Prop 1

Question 1

A Net Lease-

Answer 1

presumes the L will receive a fixed rent without deduction for repairs, taxes, insurance, or any other charges other than L income taxes o Not uncommon in long-term commercial leases, especially when they occupy the whole buiding

3x net lease – particular freesand commercial building (warehouse shop) Tenant assumes duty to pay rent, pay property taxes, insurance and maintain and repair

Question 2

CL T Duty to Repair Structure

Answer 2

At common law, a lessee’s covenant to repair (or return, deliver in the same condition) property included an obligation to rebuild structures destroyed during the lease term, regardless of who’s fault it is.

Question 3

Sublesee’s Duties, and What Damages Can L Recover for Sublesee

Answer 3

Ifthere is a sublease, there is an equitable relationship between T2 and the landlord

(the landlord can bring suit to recover in equity – no damages [rent] only injunctive relief).

The landlord would have to go after T1 to recover rent or anything under the lease.

• The sublessor remains liable to the original lessor for all covenants in the original lease.
• Similarly, the sublessee is liable to the sublessor for the covenants in the sublease.
• However, the sublessee has no obligations to the original lessor. If

Question 4

L Authority to withhold Consent to Sublease CL - Modern (Silent Consent)

Klawans

Julian

Answer 4

(1) Old Common Law – Klawans Doctrine – Landlord can withhold consent for no reason or any reason. (overrulled by Restatemend (Second) of Property (2) Modern Trend – Julian Rule: Landlord can only withhold consent on reasonable grounds.

Question 5

Reasonable grounds to withhold consent to sublet include:

Answer 5

(1)Tenants who are not financially able to pay rent (the intended transferee); (2)Tenants use of the land is not compatible (transferee’s intended use)

Question 6

Ability to Sub/Asgn After L has excepted an assignment.

Answer 6

The landlord’s consent cannot be divided (you cannot consent to one sublease and not another). Consequently, the L’s consent to one assignment ends the restriction thereby making the lease freely assignable. This promotes the free trade of land. L may easily circumvent the rule by providing that consent to a particular assignment is not a waiver of the right to consent to subsequent assignments. The landlord’s acceptance of rent from a sublessee or assigneeconstitutes a waiver of consent-to-transfer clause.

Question 7

Rule in Dumpor’s Case (Majority Rule)

Answer 7

A condition against assignment is “entire and indivisible,” and having once been waived, cannot be enforced again.

Question 8

Fixtures- Elements

Actual and Constructive Annexation

Analysis

Answer 8

Something that was originally a chattel (personal property) but was annexed or used in connection with land, and is not regarded as part of the real property.

If Fixture was severed before conveyance or deed was issues it becomes a chattel again

Old English Cases focus on Annexation

American Courts look at Intention

Creation of a Fixture: For an object to become a fixture, three essential elements must occur:
1. Annexation to the realty, either actual or constructive.

1. Degree of Physical Annexation (The greater the degree to physical annexation more likely to find its a fixture) (Attached to floor/Wall/embedded in soil- high degree/ EXTREME WEIGHT- suggests annexation)
2. Ease of Removal without Damage
3. Adaptation to use of particular Realty (Constructive Annexation)
4. How essentual is fixture to use of property
5. Local Customs (Hot water, furnace
6. Did the person who annexed the chattels have a substantial and permanent interest in the land (e.g., owner of fee simple interest)?
7. Adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated
   • When the particular object is clearly adapted to the use to which the realty is devoted,• Object placed on may become if it is necessary, or useful, adjunct to the realty, — Consider Purpose realty is devoted.
8. Intention to make the article a permanent accession to the freehold. Intent to make the item annexed to the realty is determined by the intentions of the parties regarding the following four factors:

exam argue for the annexation then continue the analysis with adaptation and intention Intention factors:

1. Nature of articles
2. Manner of annexation
3. The injury if removal
4. The completeness the chattel is integrated with the the land
5. The Annexer’s relatitionship with the land
6. Annexer’s Relation with the chattel such as owner

Tresspassers lose Annexation (in good faith, Accession Doctrine– L pays L)

Rules Apply to Life Tenant

Question 9

Statute of Frauds Requirements to Transfer an Interest in Land

Answer 9

1. Identity of parties
2. Identity of subject matter
3. Consideration
4. Signature of Seller

Question 10

Open Mines Doctrine

Answer 10

A life tenant has the right to continue operation of existing mines on the leased premises, but a remainderman can enjoin the opening of any new mines (i.e. voluntary waste).

