Property II Outline

I: Leaseholds
1.       The Basics
a.       What is a leasehold Estate: essentially, LE is the classic way of saying “leases.”
b.      The differences between Leaseholds the Freehold (ownership) estates
                                                               i.      No absolute claim
                                                             ii.      You don’t have full use of land
                                                            iii.      Uncertain duration
c.       3 types of leasehold estates
                                                               i.      Terms of years: estate that lasts for some fixed 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. (standard lease)
1.       Lasts for a fixed period of time
2.       Common law: can be any amount of time
3.       Some states limits duration
4.       Ends automatically, does not require notice of termination
                                                             ii.      Periodic Tenancy: a lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination. (“Month to Month”)
1.       Automatic renewal if no one gives notice
2.       Notice of less than the period is effective at the end of the next period (if notice given on March 15, notice takes effect on April 30)
3.       Notice required in year to year lease
a.       Common law: 6 months
b.      State statutes may vary
                                                            iii.      Tenancy at Will: a tenancy of no fixed period that endures so long as both landlord and tenant desire. (unspecified agreement lease)
1.       No fixed period of time
2.       Ends when there is a will to end by either party or by death of either party
a.       Or by specified terms (Garner v. Gerrish)
3.       Term of years determinable: Contains a clause allowing for one party to terminate early
4.       Some statutes require a period of notice equal to the interval between lease payments.
5.       Garner v. Gerrish (1984)
6.       Facts: Donovan owns house, rents to Gerrish in 77. Lease says Gerrish has the privilege of termination this agreement at a date of his own choice. Donovan dies, and Garner is his executor. Garner tries to evict Gerrish. Garner contends that because this is a Tenancy at Will, because there is no fixed period of time, and landlord has the right to end, and the essence of a TaW, says both parties can bring it to an end according to Lord Coke (common law/traditional rule). Gerrish contends that because the language of the lease, only tenant has the right to terminate the TaW.
7.       Holding: Tenant is correct, the agreement is for the tenant ONLY to have termination rights, since this is the will of the original lessor and the essence of the contract.
8.       Notes: some jurisdictions reject this train of thought and still support common law.
d.      Tenancy at Sufference: when a tenant remains in possession after termination of the tenancy. (Holdover tenants)
                                                               i.      Common law allows landlord two options
1.       Eviction: kick him out plus damages
2.       Consent: expressed or implied creation of a new tenancy
                                                             ii.      Crechale & Polles v. Smith (1974)
                                                            iii.      Facts: C and S enter into a lease that expires in feb. Before end of term, Smith wants extension, C agree to let him to stay month to month. S gives C check. C then says he doesn’t want this, then turns around and says S is bound for a 1 year term.
                                                           iv.      Holding: S is not bound by the 1 year lease C claims to have.
                                                             v.      Reasoning: Landlords, when dealing with a holdover tenant, can either evict him, treat him as a trespasser, or hold him as tenant. Since the landlord already said that he would allow the month to month, landlord is not allowed to change his mind, especially since he already received a check for the deal.
e.      Transfers(conveyance) or contracts?
                                                               i.      Traditional leases were regarded as transfers of estates (thus subject to property law)
                                                             ii.      Modern view is to treat leases as contracts
1.       This makes maintainance a mutual contracted thing, instead of the laws of waste
f.        Lease or License
                                                               i.      arrangements that look like leases- even if they denote themselves as leases- may not be treated as leases
                                                             ii.      license: permission to use; a defense to an action in trespass. License is permissive (revocable at the will of the licensor) or contractual (sometimes containing provisions allowing revocation).
g.       Who Can or Cannot Rent?
                                                               i.      Fair Housing Act §3604: Prohibits discrimination based on
1.       Race
2.       Color
3.       Religion
4.       Sex
5.       Familiar status (having kids in the building, and sometimes people will use this status as discrimination against same sex couples, but most courts have ruled that FHA doesn’t deal with same sex issues, thus most gay couples go with state statutes)
6.