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Property I
University of Dayton School of Law
Huffman, Mary Kate

Administrative and Final Issues
· Question on Javin Case
· Question on Holmes Case (Warranty of Habitability)
· Question on Termination of Leasehold Estate
· Question on Eviction
· Format: True / False, Fill in the Blank, Essay
o Later said 4 essay
Introduction to Landlord Tenant
· Landlord Tenant Generally
o Property Law Foundation (favor landlord: no warranties, covenants independent, leased property not the structures)
§ Law in this area originally based on property laws
· Very landlord-oriented
· Renting property (land) rather than renting the facilities on the property (buildings)
§ No warranties as to the structures
· Essentially as is
§ Covenants were independent
· If structures destroyed, lease requirements survived as tenant leased property, not structure
o Transition to Contract Law (favor tenant: warranties, covenants conditional, lease structure not property)
§ Put landlord and tenant in parity
· Tenant no longer easy to take advantage of, but equal party to landlord
§ Tenant has substantial rights compared to before
o Sources of Tenancy Laws
§ State Statutes govern tenancy law
§ Some Model Codes as Recommendations
· Uniform Residential Landlord/Tenant Act (URLTA)
· Model Residential Landlord/Tenant Code (MRLTC)
§ Common Law
· Where state statute doesn’t preempt it, common law may still exist
· Based on English Common Law (North/East) and French/Spanish Civil Law (South/West)
· Classification of Tenancies
o Introduction
§ There are four types of tenancies in property law
§ Must determine the type of tenancy first, then apply rules that are pertinent to that tenancy
§ Type of tenancy dictates:
· Duration of tenancy (how long it will last)
· Renewal of Lease
· Notice Requirements to Terminate Lease
§ Transferability
· Leases are Descendible (descendants of deceased tenant can step in decedent’s shoes)
· Leases are Alienable (tenant can sublease or assign rights, unless forbidden in lease)
· Leases are Devisable (tenant can devise their interest in the property à transfer at death)
o Term for Years (fixed start and end dictated by lease, non-renewable, no notice req’d to terminate)
§ Defined
· Lease for any fixed or computable period of time
· Tenancy with a fixed beginning date and fixed ending date
· Length of actual term is not relevant to classification as Term for Years
§ Duration of Tenancy
· Duration determined by terms of lease
· Could be for one year, ten years, or six months
· Doesn’t have to be more than year
§ Renewal or Termination
· Terminates upon completion of contracted term of lease
· Lease not automatically renewed upon completion of lease
§ Notice Requirement
· When lease term is complete, lease terminates
· No notice required at completion of lease
§ Statute of Frauds
· May require Term for Years that is longer than one year to be in writing
· Partial performance may be defense to Statute of Frauds claim
§ Ohio Rules
· Term for Years longer than three years must be in writing, witnessed (2), notarized, recorded
o Periodic Tenancy (most common, fixed time period, renewed for like period, terminate w/ proper notice; not death)
§ Defined
· Tenancy that will endure until one of the parties has given the required notice to terminate the tenancy at the end of a particular period
§ Duration of Tenancy
· Definite duration, set by lease or by default
· Example
o Month-to-month tenancy (30 day duration)
o Year-to-year tenancy (one year duration)
§ Renewal or Termination
· Renewal
o Automatically renewed upon completion of period
o Continues for like period
· Termination
o Either party can terminate lease upon proper notice to the other party
· Example
o Month-to-month tenancy (automatically renewed each month)
o Year-to-year tenancy (automatically renewed each year)
§ Notice Requirement
· Common Law
o Had to give 6 months notice, regardless of term of tenancy
· Generally Today (defined by laws of state or lease provisions)
o Notice of termination must be same length of time as periodic tenancy (up to 30 days)
o If tenancy is longer than 30 days à notice is 30 days
· Restated: Notice required is shorter of
o Term of Periodic Tenancy; or
o 30 days
· Example
o Week-to-week tenancy (7 days notice required)
o Month-to-month tenancy (30 days notice required)
o Year-to-year tenancy (30 days notice required)
· Death à Not sufficient notice to terminate Periodic Tenancy
o Tenancy at Will (as long as both agree, no renewal issues, terminable at any time, no notice req’d; death terminates)
§ Defined
· Lease of potentially infinite duration which could be terminated at any time by either party without prior notice
o Similar to Employment at Will
· Example: Essentially oral lease
o You can stay here as long as we agree
§ Duration of Tenancy
· Infinite duration, continuous lease without end
· Not term for years (no start or end point)
· Not periodic tenancy (no specific renewable period)
§ Renewal or Termination
· Renewal
o No need to renew as it is a continuous lease
· Termination
o Tenancy at Will can be terminated at any time, by either party, without notice
§ Notice Requirement
· No notice required to terminate
· Death of either party (landlord or tenant)
o à terminates tenancy at will
· Exception
o If farming property and there is death of either à have to harvest crops
o Tenancy at Sufferance: Holdover Tenant (tenant in rightful possession remains after termination à evict)
§ Defined
· Tenant entered property rightfully (had Term for Years, Periodic Tenancy, or Tenancy at Will) but then remains in possession of property after the proper termination of the tenancy
· Tenant essentially becomes trespasser
§ Duration of Tenancy
· Not an issue, because not really a tenant
§ Renewal or Termination
· Renewal
o No need to renew, as there is no lease or tenancy
· Termination
o No termination of lease or tenancy required
§ Notice Requirement
· No notice required
§ Landlord options
· Treat as periodic tenant; or
· Pursue eviction (à FED)
· Requirements of a Lease
o Introduction
§ Lease must meet certain requirements to be legally binding
§ Considerations
