Property Midterm Flashcards
Define Tenant
The Tenant has the right to possess, use, exclude and enjoyment of the property for the K duration.
*Present Possessory Interest
Define Landlord
The Landlord still has record title and the right to possess after the K duration
a) Retaining future interest: “Reversion”
b) Transferring Future interest to 3rd party: “Remainder”
*Future Possessory Interest
Define Covenants
Covenants are Formal agreements or promise, usually included in a contract or deed, to do or not do a particular act. These are just promises (they can be implied or express)
- “LL Shall…”
Define Conveyance
Conveyance grants a “possessory estate” to T
*“Landlord conveys/hereby leases to…”
The Term of Year
(1) The Term of Year: Term is a fixed period of time Term with a beginning and end.
📄 - The Lease could provide the T or LL with the right to terminate upon __ day’s notice
©️ - No Notice is required since lease “naturally: ends on the last day of the term
⚖️ - There is often rules for residential leases but no commercial.
The Periodic Tenancy
(2) The Periodic Tenancy: this is a period of some fixed duration that continues for succeeding periods until either the landlord or tenants gives notice of termination. (month to month or year to year)
📄 - Often there is no K. (If there is, LL could agree to provide more notice the state requires)
©️ - LL or T need to give notice prior to end of term, at least length 1 length of the “period” but no more then 6 months. If no notice, it automatically extends *END OF PERIOD
⚖️ - NYRPL: It states that no monthly tenant can be evicted unless proper notice is given. For residential tenancies, LL must give written notice at least 30 before the term expires. Notice must
state the landlord’s intent to terminate the tenancy and begin eviction proceedings if the tenant does not vacate by the specified date. *This is only when LL terminate *30 DAYS
Tenancy at Will
(3) Tenancy at Will: Tenancy with no fixed period that endures so long as both landlord and tenant desire.
📄 - Rarely an enforceable K
©️ - No Advance notice was required, If 1 party has the right to terminate both do. Auto terminates if: someone dies, LL sells, or Tenant Assigns its lease. *ANY TIME
⚖️ - NYPRL: This can be ended if LL provides written notice of at least 30 days to the tenant. The notice must be delivered to the tenant directly or to someone living on the premises who is of suitable age and discretion. If neither is possible, the notice can be affixed to a conspicuous part of the property. After thirty days from the notice, the landlord can re-enter, begin legal action to regain possession or proceed with eviction without needing additional notice to vacate. *30 DAYS
Holdover Tenancy
(4) Holdover Tenancy: Trespasser that used to be a tenant. There is no legal right of possession due to the lease being used, Not a tenancy at all, when a tenant remains in possession of property after their lease has ended and no longer legally has the right to possess
The lease has 2 Covenants from LL…
(1) covenant of delivering possession (commencement day)
(2) covenant of quiet enjoyment (every day after commencement day- can only be enforced when Tenant is in
possession)
Legal vs Actual Possession
Legal right of Possession: Who has legal right to occupy with out obstacles in their way.
/There are no third parties claiming superior rights to the premises that would interfere with the T taking possession
Actual Possession: Who actually in possession (physically living there) can only be one person/T1 or T2
On the commencement date, T is able to enter and occupy the space free of any holdover tenants or wrongdoers.
Is there a Duty to Deliver Possession?
📄 - If there is an express K provision, it will govern. If lease is silent, the statute default rule is applied
©️ - (1) English Rule: The Landlord MUST give possession to the tenant
(both legal and actual)
(2) American Rule: Then Landlord MUST give legal passion only and does not have a duty to deliver actual possession.
⚖️ - In the absence of an express provision to the contrary [in the Lease], there is an implied duty to deliver legal and actual possession, (i.e., a default rule) **New York Kind of follows the UK Rule
*These are all of the rules for delivering possession at the BEGINNING OF THE TERM, if the T later, after getting initial possession gets dispossessed this is not longer the rule.
Privity
(1) Privity of Contract
Legal relationship between parties based on K
(created by entering into a K aka a lease OR by assumption)
(2) Privity of Estate:
the relationship between the holder of the right of possession and the holder of the reversionary interest (ie Landlord).
- the connection of two people by their simultaneous but different interest in the same property
*The Suit is still breach of contract NOT Privity of estate.
How to create & sever Privity of Contract
Create:
1. Entering into a K
2. Assumption by Assignee
Sever:
1. Release
2. Full performance
How to create & sever Privity of Estate
Create:
1. LL and Holder of the possessory estate
Sever:
1. Assignment
Assumption
Privity of K can be Assumed by another party (i.e., T2) though it DOES NOT Sever LL and T1 Privity of K
Assignment
Lessee transferred property to “Assignee” (T2) for the entire remainder of his term AND The original tenant transferred ALL rights and can no longer enter the property
* Only tenant 1 needs to sign the Assignment (It is a convenience)
Legal consequences for an assignment/Who can the landlord sue?
(1) Privity of Contract = still between LL & T1 (unless assumed the both T1 and T2)
(2) Privity of Estate = Severed between LL & T1 Now Privity only with LL & T2 (the assignee)
Releases
This is a signed “release” that Server’s Privity of Contract. This can be w/ subleases or assignments.
**Assignment does not release the releasee only the release can release
Surety
The one who has become legally liable for the debt, default, or failure in duty of another, he obligated to pay; the good-guy; but not fair! [T1/original tenant]
Suretyship
this is an equitable principal for the person who has to pay but not for the person who should have to pay.
*You use suretyship if T1 has NOT been released. (therefor has the responsibility to pay but shouldn’t have to)
*T1 sues T2 under suretyship (this is because an assignment is not a contract)
*If T1 Was Released He No Only Has Surety
*Q&A “Can T1 sue T2” Yes … a) Privity of Estate or b) Privity of Estate and Contract if T2 assumed
Sublease
A transfer of property to a “sublessee” for less than the entire term (even for a day) + NOT ALL rights are transferred. T1 has reversionary Interest
T2 has NO Privity with LL
How to determine if it is a sublease
(1) Traditional/Formulistic Rule= If you transfer ALL then assignment. If only SOME it is sublease
(2) Modern Rule = You looks at the parties intent
*On exam use both rules to analyze, define both rules then apply
Is Consent Needed? 1/3 CONTRACT
📄
(1) Lease is Silent:
“When the lease is silent, courts will not find an implied covenant to assign unless the tenant has a special skill or ability which has a material affect on the LL’s expectations.”
(2) “T cannot assign w/out LL consent”:
- Traditional Rule: OK to refuse consent, even if arbitrary (even if unreasonable)
- Modern Rule Kendall: must be commercially reasonable
(3) “T cannot assign w/out LL consent AND LL must be reasonable”:
- Enforce the K provision
(4) “T cannot assign w/out LL consent AND LL can be unreasonable”:
- Traditional Rule: Enforce K provision
- Modern/Kendall: Even Kendall court (and Restatement) says ok to enforce an express provision
Is Consent Needed? 2/3 Common Law
©️
(1) Traditional Approach: May refuse consent even if arbitrary (LL can be unreasonable)
(2) Modern Approach: LL must be commercially reasonable if Lease is silent
(3) Dumpnor’s Rule: if LL consents to any assignment, it has impliedly consented to all subsequent assignments (principle of implied consent). Parties can negate the implied rule with an express statement in the lease… express statement “consent to any particular assignment does not imply its consent to any subsequent assignment”
