BAR FLASHCARDS - P3 Landlord and Tenant

Question 1

THE FOUR LEASEHOLD OR NONFREEHOLD ESTATES

Answer 1

A leasehold is an estate in land, under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion). There are four leasehold estates:
• The tenancy for years
• The periodic tenancy
• The tenancy at will
• The tenancy at sufferance

Question 2

THE TENANCY FOR YEARS
(Termination, notice, writing?)

Answer 2

This lease, also known as the estate for years or term of years, is for a fixed, determined period of time. That period could be, for example, as short as one week or as long as 50 years.

Anythign with an END DATE is TFY.

Termination is AUTOMATIC (on END date).
No NOTICE is NEEDED to Terminate.

Writing typically needed if greater than 1 year

Question 3

Tenancy for Years: Termination

Answer 3

A tenancy for years ends automatically at its termination date. Termination is AUTOMATIC (on END date).
No NOTICE is NEEDED to Terminate.

Termination upon Breach of Lease Covenant: In most leases, the landlord reserves a right of entry, which allows them to terminate the lease if the tenant breaches any of the lease’s covenants.
- Failure to Pay Rent: In many jurisdictions, a landlord may, by statute, terminate the lease upon the tenant’s failure to pay the promised rent—even in the absence of a reserved right of entry.
- Termination upon Landlord’s Acceptance of Tenant’s Surrender: A tenancy for years may also terminate if the tenant surrenders the tenancy and the landlord accepts. The same formalities required for creation of the leasehold (see below) are required for surrender (for example, if the unexpired term exceeds one year, surrender must be in writing).

Question 4

How much notice is needed to terminate a term of years?

Answer 4

Termination is AUTOMATIC (on END date).
No NOTICE is NEEDED to Terminate.

Question 5

Tenancy for Years: WRITNG REQUIREMENT?

Answer 5

Writing typically needed if greater than 1 year.

Tenancies for years are usually created by written leases. A term of years greater than one year must be in writing to be enforceable. Why? This is required by the Statute of Frauds.

Question 6

THE PERIODIC TENANCY

Answer 6

Continues for successive intervals until properly terminated.

A periodic tenancy is a lease which continues for successive intervals (for example, month to month) until either the landlord or the tenant gives proper notice of termination.
Thus, one of the hallmarks of the periodic tenancy is that it is continuous until properly terminated.

Question 7

Periodic Tenancy: CREATION - how do u create a PT?

Answer 7

EXPRESSLY: (“L to T from month to month”) or from “year to year” or from “week to week.”
IMPLICITLY: by implication/by operation of law.
- No mention of duration but rent at set intervales.
- oral term of years violating Statute of Frauds
- Holdover tenant after lease ends

Question 8

The periodic tenancy can also arise by implication, in any one of three ways:

Answer 8

• Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.
• An oral term of years in violation of the Statute of Frauds cre- ates an implied periodic tenancy, measured by the way rent is tendered.
• In a residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered.

Question 9

Period Tenancy: Termination

Answer 9

How is a periodic tenancy terminated? Notice, usually written, must be given. Remember, this is because a periodic tenancy is automatically renewed until proper notice of termination is given.

Usually, the notice also must be timed to terminate the lease at the end of a period (for example, the usual month-to-month tenancy can end only on the 30th or 31st, not the 15th).

COMMON LAW: At least equal to length of period.
Month-to-month: 1 month
Week-to-week: 1 week
Year-to-year + :
6 months at common law
1 month under RESTATEMENT.*** Bar examiner’s preferred appraoch.

By private agreement, the parties may lengthen or shorten these common-law prescribed notice provisions.

Question 10

THE TENANCY AT WILL

Answer 10

This is a tenancy of no fixed period of duration–it’s terminable at the will of either the landlord or the tenant. For example, “To T for as long as L or T desires.”
- no fixed period of duration
- Terminable AT WILL of either party (“to T for as long as L or T desires”)

Question 11

Tenancy at will: Termination

Answer 11

At will (duh!). Terminable at will of either party.
Termination: In theory, a tenancy at will can be terminated by either party at any time. But today, in most states, notice and a reasonable time to
quit (meaning, vacate) are required to terminate a tenancy at will. Alternatively, a tenancy at will can be terminated by operation of law (for example, due to death or commission of waste).

Question 12

Tenancy at will: CREATION

Answer 12

Generally, a tenancy at will must be created by an express agree- ment that the lease can be terminated at any time. Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy. If the lease gives only the landlord the right to terminate, a similar right will be implied in favor of the tenant. However, if only the tenant has a right to terminate, a similar right will not be implied in favor of the landlord.

