Leasehold Estates Flashcards
What is a leasehold estate?
an estate in land, under which T has a PRESENT POSSESSORY interest in the leased premises and LL has a future interest (reversion)
What are the different types of leasehold estates?
Tenancy for Years, Periodic Tenancy, Tenancy at Will, Tenancy at Sufferance
What is a tenancy for years?
tenancy that lasts for some fixed period of time (to T for 10 years); writing is required under SOF if lease is for more than 1 year
How is a tenancy for years terminated?
ends automatically at termination date (without either party giving notice); LL reserves right of entry (and terminate) if T breaches lease covenants; LL may term if T fails to pay rent; T may surrender if LL accepts (surrender must be in writing if unexpired term exceeds year)
What is a periodic tenancy?
tenancy for some fixed period of time that continues for succeeding periods until either party gives notice of termination
What is an example of periodic tenancy
month to month; rent payable on first day of each month
How is a periodic tenancy created?
- express agreement (for month to month; 2. implication (rent payable monthly); or 3. operation of law (T remains in possession after lease expires and L treats as per. ten)
How is a periodic tenancy terminated?
automatically renewed until proper notice of termination is given (usually, one full period in advance; for year, just 6 mo.)
What is a tenancy at will?
tenancy of no stated duration that lasts as long as both parties desire
How is a tenancy at will created?
express agreement that gives power of term. at any time to parties; without this agreement, ct will treat as periodic ten. (for the pleasure, as many years as T desires)
How is a tenancy at will terminated?
notice and reasonable time to quite are required (in most states) or operation of law (death, waste)
What is a tenancy at sufferance?
tenant wrongfully holds over after termination of tenancy (T’s lease expires, T continues to occupy premises)
How is tenancy at sufferance terminated?
when LL evicts T or elects to hold T over for another term (no notice of termination is required)
What is the hold-over doctrine?
When a T remains in possession after right of possession ends
What can a LL do under the hold-over doctrine?
- evict T; 2. bind T to new periodic tenancy (res. vs. comm). If LL notifies T before lease expires of increased rent, T acquiesces to new terms when holds over - even if they objected)
What are the exceptions to hold-over doctrine?
- T only remains in possession for a few hours and leaves few articles of property; 2. delay is not T’s fault (illness); or (3) seasonal lease – in these cases, LL cannot bind T to new tenancy
What is a lease?
K that governs LL-T relationship
What are a T’s duties under lease?
- duty to repair 2. duty not to sue premises for illegal purpose; 3. duty to pay rent
What does T’s duty to repair include?
T cannot damage (commit waste) the leased premises.
What are the three types of waste a T cannot commit?
- voluntary (affirmative) - T intentionally or neg. damages premises or exploits minerals; 2. permissive - T fails to take reasonable steps to protect prop. (liable for ordinary repairs, excluding wear and tear), T needs t to report other repairs to LL; 3. ameliorative - T alters property and increases value
What if the leased premises are destroyed without fault of T or LL?
neither party has a duty to restore (unless K says otherwise) but T has a duty to cont. paying rent (generally has option to term. lease)
If a residential T covenants to repair, is the LL still obligated to make repairs?
yes, generally under nonwaivable implied warrant of habit. (except for damages caused by T). But this is not the case in non-residential leases (cov. to repair is enf.)
Can the LL terminate lease if T engages in occasional unlawful conduct?
No
Can LL retain security deposit beyond damages actually suffered?
No - but can retain it if a ‘bonus” after T is evicted
What happens when T conveys (surrenders) leasehold interest back to LL?
duty to pay rent ends
What remedies does a LL have when T fails to pay rent (and stays)?
Can sue for rent or evict (unlawful detainer - authority)
What remedies does LL have if T abandons?
- surrender (treat abandonment as T’s surrender and accept, releasing T from lease; 2. ignore (minority) and hold T liable for rent; 3. re-let (majority) lease premises to new T and hold breaching T liable for any losses
Can LL engage in self-help?