Exception: if you have already had gold mining operation on it/tree cutting/ oil gas lease already there if conveyance is silent the default rule is it can continue (only that operation) (Gold mine, open silver mine? Maybe) (Gold mine start timber?? No)

Question 11

Duty to Repair (CL)

Answer 11

Under common law estate theory, a landlord had no duty to repair the premises during the duration of the lease. This duty extended to repairs that kept the building wind and water tight. Note that, in contrast, the tenant had a duty not to commit waste, which included within it a duty to repair the premises.

Question 12

Covenants-Horizontal Privity

Answer 12

Horizontal privity is the relationship that exists between the original covenantor and covenantee In most jurisdictions, horizontal privity is satisfied by a conveyance of land between the covenantee and covenantor, which occurs by the same deed that includes the covenant, or when the covenant is created in a lease or the transfer of an easement.

Question 13

Covenants-Vertical Privity

Answer 13

Vertical privity is the relationship that exists between an original party to a running covenant and the successor in interest to the original party. For the burden to run, privity of estate will only exist when the holder of the servient estate transfers all of his interest in the servient estate to the new owner.

Question 14

Doctrine of Accession

Answer 14

Under the doctrine of accession, one who in good faith applies labor to another’s property acquires title to the resulting project if this process (1) transforms the original item into a fundamentally different article or (2) greatly increases the value of the item.

Question 15

Abandonment, Surrender and Acceptance CL - Modern

Answer 15

At common law, when a tenant abandons the premises, he is still liable for the rent for the entire term of the lease even if the landlord does nothing to attempt to relet the premises. majority- now require that the landlord make reasonable efforts to mitigate the damages by attempting to relet the premises. Successfully reletting the premises does not remove the liability of the original tenant for the costs of reletting and for the time in which the premises stood vacant. Tenant may also avoid liability for rent if it can be proven that landlord has accepted surrender of premises by re-entering and occupying the premises himself. Entering to make repairs after abandonment does not usually constitute acceptance the surrender.

Question 16

A leasehold estate

Answer 16

Leasehold Estate? [202-203] (also called a nonfreehold estate) is a legal interest that entitles the tenant to immediate possession of designated land, for either a fixed period of time (e.g., five years) or for so long as the tenant (or lessee) and the landlord (or lessor) desire.

Question 17

Term of Years Tenancy

Answer 17

The term of years tenancy endures for a designated period that is either fixed in advance (e.g., five years) or computed using a formula that is agreed upon in advance. This tenancy automatically expires when the agreed period ends, without any notice of termination.

Question 18

Tenancy at Sufferance

Holdover Tenant

Answer 18

The tenancy at sufferance arises when a person in rightful possession of land wrongfully continues in possession after the right to possession ends. Most authorities agree that this is not technically an estate in land, but rather a convenient label. The landlord is free to evict the “tenant” at any time.

T’s Argument = T was in continued negotiations w/ L for rent and other terms which infers they were not happy w/ old lease terms. Therefore, the ct held they did not intend to keep old lease for yr-yr
The court states:
(1) Tenant’s possession of the premises after the termination of the lease, in and of itself, does not automatically bind them to a renewal of their original lease agreement;
(2) The common law rule of the year-to-year tenant does not apply where the possession is retained and the rent paid pending negotiations with respect to the renewal of the lease.
(3) General Rule: (majority) if the original lease term is greater than or equal to a year, then the holdover T lease becomes a year to year lease. Except if the parties intended otherwise.
(minority) it is automatically month to month
(4) Look at: timing of negotiations to determine intent, rzbl opportunity to relocate, infer reason why T is still there

Question 19

Constructive Eviction

Difference in Remiedy of Const E v. IWH

Answer 19

Constructive eviction occurs when wrongful conduct of the landlord substantially interferes with the tenant’s use and enjoyment of the leased premises. (No Duty at CL- only CQE)

