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Property II
Roger Williams University School of Law
Flatt, Victor P.

Property Outline


Two Trends

1. Contract Law
2. Helping the tenant

3 types of leases

1. Term of Years – Set termination
2. Periodic Tenancy – continues until terminated/month to month
3. Tenancy at will – Both parties can terminate whenever

Garner v. Gerrish
Tenancy at will v. something similar to L.E. determinable

Rule: A lease may provide for termination at the will
Of the tenant only

Holdovers (Tenancy at sufferance)

Choices (Once you choose one, you can’t change)
1. Evict
2. Treat as a trespasser
3. Treat as a tenant

Crechale & Polles, Inc v.Smith
Rule: A landlord who elects to treat a holdover as a trespasser Cannot later elect to hold the tenant liable for a new lease Term.

U.S. Fair Housing Code

Race, Gender, Religion, Familial Status, Handicap

States can provide extra
Ex: Marital status, sexual orientation

Exceptions (Can discriminate)
– Single Family House: IF owner has no more than 3 such houses
– Multifamily House: IF owner lives in it
– Religious or Private Groups: Issue w/ defining what a private club is
– Retirement Communties

Soule v. U.S. Department of House
Case about how the FHA works

– A plaintiff must show membership in a statutorily protected class, application for and qualification to rent or purchase housing, and rejection despite housing remaining available. The burden then shifts.

– The defendant must then rebut with evidence showing the reason for rejection was legitimate. The plaintiff must then show the reason was pretext for discrimination.

PROCESS OF RULE: Burden of proof shift

1. P must show prima facie case
a. denied housing
b. within protected group
2. D has opportunity to rebut the prima facie case
3. P then has opportunity to show that the reason was


D offered to person with child, so that was evidence
Against pretextual.

Sublease v. Assignment

Assignment: Transfers all of the full share. L and T2 have privity of estate. L and T1 remain in privity of contract therefore T1 is always secondarily liable to T.

Sublease: Transfer of less than full share of estate. L and T1 privity stays in

by making reasonable efforts to re-let a property that has been abandoned

Policy Reasons
1. Fairness
2. Increase Marketability
3. Cut down litigation
4. Might be better for both parties
– tenant: less damage
– Landlord: Tenant not likely to pay

EX: Sommer v. Kridel
Landlord did not rent abandoned apartment and
Allowed damages to increase before re-letting.
Landlord had the duty to mitigate the damages.


Can be implied by landlord reletting, not pursuing
OR Express

Landlord Security Devices

– Security Deposit
– Liquidated Damages (bad idea)

Warranties (Landlord Duties)

Delivery of Property

2 rules for who is responsible to deliver possession
Trend towards English rule

1. English rule = lessor responsible
– No one wants to inherit a lawsuit
– LL may have more information
– LL incented by desire to rent