Property II
I. General Notes on Non Freehold Estates
A. No seizin
B. Think of it as a stick in the bundle (Freehold estates being the bundle)
C. Freehold owner becomes the lord and person with the right of possession becomes the mesne tenant (because there is a fee, mesne represents the rent payment or services that must be rendered to the lord) may also be a service not a payment of money
D. 3 overarching questions to ask with non freehold estates
1. How can you define them?
2. How can you create them?
3. What is required to terminate them?
II. Types of Non Freehold Estates
A. Term of Years
1. lasts for a fixed period of time
2. designated starting and ending pt. (even if a date isn’t specifically stated can calculate it)
3. at common law no limit to time, but at modern law most states have statutes that limit the duration
4. no notice of termination is necessary because the end is specified at the beginning
5. may terminate early because of occurrence of a stated event (be careful that there are no indeterminate terms ex. End of war)
6. may be set up to be defeasible (determinable or subject to a condition subsequent)
B. Periodic Tenancy
1. Lease for a period of fixed duration that continues for succeeding periods until either the landlord or tenant gives notice. (Ex. month to month)
2. Unless notice is given to terminate it will continue and repeat.
3. Common law rules for notice/termination
i. ½ a year notice required for year to year lease
ii. For anything less than a year notice must be given that is equal to the length of the period (but not to exceed 6 months)
iii. Notice must terminate lease on final day not in the middle of the period
4. North Carolina Statutory Rules for Termination
a. Year to year: tenancy must give notice of one month or more prior to end of the current year of tenancy
b. Month to month: 7 days notice
c. Week to week: 2 days notice
5. Can be created by agreement (parties intentions) or it can be implied (created by operation of law) (PUT IN WAYS TO DO IT IMPLIED VS.EXPRESS)
6. Failure to give notice means landlord can demand property
7. Indefinite term that can continues until proper notice (as long as rent is paid)
8. You have to specify time to repeat because you need to know how much notice to give.
9. To determine term look at how the rent is paid/reserved or look at length of original term because it will how long for periods to be before you start repeating.
10. Rule: If it is for a year or more cap it at one year. Reason is if notice is not properly given then it locks them in for too long.
a. Policy: Don’t want term to be so long that it is unduly burdensome. It will now continue year to year indefinitely unless someone gives proper notice to end it.
b. If less than a year look at how rent is reserved
c. If more than an year cap it at a year
d. It is an either or. Look at amount of time to determine
11. Ways to create periodic tenancy
a. Expressly stated
b. Implied
c. By Operation of law valid term of years lease and tenant remains in possession she is a holdover tenant and is a tenant at sufferance. Once the tenant tenders rent and it is accepted it becomes a periodic tenancy and you look at how rent is paid. Its become an implied periodic tenancy
12. Death of landlord or tenant has no effect on duration of term of years or per.
C. Tenancy at Will
1. No fixed period
2. Lasts as long as landlord and tenant wish
3. Ends at death of a party or when one party terminates it
4. Typically modern statutes require a period of notice
5. Can be created by an express agreement or by operation of law (typically the failure of some other leasehold or intended leasehold
6. Termination:
a. Common Law: no notice was necessary
b. Modern: it can be terminated by either party. A LL must give notice and a T can give notice or leave courts typically require a period of notice 30 days or time equal to the interval between rent payments
7. Garner v. Gerrish
a. Facts: Donovan leased house to Gerrish (d). It had a clause granting D the ability to terminate the lease at the date of his choic
on- get money for fair rental value
i. Anytime when there is a breach of a K – look for a remedy- this is a special damage
c. Others provide that landlords can demand double rents from holdover tenants
6. Provisions of the old lease apply to the new lease. If LL says higher rent and T doesn’t object, T is liable for higher rent.
V. Selection of Tenants
A. Historically, seller/landlord could rent or sell to whoever they pleased
B. Civil Rights Act of 1866 (Section 1982) – “All citizens of the US shall have the same right, in every state and territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real property and personal property.”
1. It bars all racial discrimination (b/c of ancestry or ethnic characteristics), private as well as public in the sale or rental of property
2. Note: It only applies to racial or ethnic discrimination (not religious, sex etc)
3. Remedies: injunctions against landlord or seller or damages
D. Fair Housing Act: makes it unlawful to refuse to sell or rent a dwelling to any person because of race, color, religion or national origin.
1. Purpose: It was amended to prohibit discrimination on sex; discrimination based on people with children (except in senior housing) and prohibits discrimination against handicapped persons
2. Includes
i. Disproportionate effect of race: racial ceiling quotas to prevent white flight are illegal
ii. Sex discrimination
iii. Family status (except on senior living
iv. Disabilities/ handicapped person- a physical or mental impairment which substantially limits one or more of such person’s major life activities
