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

Smith Property Outline Spring 2010 – Property Cases and Materials 2nd Ed. Smith

I) Landlord/Tenent
A) Leasehold estates
1) A Leasehold is a possessory estate where a tenant has the right to possess a specific parcel of real property while the LL still has an ownership interest (a reversion)
2) Historically controlled by conveyance of land law but is now more seated in contract law
(a) Ex. warrantee of habitablity
3) Four types of leaseholds
(a) Estate for years (tenancy for years or term of years):
(i) Tenant has possession for a fixed period of time
(1) No fixed term = different estate
(2) Usually no minimum or maximum time period
(ii) Agreed upon by the parties
(iii) Distinct from a license because of legal right to possession that passes to tenant (whereas a license retains right to possession in landlord)
(iv) No notice of termination required- lease ends at end of stated time
(v) Term of years is devisable/inheritable
(vi) Impacted by statute of frauds
(b) Periodic estate (periodic tenancy)
(i) Tenant has possession for a fixed period of time that repeats unless either party terminates the lease by giving notice of termination to the other party
(1) Can be month, day, or year
(ii) Inheritable/devisable/transferable.
(iii) Notice of Termination must be given at least one period in advance of desired termination
(1) Year to year tenancy has a six month notice provision
(2) Notice can be made by abandonment
(c) Estate at will (tenancy at will)
(i) The tenant has possession for no definite length of time
(ii) Either party can terminate the lease at any time
(iii) Non-transferable
(iv) if periodic rent is paid—probably a periodic tenancy
(v) Some notice required for termination
(1) Notice to vacate valid upon receipt – tenant given reasonable time to vacate
(vi) Death of either party/sale of the property/ sublet or assignment by tenant destroys tenancy at will
(d) Estate at sufferance (tenancy at sufferance)
(i) Only occurs when a tenant under one of the other three types of lease “holds over” (remains in possession w/o landlord’s consent unlawfully).
(ii) This lasts indefinitely- until the tenant is evicted or surrenders possession or until the parties enter into a different type of tenancy
(iii) Non-transferable
(iv) Remedies available for a landlord against a holdover tenant:
(1) Value of their use and occupation of the property – not necessarily rental value but indicative
(2) Eviction
(3) Damages
(v) Resolutions
(1) Tenant can voluntarily give up possession
(2) Landlord can treat tenant as a trespasser and bring an eviction (or other damages)
(3) Expressly negotiate a new tenancy (tenancy for years, periodic, at will)
(4) Landlord can hold tenant liable for a new lease period – assuming an LT relationship already existed (under implied contract theory or deterrence theory) – some require voluntary holdover or require that holdover possession substantially interfere with the landlord’s ability to use and enjoy the premises
B) Lease v. License
1) Considerations
(a) Substance matters over form
(i) Wording still important but not determinative
(b) Cook v. University plaza
(i) Deals with situation where security deposit would have to be paid to lessees but not licensees
(ii) Reasons licensees
(1) Students can be moved by management
a. Note – restatement allows movement in some leases as well
(2) Limited time of possession over holidays
(3) Control of common areas
a. Also exists in leases
(4) Wording and clear intent suggested licensee
2) Lease
(a) Right to control property for a period of time.
(b) Control by user (exclusive possession)
(c) Specific area (specific demised location in which lessee can exercise their rights)
(d) Landlord may have some entry to property that is not inconsistent with the right of a lessee’s right of possession.
(e) Shared possession between a landlord and a tenant is NOT a lease
(i) Examples
(1) Most residential situations
(2) Commercial situations
3) License
(a) Right to use property for a period of time
(b) Control by landlord- lack of control for user
(c) Specific Purpose
(d) Examples
(i) Hotel room (maid/hotel owner’s right to enter at any time limits right of exclusive possession)
(ii) Cherry picker that picks cherries on property for a short season and nothing more is said is more indicative of license,
(1) Shows important of language
C) Lease v. Life estate
D) Statute of frauds
1) Prescott v. Sims
(a) Bargained for an estate for years but agreement was not signed
(i) Plaintiffs want year to year periodic
(ii) Defendants want estate at will
(b) Court holds that under the statute of frauds certain transactions are not enforceable
(i) Leasehold for years
(ii) Life estate
(c) Because nature of farmland and intent to have a long lease in the original agreement, court decides on year to year.
E) URLTA – some states use to codify L-T law
1) L must give actual physical possession on day 1 of tenancy
2) L must meet applicable housing codes (JAVINS), must keep premises habitable, maintain common areas, etc
F) Federal Fair Housing Legislation (FHA 3604)
1) Fair Housing Act limits absolute discretion of certain owners in leasing/selling their property
(a) Protected classes
(i) Race
(ii) Color
(iii) Sex (not sexual orientation on the federal level)
(iv) Religion
(v) Familial status (children not marriage)
(vi) National origin
(vii) Disability
(b) Landlord cannot prohibit rental based solely on above characteristics
(c) Exceptions
(i) Single-family house that is sole property of owner
(ii) Religious organizations/non-profits associated w/ religious organizations can give preference to members so long as membership is not restricted on account of protected characteristics
(iii) Private clubs that are non-commercial can preference their own members
(d) Can apply in Desperate impact cases – where these groups are not directly discriminated against for their characteristics
(i) Ex. height limit – basketball team example
(ii) Income level requirements
2) Prima Facie case for violation of fair housing exclusion act
(a) Taken from Title VIII of employment discrimination act
(b) Four Factors
(i) P is a member of a protected class and D knew or suspected that he was
(ii) P applied for and was qualified to rent the property in question
(iii) Defendant rejected ap