Analysis

1. •A duty (a covenant in the lease);
2. •LL’s breach of the duty;
3. •notice from the tenant to LL that he has breached the duty (followed by no response);
4. •results of “grave and permanent” character;
5. •tenant’s vacation of the premises within a reasonable time (question of fact for jury).
6. Must move out

Constructive Eviction Remedies

1. Obligation to pay rent is suspended T
2. Tenant may recover damages

IWH Remedies

1. Tenant need not vacate in order to assert breach
2. makes IWH more advantageous the CE (Requires T to Vacate Slum lords premise)

Constructive eviction is usually claimed as an affirmative defense against a suit for not paying rent and then as a counter-claim against the landlord for damages.

When arguing, T must give evidence to show the time it took to vacate was rzbl→ must move out in a reasonable amount of time…

functional equivalent of an actual eviction.
For example, if a Minnesota law requires the landlord to supply heat to a rented dwelling during the winter, then his failure to do is wrongful conduct which renders the dwelling unusable.

Partial Eviction

1. evicted from part or any portion of leased premise
2. by landlord

Rent abates entirely untill possession is restored (may stay in possession without paying rent)

If T is partially evicted by 3rd party with paramount title, T can terminate lease, recover damage, or receive a proportionate rent abatement

Question 20

Abandonment & L’s Rights against T

Answer 20

An abandonment occurs when the tenant

(1) vacates the premises without justification,
(2) lacks the present intent to return, and
(3) defaults in the payment of rent.

• If tenant abandones and stops paying rent, this is an offer,
  o If landlord doesn’t except

At common law, the landlord could choose among three options when the tenant abandoned:

(1) leave the premises vacant and sue later for accrued rent;
(2) mitigate damages by reletting the premises to a new tenant and then sue the original tenant for the unpaid balance; or (3) terminate the lease.

Modern Majority- require that the landlord either mitigate damages or terminate the lease.

Question 21

Surrender

Answer 21

An express surrender arises when the landlord and the tenant mutually agree to terminate the lease, ending their respective rights and duties.

Surrender and acceptance- after a T vacates, what actions by the L shows acceptance of re-leasing the prop:

 (1) Express Agreement
 (2) Operation of law- L takes action that the law will deem to be acceptance (has to be used solely for the benefit of L); releasing the property or renting out at lower price doesn’t count
  (a) if there is some benefit to the T, it is not surrender and acceptance
 (3) What L can do:  sue for rent as it’s due or retake premise and re-lease to another

Question 22

Self-Help

Answer 22

At common law the L cannot engage in self-help- unless

1. Provision permitting, retake and throw tenant out
2. Peaceably, without damage or violence, or threat of violence.

Majority says this is not allowed, Dissent says it is →

probably majority- even if lease contains provision allowing L to do self-help, and even if it could be done peaceably – the L cannot engage in self help.

The T can waive the prevention of Self help in commercial leases.

Question 23

Statute of Frauds: Requirements & Exceptions

Answer 23

Creation – Statute of Frauds
a. The Statute of Frauds states that most leases must be in writing if more than one year.
b. Conveyance – can be used for some purpose other than giving full rights of ownership
c. Problems and Questions
(1) A lease is signed on 01/01/03, begins on 02/01/03 and ends on 01/31/04. Is it required to be in writing? Maybe, states go both ways.
(2) If lease violates the Statute of Frauds, tenant is treated as “at will” and can be evicted without notice. The moment the tenant and landlord begin to exchange money, the court views this as a month to month lease and tenant cannot be evicted without notice.
CL- Oral leases exceeding three years in duration had the effect of leases or estates at will only
Modern- maximum length of oral leases is one year

1. General Rule – Where the original contract is required by the statute of frauds to be in writing, it may not be modified or varied by a subsequent oral agreement.
2. Majority General Rule – An oral agreement for the surrender of a written lease required by the statute of frauds to be in writing is within the statute, unless the unexpired term of the lease is less than that required by the statute to be in writing.
3. Rule: Leases over a year: cts draw distinction btwn termination and recission. Recission does not have to be in writing but modification does.

