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Chapter 6: Tradition, Tension, and Change in landlord-Tenant Law
The Leasehold Estates
ü Tenancies or leaseholds—of which the principle ones are the term is years, the periodic tenancy, and the tenancy at will—are nonfreehold estates.
ü Leaseholds and leashold tenants were low in feudal dignity
ü Leases usually favor the landlord
ü Leases can be of all different types
ü Normally you start with the landlord’s form and you negotiate when the leases are small form but if they are big – -some tenants have huge bargaining power and submit their own lease forms
ü Leasehold estates were nonfreehold estates so Tenants did not have free access to courts
ü Still somewhat the same today – owning has more status than leasing
1. The term of Years
a. Definition: A term of years is an 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 becomes possessory. A term must be for a fixed period, but it can be terminable earlier upon the happening of some event or condition. Because the term of years states from the outset when it will terminate, no notice of termination is necessary to bring the estate to an end.
Exam Tip: A tenancy for years is what you get when you rent an apartment under a one year lease. The beginning and ending dates are set in the lease, and the lease automatically ends at the end of the period. But don’t be fooled by the term “tenancy for years.” Keep in mind that this estate can last any fixed period of time, even a certain number of days.
ü An 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.
ü The period can be 1 day, 2 months, 5 years, or 3000 years – less than or greater than a year
i. These are all terms of years
ü At common law there was no limit on the number of years permitted
ü In some American states statutes limit the duration of terms of years. – set maximums
ü A term must be for a fixed period but can be terminable earlier upon the happening of some event to condition.
ü Because a term of years states from the outset when it will terminate, no notice of termination is necessary to bring the estate to an end – it simply expires
ü Death of T or L has no effect on term of years
ü Usually an express agreement in writing
ü When leases state terms more than the maximum instead of reforming it courts tend to hold that lease as being void if its too long but it depends of the statute
ü When the lease and the renewal equal to more than the maximum some states throw the whole lease out
ü Ground lease – where the landlord owns the land and the tenants builds the building – it depends on who owns the building – leases ground and tenant can construct on it (lots of gas stations)
ü Usually a term for years is created in writing
ü Presumption is that if a tenant hold over after the lease term its assumed not to be adverse but imply an assent from the landlord unless tenant says or does something to make it establish that he claiming ownership of the land
ü Normally capable of being calculated toward the beginning
ü Sometimes it is broader a date set and no one knows what it is yet
ü The SOF – a lease term for a year of more has to be in writing, less than a year can be oral
ü Classic rule is a term of years must have a set beg and end date that you can know what they are at the beginning of a lease even if you have to calculate it. However, most courts would say as long as it has a beg and an end date (whether it be at the end of an event, a specific date or X years after Y happens) it is a term of years even if you don’t know when the end is – will be treated as term for years
2. The periodic tenancy
a. Definition: A periodic tenancy is a lease for a period of some fixed dura
, T is a tenant from month to month.
iii. Creation by operation of law—A tenancy from period may arise in certain cases even in complete absence of any agreement of the parties.
1. Where a tenant holds over after expiration of the term—where a tenant holds over (remains in possession) after the end of the term, the landlord may elect to consent to the tenant’s staying over and hold the tenant liable for further rent as a periodic tenant for an additional term.
Exam Tip: Pay attention to this rule. In most jurisdictions, when a tenant for years holds over after the tenancy has expired, the lease is not renewed for another term. Rather, a periodic tenancy for another term is created. This means that the landlord and tenant are obliged to follow the old lease’s provision for rent, etc. but now either party can get out of the deal by giving the other proper notice.
c. Requirement of notice of termination—probably the most distinctive feature of a periodic tenancy is that it continues until proper notice of termination is given. Except where required by statute or the lease, the notice can be either oral or written.
i. Common law rules:
How much notice need be given: To terminate an estate from period to period, notice must be equal to the length of the period itself (e.g. month, week, etc.) with the exception that if the tenancy is from year to year, only six months’ notice is required. By agreement, however, the parties to a periodic tenancy may shorten the amount of notice required, or eliminate the requirement of notice altogether.
