term specified by agreement

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5
Q

term of years: how to end

A

ends automatically at end of the period, no notice needed

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6
Q

periodic tenancy: def

A

set beginning date, then continues from period to period (ex m2m) w/o set termination date until proper notice is given

term: indefinite

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7
Q

periodic tenancy: creation

A

expressly, or by implication w a holdover tenant

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8
Q

periodic tenancy: how to end

A

LL or T must give appropriate notice of intent to terminate

notice must be in writing if lease or statute so specifies (otherwise ok oral) [moveing out wil be considered notice too]

notice must be equal to rental period, up to max of 6 mo

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9
Q

periodic tenancy: terminating: timing of notice to terminate

A

1) CL: notice must be given at start of rental period or invalid
2) now, notice valid whenever given, but doesn’t take effect until start of next rental period

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10
Q

tenancy at will: def

A

mostly by express agreement of parties

if invalid attempt to create tenancy of years that hasn’t converted to a periodic tenancy yet (bc no rent paid yet) then could be a TAW for v short time

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11
Q

tenancy at will: termination

A

any of these

1) either party decides to end it (no notice needed)
2) either LL or T dies
3) either party attempts to transfer their interest under the TaW

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12
Q

tenancy at sufferance: def

A

creatd from holdover situation (tenancy expires, but doesn’t move out) where LL dnw to keep T as periodic tenant

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13
Q

holdover situation: result

A

1) if LL wants T to stay (usu shown by accepting rent) –> periodic tenancy. modernly period = how often rent paid (usu monthly). at CL: was length of expired lease max 1 year
2) LL dnw T to stay (dn accept rent) –> tenancy at sufferance

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14
Q

tenancy for years: rent liability

A

T is liable for all of the unpaid rent on the lease

at CL, LL had to wait to sue til lease over or coudl sue periodically but only after accrued. Now, under anticipatory repudiation LL can immediately sue for full amount

but modernly, duty to mitigate on LL

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15
Q

tenancy for years: rent liability: LL’s duty to mitigate

A

(modern rule): LL must make reasonable efforts to rent property to mitigate unpaid rent T will owe. (T liable for rent difference).

If LL dn mitigate, court will reduce rent owed

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16
Q

periodic tenancy: rent liability

A

rental obligation up until notice is given to terminate the lease
(this includes if is a holdover turned periodic)

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17
Q

tenancy at will: rent liability

A

whatever rent is fixed in agreement that is already owed

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18
Q

tenancy at sufferance: rent liability

A

reasonable rental value of property (inc if more than lease amt)

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19
Q

defenses T may have to nonpayment of rent

A

1) LL fails to deliver possession
2) T has been evicted
3) T surrenders premises to LL
4) premises destroyed
5) offset from a LL duty
6) other k-defenses

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20
Q

T defense: LL’s failure to deliver possession: rules

A

majority rule: LL has obligation to deliver possession

“American rule” MINORITY: LL has no obligation to deliver possession of premises to T, sino up to T to take it

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21
Q

T defense: has been evicted

A

T is excused from paying rent if:

1) actually evicted from all or part of property
2) constructively evicted from ALL of property

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22
Q

kinds of evictions

A

1) actual

2) constructive

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23
Q

actual eviction: def

A

LL or someone acting on his behalf has physically removed T from all, or part, of the property

result: even if only from part, T is now excused from paying ANY rent

24
Q

constructive eviction: def

A

LL has allowed condition of premises to deteriorate to the point that T is essentially forced out (can include 3rd parties IF LL should have had reason to know of the interference)

substantial interference w use + enjoyment of property

T must actually move out w/in a reasonable time following the substantial interference(!)

25
Q

constructive eviction: result

A

if total: defense to payment of any rent

if partial: rent reduction only (partial = certain parts of building only)

26
Q

defense for T: T surrenders premises to LL: rule

A

if LL accepts surrender + retakes possession, this is a defense to payment

BUT doesn’t count if LL is just retaking possession for the purposes of mitigating damages! (ie rerenting)

27
Q

defense for T: destruction of the leased premises: CL vs modern

A

CL: destruction did not excuse payment of rent – T still had the land (unless T had leased only part of building, like an apartment)

now: destruction is a defense to payment of rent, whether you leased all or part of the building

28
Q

defense for T: destruction of premises: exception

A

if T intentionally or negligently caused the destruction, T is still liable for rent

29
Q

defense for T: offset from an LL duty

A

1) warranty of habitability
2) other statutory obligations (maintain running water etc)

who is suing who –> if LL is suing T for rent, habitability can be an offset. If T is suing LL, can recover damages for breach of habitability