Recission- the cancellation of a contract and the return of the parties to the positions they would have had if the contract had not been made; “recission may be brought about by decree or by mutual consent”

The typical Statute of Frauds imposes three requirements:

(1) the essential terms of the sales contract
(2) must be contained in a memorandum or other writing that
(3) is signed by the party against whom enforcement is sought.

Exceptions to Statute of Frauds

There are two main exceptions to the Statute of Frauds: part performance and equitable estoppel.

Courts differ somewhat on the actions that constitute part performance, but one common formula requires that the buyer both

(1) take possession of the property and
(2) either pay part or all of the purchase price or make improvements to the property.

Estoppel arises where

(1) one party has been induced by the other to substantially change position in justifiable reliance on an oral contract and
(2) serious or irreparable injury would result from refusing enforcement of the contract.

Question 24

Escheat

Answer 24

If one dies intestate without heirs, his estate passes to the state in which the property is located; this process is called escheat.

Question 25

The Right to Exclude

Exception

Answer 25

As the Supreme Court has explained, the right to exclude is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”

the ownership of a farm did not include the right to exclude government employees who were providing health and legal services to migrant workers living on the farm.

Question 26

Eminent Domain

Procedure

Answer 26

Federal, state, and local governments have the inherent power to take private property for public use over the owner’s objection, through a process known as eminent domain. Attempts in recent decades to expand the eminent domain power to new arenas such as urban renewal and commercial development have sparked controversy.

The eminent domain process usually begins with the government’s attempt to negotiate a voluntary purchase from the owner. If negotiations fail, the condemning agency will bring suit. In most cases, the only real issue is the fair market value of the property taken.

Question 27

Legal factors give rise to create liability running from the assignee of a leasehold to the lessor

Duty to Pay Rent

Answer 27

Three
1. privity of estate
2. covenants in the lease running with the land
3. actual assumption of the covanents of the lease by th assignee
benfefits and burdens run with the land.

Agreement in the lease: pay rent : it runs with the land if it is an assignee, but it does not with a sublease
Reasoning: vertical privity of estate the transferee takes the entire balance of the lease term

Question 28

Assignment

Answer 28

Retention of Possession- Assigning one room of 3 bedroom house is sublease

If Assigned- the assignee is only liable for rent after assignment

Assignee is is PE and burden of covenants in lease run to her, (If not bound by the provisions of the Contract Assignee is not in privity of contract with L)

If assignee assumes all obligations they become liable to original T for rent even if Assignee re-assigns

• 1st relationship- L and T (they have POE and POC [by the lease])
o Privity of estate – relationship 2 parties have with regards to the land (someone possessing the land of another) – covenants in the original lease that “run with the land” (i.e., rent and repairs)
o Privity of contract – relationship 2 parties have with regards to each other
o L owes to the T all obligations under common law (absent an express release of the T by L, POC exists)
• 2nd relationship- T can then assign property to A [assignee] (they have a POC [by the assignment], but there is no POE)
• 3rd relationship- L and the A (they have a POE, and destroys the POE between the L and T). *there can be POC only if the A expressly assumes the obligations under the lease
• Every assignment requires acceptance, an assignee who does not assume performance of covenant of the lease holds the lease merely under privity of estate

Question 29

Sublease

Answer 29

If Violation of covenant- not void, but breacher may be sued for breach of Covenant.

It is only voidable at election of L is a Right to terminate in case of Breach is reserved

Sublease:
o 1st relationship- L and T (original lease: POE and POC)
o 2nd relationship- T and S [sublesee] (POE and POC between the 2) here there are two full leases, POE remains even after the additional sublease; there is no POE or POC between the L and S [unless there is an express assumption]
o *If the lease is silent, T has the right to assign or sublease at CL. Silent consent clauses allow L’s to reasonably limit this activity (Julian v. Christopher)

Question 30

L Options with Holdover Tenant

Tenancy at Sufference

Answer 30

After the lease expires, L has 2 options:

 (1) treat T as a trespasser
 (2) treat them as a holdover T- under same provisions for a year   (3) C/L holdover if T stays 1 sec past old term L may elect to bind T to new term

(4) Modern trend no holdover so long as continued possession is a product of circum beyond T’s control

If lease is silent Common Law:

