Real Property Flashcards
- The issue is what law the court would apply in determining whether Tom had a right to terminate the lease due to Helen still occupying the property.
1a. American Rule
Generally, a landlord has a duty to provide the tenant access to the property on the specified start date. Under the American Rule, the landlord is required to give the tenant physical possession of the property on the start date, or the tenant is entitled to terminate the lease.
Application
Here, if the court follows the American Rule, Tom would have the right to terminate the lease. Based on the lease, Tom was supposed to take possession on January 1, 2021; however, Helen was still occupying the building as a holdover tenant. Under the American Rule, the landlord is required to give physical possession which means he was required to get Helen out prior to the move in date. The landlord failed to do so which would give Tom the right to
terminate the lease. The idea is that a tenant is not responsible for another party so by failing to give physical possession the landlord is breaching the terms of the lease.
As a result, the court would be following the American Rule if they held that Tom had a right to terminate the lease because under the American Rule the landlord is required to give physical possession.
1b. English Rule
Generally, a landlord has a duty to provide the tenant access to the property on the specified start date. Under the English Rule, the landlord is not required to give physical possession but merely give access to possession. Under the English Rule, if there is a holdover tenant the new tenant is required to remove them from the premises.
Application
Here, if the court finds Tom could not terminate his lease, they would be following the English Rule. Under the English Rule the landlord was merely required to give Tom access to the building by January 1, which he did. The landlord gave Tom the keys and access on January 1 and therefore he either had to get Helen out himself or had to wait until the landlord removed her. The idea is that the holdover tenant was a trespasser and therefore, the landlord was not consenting to them being there, so they are not breaching
the lease for someone else breaking the law.
As a result, the court would follow the English Rule if they hold that Tom cannot terminate the lease because under the English Rule the landlord was merely required to give access on the lease date.
- The issue is whether the landlord had a right to refuse Tom’s assignment to his friend.
Generally, an interest is assignable unless the parties expressly agree otherwise. When parties agree that prior consent is required, there is an implied duty of good faith that the landlord will not unreasonably withhold consent.
Application
Here, the landlord had a good faith reason for withholding his consent. Tom asked the landlord to assign his remaining two years to a friend so he could move into a house. Based on their agreement, the landlord retained the right to consent prior to any transfer. After asking, the landlord did a background check on the friend and found out he had a low credit rating. As a result, the landlord told Tom he was not consenting to the assignment,
and Tom continued to live there. Having poor credit is a valid reason for a landlord to withhold their consent to assignment. The friend likely has low credit rating due to debt and failure to pay creditors. Landlord has valid concerns because this makes it more likely that the landlord will not receive rent payments from the friend. As a landlord, the purpose of renting the building is to receive the monthly rent check so by a potential tenant showing a history of failing to pay the landlord has a valid concern and right to deny
the assignment. As a result, the landlord did not withhold consent in bad faith because the background check showed the friends low credit score which gives landlord valid concern to not allow the assignment.
- The issue is whether the landlord can treat Tom as a periodic tenant for failing to move out at the end of his lease.
When a tenant fails to vacate the premises on the specified date, the landlord has a few courses of action. The landlord can hold the tenant as a periodic tenant subject to the terms of the original lease or the landlord can evict the tenant and sue for any damages. When a residential term of years tenant fails to vacate the premises, the landlord may hold them to a month-to-month periodic tenancy.
Application
Here, Tom was a residential tenant for a term-of-years lease. The original agreement was for $1,300 a month, starting on January 1, 2021, and ending on December 31, 2023. Tom failed to move out and remained in possession on January 1, 2024. Landlord gave Tom time to move out as well as he did not send a letter until January 4. Tom is going to argue it is unfair to hold him to the terms of the original lease because the rent substantially exceeds the current market rate. However, this argument will fail because the court will
hold the parties to the terms of the original lease. As a residential tenant, the holdover tenancy will be a month-to-month periodic tenancy according to the remaining terms of the lease. Even though the lease expired, by staying in possession after the end date Tom was impliedly agreeing to continue his lease terms. The original lease will control all but the dates of the new relationship, and the court will view Tom as a month-to-month tenant. As a result, Tom can be held as a month-to-month periodic tenant according to the terms of the original lease because he failed to vacate the premise on the end date.
