Landlord/Tenant

Question 1

What is the difference between assignment and sublease?

Answer 1

assignment: Tenant transfers everything and holds nothing back

Sublease: Tenant transfers a portion of lease period, holding some time back.

Question 2

Is there an automatic right to sublease or assign?

Answer 2

For MBE, yes.

For Texas, no. LL must give permission.

Question 3

What is privity of estate and privity of contract as it relates to landlord suing assignee-tenant?

Answer 3

Privity of estate: if Landlord enters into a lease with Tenant 1 and then Tenant 1 assigns lease to Tenant 2, then privity of estate exists between LL and T2 only because there is a conveyance.

Privity of contract: if Landlord enters into a lease with Tenant 1 and then Tenant 1 assigns lease to Tenant 2, then privity of contract exists between LL and T1 (always) because they are parties to the contract.

Question 4

Why is determining whether there is privity important?

Answer 4

tenant is liable to LL if there is either Privity of estate or privity of contract.

Ex. rent

Question 5

When do covenants follow the assignment?

Answer 5

In addition to rent, if they touch and concern the land (e.g. if performance of covenant makes land more valuable or more useful)

Question 6

Is landlord or successor landlord liable to Tenant?

Answer 6

Situation: T sues landlord or successor landlord who was assigned the lease from another landlord

Original landlord: liable to T because of privity of contract

Successor landlord: also liable, assuming lease covenant touches and concerns the land and there is either privity of contract or privity of estate

Question 7

Are sub-lessees (as opposed to assigness) liable to landlord?

Answer 7

No, because there is no privity of contract and no privity of estate.

Question 8

What happens if the lease is contains a non-assignment or non-sublease clause?

Answer 8

It is valid, but narrowly construed (e.g. non-assignment clauses don’t apply to subleases and vice versa).

The assignment sublease becomes voidable, with LL’s choice whether to enforce.

Question 9

What if there is a non-assignment/sublease clause and then LL gives her permission for an assignment or sublease?

Answer 9

The clause is waived for all time, unless the LL states otherwise.

*Waiver can be explicit or implicit (e.g. acceptance of rent)

Question 10

What are restrictions on security deposits?

Answer 10

Landlords cannot deduct charges from normal wear and tear

• most states, but not TX, limit the security deposit amount

Question 11

How do you determine whether something is a fixture?

Answer 11

Incorporated into the structure.

(e. g. bricks and concrete are not, chairs are)
* look to whether it could be removed easily without significant destruction

Question 12

How do you determine whether something is a fixture in common ownership?

Answer 12

Situation: person who owns the chattel also owns (all or in part) of the land

Look to whether it was the intent of the common owner who brought the chattel onto the property to make it a fixture or to instead to keep it as his property.

• if there’s an agreement, then the agreement controls

Question 13

How do you determine whether something is a fixture in divided ownership?

Answer 13

Situation: person who owns and installs the chattel does not own the land (e.g. tenant installs furnace in home she is renting)

Use same test as common ownership e.g. whether it was intended to be fixture or just temporary (note: typically items used in tenant’s trade or business are fixtures)

*if there’s an agreement, then the agreement controls

Question 14

When must the chattel be removed?

Answer 14

If tenant can remove chattel: before the end of the lease

If owner can remove the chattel: before closing

Party removing chattel is responsible for damages caused by removal.

Question 15

Tenancy for Years

Answer 15

Specified time (any amount of time) must be given

e. g. “To a for 5 days”, “To A for 5 months”, etc.
* any tenancy over 1 year must meet SOF (signed against party, specific land, price)

Question 16

Periodic Tenancy

Answer 16

Repeating (e.g. week-to-week, year-to-year) until one party gives notice

Question 17

Creation of Periodic Tenancy

Answer 17

Express Agreement: agreement specifically states the repeating period

Implication: lease is silent as to period, it’s presumed to be a periodic tenancy measured by rent payment (e.g. month-to-month if rent is paid monthly)

Operation of Law: watch for oral lease violating statute of frauds and landlord accepts check (e.g. or holdover case (tenant stays after expiration of lease and landlord accepts rent)

Question 18

Termination of Periodic Tenancy

Answer 18

Termination valid only if landlord or tenant gives proper notice

If no statute or agreement given, proper length of notice:

year-to-year lease period: 6 months

less than one year lease periods: length of a period, up to 6 months

Tenancy termination must occur at the end of the period

*Texas note: by statute, required notice to end any periodic tenancy is 30 days and it does not have to end on a period ending date (proration of rent allowed)

Question 19

Tenancy at Will

Answer 19

Either party can terminate at any time, without notice

Question 20

Termination of Tenancy at Will

Answer 20

Other ways it terminates (besides at will at any time):

Death of either party
Waste by the tenant
Assignment by the tenant
Transfer of title by landlord
Lease by landlord to someone else

Question 21

Tenancy at Sufferance

Answer 21

Not true tenancy. Bare possession of a holdover tenant.

Question 22

Tenancy at Sufferance. Landlord can either:

Answer 22

• Hold tenant as wrongdoing trespasser and sue to throw tenant off the property and recover damages for the holdover; or
• Impose a new periodic tenancy on the tenant:

Residential property: new period will be month-to-month
Commercial property: new period is year-to-year if the expired tenancy was for a year or more or rent period of old tenancy if it was for less than a year

• Landlord cannot impose a new tenancy on holdover T if it is not reasonable (e.g. holdover T is just a few hours late or T holdover was not in his control)

Question 23

Tenancy at Sufferance: Removing Holdover Tenant

Answer 23

Most states prohibit self-help

*Texas rule: forcible entry and forcible entry and detainer statutes that provide landlords a quick and inexpensive process to evict holdover tenants.
Landlord must provide 3 days of notice to vacate before eviction can proceed, unless the lease calls for a different time period.

Question 24

Types of Tenancy

Answer 24

Tenancy for Years
Periodic Tenancy
Tenancy at Will
Tenancy at Sufferance