Pg 20 Flashcards
When does a tenancy for years terminate?
Automatically at the agreed end of the designated term. Notice is not necessary.
Does the death of either party terminate a tenancy for years?
No
What is a sneaky essay extra points analysis regarding tenancy for years?
When classifying the interests, if there is a term of years tenancy with a clear beginning and a clear ending, but rent is monthly, you can make a small argument that they actually have a periodic tenancy instead of a term of years. So if he is paying monthly he should be able to terminate by giving a 30 days’ notice. Truthfully, though, the payment agreement is just for the tenant’s convenience, so that’s not really very accurate, but this is a good way to grab extra points
What is involved in a periodic tenancy?
Possession for a fixed period of time that repeats unless the party terminates by giving notice. This has a fixed starting date but no fixed ending date. It is self renewing until it is terminated by one of the parties.
How is a periodic tenancy created?
Expressly by the words or actions of the parties, or impliedly.
It can also grow out of a holdover situation or from a lease trying to create a tenancy for years that is invalid because it doesn’t meet the SOF, so then it is just a periodic tenancy.
Is it possible to create a periodic tenancy orally?
Yes, as long as you agree on the major things.
What are the buzzwords for periodic tenancy?
Month to month
What is the duration for a periodic tenancy?
It can be undefined as long as there is a definite commencement date that is stated. And then it continues for successive periods until it is terminated (because it automatically renews at the end of each period until termination).
Does the death of either party in a periodic tenancy affect the duration?
No
If there is an informal periodic tenancy agreement created but it doesn’t state the term, what happens?
The courts will fix it.
If rent is not stated in a periodic tenancy, what happens?
It becomes a tenancy at will
How do you terminate a periodic tenancy?
One party terminates by giving notice to the other a minimum amount of time before the end of the recurring period. The minimum notice requirement prescribed by law applies, and that can be seven days to one year.
If there’s a periodic tenancy for one month, at the end of that month what happens?
It automatically renews for another month until it is terminated by the parties
If a tenant wrongfully stays in possession after termination of a periodic tenancy, what happens?
It becomes a tenancy at sufferance. The landlord can then transfer it back into a periodic tenancy by giving express notice, and the tenant giving and the landlord accepting rent for time after termination
After termination of a periodic tenancy, if a tenant wrongfully stays in possession, what is the period of the new tenancy?
It is the same as whatever the old period was. If the old one was for a year or more, the new one is year to year, and the landlord specifies the new amount of rent and if that is not contested then the tenant is liable to pay it. If the tenant pays rent, that implies a renewal
What is required for notice of termination in a periodic tenancy?
It can be oral, and it must: - identify the sender as the landlord/tenant and the recipient as the other – identify the premises – state notice to terminate – give the date of termination – it is effective when delivered
In order to terminate a periodic tenancy you must do what two things?
show intent to terminate and give the length of the term of the tenancy as notice up to a maximum of six months
If a periodic tenancy has a term of one year, and either party wants to terminate, how much notice do they have to give?
Six months. But for any other timeframe, it is just required that the notice be equal to the length of the period.
What does a notice for termination of a periodic tenancy include as far as the date goes?
It excludes the date of service but it includes the termination date
Notice for termination of a periodic tenancy can only be given when?
At the end of a period and can only terminate at the end of a period. So if notice is given in the middle of a period, it is completely ineffective to terminate at any time at common law
If you have a periodic tenancy that is monthly beginning on the first of the month, and the tenant gives notice on the 15th of the month that he wishes to terminate, what does the common law and the modern view say about when termination happens?
– Common law: you can only give notice to terminate on the first, because that is the end of the rental period (so the notice is not effective).
– Modernly: the notice is effective, but it does not take affect until the next rental period, so it will not become effective until the first of the following month
If the facts on an exam do not give the applicable statute, whether it is common law or modern approach to the termination of a periodic tenancy, what should we assume?
Always assume common law
What is a tenancy at will?
When possession is for no definite length of time, and it is terminable any time by either party. This is like a license. It is a continuing agreement of both parties with no designated period of duration besides the will of both. This cannot be assigned and no notice is required to terminate
How do you create a tenancy at will?
Expressly or inferred by the circumstances (aka: failed attempts to create fixed term tenancies become tenancies at will).
If you orally agree to three-year rent, what kind of tenancy is created?
Because this would be invalid since there is no writing, a tenancy at will would be created. But once the tenant sends rent and the landlord accepts it, that becomes a periodic tenancy. In this sense there is technically no implied tenancy at will
What is involved in making a tenancy at will?
Permissive possession without agreement for term, or a holdover where the granter stays in possession with the grantee’s consent after a conveyance
How do you terminate a tenancy at will?
The tenancy lasts as long as both parties want it to and it terminates instantly by either party saying they don’t want it to. No notice is necessary. This usually happens when one party says something to the other, but it can happen from inconsistent acts like a demand for possession, the landlord conveying the land, or the tenant trying to assign the tenancy, or the death of either party
How long is a tenant whose tenancy has been terminated under a tenancy at will given to remove their possessions?
A reasonable time
What is a tenancy at sufferance?
When a tenant under a different type of lease wrongfully holds over after termination of the tenancy.
If you just leave your personal items behind, does that create a tenancy at sufferance?
No, and neither does holding over for a short temporary period
How is a tenancy at sufferance terminated?
At the Landlord’s election
For a tenancy at sufferance, if the landlord wants the tenant to stay, what happens?
It becomes a periodic tenancy. If the landlord doesn’t want the tenant to stay, it remains a tenancy at sufferance and the tenant becomes a trespasser until the landlord kicks him off the land.
What is a key factor for determining the landlord’s intent in a tenancy at sufferance?
Whether or not he accepts rent
If a landlord accepts rent, under a tenancy at sufferance, what is the length of the new period?
The length of the expired lease to a max of one year. If the expired lease was six months, it becomes a periodic tenancy for six months. If it was a three-year lease, it becomes a periodic tenancy for one year
Can a landlord hold a tenant to another term under a tenancy at sufferance if there are equitable considerations to justify giving the tenant an extension of time to vacate?
No, for example if the tenant had a serious illness that caused the delay
What is the deal with retroactivity in relation to tenancy at sufferance?
Landlord has the power to make the tenant either a trespasser or a periodic tenant retroactively to the beginning of the holdover so long as he gives an express statement or an implied election within a reasonable time
How do you terminate a tenancy at sufferance?
By the tenant either being thrust into the position of trespasser or creating a periodic tenancy
If a landlord accepts continued rent payments from a tenant at sufferance, what does that become?
A month to month periodic tenancy
What is a tenancy on special limitation/leasehold with automatic termination clause?
Sometimes a fee or other freehold estate is created to endure only so long as a certain state of affairs remains. Ie: as long as is necessary to support the estate, and if it ceases, the estate falls in automatically. As soon as the event happens, the leasehold automatically ends. This only applies if the language leaves no doubt about the parties’ intent
What are some different examples of terminating events that would work to terminate a tenancy on special limitation?
– Tenant’s illegal activities on the premises – insolvency or bankruptcy – death – vacating the premises - Landlord’s sale of reversion
What are the four basic disputes that can happen between a landlord and the tenant?
– fight over rent
- fight over condition of the premises
– fight over possession
– fight over improvements
What is the most common dispute between a landlord and tenant?
Fight over rent
