I, estate in land, D. NON-FREEHOLD ESTATES (LANDLORD-TENANT) Flashcards
TYPES OF LEASEHOLD ESTATES
1. Tenancy for Years
KEY PHRASE to remember is:
writing?
2, periodic tenancy?
specified time
doesnt have to be for “years”
Barney transferred the farm to Ted for a period from June 1, 2013 to June 5, 2013.
SOF any TFY more than 1 yr must be in writing
1 yr oral is ok
key words is repeating
a. Creation of the Periodic Tenancy
1, Barney said, “Have we got a deal?–five year lease with rent at $1000 a year.” Ted replied, “We’ve got a deal, five years at $1000 per year.”
Is this a tenancy for years?
What if Ted sends Barney a check for $1000 and Barney accepts it?
2, Tenant held over after the expiration of her one year lease on her house, but sent another month’s rent check to the landlord, who cashed it.
There are three ways to create them: by express agreement, implication, or operation of law.
Periodic tenancy by express agreement – the agreement must specifically state the period (month-to-month; year-to-year, etc.)
Periodic tenancy by implication – where lease is silent as to its duration but a periodic tenancy can be implied by the terms given. If the lease does not specify a fixed time or a defined period, then it is presumed to be a periodic tenancy measured by the rent payment
Periodic tenancy by operation of law –watch for two situations:
1, tenancy for years violating the SOF is not TFY
Note: Acceptance of rent by the landlord creates a periodic tenancy by operation of law, even though the oral lease itself violates the S/F.
The period is not determined by the invalid oral agreement but by the period covered by the rent check landlord accepted.
2, the holdover case: the tenant stays after expiration of the lease and the landlord accepts rent.
Note: If holdover tenant sends the landlord a check for another period’s rent, and the landlord accepts it, there is a new periodic tenancy by operation of law.
b. Termination of the Periodic Tenancy
1) Proper Length of Notice:
Year-to-Year: 6 months notice
Less than one year:
length of the period but up to 6 months
2) Proper Termination Date: the tenancy must end on the last day of the period (notice must say end on the last day otherwise valid)
***TEXAS ONLY: By statute the required notice to end any periodic tenancy is 30 days and the notice does not have to be given so that it will end on a period ending date. The statute allows for proration of rent.
- Tenancy at Sufferance
a. Action of the Landlord:
Not a true tenancy! This is the bare possession of a holdover tenant. At Landlord’s sole option, Landlord can either –
Hold Tenant as a wrongdoing trespasser and sue to throw Tenant off the property and recover damages for the holdover; or
Impose new periodic tenancy on T. For what period?
1) For residential property, the new period will
always be month-to-month.
2) For commercial property, the new period is determined as follows:
–If the old, expired tenancy was for a year or more, the new tenancy is year-to-year.
–If the old tenancy was for less than a year, new tenancy is measured by the rent period of the old tenancy.
A Landlord cannot impose a new tenancy on holdover T if it is not reasonable. If there is a holdover T of just a few hours, or if T was holding over due to circumstances beyond T’s control, then L cannot impose new tenancy.
DUTIES OF LANDLORD AND TENANT 1. Tenant Duties & Landlord Remedies
If lease is silent on tenant’s duties, tenant must:
What happens if the premises are destroyed by not fault of the tenant?
If Tenant fails to pay rent
If Tenant unjustifiably abandons the leasehold
pay rent and not commit waste
Unlike other repair and habitability issues, if the tenant damages the property or makes substantial changes to the leased property, the tenant will be required to pay for damages
tenant can terminate the lease and won’t be responsible for repair
Landlord can sue both for damages and to evict the tenant
Landlord has two choices:
Treat abandonment as an offer of surrender and accept the offer by retaking the premises; thus ending T’s liability as of that date.
to relet the premises on Tenant’s account and hold Tenant liable for any deficiency ( mitigation of damages).
- Landlord Duties & Tenant Remedies
a. Possession
The Landlord must give the T actual possession of the premises when the lease begins.
b. Condition of the Premises
The Landlord must deliver residential premises in a habitable condition:
–There is an implied warranty of habitability in residential property: Landlord must provide property that is reasonably suited for residential use.
–If Landlord breaches the implied warranty, then Tenant has two options (common to all states):
1, move out and terminate the lease
2, stay and sue for damages
TX: There is no common law implied warranty of habitability in Texas; there is a statutory requirement that landlords repair conditions that materially affect the physical health or safety of an ordinary tenant. This warranty is almost impossible to waive. The statute provides a very limited exception.
If the Landlord fails to comply and the tenant properly utilizes the statute, the tenant can move out, stay and repair and deduct the cost of the repair, or sue the landlord.
Also note, in Texas commercial leases have an implied warranty of suitability covering latent defects in the essential facilities of the leased property. This implied warranty may be waived by agreement of the parties.
c. Implied covenant of quiet enjoyment
- Landlord Duties & Tenant Remedies
c. Implied covenant of quiet enjoyment
In every lease, Landlord makes implied promise he/she will not breach this covenant. This covenant may be waived. If not waived, there are three ways the Landlord can breach:
1, total eviction:
terminate the lease and end T’s obligation to pay rent
2, partial eviction
***doesnt terminate the lease; T can stay and pay no rent
if landlord mistaken as to the amount of land that is rent (part of it doesnt belong to him) then T pays discounted rent
3, constructive eviction
where landlord’s act or failure to provide some service that he has a legal duty to provide makes the premises uninhabitable.
three requirements must be satisfied:
a) Landlord or landlord’s agents must cause the injury (not others)
b) Must be a substantial interference with the covenant of quiet enjoyment rendering the premises uninhabitable.
c) The tenant must vacate the premises within a reasonable time after the breach or will otherwise lose the right to do so.
FIXTURES
Rule: If the attached item became a fixture, the item can not be removed by either the seller or a tenant.
The key to determine if something is a fixture: intent, did she who installed intended item to stay as fixture
if there’s an agreement regarding the matter then the agreement controls. If no agreement, look at four facts:
1. Degree of attachment of the item– The more that has to be done to attach it to the property, the more likely the intent was that it stays.
2. general custom with this item – Is this the type of thing that sellers or tenants normally take when they leave?
3. Degree of harm to the premises on removal.
Tenants are favored: if tenant can remove the item without substantial damage to the premises, then courts allow an inference that there was no intent that the item was a fixture.
4. trade fixtures, which are chattels used in a trade or business, and they are not fixtures.
