Transfers of Leaseholds and Landlord's Tort Liability

Question 1

Transfer of leasehold

Answer 1

A tenant/landlord may freely transfer their interest in whole (assignment) or in part (sublease)
-Lease can prohibit transfer without L’s prior written approval
-If L consents to one transfer, L waives the right to object to future transfers unless L expressly reverse the right
-A covenant prohibiting assignment does not prohibit subleasing and vice versa

Question 2

Assignment

Answer 2

Transfer of the entire remaining term of lease
-Assignee steps into original tenant/landlord’s shoes making him liable for all covenants that run with the land (“privity of estate”)
-Original T/L remains liable to L/T for original contractual obligations (i.e., to secondarily pay rent) (“privity of contract”)

Question 3

Sublease

Answer 3

Transfer of part of the remaining term of lease
-exam tip: only sublease when the original tenant reserves time for herself (i.e., last month of the lease)
-Original tenant and landlord remain in both privity of estate and contract
-Sublessee is responsible to tenant and is not personally liable to the landlord for rent or covenants in the main lease unless express agreement
-Therefore, sublessee can only enforce the implied warranty of habitability against L, but not other lease covenants

Question 4

Covenants that run with the land

Answer 4

A covenant runs with the land if the original parties to the lease intended it to and the covenant “touches and concerns” the land
-Benefits L and burdens T (vice versa) with respect to their interest in property
-Something to do with the premises (not paying rent)
-Most covenants

Question 5

Landlord tort liability

Answer 5

Caveat lessee (common law)
-L under no duty to make premises safe except (CLAPS):
1. Common areas - reasonable duty of care in maintaining common areas
2. Latent defects - duty to warn about hidden defects
3. Assumption of repairs - no duty to make repairs, only to not make negligent repairs
4. Public use rule - significant defect in short-term lease of public space (i.e., convention center); same reasoning as 5
5. Short-term furnished lease - T does not have time/expertise to make repairs

Modern rule
-Landlords owe general duty of reasonable care towards residential tenants, resulting in liability for injury from ordinary negligence + notice of defect and opportunity to repair it