Leases And Subleases Flashcards
Term of Years
Lease for a certain amount of time set by calendar then returns to the landlord (via reversion)
A term of years can be measured
By any amount of calendar time, from 1 day to 1,000 years, so long as it has a set beginning and ending
In a term of years, notice is
Not necessary because the end point is known
Effect of death on a term of years
It has no effect
Periodic lease
Lease for reoccurring term that continues for succeeding periods until notice of termination. Without notice, there is no termination
A periodic lease recurs on a
Month to month or year to year basis
How to determine the term for a periodic lease
Majority: yearly the rent is reserved
Minority: rent is paid monthly
Where lease is silent, presumed to be yearly
For a periodic lease, notice is
Required. If move out without notice, landlord has remedy against tenant for unpaid rent or to enforce lease another year
For a periodic lease, the notice must be given
As the lease specifies, unless unreasonable. If lease is silent, the common law says 6 months for a 1 year lease. Month requires 1 month. Modern statutes typically allow notice to be within 30 days for yearly lease
Effect of death on periodic lease
No effect
Tenancy at will
Tenancy of indefinite duration. No resolving period, endures as long as desired. Lease may be silent on who may terminate, in which case both have the ability
Rule from the Garner case (concerns tenancy at will)
Courts do not favor tenancy at will, and will try to avoid them where possible. As such, where the lease allows tenant the right to terminate and not landlord, it creates a determinable life estate in T.
Death effect on tenancy at will
Ends it, unless there is a determinable life estate
2 options for dealing with a holdover tenant
- Evict and recover damages
- Create new tenancy, express or implied by acts (cashing check for rent)
Leases for over a year must
Be in writing. As a general pointer, all leases should be in writing
The Fair Housing Act …
Prohibits discrimination against potential tenants on the basis of a protected class
Protected classes under the Fair Housing Act
Race
Religion
Sex
Color
Handicap
Familial status
National origin
In addition to preventing discrimination in purchasing, the fair housing act also
Prohibits discrimination in terms, conditions, or dwellings
Exceptions to the fair housing act
Religious organizations
Single family homes if < 3 homes are owned
Rooms occupied by not more than 4 families living independently if owner also resides
The exemptions to the Fair Housing Act do not apply
To paper discrimination (advertisements)
Hostile Housing Environment Defined
1) endured unwelcome harassment based on protected characteristic
2) severe or pervasive such that interferes with terms of residency or use of facilities
3) basis for imputing liability (control of common spaces)
Delivery of Possession: 2 views
English Rule (majority): must provide physical possession on year 1
American rule (minority): merely provide legal right
3 different types of rights to convey lease
1) Freely assignable, no express limiting provision
2) consent of L required
3) consent needed, and may not be unreasonably withheld
Sub-lease vs. assignment
A sub-lease gives a possessory right for a length less than that of the remaining term, while an assignment conveys it for the remainder of the term
Significance of difference between sub-lease and assignment
A sublease does not establish any private between landlord and T1, meaning only T is liable, whereas a assignment establishes privity of estate between L and T1
Privity of contract
Legal relationship based upon sale and purchase. Exists between L and T, always, unless novation
Privity of estate
Legal relationship based upon a mutual successive relationship
Novation
L waives right to sue based upon privity of contract
Covenants that run with the land
1) pay money
2) physical aspects
3) duration
4) services and utilities
3rd Party Beneficiary rule
Alternative theory of liability that gives privity of contract between landlord and distant tenants. Tenant must expressly agree to assume obligation to perform lease
Requirements for third party beneficiary
1) tenant must expressly assume obligation to perform lease
2) state has rule
True or False: a landlord may use self-help to evict a tenant who defaults
False. The landlord must resort to judicial process to remove a tenant who defaults
Abandonment occurs when . . .
In this case, a landlord must
Tenant vacates without justification and without intent to return
Mitigate their damages
Surrender defined
Tenant offers to end tenancy, which terminates if landlord accepts and frees tenant from obligation for future rents
True or False: A landlord does not have to accept a tenant’s surrender
True. As the parties have an enforceable contract, tenant cannot unilaterally end it.
