Leasehold Estates Flashcards
What is a leasehold and the different types
A leasehold estate is an estate in land, under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion).
There are four leasehold estates:
1) Term of years
2) Periodic Tenancy
3) Tenancy at Will
4) Tenancy at Sufferance
GA Leasehold Estates
Any lease less then five years conveys only a usufruct, unless the lease provides otherwise. A usufruct is a contractual privilege or license to use another’s property rather than an estate in land.
A usufruct is not subject to taxation and sale.
Term of Years
This is a lease for a fixed, determined period of time. (whenever there is a termination date, it is a term of years lease)
A term of years terminates automatically at its end date. No notice is required for termination.
Other Ways a Term of Years may Terminate
Beach of Lease Covenant - most leases reserve the landlord a right of entry, which allows them to terminate the lease if the tenant breaches any of the lease covenants
Failure to Pay Rent - Many jurisdiction allow a landlord to terminate the lease upon the tenant’s failure to pay the rent, even in the absence of a reserved right of entry
Surrender - A term of years may terminate if the tenant surrenders the tenancy and the landlord accepts. (same requirements for creation of a lease are required for a surrender)
How to Create a Term of Years
A term of years is usually created by a writing. A term of years more than one year must be in writing to comply with the statute of frauds.
GA Creation of Term of Years
In GA, an term of years, which passes a leasehold estate to the grantee is created by:
1) the express intent of the parties to create such an estate rather than an usufruct; or
2) a lease of at least five years.
Periodic Tenancy
A periodic tenancy is a lease which continues for successive intervals until either the landlord or tenant gives proper notice of termination. (continues until properly terminated)
Creation of Periodic Tenancy
Express - the periodic tenancy can be created expressly
By Implication/Operation of Law :
1) the lease mentions no duration, but provision is made for the payment of rent at a set interval
2) an oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered
3) In a residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered
Termination of Periodic Tenancy
Because a periodic tenancy is automatically renewed until terminated, notice (usually written) must be given.
At common law, notice must be at least equal to the length of the period, unless otherwise agreed.
However, in a tenancy of year to year or greater, only six months notice is required.
Tenancy at Will
This is a lease for no fixed duration which is terminable at the will of either the landlord or tenant.
Creation of Tenancy at Will
Generally, a tenancy at will must be created by an express agreement that the lease can be terminated at any time.
Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat it as an implied periodic tenancy.
If the lease gives only the landlord the right to terminate, a similar right will be implied in favor of the tenant. However, if only the tenant has a right to terminate, a similar right will not be implied in favor of the landlord.
IN GA - when no time is specified for termination, it is construed as a tenancy at will
Termination of Tenancy at Will
in theory, a tenancy at will can be terminated by either party at any time. However, most states require notice and a reasonable time to vacate.
IN GA - to terminate a tenancy at will, the landlord must give 60 days notice, while the tenant must give 30 days notice.
GA Termination for Violence or Stalking
In GA, a tenant who is a victim of family violence or stalking may terminate a residential lease in 30 days by giving written notice to the landlord with a copy of a family violence protection order or stalking order issued to protect the tenant or the tenant’s minor child.
Tenancy at Sufferance
A tenancy at sufferance is created when a tenant wrongfully holds over (remain in possession past the expiration of the lease)
The wrongdoer obtains a leasehold estate to permit the landlord to recover rent
Termination of Tenancy at Sufferance
A tenancy at sufferance lasts only until the landlord either evicts the tenant or elect to hold the tenant to a new tenancy. No notice of termination is required.
IN GA - it takes very little to convert a tenancy at sufferance into a tenancy at will. Anything that indicates the landlord’s permission for the tenant to stay on the property will have this effect.