et Enjoyment
(1) Expressed in contract
a. Warrantee of quiet enjoyment
(2) Implied by law
(3) LL can contract to remove the possibility of a covenant of quiet enjoyment
(4) Also quickclaim deed would have no warrantee of quiet enjoyment
(c) Warrantee of Habitability
(i) Common law did not require landlord to make repairs to premises on property
(1) Land considered more important
(2) Parties could make repairs themselves
(3) Not applied to commercial leases
(ii) Modern law- a landlord has an obligation to make repairs and fix any identified problems that arise during the course of tenancy
(1) People do not have the ability to fix the property anymore
(2) Actual building is what is important
(3) Shows shift towards contract law
(4) Generally applied to commercial leases
(iii) Scope of warrantee of habitability
(1) Generally applies to stuff that determines livability
a. May apply to parts of housing code that are of major significance
b. May apply to entire housing code
c. May apply to stuff outside a housing code that deals with health/safety/habitability
(iv) Invoking Warrantee of habitability
(1) Can leave property to allow for constructive eviction
(2) Can stay on property and not pay rent
a. Some require no payment as long as actual physical eviction from part of premises
b. Some allow reduction of rent based upon level of interference
(3) Could also ask for specific performance
(v) Javins
(1) Court said that duty to keep property in habitable condition was implied in the contract without specific mention.
a. Similar to what we see in the UCC for goods
b. Implied warrantees deal with things that can be reasonably expected by a leaser/buyer
(2) Determined to be non-waivable
(vi) Retaliatory eviction doctrine – prevents eviction to punish defendant who is complaining about habitability
(1) Also applies to retaliatory rent increase
(2) Exception – constructive eviction where breach of promise is so bad tenant moves out
(d) Partial eviction
(i) Holmes rule (Smith v. McEnany) – outside of de minimus situations, tenant does not owe any rent if there is interference
(1) Tenant did not want to pay rent because there was interference when the LL built a wall that encroached on the property
(2) Under a cost benefit analysis, the LL could chose to remove the wall
(ii) Restatement – you owe an amount that is fair given the interference
(iii) California rule – if intrusion is significant, you do not owe rent, but if intrusion is insignificant there is no rent owed
(e) Contract v property law