Property Flashcards
Characteristics of a lease
-possessory interest in land-exclusive interest
-occupies a “fixed” space
-occupied space is clearly set off from the rest of the establishment
-the larger business establishment has little control over employees and operations
-agreement refers to parties as “tenant” or “lessee”
-parties call the money paid “rent”
-generally assignable unless specifically prohibited
Characteristics of a license
-authorizes the licensee to use land in the possession of another- revocable at the will of the licensor
-space occupied may be moved around at the will of the establishment
-occupied space is indistinctly set off from the rest of the establishment
-the larger business establishment has much control over the employees and operations
-agreement refers to parties as “licensee” or equivalent term
-parties call the money being paid something other than “rent”
-not assignable
Implied Covenant of Quiet Enjoyment
-landlord’s duty/promise that they have title to the property/authority to lease it
-promise that they or any person under their control will not substantially interfere with the tenants enjoyment of the property or common areas
-if there is a problem, the LL will take care of it
-all leases have a covenant of quiet enjoyment
Ways CQE can be breached
-at the commencement of lease term
-during the lease term
-partial actual eviction
-constructive eviction
-general breach
Holdover Tenant- Majority rule
If holdover tenant is in place, LL has to take care of it
-while lessee is dispossessed LL may have to pay for lodging, storage and tenant doesn’t have to pay rent
-Lessee may not get out of lease immediately, has to wait a reasonable amount of time
Holdover Tenant- Minority Rule
- Not the LL problem if there is a holdover tenant
-lease not contingent on whether premises can actually be occupied, only matters that LL has the right to rent it out
-Lessee must do a full eviction proceeding and still pay rent, at the end of the proceedings old tenant would pay for new tenant’s lodging, storage, fees, etc
Partial actual eviction
the LL deprives the tenant of physical possession of some portion of the leased property including denial of access to the leased premises
Partial actual eviction- remedies (majority)
tenant must give notice and allow reasonable time to cure
-option 1: stay on premises and don’t pay rent until the encroachment is removed
-option 2: tenant can consider the lease terminated, move out, and not be held responsible for rent
Partial actual eviction- remedies (minority)
tenant must give notice and allow reasonable time to cure
-traditional contract remedies- if 10% of the property is encroached, tenant pays rent -10%
Constructive eviction
occurs when the LL so deprives the tenant of the beneficial use and enjoyment of the property that the action is equivalent to depriving the owner of physical possession
-no intent is necessary
-no physical deprivation occurs
-constructive eviction is a severe example of a breach of the CQE
Constructive eviction (remedies)
give notice and allow a reasonable amount of time to cure
-tenant MUST leave afterwards or they are waiving their right to use constructive eviction as a defense to a breach of CQE
Landlord duties
-to provide tenant with the legal right to possession
-not to interfere with the tenant’s physical possession
-In most jurisdictions (english rule) make possession actually available to tenant
Implied Warranty of Habitability (residential only)
the LL is required to maintain the leased premises in livable conditions throughout the lease
-States have statutes and local codes that help further define livable and habitable
IWH- Can it be waived?
No, it cannot be waived as a condition in a lease.
- EXCEPTION: Both parties agree and have a separate written agreement apart from the lease
IWH- remedies?
- withhold rent until repairs are made
- remain in premises, pay rent, and sue to collect damages
- make repairs and deduct from rent- applies only to vital facilities and usually capped at a month’s rent
4.i f bad enough, leave premises and do not pay rent- constructive eviction
Implied Warranty of Suitability
-applies only to commercial leases (minority)
-states that premises are to be kept suitable for their intended purposes
-(majority) does not recognize because the average business person is more sophisticated
Landlord’s Tort Liability for Personal Injuries (traditional)
landlord not liable for defects on premises unless:
- Exceptions
1. contracted to make repairs, failed to make them, and P got injured
- knew or should have known about a dangerous condition, did not warn lessee, and lessee or other got injured
- person injured on premises open to public such as a theater
- person injured in part of premises over which landlord had control if he failed to use due care to keep it safe
Landlord’s Tort Liability for Personal Injuries (modern)
a LL is subject to liability for the physical harm caused to the tenant by dangerous conditions either existing before or arising after the tenant has taken possession
-possible breach of IWH
-LL must keep rental units and common areas in a safe, sanitary, and habitable condition
LL held liable if they create an unreasonably enhanced risk of loss or if the danger is foreseeable
—–Ex: Asper v Haffley- court found LL liable for person burned to death in a property because LL knew or should have known the storm windows would provide no means of escape during a fire.
—–Ex: Merrill v Jansma- adopts a general negligence standard and avoids the need for plaintiffs to fit their claims within one of the traditionally recognized exceptions to the traditional rule of non-liability.
FHA protected classes
-race
-religion
-sex
-familial status
-color
-origin
-mental/physical disability
Is Employment, physical appearance, sexual orientation, and gender identity protected classes under FHA?
NO
Can you discriminate in advertising?
NO
When can a LL discriminate?
when owner is renting out a single family home without a broker (no more than 3 homes)
-building with 4 units or less and the LL lives in one of them
-residential home where the person will share a living space with owner
Starrett city/Otero test (FHA)
- must have a limited duration
- its purpose is to address previous discrimination (if they did not have a racial problem in the first place then it fails)
- policy has to favor minorities rather than limit access
ASSIGNMENTS
A transfer of all Rights and Duties under the Lease for the Entire Lease
Privity of Contract: Landlord-Tenant
Tenant – Assignee
Privity of Estate: Landlord - Assignee
SUBLEASES
Privity of Contract: Landlord-Tenant
Tenant- Sublessee
Privity of Estate: Landlord-Tenant
Tenant- Sub lessee
How to Determine if an Assignment is an Assignment or Sublease (Majority)
Look at the term of the lease
Remainder of the term = Assignment
One Day less than the term = Sublease
How to Determine if an Assignment is an Assignment or Sublease (Minority)
Look at the Intent of the Parties and Balancing Factors
Factors for Assignment:
-Full Length of the Lease Term
-Rent paid to the LL
-Says Assignment in Lease
-Same Price Terms
Factors for Sub Lease
-Less than the Full Term
-Rent Paid to the Tenant
-Says Sublease
-Different Price Terms
What happens when assignee Fails to pay rent?
The LL can Recover from the Original Tenant and the Assignee with Privity of Estate (If there have been 2 or 3 assignees in the middle they are not liable)
What happens when sublessee Fails to pay rent?
The LL can Recover from the Original Tenant ONLY- Can Evict the Sublessee
