PROPERTY II OUTLINE: FALL ’05; BROWN
I) LANDLORD & TENANT
Creation of an Estate
Lease: A property arrangement in which the owner of real estate (the landlord or lessor) transfers the right to exclusive possession of some realty to another person (the tenant or lessee) for some length of time, in return for which the tenant becomes obligated to pay rent.
The tenant of a lease has an estate-a recognizable possessory interest in the land.
The tenant has a nonfreehold (not fee tail, feesimple or term for life) estate which the court will protect against the landlord and third parties.
The lease document is an instrument of conveyance. A lease is a bilateral contract. Lease has a conveyance and contract.
The landlord must always give notice of when the tenant must vacate (even if lease term is set) – on a year to year lease, T must be notified at least 30 days before lease ends that he must vacate
The common law recognizes four types of interests:
Tenancy for years – a tenancy for any fixed term or duration. It expires at the end of the fixed term, without the need for either party to give notice to terminate the lease
Periodic Tenancy – measured by successive, identical periods of time, such as a year, a month or a week. Automatically renews for successive periods unless one of the parties give proper notice to terminate the tenancy (usually notice at least one period in advance). Effective date of termination must fall at the natural end of a period
Tenancy at Will – tenancy w/out a fixed term of duration and w/out any defined renewable period. It lasts as long as both parties wish it to last, and terminates when either party demonstrates an intent to discontinue. Common law does not require notice to terminate; however, parties’ conduct can transform a tenancy at will to an implied periodic tenancy
Tenancy at Sufferance – not a tenancy at all, situation when a tenant remains in possession after the lease has expired and becomes a holdover tenant. Lasts only until landlord evicts the tenant, or parties agree expressly or impliedly to create a tenancy
Nonpossessory Interests (that look like leases but aren’t)
Licenses – revocable grant of permission to enter onto and occupy land in possession of another person for a specific purpose (ticket to movie, concert, sports event)
Easements – permits holder to enter onto and use land that is possessed by another (utility company to construct and maintain power lines)
Profits – right to enter onto and remove some part of another’s land or some product of that land, such as the right to cut timber, mine coal, or hunt or fish
NEGOTIATING, DRAFTING & INTERPRETING
Hannan v. Dusch
English Rule: every lease has an implied covenant on the part of the landlord that the premises shall be open to entry by the tenant at the beginning of the lease (not followed in this case)
American Rule: where a new tenant fails to obtain possession of the premises only b/c a former tenant wrongfully holds over, his remedy is against such wrongdoer and not against the landlord (b/c the landlord has not covenanted against wrongful acts of another and should not be held responsible for such a tort unless he has expressly so contracted
The Restatement of Property (Second) requires L to act to evict the holdover tenant, but provides L is not in breach if it acts to remove holdover T w/in a reasonable time
-K terms cannot be unreasonable for either side, if unreasonable the court will provide equitable remedy to the non-breaching party.
-Lessor has an implied promise to deliver the premises on the date fixed or w/in a reasonable time thereafter.
PARTIES BASIC DUTIES
DUTY OF LANDLORD
Deliver Possession at beginning of the lease (see American and English)
Duty not to interfere with quiet enjoyment
– Covenant for quiet enjoyment: Protected the tenant against interference with his possession by the landlord, anyone acting for the landlord, or anyone holding title greater to the landlord’s title. Always implied in a lease.
Duty to provide habitable premises to tenant (DOCTRINE OF HABITABILITY)
Common Law did not originally require duty to provide habitable premises, but modern law changed
Landlord responsible for damages from the tenants use
Unless
The tenant volunt
tive
4) Continue lease and withhold rent (the tenant may use as defense to landlord’s rent action)
Landlord’s right to recovery when tenant has duty of repair:
If tenant uses the premises for means outside the lease purposes causing damages, then the landlord may recover.
If tenant agrees in lease to repair and fails.
TENANTS RIGHT TO TERMINATE LEASE AGREEMENT
Landlord’s interference with “quiet enjoyment”
Actual eviction: If tenant is evicted from entire premises, the tenant rent obligation terminates (from landlord or superior title holder).
Partial Eviction: If the tenant is evicted from any portion of the leased premise by the landlord, his rent obligation ceases to that portion of the premises.
Constructive Eviction: If the landlord substantially interferes with the tenant’s enjoyment of the premises, without actually evicting the tenant, the tenant can vacate by moving out within a reasonable time.
Acts of Omission: Different from covenant for quiet enjoyment. Tenant only entitled to stop paying rent if contractually agreed promises breached by Landlord
Tenant may terminate tenancy if the premises is destroyed
If premises falls into disrepair and landlord fails to repair, the tenant may terminate the tenancy
Failure of landlord to comply with building codes does not entitle tenant to terminate
If landlord fails to keep premises habitable the tenant may terminate the premises
If landlord fails to maintain common areas the tenant is not entitled to terminate tenancy unless the condition seriously impairs tenants enjoyment.
If landlord covenanted to make repairs but fails to do so, the tenant may be entitled to terminate tenancy. Might constitute constructive eviction.
