Transfers of Leaseholds & Landlord's Tort Liability Flashcards
In what 2 ways may a tenant transfer their rights to another in a lease?
A tenant may either (a) assign their rights to another - i.e. transfer interest in the whole, or (b) sublease their rights – i.e. retain some part of the interest.
Note: On exam, a sublease will = any transfer in which tenant reserves certain duration of lease for themselves at end - assume anything else is a full assignment.
What is the legal effect of a tenant assigning their rights to another?
New assignee is now in privity of estate with the landlord - is fully liable on the lease. But, original tenant also remains liable on the original K.
Both liable to any covenants that “run with the land” - e.g. rent.
Assignee owes rent directly to landlord. Landlord may sue either for rent.
Can a landlord limit a tenant’s right to sublet/assign?
Yes, if its in original lease then that governs. Can prohibit tenant from subletting without landlord prior written approval, but once landlord consents to one transfer then this waives right to object to future transfer (unless they expressly reserved the right).
if tenant transfers in violation, transfer is not void BUT LL can terminate & sue.
What is the legal effect when a tenant subleases the property?
When tenant subleases, then the subletter is not in any privity of K with landlord. Tenant retains their entire contractual obligation with landlord, so they owe rent directly to landlord and subletter owes it to them. Subletter and landlord cannot enforce rights against one another (except maybe subletter can enforce implied warranty of habitability against LL).
What happens when landlord assigns rights?
Landlord may assign rights/reversion interest to a new owner in full. Usually done in a deed. Tenant consent not required. Both new landlord and old remain liable for performance of covenants.
Under c/l (torts), what is the landlord’s duty of care? (i.e. will be liable for damages form injuries caused by these things…doesn’t necessarily have to repair)
Generally, caveat lessee, with 5 exceptions: (CLAPS)
- common areas - duty of reasonable care in, e.g. hallways/elevators
- latent defects - must warn tenant re dangerous conditions not discoverable, but tenant assumes risk once they are warned
- assumption of repairs - no duty to make repairs, but duty to complete repairs once begun
- public use rule - landlord who leases public space + significant defect + short lease length, has duty to cure defects that may injure public
- short term lease of furnished dwelling - rents fully furnishes short term dwelling, then has duty re defective condition which injures tenant
What is the modern trend wrt to c/l tort liability of landlords?
Modern trend holds that landlord will be liable in tort for injuries resulting from ordinary negligence if the landlord had notice of a defect and opportunity to repair it.
Note: defects existing before move in landlord is generally liable for, but ones arising after move in only liable for if landlord knew of/should have known of them.
Note: if landlord has statutory duty to repair - e.g. housing codes – then will be liable in tort
Note: can be held liable for injuries resulting from criminal conduct if had duty to have security cameras, etc.
What is a fixture? When does it pass with the land vs. may be removed by the person who installed it?
A fixture is a chattel that has been so affixed to the land that is stops becoming personal property and is part of the realty.
A chattel becomes a fixture when (1) item is so incorporated into the realty so that they lose their identity OR (2) when removal would cause considerable damage to property (e.g., plumbing, heating ducts, furnace).
Absent agreement, tenant is deemed to not intend to permanently improve property, so generally has right to remove chattel unless above conditions apply. Must be removed by end of lease term + tenant liable for damages cause by removal.
