Final Flashcards
Assignment
transfer of all of the tenant’s rights; assignee has privity of estate with landlord and the tenant has privity of contract with the landlord
Sublease
transfer of less than all of original tenant’s rights; no privity of contract or estate with landlord; tenant has privity of contract; subleasee can explicitly assume all obligations; right of possession is forfeited when landlord declared forfeiture of the original lease
privity of estate
covenant for all issues that touch and concern land for those that have a possessory interest; transferrable by original tenant
privity of contract
covenant to be obligated to full terms of the lease; non-transferrable by tenant
if the rent is paid to the original tenant and not the landlord, is it more likely to be an assignment or lease
lease
jurisdictional splits on what determines an assignment or sublease
- right of re-entry
- transfer of all rights/payment to tenant
- intention of the parties
is there a right to sublease/assign if the lease is silent
yes there is an implied right unless the profit from sales plays a role into the total amount of rent that is paid
if a lease prohibits assignments or subleases completely, can a tenant do it
most likely no, but some jurisdictions see it as a right
if landlord requires permission to sublease or assign - must they be reasonable
jurisdictional split
if a landlord must be reasonable in accepting a candidate for sublease/assignment, what are the factors to consider (5)
- financial responsibility
- suitability of tenant
- legality of proposed use
- need to alter premises
- nature of occupancy
landlord’s obligations at common law
quiet enjoyment, convey possession, duty to disclose issues but not fix, repair common areas, finish premises, discriminate and terminate at will; tenant was responsible for checking habitability of property; independent covenants so tenant must pay regardless of landlord’s actions
modern trend of landlord’s responsibilities
quiet enjoyment, warranty of habitability, repair all damages not caused by tenant, convey possessory interest, no discrimination or retalitory eviction; dependent covenants so tenant can stop paying if the landlord violates their covenant (although very risky)
what is quiet enjoyment
landlord or one the landlord’s behalf (including other tenants) cannot disturb the quiet enjoyment of the tenant’s possession
remedies for quiet enjoyment
constructive eviction, partial actual eviction, actual eviction
constructive eviction
landlord has deprived tenant of a beneficial use or enjoyment of property that action is tantamount to depriving tenant of use; notice is required; some jurisdictions require tenant to vacate the premises
partial actual eviction
landlord deprives tenant of physical possession of some portion of the leased property
was there a warranty of habitability at common law
no
what kinds of leases does the warranty of habitability apply to
residential, multi-dwelling units
some jurisdictions allow a warranty of suitability for commerical properties, but most do not
what is a violation of a warranty of habitability
substantial violation of health and safety codes not caused by the tenants
factors in determining the substantiality of a violation of habitability (6)
- code provisions
- nature and seriousness of violations
- impact on health and safety
- length of time problem has existed
- age of building
- amount of rent
remedies for violating warranty of habitability (6)
- termination of lease
- repair and deduct
- specific performance
- rent abatement/reduction/withholding
- damages
- making landlord live there
protected classes (6)
race, religion, natural origin, sex, disability, familial status
must a landlord allow accomodations for a disabled person
yes, at tenants expense; new construction must adhere to accessibility standard
remedies for discrimination
1st refer to state/local agencies & exhaust all administrative remedies first
waste
conduct by holder of possessory interest in real property that harms value of non-possessory interest hold and that conduct reduces the value; returned in same condition minus ordinary wear and tear
damages for waster
injunction, forfeiture, damages
commissive waste
voluntary; intentionally damage and permanently reduce value
permissive waste
negligence that fail to preserve the property
financial waste
failure to pay tax or mortgage
ameliorative waste
improves value of property by greatly changing it
life tenant responsibility re waste
keep up with normal maintenance expenses, interest on mortgage, tax
tenant for years responsibilities re waste
not responsibly unless lease says otherwise
future interest holder rights/responsibilities re waste
cannot be held to pay for improvements/fixtures; rights depend on contingent estate, concerns of restoration, and assurance of return
lease
possessory interest in land
license
authorized use of land in possession of another
considerations for deciding a lease or a license (5)
- short or long term
- exclusive
- specifically designed space
- rent amount
- termination
implications for declaring license or lease (7)
- tax laws
- notice to evict/terminate
- tort liability
- statute of frauds
- eminent domain compensation
- equitable remedies
- termination potential
nuisance
nonphysical invasion consisting of an unreasonable activity that substantially interferes with the use and enjoyment of land
public nuisance
unreasonable interference with rights common to general public
who can bring a public nuisance suit
usually only public officials, but if a private citizen has suffered an injury that is different in kind than the rest, they might be able to
issues with suing for nuisance
- costly and time consuming
- judges aren’t scientists and can be hard to convince them
- remedies are limited
reasonable factors for nuisance (7)
- customary
- can it be carried on with less disturbance
- value to party engaging
- value to society
- time of day it occurs
- how long its been going on
- permitted by zoning
substantial factors for nusiance (objective test)
- financial loss
- physical damages and harm
- mental anguish
- cost and difficulty to remedy
- duration
remedies for nuisance
- balancing of burden (P pays for D to move
- permanent damages
- injunction
- injunction if D doesn’t pay damages
adverse possession
means of acquiring title to real or personal property by one who is not the legal owner, but who takes and maintains possession during statutory period (typically 21 years) during which real owner does nothing to prevent it
elements of adverse possession
open continuous exclusive actual non-permissive (hostile)
open element for AP
sufficiently apparent to true owner or at least put them on notice
continuous element of AP
more than sporadic or occasional use unless vacation home; tacking can be used if there is privity (intentional transfer with no gap)
exclusive element of AP
cannot share property with general public or owner; can allow others on as a normal owner would; can work together with someone to establish AP and be tenants in common
actual element of AP
give owner notice of extent of their claim
non-permissive element of AP split
- must be in bad faith
- must be in good faith
- intent does not matter (majority)
policy concerns for AP
- encourages bad behavior
- protects mistakes
- nullifies conveyancing errors
does landlord have a duty to mitigate tenant damages
there is an evolving duty but not everywhere; some require it to be reasonable and some require active/passive but there are jurisdictional splits
damages for landlord if tenant breaches
lost rent, cost of reletting, repairs and maintenance
how can landlord obtain damage for tenant breach
- sue every month
- retained jurisdiction
- rent acceleration
concurrent estate
2 or more people have simultaneous right to possession of same property
joint tenancy
- right of survivorship
- 4 unities
- severed by any of four unities, conveyance, mortgage, or sale
4 unities (pitt)
possession - equal
interest - equal
time - created at same time
title - created in same document
tenancy in common
default; no right of survivorship
tenancy in entirety (22 states)
- married couples with right of survivorship
- can only be severed by death of spouse, divorce, or mutual agreement
- cannot be severed by partition or involuntary separationg
lawsuit options for concurrent estates
- contribution- cotenant to reimburse others money spent on property
- accounting - one makes money and other can sue for their share (statute of anne), but subject to an offset for the maintenance
- partition- clear division of property or sale of property
what are cotenants in a joint tenancy liable for
loss of value of property, potential rents from third party minus operating, share of upkeep
not liable for rent to others minus an ouster or improvements until final accounting
are cotenants in a joint tenancy liable for repairs (necessary & unnecessary)
necessary: yes
unnecessary: split of authority