Unless exception, there is a modification; by actions of parties, the court the parties intended to do something else
• in this case they were still in negotiations so they determined it was month to month.
o Some jurisdictions say for another year, or say periodic tenancy “year to year”
 Yr to yr 6 months notice “periodic tenancy”
 1 yr/ “term of years”, no notice required

Question 31

Perpetual Leases

Answer 31

Courts don’t favor perpetual leases, language must be very clear to be perpetual lease, that’s what the partys intended, but most courts have cut of 30 or 50 yrs

Absence of an escalation clause  to provide source of revenue from which the lessor might meet her continuing obligations strongly suggests the creation of a right to perpetual renewal was not intended

Question 32

Summary Eviction

Answer 32

summary proceedings/eviction process whereby a landlord can get a non-performing tenant out quickly anywhere from 10 -30 days

Question 33

Retaliatory Eviction

Illegal Activity By Tenant/ 3rd Party

Answer 33

Retaliatory Eviction: While a landlord may evict for any legal reason or for no reason at all. However, LL is not free to evict (or decrease services, refuse rent, etc.) in retaliation for his tenant’s reporting housing code violations to authorities.

If the tenant defends his eviction by pointing to a retaliatory motive based on his reporting a code violation, the burden shifts to LL to show that eviction was not retaliatory and that he had a legal motive.

Illegal Activity by Tenant: Where lease gives landlord right to evict tenant for engaging in illegal activity on the premises, he may bring such an action against all co-tenants, even if only one engages in the activity.

Statutory provision: Even where no lease provision, many states give landlord right to evict for tenant’s illegal activity,

right existed at common law.

Question 34

Methods of Transfering Property

Vi

De

In

Answer 34

There are three basic methods of transferring property:

a. Inter Vivos Transfer – while alive
b. Devise – will
c. Inheritance – no will

Question 35

FSD/FSCS- Transfer

Answer 35

Can be transferred (inter vivos), devised and inherited

Old common law: FI could only be inherited

Modern view: FI can be transferred (inter vivos), devised and inherited

Question 36

Ways to End a Finite Estate Prematurely

Answer 36

1. Forfeiture
   a. committing a crime terminates the life estate and destroys a contingent remainder that has not vested and grantor gets reversion
   2. Renunciation
   a. holder of life estate voluntarily terminates the life estate and destroys a contingent remainder that has not vested and grantor gets reversion
   3. Merger
   a. One person holds
   b. Successive
   c. Vested interests

Question 37

Rule Against Puerpetuities

Applicability:

Requirements:

Assumptions:

Answer 37

Rule Against Perpetuities: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
prevent a patriarch from tying up the title to property for generations by restricting alienation
a. Applicability of RAP
(1) Contingent Remainders
(2) Executory Interests
(3) Vested Remainders Subject to Open
b. RAP requires interests to “Vest, if at all…”
(1) Cont Rem must vest or fail
(2) EI must become possessory
(3) Vest Rem Subject to Open must close
c. Approach to RAP
(1) Create – create one or more people who might take the property under the FI at issue (day after the grant they are born)
(2) Kill – assume that everyone who was alive at the moment of the grant dies
(3) Count – count to 21 years or more and ask whether someone could take under the disputed FI
(a) If no – it does not violate the Rule
(b) If yes – it does violate the rule and FI is stricken

Question 38

Constitutionality

Tripartite Guardians

Trade Secrets

Answer 38

Constitutionality is a clash between two interests,

1. preserving natural resources, and
2. the individuals right of property.

Tripartite guardians:

1. Due process,
2. Equal protection and
3. just compensation

A trade secret can for the res of a trust, and it passes to the trustee- compelling disclosure of trade secrets constitutes taking property

Question 39

Rule of Capture

Rule of Reason

Ratione Soli

Answer 39

Rule of Capture
Unequivocal intent and un-abandoned pursuit to appropriate for own use. .
you must have the intent to possess and control over the wild animal (also works for water and oil)
(1) works for all natural resources
(2) most jurisdictions have eliminated because it promotes a rush on the resource

Rule of Reason- Dissent
Hot pursuit with a reasonable prospect of capture

Ratione Soli- landowner has constructive possession of animals on his land, (not exclusive possession) while on your property you have the exclusive right to capture the animal. If someone kills an animal on the landowners property, the landowner gets the animal

Question 40

Property

Bundle of Sticks Theory

Answer 40

Bundle of Sticks Theory
We have the right to…

(1) Possess
(2) Use
(3) Exclude(include), and
(4) Transfer

Just b/c one or more of these rights are limited does not mean that you loose possession all together.

