Code III - Leases Flashcards
Lease
contract where lessor gives the use of a thing for a term to a lessee in return for a rent
Elements of a Lease
- consent of the parties
- the thing
- the rent
The thing
all things susceptible of of ownership (except those that cannot be used without being destroyed) may be the object of a lease
The Rent
must be CERTAIN or DETERMINABLE by method agreed on by the parties (need not be money)
Form requirement
NONE even for immovables
Lease and Public Records Doctrine
unrecorded leases are NOT enforceable against 3ps
Notice of lease may be recorded instead of lease, must contain:
1. names, addresses, and signatures of the parties
2. date of execution
3. brief description of leased property
4. The term
5. any renewal or purchase options
6. reference to any options, rights of first refusal, or other agreement of the lessor to transfer the leased premises
exceptions to public records doctrine
unrecorded lease of immovable may be enforced against purchaser who:
1. purchases the leased thing “subject to” unrecorded leases or assumes the lessor’s obligations under the lease
2. Accepts rent from the lessee of an unrecorded lease (ratifies the lease)
Types of Leases
- Residential = thing to be occupies as a dwelling
- Agricultural = a predial estate to be used for agriculture
- Mineral = for production of minerals
- Commercial = used for business or commercial purposes
- Consumer = movable intended for the lessee’s personal or familial use outside his trade or profession
Application Fee in Residential Leases
Lessor must give written notice of:
1. amount of fee
2. does lessor consider credit score, employment hist, crim hist, or evicition records
3. applicant may share a statement explaining applicant has experienced financial hardship from disaster or emergency (COVID, Hurricane)
Lease Term Requirement
Must have a term
Perpetual leases INVALID
need NOT contain precise term to be valid
No term, law will provide one
Lease with indeterminate Term
Ag lease = year-to-year
non-ag lease of immovable OR residential lease of a movable = month-to-month
non-residential lease of movables = day-to-day
Tacit Reconduction
lease with a FIXED term continues if possession remains after certain amount of time after conclusion of fixed term without opposition of lessor
continues under same provisions
treated as a lease with an indeterminate term
Time Periods for Reconduction
Ag Leases: 30 days
Non-Ag: 1 Week
fixed terms equal to or less than one week:1 day
Term of Reconducted Lease
**Ag Lease: ** Year-to-Year
Non-Ag: month-to-month when the lease term is a month or longer;
day-to-day (day - month);
equal to expired term (< day)
Termination of Lease w/Fixed Term
at expiration of the term
Termination of Lease w/ indeterminate Term
terminated by either party by notice
Time for Notice of termination for lease
Must be written for immovables or residential movables; other may be oral
- 30 days before end of period if term longer than a month
- 10 days end of month for month-to-month
- 5 days for week - month
- any time for term less than a week
Loss or Destruction of Leased thing
if lost or totally destroyed absent fault of anyone, lease terminated and neither owe
if partial loss or destruction and lessee NOT at fault may obtain either diminution of rent a dissolution of the least
If lessor at fault lessee also may demand damages
Lessor’s Obligations
- deliver the thing
- Maintain the thing
- protect the lessee’s peaceful possession of the thing
Delivery
delivered at agreed time in good condition (fit for its intended use)
Lessor’s Maintenance Obligation
must make all repairs necessary to maintain the thing in a condition suitable for the purpose for which it was leased
If lessor refuses Lessee may make the repairs and demand reimbursement or deduct the cost from the rent
Lessee’s Maintenance Obligations
- Repairs caused by his fault or persons with his consent
- remedy deterioration resulting from his use (exceeding normal or agreed upon use)
Warranty for Vices and Defects
liable for all that prevent the thing from being used for its intended purpose that do not arise from the lessee’s fault
Irrelevant when appeared or knowledge
Waiver of Warranty against Vices and Defects
must be clear and unambiguous and brought to the attention of the lessee
ineffective to extend they:
1. pertain to vices or defects of which the lessee did not know and lessor knew or should have known
2. Violate rules prohibiting advance limitations of liability for intentional acts, acts of gross fault, or physical injury
3. Residential and consumer leases only seriously affect health or safety
Delictual Obligations
lessor can contractually modify rules of warranty for vices and defects having lessee assume responsibility for the condition of premises
Relieves lessor so long as
1. injured person derived his right to be on the premises from the lease and
2. lessor neither knew nor should have known of the defect
Lessee’s activities
owner-lessor with FULL knowledge of the potentially harmful effects of the lessee’s activities on the property is answerable for the damages the lessee causes
Lessee’s duties
- pay rent
- use as a prudent administrator according purpose
- return the thing as it was delivered except normal wear and tear
Changing use of Misuse of Property
lessor may get injunctive relief, dissolve the lease, and recover damages to rectify violations of a lessee’s duties
Failure to Pay Rent
- sue to dissolve the lease and regain possession; OR
- demand specific performance
Either case may recover accrued rent
Acceleration of Rent
May not collect rent not yet due
Only if lease contains an acceleration clause
Reletting Premises
lessee abondons, lessor has right to retake possession and relet as mandatary
lease is not terminated and the lessee is NOT relieve of obligations under the contract
Right to sublease, assign, or encumber
lessee can sublease, assign, or encumber their rights under the lease UNLESS EXPRESSLY prohibited in contract
any provision prohibiting one deems to prohibit the others unless stated otherwise
Assignment vs. Sublease
Assignment the assignee promises to fulfill the assignor’s obligation including paying rent to lessor (both original and assignee have promised to lessor)
Sublease is a transfer of right of occupancy, sublessee pays lessee who remains bound to the lessor
Abuse of Right
lessor cannot abuse right to reject a proposed assignment or sublease
predominant intent to harm the other party
Lessee’s right to Improvements
Right to remove (must restore to former condition)
Lessee Failure to Remove Improvements
lessor may
1. appropriate ownership and pay lessee the lesser of costs or enhanced value
2. demand removal within reasonable time
3. If failure to remove
- remove at lessee’s expense
- take ownership w/o payment
Security deposit
must be returned within one month of termination of the lease
lessor may retain all or part for unreasonable wear and tear
if lessor fails to return within 30 days after written demand lessee has right to recover the amount of the deposit plus greater of $300 or twice the amount of the deposit held
