Property Class Outline
Leasehold Estates & Leases
I. Types of Leasehold Estates:
Term of Years
Lasts for a fixed period of time. States from outset when it will terminate (e.g. apt lease). Beginning & end dates are set in the lease.
EG: “To A for 10 years;” or “to A for one year from next Christmas.”
No limit to time period at common law. Now some states limit by statute.
No notice required – states from outset when it will terminate.
NOTE: Term of years can last for any fixed period of time, even a certain number of days.
Periodic Tenancy
Lease for period of some fixed duration that continues for succeeding periods until either landlord or tenant gives notice of termination.
EG: “To A from month to month,” or “to A, with rent payable on the first day of every month.”
NOTE: Unlike term of years, periodic tenancy has no set ending date and continues until one party gives the other proper notice.
If Notice not given, automatically extended for another period.
½ years notice required to terminate year-to-year tenancy. For tenancy < 1 year, notice of termination must be given = length of the period, but not to exceed 6 months. Must end at end of period.
Tenancy at Will
No fixed period; endures so long as both landlord & tenant desire. Also terminates upon a party’s death.
EG: “To T for & during the pleasure of L,” or “To T for as many years as T desires.”
Modern statutes ordinarily require a period of notice (eg: 30 days) in order for one party to terminate.
No unilateral power of termination (both parties must have power to terminate).
* See Garner *
a. Term of Years:
i. Definition: Estate that lasts for some fixed period of time. Beginning & end dates are set out in the lease (e.g. an apt. lease).
ii. EG: “To A for 10 years;” or “to A for one year from next Christmas.”
iii. There is no limit to the time period for a TOY at CL, but some states now may limit by statute.
iv. Notice: No notice is required because lease states from outset when it will terminate.
v. TOY can last for any fixed period of time, even a certain number of days.
vi. Unless parties specify otherwise, lease begins on earliest moment of beginning day & ends immediately before midnight on ending day.
1. EG: A lease of one year “from July 1 next” is held to begin at 12:01 on July 1 & end at midnight the next June 30.
b. Periodic Tenancy:
i. Definition: Tenancy for a period of some fixed duration that continues for succeeding periods until either L or T gives notice of termination.
ii. EG: “To T from month to month,” or “to T from year to year,” or “To A, with rent payable on the 1st day of every month.”
iii. Notice: For year-to-year tenancy, 6 mos. notice required. For tenancy < 1 year, notice required = length of the period, but not to exceed 6 mos.
1. If notice of termination not given, automatically extended for another period. This is the way that PTs differ from TOYs, which automatically terminates on the day set in the lease.
a. When a PT is automatically renewed, it is for the same terms & conditions of the original tenancy.
c. Tenancy at Will:
i. Definition: Tenancy of no stated duration that endures only so long as both L & T desire. Either can terminate at any time.
ii. Tenancies at will must be terminable at the will of either party – a leasehold that is terminable at the will of only 1 of the parties is not a TAW.
iii. If leasehold has no certain duration, but is terminable at will by one party only, courts are split (“to T for as long as T desires”):
1. Some courts will imply power of termination in the other party & create a TAW.
2. Some courts (and Restatement 2nd) hold that agreement is determinable life estate, terminable at T’s will or on his death (Garner v. Garrish).,
a. Garner v. Garrish: Lease states “shall continue for & during the term of quiet enjoyment from the 1st day of May, 1977 which term will end – Gerrish has privilege of termination at date of his own choice.” T is given notice to vacate premises. L claims that lease creates a tenancy at will and that he can kick T out when he wants. T claims that lease creates determinable life estate and that he can’t be evicted.”
i. Holding: Lease creates a determinable life estate in T, and is therefore terminable upon T’s death or at his will.
d. Hypo: For payments of $500/month, L leases “to T for the duration of the war.” What estate does T have?
i. This doesn’t fit nicely into any of the CL classifications.
1. Some courts will construe this as a TAW because it doesn’t meet the classifications of the other 2 estates.
2. Other courts would say that it is a TOY because it is certain that the war will end sometime.
II. Holdovers/Tenants at Sufferance:
a. Arises when T remains in possession (holds over) after termination of tenancy.
b. Common law: Landlord had two options:
1. Treat D as a trespasser and evict (+ damages); OR
a. If landlord decides to treat T as trespasser, damages can include fair rental value, damage to property, etc.
2. Treat D as a tenant & consent (express or implied) to creation of new tenancy
a. If L decides to treat T as tenant, the tenancy is renewed as periodic tenancy & length of the period is calculated by the way rent is computed in the original lease (month to month, week to week, etc.), not to exceed 1 year.. New tenancy is governed by provisions in the old lease including payment of rent & covenants. Many states allow L to double the rent of holdover Ts.
c. Note: Most modern cases give T relief where T doesn’t inte
t he had a legitimate, nondiscriminatory reasons:
iii. P has to present evidence that these legitimate, nondiscriminatory reasons were merely a pretext.
2. 3604(b): Prohibits discrimination when it comes to terms, conditions or privileges of sale/rental of dwelling because of race, color, religion, sex, familial status, or natl origin.
a. Includes sexual harassment by L.
3. 3604(c): Prohibits publishing ads or making statements indicating a preference, limitation or discrimination based on race, color, religion, sex, familial status, or natl origin.
a. Standard: In determining whether an ad/statement “indicates” impermissible racial discrimination, ask whether ad for housing suggests to ordinary reader (or listener) that a particular race is preferred or dispreferred for the housing in question (Ragin v. NY times). – “ordinary reader” = neither most suspicious nor most insensitive of our citizenry. Parties can also prove (c) violation by proving actual intent to discriminate.
b. * Nondiscriminatory motive is not a defense to a prohibited advertisement under 3604(c) *
i. However, you can look at D’s intent for evidence.
4. 3604(f): Deals with handicapped persons.
5. 3603(b)(2): Exempts single-family households from the prohibitions in (a) & (b).
a. 3603(b)(1)(B): (b)(2) exemption doesn’t apply to (c).
iii. NOTE: 3604 allows for private COAs.
b. Cases:
i. Soules v. US Dept. of Housing: P is single mom with 12 yo daughter. Calls D (real estate agent) to ask about leasing property. D asks her for # & age of children because elderly woman upstairs can’t live near young, loud kids. P brings suit under 3604(a) & (c).
1. Holding. 3604(a) claim fails because D had legitimate, nondiscriminatory reasons to reject P’s application. 3604(c) claim fails because there were legitimate reasons to ask for # & ages of children on application (e.g. elderly woman, health codes).
V. Delivery of Possession:
a. American/Minority Rule: Absent an express covenant to the contrary, L isn’t bound to put tenant into actual possession, but is bound only to put him in legal possession.
i. Note: Parties are always free to K around this rule.