· Who can enforce lease if it fails to meet requirements
· What is impact of failing to meet requirements
· Severability of lease provisions
o Definition of Lease
§ Agreement whereby one party (landlord/lessor) relinquishes his right to immediate possession of property while retaining ultimate legal ownership (title)
§ Usually defined as an agreement between the owner-lessor to turn over specifically described premises to the exclusive possession ofo the lessee for a definite period of time and for consideration (rent)
o General Requirements (Identify L/T; Identify Property; Term of Lease; Rent; In Writing if Req’d)
§ Must Identify Landlord and Tenant (Who)
§ Must Identify Property (What and Where)
· Requires adequate description: street address, meets and bounds, unit)
§ Term of Lease (When)
§ Amount of Rent (How Much)
§ Need not be signed
§ In Writing (if req’d by Statute of Frauds)
o State Law vs. Lease Provisions (state law prevails over lease provisions; any provisions OK unless unconscionable)
§ Generally, state statute or federal law prevails over lease if in conflict
· If no conflict, lease provisions will prevail
§ Lease can have any provision
· Must be within constitutional limits
· Use restrictions governed by rules below
o Statute of Frauds Issues (may require writing if lease longer than one year)
§ May require lease to be in writing
· Writing requirement can be obviated (lease enforceable) if partial performance
§ General Statute of Frauds
· Lease > one year à must be in writing
§ Ohio Revised Code § 5301.01
· Lease > three years à in writing, two witnesses, notarized, recorded
o Severability (lease provisions severable if found to be illegal, unconscionable, or unconstitutional)
§ If lease provisions are illegal, unconscionable, unconstitutional
§ Then court can sever those provisions and enforce remaining provisions of lease
o Security Deposits (limited amount, keep in trust + interest, must return (minus rent owed or damages), itemize)
§ General Rule
· Limited (generally) to one month’s rent (some states higher)
· Governs prepaid rents (it is security deposit no matter what it is called)
§ Return of Deposit
· Landlord must return deposit, less amounts owing for accrued rent
o Must do so w/in 30 days of termination of tenancy
· Use of deposit is to offset damages arising from tenant’s obligation not to commit waste
o Some states permit deduction of security deposit for unpaid utility bills
o Normal wear and tear cannot be taken out of security deposit
· Landlord must itemize damages
§ Failure to comply
· Allows tenant to recover the amount due
· Possibly twice amount due if wrongfully withheld
· Possibly reasonable attorney’s fees
§ Maintai

argain for the specifics
§ Subsequent Use Provision Enforceable if:
· 1) Its purpose is
o a) to promote the convenience, safety, or welfare of tenants in the premises,
o b) preserve the landlord’s property from abusive use, or
o c) make a fair distribution of services and facilities held out of the tenants generally;
· 2) It is reasonably related to the purpose for which it is adopted;
· 3) It applies to all tenants in the premises in a fair manner;
· 4) It is not for the purpose of evading the obligations of the landlord; and
· 6) The tenant has notice of it at the time he enters into the rental agreement or when it is adopted
§ Not Enforceable If:
· Restriction works a substantial modification of tenants bargain
· Unless tenant consents to restriction in writing
o Permissible Restrictions (fixture stay, no water furniture, no pets (security/disability excepted), age, # tenants)
§ Fixtures become part of property
§ No water-filled furniture (damage)
§ Limitations on Pets
· Generally allowed to forbid pets
· Overcome limitation if
o Dog is for security and can demonstrate need for security (bad neighborhood); or
o Dog is for disability purposes
§ Age restrictions
§ Number of tenants in premise
· Illegality of Purpose
o Generally
§ Government may prohibit the making of a lease for a particular purpose or the making of a lease if the premise is in a certain condition
§ Certain ramifications on lease if use is illegal (prior to lease) or if it becomes illegal (after lease)
o General Rule (lease void if entered into for illegal purpose; unenforceable)
§ If property is leased for the purpose of conducting illegal business à lease is void
o Landlord & Tenant Knew Illegal (lease voidable by both sides à unenforceable; evict à must abide by FED)
§ Rule
· Cannot contract for an illegal purpose
· Lease terms are unenforceable by either landlord or tenant
§ Forcible Entry and Detainer
· Landlord still has to abide by the rules of eviction if he wants to evict tenant
o Landlord Ignorant of Illegal Use (lease voidable by landlord à enforce or terminate; evict à abide by FED)
§ If landlord intended legal purpose (or ignorant as to illegal purpose);
· Landlord can enforce lease provisions or terminate lease (FED requirements)
· Tenant cannot terminate or enforce lease (can enforce FED requirements)
§ If landlord subsequently learns of illegal use, but acquiesces and enforces lease;
· No longer voidable by landlord
· Tenant can enforce lease (landlord estopped from voiding lease after acquiescence)
o Subsequent Illegality (tenant can terminate if: no other use permitted; or use permitted but unreasonable burden)
§ Defined
· Use of premise was originally legal, but subsequent change in law (rezoning) made use illegal
§ Generally
· Risk of subsequent illegality is borne by landlord
§ Tenant Rights
· Terminate lease if no other use is permitted; or
· Terminate lease if other use is permitted under the terms of the lease
o Only if it would be unreasonable to place on the tenant the burdens of the lease after converting other use
· Commercial Frustration (commercial lease only)
o Generally
§ Lease may be rendered void or voidable for reasons beyond control of the law (i.e. not illegal)
o General Rule (value of lease destroyed à lease terminated if test is met)
§ A lease is commercially frustrated when the performance of the lease is possible but the expected value of performance to the party seeking to be excused has been destroyed by a fortuitous event
Test for Commercial Frustration (landlord