Transfers of Leasehold and Landlord's Tort Liability Flashcards
What is an assignment in the context of a lease? What is a sublease?
In an assignment, a tenant transfers their interest in whole for the entire remaining term of the lease.
In a sublease, a tenant transfers their interest in part, meaning the tenant has retained some part of the remaining term, other than a right to reenter upon breach.
May a landlord prohibit assignment or subletting? Exceptions?
In a lease, a landlord can prohibit a tenant from assigning or subletting without the landlord’s prior written approval.
EXCEPTION: Once a landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant, unless the landlord expressly reserves the right.
What is the relationship between an assignee and a landlord?
The assignee stands in the shoes of the original tenant in a direct relationship with the landlord. In other words, the assignee and the landlord are in “privity of estate,” and each is liable to the other on all covenants in the lease that “run with the land” (e.g., promises to pay rent and repair).
NOTE: The assignee is NOT in privity of contract with the landlord because they were not party to original lease agreement (i.e., the never exchanged the original promissory words of contract that created the lease). The assignee IS in privity of contract with the original tenant (the assignor).
What is the relationship between landlord and a tenant who has assigned their interest in the lease to another?
After assignment, the original tenant is no longer in privity of estate with the landlord, but their lease contract remains in effect and enforceable. In other words, the original tenant remains liable on the original contractual obligations, such as to pay rent (i.e., privity of contract) because they shared the original promissory words of contract that created the lease.
The landlord and original tenant (assignor) remain secondarily liable to each other (e.g., should the assignee fail to pay rent or breaches some other covenant in the lease, the original tenant is liable).
HYPO: L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises.
(1) Can L proceed against T3, the direct wrongdoer?
(2) Can L proceed against T1, the original tenant?
(3) Can L proceed against T2?
(1) Yes, because L and T3 are in privity of estate.
(2) Yes, because L and T1 are in privity of contract.
(3) No, because L and T2 are neither in privity of estate (T2 does not have possession) nor privity of contract (T2 never directly contracted with L1).
What is a covenant that “runs with the land”?
A covenant runs with the land if the original parties to the lease so intend and if the covenant “touches and concerns” the land (i.e., benefits the landlord and burdens the tenant (or vice versa) with respect to their interests in the property).
True or false: Because a covenant to pay rent runs with the land, the assignee owes rent directly to the landlord.
True
True or false: If an assignee reassigns the leasehold interest, their privity of estate with the landlord ends, and they have no liability for the subsequent assignee’s failure to pay rent.
True
How does a sublease arise? What is the legal effect?
A sublease arises when T1, the original tenant, transfers less than her entire interest to T2.
The result is that the landlord and sublessee are in neither privity of estate nor privity of contract. Instead, T2 is responsible to T1, and vice versa (e.g., T2 pays rent to T1, who then pays L). Thus, a sublessee is not personally liable to the landlord for the rent or for the performance of any of the covenants in the main lease unless the sublessee expressly assumes the covenants.
What are the landlord’s remedies in the event of nonpayment of rent or breach of other covenants when the original tenant has sublet the premises to another tenant?
The landlord may terminate the main lease if the lease so states or the power is given by statute. The sublease automatically terminates with the main lease.
What are the rights of a sublessee as against the landlord?
A sublessee cannot enforce any covenants made by the landlord in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.
How may a landlord prevent a tenant from assigning or subletting?
A landlord may prohibit a tenant from assigning or subletting without the landlord’s prior written approval if the lease with the original tenant permits.
May a prohibition against assignment be waived? How?
Yes. A valid covenant against assignment is considered waived if the landlord was aware of the assignment and did not object (e.g., by knowingly accepting rent from the assignee).
Once a landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant (T1), unless the landlord expressly reserves that right (known as the Rule in Dumpor’s Case).
Lease covenants restricting assignment and sublease are strictly construed against _______.
the landlord
Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa.
If a tenant assigns or sublets in violation of a lease provision, what results?
The landlord may terminate the lease or sue for damages, but the transfer is not void.