Property II
Paben
Spring 2013
I. Leaseholds: are nonfreehold possessory estates and do not have seisin. Landlord holds seisin and Tenant hold possession.
a. Lease: is a document that gives rise to the Landlord-Tenant relationship with certain rights, duties, liabilities and remedies.
b. A lease transfers possessory interest in land so it is a conveyance that creates property rights AND also creates contractual rights
II. Tenancies
a. Term of Years (ToY): an estate that lasts for some fix period of time or for a period computable by a formula that results in fixing calendar dates for beginning and ending, once the term is created or becomes possessory OR a single fixed term of any length.
i. A term must be for a fixed period, but it can be terminable earlier upon the happening of some event or condition.
1. ‘Years’ can be ANY amount of time. It can be days, months, etc.
2. There is no Common Law limitation on the duration, but it may be statute specific
3. Since the end date is established from the outset, no notice of termination is necessary to bring the estate to an end.
4. Death of a Landlord or Tenant has no effect on the duration of a PT.
b. Periodic Tenancy (PT): a lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination OR reoccurs for a period of time
i. If notice is not given, the period is automatically extended for another period.
ii. Death of a Landlord or Tenant has no effect on the duration of a PT.
iii. Common law required at least 6 months advance notice to terminate a yearly PT OR notice equal to the length of the tenancy if the PT is less than a year.
c. Tenancy at Will (TaW): is a tenancy of no fixed period that endures so long as both landlord and tenant desire.
i. The TaW ends when one of the parties terminates it. MUST BE BILATERAL
ii. Garner v. Garner: (common law) Rule: When a person leases property to the other with the terminology “…as long as” is indicative of a determinable life tenancy, and can only be terminated at the will of the grantee or at the grantee’s death.
d. Tenancy at Sufferance (Holdovers): occurs when a tenant remains in possession (holds over) after termination of the tenancy OR remains in possession after their right to do so has expired.
i. MUST BE VOLUNTARY
ii. The Landlord as two remedies:
1. Eviction with damages OR
2. Consent (implied or express) to the creation of a new tenancy.
a. Usually occurs when the Landlord accepts payment from the tenant
b. The tenancy resulting from holding over is usually subject to the same terms and conditions (rent, duty to repair, etc) as those in the original lease, UNLESS the parties agree otherwise or unless some term or condition is regarded as inconsistent with the new situation
i. The length of the new tenancy is jurisdiction dependent.
III. Selection of Tenants
a. Federal Housing Act
i. §3603: FHA does not apply to religious organizations, private clubs or single-family houses
ii. §3604 Discrimination: it shall be unlawful to refuse to sell, rent, negotiate for the sale, rental of a dwelling to any person due to race, color, religion, sex, familial status or national origin
iii. This included discrimination to make, print, publish in any notice, statement or advertisement of sale or rental of property
1. The refusal or discrimination of a handicapped person, or otherwise deny or make unavailable is also unlawful
a. Handicap is a physical or mental impairment which substantially limits one or more of the person’s life activities
iv. Remedies of discrimination include injunctive relief and damages (including punitive damages)
v. FHA allows attorney’s fees which come from a claim that is not frivolous or lacking bad faith.
1. The prevailing party can recover for fees (even Defendants)
2. FHA does not protect against financing of housing or brokerage services
b. The Fourteenth Amendment prohibits only state actions from discrimination, not private party action
c. Civil Rights Act of 1866: This was changed by
, leaving no interest or reversionary interest in the lessee.
1. The Common law rule is if the instrument purports to transfer the lessee’s estate for the entire remainder of his term, it is an assignment, regardless of its form or the parties’ intentions.
2. Discussion: The court ruled that no matter what rule the court used to analyze this case (modern or common law), the result was the same. Because the sublease agreement left the lessee with no rights either express or implied, the intention of the parties was an assignment and not a sublease.
d. Kendall v. Ernest Pestana: The court went through a lengthy discussion of the majority rule, which allows for consent to assignment/sublease to be withheld for any reason versus the minority rule it chose to adopt. The discussion focused on public policy favoring alienability of property. Also, included in the analysis was the contractual duty of fair dealing and good faith, which favored adoption of the minority rule to require a reasonable basis to withhold consent to assign.
i. The Landlord may arbitrarily and unreasonably refuse permission to sublet or assign , if the Tenant abandons the premises., Landlord has a duty to mitigate (Common Law)
VI. Tenant who Defaults: when a tenant in possession has defaulted by failing to pay rent or observe some other lease obligation, or is holding over after the termination of the lease, or the tenant has abandoned the premises prior to the end of the tenancy
a. Summary Proceedings: a quick and efficient means by which to recover possession after termination of a tenancy
b. Sommer v. Kridel: a landlord does have an obligation to make a reasonable effort to mitigate damages in this situation for the following reasons:
i. To assess whether the landlord made reasonable efforts to mitigate, the court should consider whether the landlord offered/showed the vacant apartment, advertisements, among other factors