No (cannot forcibly remove T, change locks, remove property, etc.)
What are the LL duties?
- deliver actual possession to T (LL in breach if not evicted a hold-over T); 2. must not interfere w/ T’s quiet enjoyment; 3. must uphold warranty of habitability (nonwaivable); 4. cannot evict in retaliation; 5. cannot discriminate
What is the implied covenant of quiet enjoyment?
implied in every lease - cannot interfere w/ T’s quiet enjoyment and possession of premises
What constitutes a breach of implied cov. of quiet enjoyment?
- actual eviction; 2. partial eviction; or constructive eviction
How do you show actual eviction (and thus breach of QE)?
LL or holdover T excludes T from the ENTIRE premises. This terminates T’s obligation to pay rent.
How do you show partial eviction (and thus breach of QE)?
T is physically excluded from PART of the premises. PE by LL relieves T of obligation to pay rent for entire premises (even if T continues to possess the rest of the premises. PE by third person w/ paramount title results in apportionment of rent (T is liable for only that which she possesses)
How do you show constructive eviction (and thus breach of QE)?
LL’s breach of duty must render the premises unsuitable for occupancy. T must prove: 1. LL breached a duty; 2. the breach subs. and mat. deprived T of use and enjoyment (flooding, absence of heat, etc); 3. T gave LL notice and reasonable time to repair; and 4. after reasonable time, T vacated
What can a T do if constructively evicted?
terminate the lease and sue for damages
Can a T who remains on premises claim CE?
No
Can a LL waive the implied warranty of habitability?
No - duties tied to local housing codes
If LL breaches impl. warr. of habit, what can T do?
- terminate lease; 2. make repairs and offset cost against future rent; 3. abate rent to amount equal to FMV in light of defects; or 4. remain in possession, pay full rent, and sue for damages
Does the implied warr. of habit. apply to commerical tenants?
No
Can a T freely transfer leasehold interest in whole or part?
Yes, unless there is an express restriction
What is a complete transfer of remaining term?
assignment
What if the T retain part of the remaining term?
transfer is a sublease
What kind of privity does an assignee and LL share?
privity of estate, not contract (original T and LL remain in privity of K)
What kind of privity does a sublessee and LL share?
neither privity of estate or K (original T remains in privity of estate and K with LL)
Is an assignee liable to LL for all covenants that run with the land?
yes - and original T remains liable too (including liable for rent and all covenants in lease)
Is a sublessee liable personally liable on any covenants in lease / can they enforce cov. against LL?
No and no. Original T remains liable for rent and all cov. in lease, and can enf. against LL.
What happens if an entire leasehold is taken by eminent domain?
T’s liability for rent is extinguished - if temporary or partial, T is not discharged from obligation (but entitled to compensation for taking - share of the award)
At CL LL had no duty to make premises safe; today there are six exceptions:
- concealed dangerous condition (latent defect); 2. common areas; 3. public use; 4. furnished short-term residence; 5. negligent repair by LL; 6. LL K’s to repair
What does the “concealed dangerous condition” exception entail?
if LL knows or should know of dang. cond. and T could not discover by reasonable inspection, LL must DISCLOSE (not repair) - will be liable if does not disclose if there are resulting injuries. If T accepts after disclosure, she assumes risk and LL is no longer liable.
What does the “public use” exception entail?
LL is liable for injuries to members of public if 1. knew or should have known of dang. conditions; 2. reason to believe T may admit public before repair and 3. fails to repair condition
What does the “furnished short-term residence” exception entail?
LL under stricter duty - liable for inj. resulting from any defect whether or not he knew of it
What does the “neg. repair by LL” exception entail?
LL who actually attempts to make repair is liable if injury results b/c repairs are done negligently or give deceptive appearance of safety
What is the modern trend regarding LL’s duty of reasonable care?
will be held liable for inj. resulting from ordinary neg. if he had notice of a defect and oppty to repair it
