Select Page

Property II
St. Thomas University, Florida School of Law
Ronner, Amy D.

TOPIC I
THE LAND OF LANDLORD AND TENANT
LEASEHOLDS .
– Leasehold is not a type of freehold.
 
1. Term of years:
o
o
No notice requiredDefinite beginning and end of term
 
2. Periodic Tenancy:
o
o
Usually 30 days or 6 months notice, depending on the jurisdictionNotice of termination required
 
3. Tenancy at Will:
o
o
Freedom of contractIt can be terminated by either party at any time
 
4. Tenancy at sufferance:
o
When the tenant stays occupying the property after the lease expires
TERM OF YEARS:
Estate that lasts for a 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.
NOTE:
1. Must include fixed term
2. Term of years determinable is a term of years that is terminable earlier than the lease agreement says upon the happening of a condition or event.
PERIODIC TENANCY
Lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination.
NOTE:
Death of a landlord does not affect a term of years or a periodic tenancy but it destroys a tenancy at will. BUT absent statutes to the contrary some states terminate residential leaseholds upon the death of the tenant saying that they are personal.
WORK EXAMPLE:
No fixed term at an annual rental of $2400.00 payable $200.00/mth on the 1st of each month.
This is a periodic tenancy. Some say period is one year others say period is 1 month.
Ineffective notice:
MAJORITY: Binds client through the end of the next period
MINORITY: Landlord may ignore notice and client bound until he gives effective notice.
TENANCY AT WILL
A tenancy of no fixed period that endures so long as both landlord and tenant desire.
TENANCY AT SUFFERANCE
Arises when a tenant remains in possession or holds over after termination of a tenancy.
Landlord has 2 options:
o
o
o
Some jurisdictions have changed this.Express or implied consent to create a new tenancy.Eviction and damages
Garner v. Gerrish
FACTS:
Landlord used a boilerplate will form, for duration of lease he said, “tenant has privilege of terminating this on a day of his choosing.”
Court was faced with either calling this a life estate determinable or a tenancy at will.
Livery of seisin:
Under common law a grant like the one given here would be a life estate determinable if there was livery of seisin.
If there was no livery of seisin there would be a tenancy of will
The livery of seisin is obsolete.This is a contract.
The terms of the contract must be construed against the drafter. He did not put in a term giving himself the unilateral power to terminate. So it is a life estate determinable.
In determining which it is analyze:
Lease
Invokes certain duties on the part of the landlord. He can’t just convey and forget.
o
o
The price of the rent was abnormally low there may be an unconscionability question.Did this seem like the landlord had that kind of duty?
Life estate
In a life estate the possessor pays the taxes. Who was paying taxes here?
This looks like if it was a gesture by one friend to another to give him a place to stay as long as he wants.
A tenancy for years cannot be created when duration is determined on an event certain to happen but the date of the event is uncertain. It instead creates a tenancy at will.
Crechale & Polles, Inc. v. Smith
COURT’S REASONING ALMOST AS BAD AS LAWYER’S:
You elected to evict so he cannot be a holdover tenant.
But when you accept the check for the Feb. rent the rent is extended.
So he is a hold over tenant.
What the court did is to compromise between the landlord’s position of holdover for one year and client’s position of no holdover so nothing happened and I do not have to pay the rest.
NOTES: 3 positions on what happens in holdover tenancy
One party said it was a conveyance, the other said it was a lease defined by contract. The court decided that the contract gave the sole right to the tenant to terminate at his will.
And the argument that Donovan was taken advantage of or that Lou has a deal that’s unfair to the landlord is not valid because the language suggests they were friends. Lou had 30 days grace, they didn’t use attorneys, etc. Also, there is a principle in contract that if there is any ambiguity in a contract, you construed it against the party who drafted it.
JANUS – two heads: conveyance and contract.
 
 
 
 
Pg. 451
Pg. 447
COMMON LAW:
o
A lease terminable at the will of one of the parties is terminable at the will of another. What’s good for the goose is good for the ganda.
AMERICAN:
o
o
Usually 30 days or time equal to interval between rent payments.Modern Statutes require notice
Month to month or year to year.
COMMON LAW
o
o
o
Notice must terminate tenancy on final day of a period. E.g. Month to month tenant begins his tenancy on Jan,1 decides to terminate on March 20, the earliest date of termination would be April 30th.
MAJORITY
MINORITY 1
MINORITY 2
Holdover gives rise to a periodic tenancy
Holdover gives rise to term.
Holdover gives rise to term.
 
Length calculated based on way length reserved in the original lease
Length is length of original term.
 
Never > I year
Never > 1 year.
COMMON LAW
Holdover thought to be for benefit of incoming tenants to ensure they could occupy it on the date the y bargained for.
Since leases tend to begin and end on c

ry (assuming the obligations of the original lease).
It looks like Conditt wants to include words in the contract to relieve him from liability.
The Court could have decided that the Landlord had Privity of Contract and Estate.
Pg. 482Pg. 477
The problem with Crechale’s answer is the double message: vacate and quit, and pay double rent for holdover. The Court said they could not send a “yes or no” message. Then to make things worse, the landlord accepted Smith’s rent check for one month rent. And on top of that, Crechale refused to accept the tenant’s check that said “final payment” on it.
When the LL said there was a new lease for another 5 years that was probably taken from dreamland…
This showed that if the LL should not be rewarded for sleeping on his right of evicting the tenant timely. One way to avoid that would be the LL saying that the tenant should vacate OR he would be punished with double rent.
The policy behind many cases is to avoid litigation, to reach an amicable solution. So the parties should have put everything in writing, to avoid trouble.
In every lease you want to provide in the document what the alternative routes will be in case things go wrong.
There is a little letter that you might also want to write: a letter to your own client – “I’m representing you and on that meeting we’ve discussed …” – you cover yourself in case the client becomes crazy.
Some jurisdictions have provisions for double rent in case of holdover tenants. But usually courts are reluctant to considering holdover in different cases (involuntary overstay, equipment left on the property, etc). Read note 3 on page 456.
Also read examples on top of page 457. I.e. all licenses are revocable, so things that look like leases can be characterized as licenses in order to get your client out of a situation.
Leases < 1 yr notice = period of tenancy but not > 6 months½ year notice of termination required for termination of year to year
AMERICAN:
o
Shortened notice requirements
Common law there was no limit to the number of years.
Some states
CAL
Notice of termination not required.
o
o
No lease > 99 years for urban landNo lease > 51 years for farm land limit the # of years.