Property is a “bundle of sticks,” a collection of individual rights which, in certain combinations, constitute property.

Property is the relationship to the object, not the object itself.

Question 41

Permissive Waste

Voluntary Waste

Meliorating Waste

Answer 41

1. Permissive waste: Damage that occurs through general deterioration, wear and tear, but not deliberate action by tenant. Tenant has a duty to make ordinary, tenantable repairs to prevent permissive waste.

Limits: No duty to make substantial repairs (e.g., a tarp on the roof is enough if it has a hole).

Statutory limit: Statutes generally excuse tenant from obligation to pay rent when premises suddenly destroyed (e.g., fire, flood, tornado), but not from graduate deterioration.

Methods to abate rent in proportion to whole: % of sq ft and mkt equivalent No duty on L at C/L. the duty is on the tenant to make ordinary repairs to prevent waste or decay.

2. Voluntary Waste

Material changes that the tenant makes to the premises (even if they increase the property value).

_ Test: Whether changes are material depends_ on

1. the length of the the lease,
2. nature of the property,
3. cost of restoring premises, etc.

Example: No waste where tenant added a partition to the premises when it had a ten-year lease and change could be reversed at relatively low cost. Remember to look at fixture and annexation

Meliorating Waste- – chgs that increase the value of prop (minority). Cts don’t award damages when it’s this type of waste

Question 42

Captured and Found Property

Analysis

Possession – Location

Answer 42

A. Elements:

1. Exercise Dominion and Control
2. Over Personal Property
3. Belonging to (Owned By) the Plaintiff

B. Characterize Property

1. Captured or Abandoned Property
2. Lost or Mislaid Property

C. Who had First Possession

1. Physical Act & State of Mind
2. Occupancy Thoery- Reasonable expectation of ownership based on occupancy
3. Labor Theory- One claimant invest more time in capturing
4. Economics Theory- Externalities: Tragedy of the Commons,

D. Property Captured/ Found on Private

1. Generally owned on private prop despite knowledge
2. Exception: Quasi Public Prop
3. Mislaid Prop
4. Abandoned or Lost Prop
5. Tresspassers

E. Determine Damages

Question 43

Landlord & Tenant Analysis

Answer 43

A. Determine Type of Lease (T-O-Y, PT, TAW, Holdover, Statute of Frauds)

B. L Claims Against T/T’s Defenses

T Remains in Posession

1. Self Help?
2. Based on Rent?
3. L Right to Retake?
4. Peaceable Means?

Tenants Responses/ Defenses

1. Wrongful Eviction Claim? (Self Help)
2. IWH (Res)
3. Retaliatory Eviction (Res)
4. Discrimination under FHA

Tenant Abandoned

1. Acceptance
2. Just mitigating?
3. Anticapatory Repudiation? (Diff Btwn Rental Rate and the lower FMV) (L Adv.: sue for rent remaining balance. Dis: L must prove FMV, paid at discount present value sum.

L Doesnt Accept Offer Surrender

1. Duty to Mitigate?
2. Vacant Stock? (Must show apt with rest of units)
3. Failure to mitigate? (Maj: divided) (Some Jur: T owes no rent at all) (Others: T only owe diff between lease rent and the rent L would have got if made reasonable effort)

T’s Responses/ Defenses to Claims of Damages for Rent

1. Const Eviction (Breached C Quite E)
2. Breached IWH
3. Illegal Lease
4. Interference with T’s Right to Possession

L’s Damage Claims Based on Lease Terms/Physical Harm

1. Breached terms of Contract?
2. Commercial only: Permissive or Involuntary Waste
3. Affirmative Waste (CL- L recover any change to premises) (Modern: T doesnt owe for enhancements- Ameliorating Waste)

Residential: IWH

T’s Right to Possession

Discrimination Claims by T

1. FHA- Single Family? (Owner/3 or fewer houses/advertise doesnt violate) (Owner: Occupies: rents rooms, no more than three other families no violation)
2. T Protected Person

