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Property II
University of Georgia School of Law
Smith, James C.

James C. Smith
Property II
Spring 2010
 
Landlord and Tenant
1. Leases are popular & valuable for 3 reason:
a. They enable a person to bargain for the right to possess and enjoy land and improvements to land
b. They serve as a type of financing, allowing a person to gain possessory rights by paying periodic rent, w/o having to pay the purchase price for the property
c. They are a reliable way for owners to place land use controls on their property
2. Leasehood is a possessory estate (Tenant has right to possess specific parcel of real property)
a. Our system classifies it as a non-freehold estate
3. Four Types:
a. Estate for years (tenancy for years; term of years)—Tenant has possession for a fixed period of time, agreed upon by the parties and expressed in units of time such as days, weeks, months, or years—not necessarily one year.
                  i.   At common law, there is no maximum period, parties are allowed to pick any time.
                 ii.   Term Certain—Generally required, meaning that term must have a definite, fixed ending date. Must recite the length of the term.
1. If duration is uncertain, there is no tenancy for years.
               iii.   It is inheritable and alienable.
                 iv.   Tenant need not provide the landlord with notice that she will vacate the premises. The expiration of term is self-executing and automatic.
b. Periodic Estate (Periodic Tenancy)—tenant has possession for a fixed period of time, which repeats unless either party terminates the lease by giving notice to the other party.
                  i.   Can be annual, monthly, or weekly. Parties can agree to any period.
                 ii.   Ends when on party, either LL or tenant, gives a valid notice of termination to the other party. Otherwise, it continues automatically.
               iii.   The period depends upon the parties’ express or implied agreement. Any period can be selected, but annual and monthly tenancies are most common.
                 iv.   Generally, created by implication—when parties don’t discuss the duration of their lease but the tenant pays rent, they have periodic tenancy.
                  v.   Cts prefer periodic tenancies to tenancies at will b/c the relationship is more stable
                 vi.   Termination must take place at the end of period.
               vii.   Key Rules Concerning Timing:
1. Minimum Advance Notice—The notice must precede the date of termination by a minimum amount of time. Usually must be given one period in advance. (6 Months for Annual)
2. Effective Date of Termination—Termination must coincide with the end of one of the regular periods. Neither party has the right to terminate during the middle of any period.
c. Estate at Will (Tenancy at Will)—Tenant has possession for no definite length of time, and either party can terminate the lease at any time. Lasts as long as both parties will it should
                  i.   Notice to terminate is effective immediately upon receipt, although tenant is usually given a reasonable period of time to vacate & remove his personal property.
                 ii.   Usually created by implication: the default tenancy, although there is a modern presumption that a written grant conveys the grantor’s entire estate, unless the writing has language expressly point to a lesser estate.
               iii.   An estate at will can be converted into Estate for Years (Year-to-Year Tenancy)
                 iv.   Default Estate—Whenever transfer, oral or written, does not create another estate under the applicable interpretational stds, including presumption tenancy at will arises
d. Estate at Sufferance (Tenancy at Sufferance)—only results when a tenant under one of the above types of leasehold estate holds over, or remains in possession w/o the landlord’s consent.
                  i.   Lasts indefinitely until the tenant is evicted or surrenders possession, or until the parties enter into a different type of tenancy.
                 ii.   Created by implication. Happens by operation of law.
               iii.   If the LL consents to the holding over, then there is no tenancy at sufferance.
                 iv.   Parties may resolve their relationship at least four different ways:
1. Tenant may voluntarily relinquish possession of the leased premises
2. The LL may choose to treat the tenant as a trespasser and then force the tenant to leave by using eviction procedures.
3. The parties may expressly negotiate a new tenancy.
4. The LL may elect to hold the tenant to a new lease, even though the tenant objects to that outcome.
 
1. Lease v. License
2. For it to be a lease, the lessee must have exclusive possession.
3. Cook v. University Plaza: Students sued for the interest that had accrued on their security deposits when they moved into University Plaza, which was a dorm and not an apartment complex; court held that b/c the  agreements b/t P students and D Univ. Plaza was a license and not a lease, P’s were not entitled to the interest.
a. Hotel: When has someone stayed long enough to become a non-transient resident?
b. Court finds fact that students could be moved from room to room persuasive in finding a license. (Failed to pass a possessory interest in a specific property) No exclusive Possession
c. Lease-process by which a rightful possessor of property conveys the right to use that prop. in exchange for  con

were from handicap compensation. They did in fact have worse credit and lower earnings than the pple who were awarded the property. Ct finds that b/c of inconsistency the Sullivan’s could be making up their nondiscrimatory claims. Shift Burden to each.
b. Important Point: Refused to rent after making bona fide offer.
7. Courts apply the balancing test (Balance the state’s interest in preventing discrimination (1st Amendment) and the burden on the defendant regarding their exercise of religion) when a conflict b/t religion and discrimination occur.
a. Attorney General v. Desilets: P’s, a non-married couple, sued D’s who refused to rent property to the P’s as a non-married couple b/c it would, according to the D’s, violate their religious beliefs; P’s filed suit for housing  discrimination based on their marital status. Not been determined.
b. Must burden the D, and the state must not have a compelling reason for that burden for discrimination not to be found.
c. Burdening the owner of rental rooms by forcing them to sell to nonmartial couples against their religion is sufficient. (Makes exercise of their religion more costly, stigmatizes them)
d. Marital status is of lower order than other forms of discrimination.
e. Here, not a financially motivated discrimination. However, there are financially motivated discrimination.
                  i.   Whites pay premiums to live in all white neighborhoods; therefore, LLs try to limit black from moving in (Economically Rational Discrimination).
 
Delivery of Possesion
8. Two Different Rules Apply:
a. English Rule—The lessee must place the tenant in actual possession of the property; in other words the lessor is required to physically insure the lessee that they be placed in the property. (English Rule Most States & Rst apply, unless the parties validly agree otherwise)
b. Why?
                  i.   Good Business Measures—Tenant doesn’t have to worry. More likely to sign there.
                 ii.   LL more likleyl to be aware of the problem
               iii.   Security Desposits—LLs have leverage over old tenants. More than New Tenant can do. (LLs in Better Position to Solve Problem)