Real Property 16-30 Flashcards
A lease provides the tenant with a present possessory interest in the property and gives the landlord a future interest.
What are the three types of Leaseholds?
Tenancy for Years – fixed period of time, automatically terminates;
Periodic Tenancy – initial period of time, then automatically continues for additional equal periods until terminated by proper notice.
Created by: express agreement, implication, or by law.
Tenancy at Will – continues until either party terminates it, usually created by express agreement.
Priority: HIGH
What can a Landlord do if a Tenant remains on the property and does not pay rent?
Initiate eviction proceedings; OR
Allow the tenant to remain on the property and sue for damages.
Priority: Medium
What are the Landlord’s two options if a tenant holds over?
He may:
Evict the tenant; OR
Hold the tenant over (by holding the tenant over, an implied month-to-month tenancy is created).
*If a holdover tenant does not pay rent, the landlord may also seek damages.
Priority: N/A
What is a Landlord’s duty to repair (residential and commercial)?
Residential: Keep the rental property in habitable condition, to repair common areas, and a duty to warn of latent defects that create a risk of serious harm.
Commercial: DO NOT have a duty to repair (but authorities may require it in certain instances).
Priority: Low
What is the Warranty of Habitability?
What can the Tenant do upon breach?
It’s implied in EVERY residential lease and requires the Landlord to provide a place to live that is habitable (reasonably suitable for human needs).
If breached, the Tenant may:
Move out and terminate the lease;
Withhold or reduce the rent;
Repair the issue and deduct the cost from the rent; OR
Remain on the premises and sue for damages.
Priority: HIGH
When does Constructive Eviction occur?
When:
The landlord breached a duty to the tenant;
The landlord’s breach caused a loss of the substantial use and enjoyment of the premises;
The tenant gave the landlord notice of the condition;
The landlord failed to remedy it in a reasonable time after notice was given; AND
The tenant vacated the premises.
Priority: HIGH
Does a Landlord have a duty to mitigate his damages?
At common law, a landlord DID NOT have a duty to mitigate.
BUT, now most states DO impose a duty to take reasonable steps to mitigate losses (i.e. attempting to lease to another tenant).
*Mitigation doesn’t need to be successful to recover damages, and a landlord is entitled to sue for the difference in rent between the new and original tenant.
Priority: Medium
Assignment of a Lease
When does an Assignment occur, and who is liable to the Landlord for rent thereafter?
It occurs when the assignor transfers ALL of his remaining interest in a lease to a third-party (the assignee).
The assignee AND the assignor both remain liable to the landlord for rent and all other covenants that run with the land.
Priority: HIGH
Assignment of a Lease
When a lease has a Silent Consent Clause, what two approaches have been adopted by state courts to determine how consent is given?
Most States, allow the landlord to withhold consent for any reason(even if unreasonable).
Some States, require the landlord to have a reasonable basis for withholding consent.
For example: Inability to fulfill lease terms, financial irresponsibility, instability, etc.
Priority: N/A
What is a Sublease?
Is a Sublessee liable to the Landlord for rent?
A sublease occurs when a sublessor transfers only SOME of his remaining interest in a lease to a third-party.
The sublessee is NOT liable to the landlord for rent or other covenants because there is no privity of estate with the landlord.
Priority: Medium
Termination of Leases
What is a Surrender?
An agreement between the landlord and the tenant to end a lease early.
If accepted, the tenant’s duty to pay rent ends. If not accepted and the tenant leaves anyway, they are deemed to have abandoned the lease and are liable for damages.
Priority: N/A
What is a Real Covenant?
A non-possessory interestin land that obligates the holder to either do something or refrain from doing something to the land.
(The remedy is damages, unlike equitable servitudes)
Priority: HIGH
What must be present to enforce the benefit of a Real Covenant?
There must be:
A writing that satisfies the statute of frauds;
Intent that the covenant runs with the land;
Vertical privity between succeeding parties; AND
The covenant must touch and concern the land.
Priority: HIGH
What must be present to enforce the burden of a Real Covenant?
All of the requirements for enforcing the benefit PLUS:
Horizontal privity between the original parties; AND
The new owner must have notice of the covenant (actual, constructive, or inquiry notice).
Priority: HIGH
What is an Equitable Servitude?
Covenants that equity will enforce if the burdened estate had notice of the covenants.
(The remedy is injunctive relief, rather than damages)
Priority: Medium