Tort Liability

1. Failure to Warn
2. Effect of Excuplatory Clause (Commercial-Valid) (Res: likely void– bargaining power, public policy)

Question 44

Covenant of Quite Enjoyment (CQE)

Remedies

Answer 44

Landlords Wrongful Conduct

1. Tort Liability?
2. Failure to Act? (Duty/Failure stop 3rd party?)
3. Substantial Interference (Foreseeable–Severe/harmful–perminant/intermittent–capable of being abated by tenant)
4. T Gave Notice * Opp to repair
5. T Vacated in Reasonable Time? (Trad/Maj: Yes- Term lease, cease rent, sue damages from dislocation– No- Pay rent, sue damages) (Modern/Min: Yes- T may remain, abate rent, sue damages without vacating)

Question 45

Res: Implied Warranty of Habitability (IWH)

Answer 45

CL- L no duty to maintain, but is it such an essential repair to cause an eviction (Const or Actual)

If IWH applys- use doctrine of mutual dependency of Lease to assert L’s failure to repairs excuses performance

IWH- Premise safe and fit for public habitation

1. T Waiver at inception of lease?
2. Notice of needed repairs?

T’s Remedies

1. Vacate Cease rent, sue for damages related to relocating
2. Remain in Possession- withhold ren til fixxed– repair and deduct rent
3. Punitive Damages
4. T may still have to pay reduced rent amount (calculate how)

Retaliatory Eviction

1. Proof of Retaliatory Motive
2. T cannot be in default

Question 46

Rent Acceleration Clause

Without Clause

Answer 46

Upon failure to pay rent all rent for remainder of term shall become due

Generally invalidated as unwarrented if L seeks Acceleration and recovery of possession

Without this Clause in Lease

CL- rent can be sued for only when it becomes due

Modern- Apply contract law to lease even though they contain no acceleration clause

Question 47

Defenses To Rent

Partial Actual Eviction

Answer 47

Illegal Purpose

Frustration of Purpose- lease limited to one purpose, Gov restricts that purpose- T dischaged from liability. (Some courts dont apply)

Taking Lease by Eminent Domain

1. Taking Entire Leasehold- Leasehold and reversion merge in the Taker- Rent obligation ceases– lessee entitled award amount equal to value of unexpired term, less rent due.
2. Temporary Taking (Maj: Obligation not deminished) (Minority: Rent abated in proportion)
3. Destruction of Premise No excuse to Rent. (CL- doesnt excuse— Exception: space within a building, and building itself destroyed) (Modern: distruction terminates)
4. Eviction– Constructive– Actual– Partial Actual (Part of premise–Cl rent ceases—- Partial Actual by one holding Paramount Title– T continues to be liable for rental value of balance of premises—- Where loss seriously impairs T ability to use, T excused from rent)

Question 48

Transfers of Reversion by L

Answer 48

CL- if owner leases to T then Sells land to B – B is not T’s landlord unless T concents– Act of Consent called attonment

Modern– B steps into L’s shoes and becomes T’s landlord

Question 49

Contract

Property Theory

Answer 49

• Contract- if one party to a contract breaches the duty under contract, generally other party justified in terminating terms

(mutually dependent→ one party breaches→ other party relieved)

• Property Theory- lease conveyance- viewed as independent→

1. L breaches duty to T only remedy was the sue for damages→
2. would have to continue to perform lease obligations. →
3. however breach the covenant of quite enjoyment, constructively evicted, (terminate lease?)

Question 50

CL - L’s Duty to provide Habitable Premise

Illegal Lease

Answer 50

Landlord’s Duty at Inception of the Lease
At common law, there is no implied covenant by the landlord that the premises are habitable or are fit for the purposes intended

Exceptions
The four recognized exceptions to the above rule are: a

1. furnished house for a short term (e.g., summer cottage);
2. hidden defects
   known to the landlord;
3. common areas;
4. and a building under construction.

Illegal lease
A lease of premises which the landlord knows are in substantial violation of the housing code is illegal if the code prohibits rental of property in violation of the code. If the lease is illegal, the covenant to pay rent cannot be enforced.