Question 13

TENANCY AT SUFFERANCE

Answer 13

• T wrongfully holds over past lease expiration
• L proceeds to recover rent
• Terminates when L moves to evict or holds T to new tenancy.

Question 14

Tenancy at sufferance: CREATION

Answer 14

A tenancy at sufferance is created when a tenant wrongfully holds over, meaning they remain in possession past the expiration of the lease.
In such cases, we give this wrongdoer a leasehold estate (the tenancy at sufferance) to permit the landlord to recover rent.

Question 15

Tenancy at sufferance: TERMINATION

Answer 15

The tenancy at sufferance is short-lived.
It lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy.
No notice of termination is required.

Question 16

THE HOLD-OVER DOCTRINE

Answer 16

If a tenant continues in possession after their right to possession has ended, the landlord may: (1) evict the tenant, or (2) bind the tenant to a new periodic tenancy.
The length of the new tenancy generally depends on the way the rent was computed under the lease that has ended.
If the rent was computed on a monthly basis, the election creates a month-to-month periodic tenancy.
If the rent was computed on a quarterly basis though payable monthly, a quarter-to-quarter periodic tenancy is created, and if computed on an annual basis payable monthly, a year-to-year periodic tenancy is created.
No matter how the rent is computed, the maximum tenancy that can be created by the election to hold the tenant to another term is a year-to-year tenancy. The various promises made by the landlord and the tenant in the original lease become part of the tenancy for the additional term.

Question 17

If a tenant continues in possession after their right to possession has ended, the landlord may bind the tenant to a new ____ .

Answer 17

If a tenant continues in possession after their right to possession has ended, the landlord may: (1) evict the tenant, or (2) bind the tenant to a new periodic tenancy.

Question 18

Hold-over Doctrine: Commercial Tenants

Answer 18

Commercial tenants may be held to a new year-to-year periodic tenancy if the original lease term was for one year or more.
While, technically, the length of the new tenancy is based on the way rent was computed (and could be quarterly or some other time frame), if the original term was less than one year, the new tenancy is typically a month-to-month tenancy.

Question 19

Hold-over Doctrine: Residential Tenants

Answer 19

Residential tenants, however, are generally held to a new month-to-month tenancy, regardless of the original term.
If the landlord notifies the tenant before the lease expires that occupancy after the termi- nation will be at an increased rent, the tenant, by holding over, is held to have acquiesced to the new terms (even if the tenant actually objected to the new terms). Holding over equals assent.

Question 20

If Hold-Over applies… Residential tenants are generally held to a new ____ tenancy, regardless of the original term.

Answer 20

Residential tenants, however, are generally held to a new month-to-month tenancy, regardless of the original term.

Question 21

Exceptions to the hold-over doctrine

Answer 21

Watch for situations where:
(1) the tenant remains in possession for only a few hours after termination or leaves a few articles of personal property or
(2) the delay is not the tenant’s fault (for example, severe illness). In such cases, the landlord cannot bind the tenant to a new tenancy.

Question 22

LEASES

Answer 22

A lease is a contract that governs the landlord-tenant relationship.

Question 23

Dependence of Lease Covenants

Answer 23

At common law, covenants (meaning promises) in the lease were independent; that is, if one party breached a covenant (such as the promise to pay rent or to repair the premises), the other party could recover damages for that breach but the landlord-tenant relationship persisted and the lease endured.
By contrast, today, the landlord can terminate the lease for nonpayment of rent, and the tenant can terminate the lease when the landlord breaches the covenant of quiet enjoyment or the implied warranty of habitability.

Question 24

Options to Purchase

Answer 24

Options to purchase are sometimes attached to leases. An option to purchase real property is a separate contract supported by consideration that is a continuing offer to sell the land at a specified price. As long as the option is contained within the lease itself, the consideration for the lease supports the option. Because it is an interest in land, an option must be evidenced by a signed writing to satisfy the Statute of Frauds.
a. Exercise of Option: Absent a contrary provision, the option lasts as long as the lease. The method of exercise is determined by the agreement. Generally, the party granting the option may keep the consideration regard- less of whether the option is exercised; the consideration is for the continuing offer, and not money for the purchase.
b. Enforcement: Although the Rule Against Perpetuities applies to options, there is an exception for options attached to leases; so an option to purchase in a lease is enforceable even if it would otherwise violate the Rule. The usual remedy for enforcement of an option to purchase is specific performance, but damages are also available.