III. Non-Freehold Estates Flashcards
Four Landlord Tenant Estates
- Estate for Years (tenancy for years)
- Periodic Tenancy
- Tenancy at Will
- Tenancy at Sufferance
Estate for Years/Tenancy for Years
- Key phrase is specified time
- Must specifc two dates:
- a definite BEGGINNING date
- a definite ENDING date
- Any estate measured by a fixed period of time, no matter how short, is a tenancy for years
- STATUE OF FRAUDS: Any teancny for years over one year, must in writing
- a one year tenancy may be oral
- NOTICE: No notice is necessary to terminate a tenancy for years
- GA: Tenancy for years presumed to exist if the lease period is 5 or more years. Anything less than 5 years is presumed to be a usufruct unless lease says otherwise
Usufruct
a contractual privilige or license to use another’s property rather than an estate in land
Periodic Tenancy: Creation
Key word is repeating–rolls on-and-on until one party gives proper notice
CREATION:
- BY EXPRESS AGREEMENT
- BY IMPLICATION–no agreement as to duration–> if the lease does not specify how long the tenancy is to last, then it is presumed to be a periodic tenancy measured by rent payment intervals
- BY OPERATION OF LAW–> two situations:
- Oral Leas that violates SofF: landlord’s acceptance of rent check results in a period tenancy that arises by opersation of law, even though the lease itself violates SofF. Period covered by rent check landlord accepted detrmined tenancy
- Holdover Tenant:tenant who was on the property under a valid leas but the lease experied and now remains on property. When landlord accepts rent check from holdeover tenant, a periodic tenancy is created by operation of law for the period specified in rent check
Termination of Periodic Tenancy
Must give proper notice, which must satisfy two criteria:
- ENOUGH TIME: an amount of time equal to the length of the period of the tenancy.
- EXCEPT in year-to-yea, which generally requires only 6 months notice
- EFFECTIVE DATE: specified in the notice must be at the END of the period of the tenancy
- meaning the date, based on the tenancy, that you set out as being the end of the lease (e.g. end of the month)
Mutual agreement by the parties may add or remove the formalities of notice requirements
Tenancy at Will
Lease that can be terminated by either party at any time
- NOTICE: must give other party notice and a reasonable time to vacate the premises
- TERMINATION BY OPERATION OF LAW:
- Death of either party
- Waste by tenant
- Assignment by Tenant
- Transfer of title by landlord
- Lease by landlord to a 3P
- GA: recognizes it, but puts notice requirement:
- Landlord must give 60 days notice to terminate
- Tenant must give 30 days notice to terminate
Tenancy at Sufferance: The Holdover Tenant
- Only one situation: the bare possession a tenant has of the property when the tenant wrongfully holds over
Tenancy at Sufferance: Landlord Options
- SUE TO EVICT: sue in trespass to recover damages
- GA: landlord must provide utilities until eviction complete
- IMPOSE NEW PERIODIC TENANCY: may treat tenant as new periodci tenant
- If old, expeired tenancy <1 year, new tenancy will be measured by the period covered by rent payment
- residnetial property usually month to month
- Commercial prop, if old was a for a year or more, may impose a year-to-year
- If old, expeired tenancy <1 year, new tenancy will be measured by the period covered by rent payment
- May not impose new periodic tenancy if it is not reasoanble under the circumstnaces (e.g. van is ten minutes late moving)
Tenancy at Sufferance: Raised Rent
- If the landlord gives the tenant notice of the increase in rent before the expiration of the lease, then the landlord may properly demand payment of the higher rent amount if the tenant holds over.