30
Q

implied warranty of habitability: def

A

majority: residential only not commercial (minority: commercial)

LL ust maintain premises in habitable condition

31
Q

T’s remedies if Ll violates IWH

A

if LL does not:

  • -so uninhabitable T has to move out –> constructive eviction
  • -after T gives notice + reasonable time, can repair + deduct
  • -sue for damages or claim as offset
32
Q

T’s defenses: other k defenses: list

A

1) any k defense, especially: impossibility, impracticability, frustration
2) violation of quiet use + enjoyment (implied covenant in all leases)

33
Q

LL’s obligation to maintain premises: CL vs modern

A

CL: none (unless express promise in lease)

modern: IWH + other statutes

34
Q

LL’s tort obligations

A

most duties go to possessor (the land occupier duties) but LL still has duty re common passageways under LL control

also if LL leases presmises w known defective, dangerous condition not readily apparent to T, LL still liable until T has had reasonable time to inspect + repair

35
Q

T’s tort obligations

A

T takes most of the land possessor duties (to invitees, licensees, trespassers)

36
Q

T’s common law obligatons to LL

A

1) no obligation to repair (neither had)

2) but yes duty to avoid waste

37
Q

voluntary waste: as applied to T

A

T has duty not to do anything intentionally or negligently that could damage property (or liable for damage)

38
Q

permissive waste: as applied to T

A

T must take steps to gaurd against damage to property (those omissions)

39
Q

ameliorative waste: as applied to T: CL vs modern

A

CL: LL could hold T liable for cost of restoring to orig condition

now: T can make improvements to property if expressly authorized OR there is a change in circs taht allows the improvements to be made

40
Q

security deposits: kinds

A

1) true security deposit – returned to T at end of lease, minus funds to repair damage done by T
2) deposit to be forfeited in the event of default
3) deposit as advanced rent for last month

41
Q

when can LL retake property: CL vs modern

A

CL: only if T has committed material breach of lease. Then, LL could use reasonable force to retake.

Now: no force allowed. Must give notice to vacate or cure, then court evicts

no retaliatory evictions

42
Q

improvements: CL (inc exception)

A

CL: anyting affixed to land became part of land and had to stay

exception: trade fixture – if affixed to land and used in course of T’s trade/business, then ok remove unless removal would cause substantial damage to the property

43
Q

improvements: modern

A

if fixture can be removed and premises left in substantially same codition as when T arrived, then ok for T to remove (structural changes presumed not removable–nature of st has changed)

must remove before expiration of lease (exception: if T has no way of knowing when lease will terminate some js give reasonable amt of time after to remove)

44
Q

LL transfers interest – who gets rent?

A

rent is due when rent is due – so whoever is LL on date rent is due is entitled to that rent

45
Q

T’s transfer of interest: kinds

A

1) assignment

2) sublease

46
Q

assignment: def

A

transfer of all interest to new party (whole remainder of rental obligation)

47
Q

sublease: def

A

transfer of less than the entire interest (only a portion of the time left)

48
Q

after transfer of interest who is liable to pay rent? assignment

A

orig-T still liable to LL (privity of k) (unless novation)

assignee also liable to LL (privity of estate) (unless reassigns to new assignee)

49
Q

after transfer of interest who is liable to pay rent? sublease

A

orig-T still liable to LL
subt not liable to LL (no privity of anything)
sub-T liable to T privity of k

but LL can evict anyone if not receiving rent – material breach of lease

50
Q

why is assignee liable but not subtenant?

A

rent is a convenant that runs w the land

need vertical privity (privity o k or estate)

51
Q

who is liable for rent? multiple transfers

A

if multiple transfers, only orig T and current T are liable to LL for rent

middle-of-the-chain assignees not liable to LL, only to the orig T

52
Q

ok to transfer interest in lease?

A

generally yes, interests fully transferrable

53
Q

LL’s prohibition on transfer: rule

A

if LL writes prohibition on transfer into lease:

  • -will generally be upheld
  • -but narrowly construed
54
Q

LL’s prohibition on transfer: narrowly construed

A

1) to prohibit both assignment + sublease, must specifically say both are prohibited
2) IF it said LL needed to consent, then must act reasonably/good faith re consent
3) rule in Dumper’s case

55
Q

rule in Dumper’s case: def

A

if express prohibition on ASSIGNMENT in the lease, + LL either expressly or impliedly waives

then, waived for rest of the lease

unless LL specifically stated otherwise

Bar Property (9 decks)

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