Non-Freehold Estates

Question 1

Leasehold

Answer 1

1) a definite space
2) for an agreed upon period of time
3) at an agreed upon rental amount

Question 2

Tenancy for Years

Answer 2

A tenancy that has a definite duration

Question 3

Periodic Tenancy

Answer 3

Lasts successive units of time until either party terminates

Question 4

Tenancy at Will

Answer 4

Has no duration and exists until either party terminates it. Can be terminated at anytime.

Question 5

Tenancy at Sufferance

Answer 5

The right of possession that follows the termination of another form of tenancy. Gives the right to the tenant to await court eviction and the right to have continued critical services

Question 6

English Rule of Initial Possession

Answer 6

Requires the landlord to put the tenant in both legal and actual possession of the premises

Dealing w a holdover tenant the landlord sues the hold over tenant for possession. The tenant can deduct rent until actual possession is given.

This is the majority rule for residential tenancies

Question 7

American Rule of Initial Possession

Answer 7

Requires the landlord to put the tenant only in legal possession of the premises.

Dealing with a hold over tenant, the new tenant sues the hold over tenant for possession. No rent can be deducted; rather, the tenant must sue the hold over tenant for damages.

This is the majority rule for commercial tenancies.

Question 8

Covenant of Quiet Enjoyment

Answer 8

Includes protection from (1) adverse conduct by the landlord or his agents and (2) adverse claims of title

The covenant does not protect from adverse actions of third parties

Question 9

Hold Over Tenant

Common Law/NY Rule

Answer 9

When a tenant holds over after the end of an estate, the landlord may:

1) treat the tenant as a tenant at sufferance and seek a court eviction
2) treat the tenant as a tenant on a periodic tenancy when the period is set to the duration of the original estate for years

Limits on the rule:

• A provision in the lease that addresses holding over will usually be enforced.
• The trend is towards changing the term of the resulting periodic tenancy from one based on the duration of the original lease to one based on the leases rent payments

Question 10

Defective Premises

Traditional Rule

Answer 10

Lessee accepted provisions “as is”. The tenant is responsible for all repairs

Question 11

Defective Premises

Modern Rule

Answer 11

Landlord are obligated to take repairs

Question 12

Implied Warranty of Habitability

Answer 12

-Requires the landlord to maintain premises at least at the level required by local building, safety, and health codes
-Remedy is only available if the landlord does not fix the issue
Remedy: the tenant is entitled to damages equal to the amount needed to fix the defective condition and that amount, but no more, may be deducted from rent owed

Question 13

Independence of Covenants Doctrine

Answer 13

Provisions that are not part of the lease, that so not include the exchange of rent or quiet enjoyment were kept separate

Question 14

Constructive Eviction

Answer 14

Occurs where the landlord allows the tenant to physically possess the premises but prevents the tenant from using the premises

-occurs when tenants use is severely interfered with

To claim constructive eviction tenant must move out of premises

Question 15

Implied Duty to Continued Operation

Answer 15

Two factors a court will consider in favor of finding an implied obligation

1) Rent paid on a percentage of sales where no substantial minimum rent is due
2) Whether the lease contains a non-compete clause

Question 16

Process of Seeking an Eviction

Answer 16

1) Serves a Notice to Quit, formal notice requiring tenant to leave the premises by a certain date
2) Court actions for evictions are called Summary Actions. They’re expedited and limited to the issues surrounding whether the landlord has the right to reclaim possession
3) If the tenant still does not move out, the landlord can give the judgement to law enforcement who will “execute” the judgement by physically removing the tenant and his or her belongings.

Landlord cannot engage in self-help

Question 17

Abandonment of Premises

Traditional Rule

Answer 17

The leasehold is a conveyance and the tenants rent obligations is part of that, the obligation lasts until the non-freehold estate expires

Question 18

Abandonment of Premises

Modern Rule

Answer 18

Landlord must mitigate damages

• must got back into possession of the premises
• must attempt to relet the premises
• entitled to the stipulated rent less the rent the landlord received or should have received