Duties of the Tenant
- Duty to Pay Rent
- Duty to Maintain Premises
Tenant’s Duty to Maintain Premises
- LEASE IS SILENT: tenant is still subject to common law duty not to commit waste
- Maj view: if lease premises destoryed WITHOUT tenants fault, thenat generally given option to terminate lease
- LEASE INCLUDES TENANT’S COVENANT TO REPAIR: once there is an agreement to repair, tenant liable for everything including ordinary wear and tear unless parties expressly agree to exclude this responsibilit
- at common law, no respsonibility for wear and tear
- In GA, does not justify witholding security deposit
- DESTORY WITHOUT FAULT: not requiered to rebuilt unless the lease expressly includes this type of repair
Landlord’s Remedies against tenant when tenant fails to pay rent
- May sue for damages and to terminate the lease, therby evicting him
- GA allows 7 day grace period for tenant to pay rent
Landlord’s Remedies against tenant who unjustifably abandons
Two options:
- LANDLORD ACCEPTS TENANTS OFFER OF ABANDONMENT: treat abandonment as offer of surrender, which accepted by retaiking the premises. No further lease obligations
- LANLORD RELEATS PREMISES HOLDING TENANT LIABLE FOR DEFECIENCY: landlord must make a reasonable effort to relet property in order to mitigate tenant’s damages.
- common law, no duty to mitigate
Duties of the Landlord
- Duty to Deliver Possesion of the LEased Premises
- Landlord’s Duty Regarding Conditions of Leased PResmises
- IMplied Covenant of Quiet Enjoyment
Duty to Deliver Posession of the Leased Presmises
- Landlord must deliver possession of the leased premises to the tenant when the lease begins.
- If landlord cannot deliver actual possession, the landlord is in breach of the lease
Landlord’s Duty regarding Condition of Leased Premises
- Common Law Rule: Landlord had NO DUTY to deliver the leased premises in a habitable condition on the theory that lease involves transfer of an estate
- Modern Rule–IMPLIED WARRANT OF HABITABILITY FOR RESIDENTIAL PROPERTY (only): landlord must provide and maintain leased premises that are reasonably suited for residential use (means the premises are fit for basic human habitation usuallly judged against local buidling or safety codes)
- GA: No duty to repair unless it is a usufruct, in which case landlord must make repairds and failure to do so allows tenant to make them and then deduct from rent
- this means anything under 5 years, basically aka anything not a tenancy for years
Tenant’s Remedies for Landlord’s breach of the implied warrant of habitability
- Can move out and end the lease
- Tenant can stay on the property and sue for damages
- Many states allow repair and deduct
Retalitory Eviction
If tenant lawfully reprots landlord for violation of housing code, landlord is barred from penalizing tenant
Implied Convenant of Quiet Enjoyment Generally
- Every lease includes the landlord’s implied promise not to
interfere with the tenant’s quiet enjoyment of the leased premises.- This implied promise is included in every lease—residential, commercial, or
otherwise.
- This implied promise is included in every lease—residential, commercial, or
- Can be breached in three ways:
- total eviction
- partial eviction
- constructive eviction
Total eviction
- Completely evicting landlord from the property (throwing them off of it)
- LEASE BREACHED
Partial Eviction
- Landlord phsyciall excludes tenant from only some portion of the leased property
- tenant can stay on the property and stay for free
- OR when some 3P with paramount title, retakes prop and physically exclude tenant from that portion of leased premises
- rent reduced proprotuionatley to reflect amount taken
Constructive Eviction
- occurs where the landlord fails to provide some service that landlord is obligated to provide AND that failure makes property uninhabitable
- Three requirements:
- it must be the LANDLORD’S FAILURE, not some 3P
- there must be SUBSTANTIAL INTERFERENCE w/ tenant’s quite enjoyment of property AND
- Tenant must ABANDON within a resaonble time
- wait too long and hard to believe it’s that substantial
Assignment
Transfer all posessory rights to the property
E.g. A rents from B b/w January 1 2012-Dec 31, 2012. B assigns on September 14 the lease to C until December 31. NOTHING LEFT ON IT
Sublease
Transfer only a part of the interest
Ex. Landlord leased the apartment to tenant for one year, commencing on January 1. In May, tenant transferred the three summer months (June, July and August) to tenant two
Assignment and Sublease in Georgia
- tenant cannot transfer the usufruct without first obtaining landlord consent
- this means that in the case of a usufruct, there is no privity b/w the landlord and the assignee b/c privity of estate does not pass
Privity in Leases
All leases possess both of these types of privity:
