Landlord Tenant Flashcards
What is a leasehold (landlord/tenant) estate?
Estate created & governed by a lease signed between the parties.
What are the 4 types of leasehold estates?
Tenancy for years; Periodic tenancy; Tenancy at will; and Tenancy at sufferance.
Define tenancy for years.
Tenancy with a fixed starting and ending date. Also called a ‘term for years,’ ‘fixed term tenancy,’ or ‘estate for years.’
When is a tenancy for years required to be in writing?
If the lease is longer than one year, must be in writing to satisfy the SOF.
When does a tenancy for years terminate?
Automatically at the end of the fixed period or end date.
Define periodic tenancy.
Automatically renews at the end of the period with no set end date (e.g. month-to-month lease).
How is a periodic tenancy created?
Express agreement; Implication; or No explicit end date in agreement; Operation of law; Holdover tenant; Invalid lease.
Define holdover tenant.
Someone who overstays their lease without the landlord’s consent. Also called a tenant-at-sufferance.
What actions can the landlord take if they have a holdover tenant?
Refuse to accept payment from holdover tenant (tenant becomes tenant-in-sufferance and landlord can evict); or Bind the tenant to a periodic tenancy by either: Accepting rent; or Giving notice to holdover tenant.
What is the effect if the landlord accepts rent from holdover tenant?
Periodic tenancy is created for that payment period.
Can the landlord raise the rent for a holdover tenant in a periodic tenancy?
Yes, as long as the landlord gave notice to the tenant before the original lease expired.
Does leaving personal possessions behind or overstaying the lease for a few hours make someone a holdover tenant?
No, landlord cannot impose periodic tenancy.
For a holdover tenant with a commercial lease, what is the maximum new lease period that the landlord can impose?
One year.
How do you terminate a periodic tenancy?
Give notice by words or conduct a full period in advance (e.g. if month-to-month, must give one month’s notice). If period is one year, then six months notice is required. Termination is effective on the last day of the period.
What is tenancy at will and how is it created?
Tenancy with no specific term that can be terminated at any time by either party. Created by express agreement (if no express agreement, court will imply a period tenancy).
How do you terminate a tenancy at will?
At any time, either by: Advance notice by either party (typically required but not always); or By operation of law upon: Death of either party; Waste by tenant; Assignment by tenant; Transfer of title by landlord; Transfer of lease to a third party by landlord.
What are the 4 basic duties of a tenant?
Pay rent; Not commit waste (affirmative/voluntary, ameliorative, or permissive); May also include duty to repair in some jurisdictions/depending on agreement; Not use the premises for an illegal purpose; and Protect third party invitees from foreseeable dangers on the premises.
When can the tenant commit ameliorative waste (make improvements to the property)?
If it is reasonably necessary for the tenant’s continued reasonable use of the premises. Typically need to give landlord advance notice.
Does the tenant have a duty to repair (not commit permissive waste)?
Yes, to the extent reasonably necessary to maintain the premises (unless otherwise specified in the lease). No duty for normal wear and tear.
What is the effect if a nonresidential lease requires the tenant to ‘repair and maintain’?
Tenant will be liable for damages unless it was the landlord’s fault or it was significant and not the tenant’s fault (e.g. catastrophic damage due to an earthquake).
Are residential leases that require the tenant to make repairs valid?
No, landlord still has ultimate duty to repair even if lease says otherwise. Exception: no duty to repair damages caused by tenant.
Define fixtures.
Structures or materials that are permanently affixed to the property and were intended to pass with the land. To determine whether something is a fixture, ask yourself: ‘did the party intend for this to be a fixture?’ and ‘how much property damage would occur if fixture was removed?’ The more intent and damage, the more likely it is a fixture.
Can a fixture be removed?
Only if: Removal will not permanently alter the premises (i.e. property can be restored to pre-fixture condition); and It is completed in a reasonable amount of time.
If removal of fixture will substantially/permanently alter the premises, what is required?
Landlord approval. If no approval, tenant has committed affirmative waste.
