Pg 19 Flashcards
What is another name for non-freehold estates in land?
Landlord tenant. This essentially means a lease.
What is the best way to approach an essay on landlord tenant issues?
– identify the type of tenancy: for years, periodic, at will, at sufferance
- identify the basic dispute: fight over rent, condition of premises, fight over possession, fight over improvements
– defenses: eviction, waste
– did the landlord or the tenant transfer his interest and what effect does the transfer have?
What different things are included in a non-freehold estate in land?
Tenancy for years, periodic, at will, at sufferance
What is a leasehold?
A possessory estate in land where the landlord holds a longer estate than the tenant with something leftover at the end, so there is a reversion in the Landlord. At leasehold is essentially a right of possession or occupation
Leaseholds always involve at least what two estates in land?
The tenant has a present possessory estate and the landlord has a future estate in a reversion
In order to create a leasehold you need agreement between who?
The landlord and the tenant, and both of them need legal capacity
Is an oral agreement to a leasehold OK?
It is OK if it is sufficiently definite in the essential parts to determine the parties‘s intent
Who can terminate a leasehold?
The landlord or the tenant can terminate if either breaches the lease covenant that deprives the other of a significant inducement to the making of the lease
What does the statute of frauds say about leaseholds?
If they are for more than one year they have to be in writing
What is the rule about defects in a leasehold prop?
Because the tenant has less knowledge about the premises than the landlord, the landlord must inform prospective tenants about latent defects
What is the contractual agreement for a leasehold generally?
It is a bargained-for exchange where the landlord gives the tenant exclusive possession of the premises and the tenant gives the landlord rent or consideration
What is considered to be rent in a leasehold?
Money or consideration that is paid by the tenant to the landlord for the right to possess the premises.
How does the accrual of rent work?
The landlord earns rent continuously and rent is due from the tenant continuously during the term, so the parties agree on a time/periodic times for payment during the lease according to their desires
What are some tricky situations that could possibly be leases but likely are not?
– signs and billboards – concessions – sharecropping agreements – lodging – occupation incidental to employment – contract purchaser in possession – mortgagee in possession
Is a sign or billboard considered to be a lease?
This involves having the right to put a sign on another person’s land. The installer is the tenant because they leased the parcel for that purpose.
- Signs painted on walls or roofs: considered to be easements.
– Freestanding signs: if the sign owner has exclusive control over a plot of land, that is a landlord-tenant relationship, but most billboards with posts and open spaces probably do not create leaseholds
Are concessions considered to be leaseholds?
This is a merchandising entity that contracts with others to do business on parts of the premises. This is probably considered to be a license or easement because the retailer has no interest in the property and no right to exclusive possession.
– I.e.: department stores, snacks at the theater, etc.
What are the factors to consider in deciding if a concession is a leasehold?
Whether the concession is physically separate from the rest of the premises, if the concession has a right of possession, if a larger business entity pays employee benefits or is liable for slip and fall, etc.
Are sharecropping agreements usually thought to be leaseholds?
This is when you raise crops on land that is possessed by another and then you share the crops that are grown. A sharecropper is not a tenant because he doesn’t have possession. This is more like an easement to enter and grow crops
What are factors to consider in deciding if a sharecropper agreement is a leasehold?
If it is called a lease, if a lease form was used, if the tenant has rights to the land beyond growing crops, a question of who provides the supplies, what the length of the agreement is, etc.
If the farmer resides there and grows crops, it is probably a lease. You have to look at the parties’ total relationship
Is a lodger considered to have a leasehold?
Lodgers have a more permanent stay than guests, who are just transient occupants, but it’s still not the same as a tenant because there’s no possession.
What are the factors you have to consider when determining if a lodger has a leasehold?
The length of the stay, if the owner lives in the same building, if the owner has free access to a room, if maid services are provided, if the occupant shares a bathroom, if the owner gives meals, if the room is furnished, if the premises are held out to the public. If the answers to these are mostly yes, then it is a lodger and not a tenant
What is occupation incidental to employment?
Some jobs require an employee to live on the premises
Is occupation incidental to employment considered to be a leasehold?
If an employer requires his employee to live on the premises, he’s not considered to be a tenant. Ie: caretaker of a building.
The real test is whether the occupancy is incidental to employment or if it was granted as part of being hired. If the person was first a tenant and then an employee, that is separate from employment. Migrant workers that live in cabins that are owned by the boss are considered to be tenants, and the same is true for employees that reside in company towns
Is a contract purchaser in possession considered to be part of a leasehold?
The person has a right to possess land when someone else has title, not the tenant. This is equitable conversion situations and rules.
Is a mortgagee in possession considered to have a lease hold?
This is when a person is allowed to keep possession until the mortgage debt is paid or the interest is foreclosed, but that person is not considered to be a tenant, they are more like a caretaker
What are the elements of a leasehold (things that lease agreements must have)?
– Adequate description of the premises
– duration/term of the lease
– amount of rent
In order for a lease agreement to have an adequate description of the premises, is it necessary that there be a formal legal description?
No, just evidence that identifies the intended premises is fine. This can be a street address or a nickname. Inadequacies can be cured if the tenant takes possession
What are the rules for duration of a leasehold?
It must be explicit or reference a formula, otherwise it is not definite enough. It is necessary that it states the commencement. It can be fixed to start in the future or based on a certain event unless it is based on an uncertain event that may not happen within 21 years.
What are the different types of leaseholds?
- Tenancy for years/fixed term
- periodic tenancy
- tenancy at will
- tenancy at sufferance
- tenancy on special limitation/leasehold with automatic termination clauses
What is the requirement for leaseholds over one year?
They must be in writing and signed by the party to be charged under the SOF.
If a tenant takes possession with landlord’s permission, what kind of leasehold is created?
A tenancy at will. And when the tenant pays rent, that creates a periodic tenancy at that rent
How can an informal lease become enforcible through part performance?
It becomes enforcible since it excuses noncompliance with the SOF due to the part performance and allows enforcement by the party who acted under it giving independent evidence of the existence of the agreement. This happens through possession or substantial improvements
What is involved in a tenancy for years or fixed term tenancy?
Parties agree to a definite period that is fixed in advance. It has fixed starting and ending dates.
How do you create a tenancy for years/fixed term tenancy?
Through the express agreement of the parties for whatever term is stated. Any fixed time is OK
What is required to create a tenancy for years/fixed term tenancy?
SOF imposes a one-year provision. This can be oral unless it is for more than one year, then it has to be in writing
