Leaseholds Flashcards
Term of years
Term of Years
- Expressly created.
- Written (satisfies statute of frauds).
- Extends for some specific period of time.
- Terminates automatically at the end of that period. Terminates if both parties agree, if premises destroyed, and if eminent domain. Might not terminate on death.
3 types of leaseholds
- Term of years
- Periodic tennacy
- Tennacy at will
Periodic tennacy
A.Expressly created.
B.Written (satisfies statute of frauds).
C.Customary, no specific period of time stated for lease.
D. Renews automatically unless there is 1 period notice that the lease will end. Terminates if both parties agree, if premises destroyed, and if eminent domain. Might not terminate on death.
Tennacy at will
A.Not expressly created, no valid lease.
B.Tenant took possession with landlord’s permission and pays rent.
C.Can be terminated at any time by either party (law usually requires some notice now). Usually terminates on death.
Why self help is usually forbidden
1.Courts have created a summary proceeding for eviction, usually called an unlawful detainer action.
-These provide short periods for notice, filing pleadings, and setting a trial date so as to resolve the issue as quickly as possible.
After winning this action, the landlord can get a sheriff to evict the tenant quickly.
Remedies for tenant’s abandonment (3)
1.Terminate the lease (accept surrender)
2.Sue tenant for the rent as it becomes due
Can sue for rent each month or sue for entire rent when the lease expires.
–Traditionally, no mitigation of damages was required, but now most jurisdictions require the landlord to mitigate damages by making reasonable efforts to relet the premises. (Somer)
3.
Retake possession to relet the premises on the tenant’s account
This common law remedy allows the landlord to find a substitute tenant and use the rents to offset the original tenant’s obligations.
This remedy now exists only in the minority of states that don’t already require mitigation of damages by landlord.
If the new rent does not cover old obligations or the new tenant leaves, the old tenant remains liable.
Ex. Somer v. Kridel (p.614)
Tenant backed out of lease before he started living in apartment. Third party later came and asked about renting that apartment, was turned away. Landlord sued for total amount of rent.
Held that a landlord has a duty to mitigate damages. Must treat the vacated property just like other vacant stock. Should offer evidence that apartment was shown. Tenant can rebut with evidence that good candidates were turned away.
Implied covent to put tenant in poss
English (maj) rule
English Rule
- Covenant to place the tenant in actual possession of the entire premises at the beginning of the lease.
- Is the majority rule in the U.S.
Implied covent to put tenant in poss
American rule
American Rule
Landlord is only required to put the tenant in legal possession.
Could be someone squatting, not the landlord’s problem.
Condition of breach for possesion failing
Breach occurs under the American Rule only if the landlord, someone with paramount title, or someone with the landlord’s consent is in possession when the tenant is first entitled to possession.
Breach occurs under the English Rule if anyone is in possession, regardless of the circumstances, at the beginning of tenant’s lease.
Landlord should know the status of possession before the date the tenant is entitled to possession, that the landlord is the only one who can evict, and that the landlord has the resources to proceed quickly with eviction.
Remedy for failing to put in poss.
Remedy for breach
Under both rules, the tenant may terminate the lease and receive consequential damages if landlord does not deliver possession within a reasonable time.
Term of years termination
ii. No notice needed to terminate the tenancy; it ends at the specified date.
Term of years must be______.
In writing to satisfy SOf
Periodic Tenancy-creation
Creation:
- May be created expressly: “to T from month to month”
- Or by implication:
Periodic Tenancy-creation by implication
by implication:
a. Land is leased w/ no mention of duration, but provision is made for the payment of rent at set intervals.
b. An oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered.
c. Holdover: in residential lease, if L elects to holdover T who wrongfully stayed on past the conclusion of the original lease, and implied periodic tenancy arises measured by the way rent is tendered.
Periodic tennecy - termination
Termination: Must provide NOTICE
a. Month-to-month periodic tenancy → 1 months notice required
b. But year-to-year periodic tenancy → only 6 months notice required
- Periodic tenancy must end at the conclusion of a natural lease period (e.g. if lease started on 1/1, and T gives notice on 5/15, lease doesn’t end until 6/30).