- PRIVITY OF CONTRACT: exists between the parties at the time of formation
- PRIVITY OF ESTATE: exists between the party that owns the land and the one currently occupying it
Assignment: Liability of Successive Assignees for Payment of Rent
- Tenant is laible to the landlord for rent if there is either privty of K or Privity of estate
- Privity of estate exists only between present landlord and present tenant
- Privity of K exists only wehre there is an agreement b/w landlord and the particular tenant from whom the landlord seeks to recover rent
- For privity of contract to exist b/w landlord and an assignee, there has to be a separate contract OR an EXPRESS ASSUMPTION clause in the contract
Assignee’s LIability on Other Lease Covenants
- COVENANT TO PAY RENT always runs with the land and therefore is enforceable based on either privity of estate or privity of contract
- OTHER COVENANTS will run with the land if they TOUCH AND CONCERN the land
- i.e. if perofrmance makes the land more valuable and useful
Liability of Successive Landlords on the Lease: Tenant sues landlord
- ORIGINAL LANDLORD continues to be liable to original tenant b/c of privity of k
- SUCCESSOR LANDLORD may be liable to original tenant if there is either privity of K OR privity of estate AND the lease covenant runs iwth the land
- can also be done if there is an express assumption
Sublease: Subtenant’s Liability for Rent
- Landlord can recover rent from anyone with whom he is in privity
- In case of sublease, sublessor keeps the estate. Estate not transferred to the sublessee (means that there is no privity b/w landlord and sublesee)
Non-Assignment Clause
- clause in the lease that says tenant may not assign or sublet without express agreement of the landlord
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Validity of non-assignment clauses
- All courts say such a clause is valid and therefore fully enforceable despite being a restraint on alientation
- WIll be strictly construed (so non-assignment could allow for sublease)
- Violation is not a breach; the transfer is voidable at the option of hte landlord
Effect of Landlord’s Consent to Assignment
- Permission given once means that a non- assignment/non-sublease clause is waived altogether—unless the landlord states otherwise at the time of giving permission, i.e., at the time he consents to the transfer.
- can be done through implied means–landlord accepting check from assignee
- Courts quick to find waiver
Condemnation of Leasehold Issues: Generally
Two questions when taken through state pwoer of emminent domain:
1) Is tenant’s rent obligation excused
2) will the tenant share in the condemnation awrd
will depend on how much is taken
Partial Condemnation
- Does not release the tenant from the obligation to pay full rent.
- Tenant will get an amount equal to the rent that was to be paid over the remainder of the lease term for that protion of the property that was condemned
Complete Taking of Leasehold Property
- Complete taking extinguishes the lease and the tenant is thereby excused from paying any further rent
- tenant will share in the condemnation award only to the extend that the fair rental value of property exceed the amount of rent due under the lease
Tort LIability of Landlord
No duty imposed on the landlord for injuries sustained on the premises during the lease (unless express contract to repair)
FIVE EXCEPTIONS:
- Latent Defects
- Short term lease of a furnished dwelling
- common passageways under landlor’d conrol
- NEgligent repairs undertaken by landlord
- Public USe exception
Latent Defects
- Under a duty to disclose latent defects which the landlord either knows or has reason to know of
- Latent defect: defect that tendat does not konw of and a reasonble person in tenant’s position would not know
- Must disclosed the defect to tenant but does not need to repair
Short Term Lease of a Furnished Dwelling
- The rental of a furnished dwelling for a short term makes the Landlord liable for defects, even if the landlord neither knows nor has reason to know of such defects.
- E.g. 3months or less
Common Passageways under Landlord’s Control
- Common Area: Areas that the landlord still exercises dominion and control over.
- Landlord will be liable if the landlord failed to exercise reasonable care.
Negligent REpairs Undertaken by Landlord
- Voluntary undertaking to make earlier repairs as creating deceptive appearance of safety
Public Use Exception
Three requriements:
- Landlord must know/should know of major defects
- Landlord must know/should know tenant will not fix the defect
- Landlord must know/should know that the public will be using the premises
Tenants Tort Liability
Tenant is always liable to a third party invitee for negligent failure to correct dangerous conditions on the leased premises, regardless of whether the landlord may be held liable as well.
