4) LLT Flashcards
lease: how to form
oral
writing (req’d for term more than 1 year)
implied (by conduct–periodic payments)
leases: kinds
1) term of years
2) periodic
3) at will
4) at sufferance
term of years: def
tenancy w fixed start and end date (dnn to be years)
term of years: how to create
only by express agreement btwn LL + T
must be in writing if more than a year
term specified by agreement
term of years: how to end
ends automatically at end of the period, no notice needed
periodic tenancy: def
set beginning date, then continues from period to period (ex m2m) w/o set termination date until proper notice is given
term: indefinite
periodic tenancy: creation
expressly, or by implication w a holdover tenant
periodic tenancy: how to end
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
periodic tenancy: terminating: timing of notice to terminate
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
tenancy at will: def
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
tenancy at will: termination
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
tenancy at sufferance: def
creatd from holdover situation (tenancy expires, but doesn’t move out) where LL dnw to keep T as periodic tenant
holdover situation: result
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
tenancy for years: rent liability
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
tenancy for years: rent liability: LL’s duty to mitigate
(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
periodic tenancy: rent liability
rental obligation up until notice is given to terminate the lease
(this includes if is a holdover turned periodic)
tenancy at will: rent liability
whatever rent is fixed in agreement that is already owed
tenancy at sufferance: rent liability
reasonable rental value of property (inc if more than lease amt)
defenses T may have to nonpayment of rent
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
T defense: LL’s failure to deliver possession: rules
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
T defense: has been evicted
T is excused from paying rent if:
1) actually evicted from all or part of property
2) constructively evicted from ALL of property
kinds of evictions
1) actual
2) constructive
actual eviction: def
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
constructive eviction: def
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(!)
constructive eviction: result
if total: defense to payment of any rent
if partial: rent reduction only (partial = certain parts of building only)
defense for T: T surrenders premises to LL: rule
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)
defense for T: destruction of the leased premises: CL vs modern
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
defense for T: destruction of premises: exception
if T intentionally or negligently caused the destruction, T is still liable for rent
defense for T: offset from an LL duty
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
implied warranty of habitability: def
majority: residential only not commercial (minority: commercial)
LL ust maintain premises in habitable condition
T’s remedies if Ll violates IWH
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
T’s defenses: other k defenses: list
1) any k defense, especially: impossibility, impracticability, frustration
2) violation of quiet use + enjoyment (implied covenant in all leases)
LL’s obligation to maintain premises: CL vs modern
CL: none (unless express promise in lease)
modern: IWH + other statutes
LL’s tort obligations
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
T’s tort obligations
T takes most of the land possessor duties (to invitees, licensees, trespassers)
T’s common law obligatons to LL
1) no obligation to repair (neither had)
2) but yes duty to avoid waste
voluntary waste: as applied to T
T has duty not to do anything intentionally or negligently that could damage property (or liable for damage)
permissive waste: as applied to T
T must take steps to gaurd against damage to property (those omissions)
ameliorative waste: as applied to T: CL vs modern
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
security deposits: kinds
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
when can LL retake property: CL vs modern
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
improvements: CL (inc exception)
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
improvements: modern
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)
LL transfers interest – who gets rent?
rent is due when rent is due – so whoever is LL on date rent is due is entitled to that rent
T’s transfer of interest: kinds
1) assignment
2) sublease
assignment: def
transfer of all interest to new party (whole remainder of rental obligation)
sublease: def
transfer of less than the entire interest (only a portion of the time left)
after transfer of interest who is liable to pay rent? assignment
orig-T still liable to LL (privity of k) (unless novation)
assignee also liable to LL (privity of estate) (unless reassigns to new assignee)
after transfer of interest who is liable to pay rent? sublease
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
why is assignee liable but not subtenant?
rent is a convenant that runs w the land
need vertical privity (privity o k or estate)
who is liable for rent? multiple transfers
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
ok to transfer interest in lease?
generally yes, interests fully transferrable
LL’s prohibition on transfer: rule
if LL writes prohibition on transfer into lease:
- -will generally be upheld
- -but narrowly construed
LL’s prohibition on transfer: narrowly construed
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
rule in Dumper’s case: def
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
