Non-Freehold Estates Flashcards
Tenancy for Years/Estate for Years
Tenancy defined by a specified time
- No writing for TfYs of one year or less
- Writing req’d for more than one year (SoF)
- No notice req’d to terminate
Periodic Tenancy
This estate rolls on and on, REPEATING, until one party gives proper NOTICE.
Periodic Tenancy- CREATION
- By Express Agreement
- By implication (No agreement as to Duration)
- –General Rule: If a lease does NOT specify the lease’s duration, then it is PRESUMED A PERIODIC TENANCY, measured by the RENT PAYMENT - By operation of law:
- –a. Oral Lease that Violates the SoF: LL’s acceptance of a rent check for a lease violating SoF creates a periodic tenancy for the period of the rent check.
- –b. Holdover Tenant: When a LL accepts a rent check from a holdover tenant, a periodic tenancy is created for the period specified in the check.
Periodic Tenancy- TERMINATION
A Periodic Tenancy terminates by PROPER NOTICE. Notice must be:
- Given with ENOUGH TIME- length of period OR six months, for a year-to-year period (usually one month)
- EFFECTIVE DATE: The effective date in the notice must be at the END of the period of the tenancy.
Tenancy at Will
Rule: Either party can terminate this tenancy at ANY time.
Notice Req’d: Must give the other party NOTICE of termination and a REASONABLE TIME to vacate the leased premises.
Tenancy at Will- Termination by Operation of Law
- Death of either party
- Waste by tenant
- Assignment by Tenant
- Transfer of Title by LL
- Lease by LL to a third party
Tenancy at Sufferance- Holdover Tenant
LL’s Remedies:
- Sue to evict and collect damages, OR
- Impose a new PERIODIC tenancy
- – less than a year, impose per rent check
- – commercial property for > year; impose for year
May NOT impose new periodic tenancy if not reasonable (e.g., late moving van)
Holdover Tenant: Raised Rent
Rule: If LL gives notice of a raised rent BEFORE expiration of the lease, and tenant holds over, LL may properly demand payment of higher rent amount.
Tenant’s Duties
- Duty to Pay Rent
- Duty to Maintain Premises
- –a. No Waste (if premises destroyed w/o T’s fault, T can terminate)
- –b. Covenant to Repair (majority view: even wear and tear, not rebuild, unless expresS)
Landlord’s Remedies
T fails to pay rent:
- LL can sue for damages (amount in arrears) AND to evict (no eviction at Common Law)
T abandons
- LL can ACCEPT and terminate lease (T no longer has to pay rent then); OR
- LL can sue for damages, MUST MITIGATE and can get deficiency from T
Implied Warranty of Habitability
Under the implied warranty of habitability for residential tenancies, the landlord covenants that the premises are suitable for human residence.
Common law had no such warranty; today it is imposed for RESIDENTIAL PROPERTY ONLY
Breach of Implied Warranty of Habitability- Remedies
T can EITHER:
- move out and terminate the lease OR
- Stay on property and sue for damages
T cannot waive, against Public Policy
Implied Covenant of Quiet Enjoyment
LL covenants that neither she nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises.
The covenant of quiet enjoyment may be breached by:
- total actual eviction,
- partial actual eviction, or
- constructive eviction.
Partial Eviction by Third Party (Breach of Quiet Enjoyment)
Rule: If there is a partial eviction by someone other than LL, the rent is proportionately reduced to reflect the amount taken.
Constructive Eviction (Breach of Quiet Enjoyment)
- LL fails to provide some service (NOT 3rd party failure); AND
- Substantial inference with T’s quiet enjoyment, AND
- T abandons within reasonable time
Partial Eviction (Breach of Quiet Enjoyment) by LL
If L partially evicts T, T can stay on what’s left and STAY FOR FREE
LL Liability: Common Areas
A landlord is liable for any injury resulting from a dangerous condition in a common area that could reasonably have been discovered and made safe.
Duty: Reasonable care
LL’s Liability to the Public (Public Use)
A landlord is liable for injuries to members of the public if, at the time of the lease, he:
(i) knows or should know of a dangerous condition,
(ii) knows or should know T won’t repair
(iii) knows or should know public will be using premises
The landlord’s liability extends only to people who enter the premises for the purpose for which the public is invited.
LL Liability: in general
At common law, a landlord has no duty to make the premises safe.
Exceptions:
- Latent Defects
- Short Term Lease of Furnished Dwelling
- Common Passageways/Areas
- Negligent Repairs
- Public Use
LL Liability: Latent Defect
A landlord who knows (or should know) of a dangerous condition that:
i. exists at the time the lease is entered into AND
ii. that the tenant could not discover upon reasonable inspection (latent defect)
has a duty to disclose the dangerous condition.
Failure to disclose results in liability for any injury resulting from the condition.
Full Condemnation/Complete Taking
If the government condemns all of the leased land, the tenant’s liability for rent is extinguished, and the tenant MAY BE entitled to compensation for the taking
The tenant will share in the condemnation award only to the extent that the fair rental value of the property exceeds the rent to under the lease.
Partial Condemnation
When the gov partially condemns leased land, the tenant IS RESPONSIBLE FOR FULL RENT.
The Tenant is also ENTITLED TO an amount of the CONDEMNATION AWARD EQUAL TO RENT THAT WAS TO BE PAID FOR THE CONDEMNED PORTION OF THE PROPERTY OVER THE REMAINED OF THE LEASE TERM.
Destruction of Total Structure- Repair Obligation
Majority/Modern Rule: Does not include repair of total structure, if destroyed w/o fault of tenant or LL, unless expressly includes these types.
Retaliation/Retaliatory Eviction
A LL may not raise rent, reduce tenant services, or terminate a lease in retaliation for a tenant’s reporting of housing code violations.
Retaliatory motive presumed for a certain period.
