Property

Question 1

Characteristics of a lease

Answer 1

-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

Question 2

Characteristics of a license

Answer 2

-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

Question 3

Implied Covenant of Quiet Enjoyment

Answer 3

-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

Question 4

Ways CQE can be breached

Answer 4

-at the commencement of lease term
-during the lease term
-partial actual eviction
-constructive eviction
-general breach

Question 5

Holdover Tenant- Majority rule

Answer 5

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

Question 6

Holdover Tenant- Minority Rule

Answer 6

• 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

Question 7

Partial actual eviction

Answer 7

the LL deprives the tenant of physical possession of some portion of the leased property including denial of access to the leased premises

Question 8

Partial actual eviction- remedies (majority)

Answer 8

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

Question 9

Partial actual eviction- remedies (minority)

Answer 9

tenant must give notice and allow reasonable time to cure
-traditional contract remedies- if 10% of the property is encroached, tenant pays rent -10%

Question 10

Constructive eviction

Answer 10

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

Question 11

Constructive eviction (remedies)

Answer 11

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

Question 12

Landlord duties

Answer 12

-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

Question 13

Implied Warranty of Habitability (residential only)

Answer 13

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

Question 14

IWH- Can it be waived?

Answer 14

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

Question 15

IWH- remedies?

Answer 15

1. withhold rent until repairs are made
2. remain in premises, pay rent, and sue to collect damages
3. 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

Question 16

Implied Warranty of Suitability

Answer 16

-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

Question 17

Landlord’s Tort Liability for Personal Injuries (traditional)

Answer 17

landlord not liable for defects on premises unless:
- Exceptions
1. contracted to make repairs, failed to make them, and P got injured

2. knew or should have known about a dangerous condition, did not warn lessee, and lessee or other got injured
3. person injured on premises open to public such as a theater
4. person injured in part of premises over which landlord had control if he failed to use due care to keep it safe

Question 18

Landlord’s Tort Liability for Personal Injuries (modern)

Answer 18

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.

Question 19

FHA protected classes

Answer 19

-race
-religion
-sex
-familial status
-color
-origin
-mental/physical disability

Question 20

Is Employment, physical appearance, sexual orientation, and gender identity protected classes under FHA?

Answer 20

NO

Question 21

Can you discriminate in advertising?

Answer 21

NO

Question 22

When can a LL discriminate?

Answer 22

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

Question 23

Starrett city/Otero test (FHA)

Answer 23

1. must have a limited duration
2. its purpose is to address previous discrimination (if they did not have a racial problem in the first place then it fails)
3. policy has to favor minorities rather than limit access

Question 24

ASSIGNMENTS

Answer 24

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

Question 25

SUBLEASES

Answer 25

Privity of Contract: Landlord-Tenant
Tenant- Sublessee

Privity of Estate: Landlord-Tenant
Tenant- Sub lessee

Question 26

How to Determine if an Assignment is an Assignment or Sublease (Majority)

Answer 26

Look at the term of the lease
Remainder of the term = Assignment
One Day less than the term = Sublease

Question 27

How to Determine if an Assignment is an Assignment or Sublease (Minority)

Answer 27

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

Question 28

What happens when assignee Fails to pay rent?

Answer 28

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)

Question 29

What happens when sublessee Fails to pay rent?

Answer 29

The LL can Recover from the Original Tenant ONLY- Can Evict the Sublessee