Real Property Flashcards
The oral five-year lease between Landlord and Tenant violated the Statute of Frauds. Because Tenant took possession two years ago and Landlord accepted monthly rent payments from Tenant throughout that time, a periodic month-to-month tenancy was created.
Most states have enacted a Statute of Frauds that requires leases of more than one year (in some states, three years) to be in writing. A lease subject to the Statute of Frauds is voidable until the tenant takes possession, and the landlord accepts rent from the tenant. If the tenant takes possession and the landlord accepts rent, an at-will or periodic tenancy is created because there has been partial performance.
Here, Tenant took possession of the office and Landlord accepted rent. Thus, a periodic or at-will tenancy was created.
An at-will tenancy may be terminated without notice; a periodic tenancy requires notice for a period at least equal to the rent-payment term. Where, as here, rent has been paid for a substantial period of time, the tenancy is generally classified as periodic because payment over time evidences commitment to the arrangement and creates expectations that justify notice of termination. Assuming that a periodic tenancy was created, most likely it was a month-to-month tenancy because the lease provided for monthly payments of rent.
A periodic month-to-month tenancy is terminable by notice given at least one month prior to the termination date. Here, the tenancy was not properly terminated because Tenant gave Landlord only two weeks’ notice.
A periodic month-to-month tenancy can be terminated by either party with a one-month notice of termination. At common law, an oral notice was sufficient. Today, many states require written notice of termination. requiring written notice minimum of 30 days before date specified in notice).
Here, Tenant gave Landlord a two-week notice of termination instead of the required one-month notice. Thus, the notice to terminate was ineffective to terminate the month-to-month tenancy as of the beginning of the next month even if Tenant’s oral notice of termination was acceptable under state law.
Because the lease did not prohibit an assignment, Tenant was free to assign the lease to Friend. Because Friend properly took an assignment of the office lease from Tenant and timely paid the $800 rent to Landlord, Landlord has no claim against Tenant for unpaid rent.
Where a periodic tenancy arises, the terms of the unwritten lease, except the provision relating to the lease term, are enforceable. See generally. In the absence of a contrary provision in a lease, a tenant’s interest, like other property interests, is assignable. The assignee of a month-to-month tenant takes a month-to-month tenancy.
When a tenant assigns his interest in a lease, privity of estate arises between the assignee and the landlord. Privity of contract continues to exist between the landlord and the tenant. The tenant is still contractually bound to pay rent and thus serves as a surety for unpaid rent; if the assignee fails to pay the rent, the tenant is liable to the landlord. See id.at 302–03. Here, because the assignee, Friend, paid the rent to Landlord when Friend sent Landlord the $800 check, no additional rent was due, and Tenant is not liable to Landlord for $800.
