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Property II
University of South Carolina School of Law
Eagle, Joshua Gary

 
Property Spring 2010 – Eagle
A.                Chapter 7: Leasing Real Property
                                         i.      A leasehold estate (also called a nonfreehold estate) is a legal interest that entitles the tenant to immediate possession of designated land, for either a fixed period of time (e.g., five years) or for so long as the tenant (or lessee) and the landlord (or lessor)desire.
                                       ii.      The key distinction between a leasehold estate, on the one hand, and interests such as a license or easement, on the other, is that the holder of a leasehold estate has the right of exclusive possession. One holding a license or easement merely has a right to use the land.
                                     iii.      Categories of Leasehold Estates
1.      Term of Years Tenancy: The term of years tenancy endures for a designated period that is either fixed in advance (e.g., five years) or computed using a formula that is agreed upon in advance. This tenancy automatically expires when the agreed period ends, without any notice of termination.
2.      Periodic Tenancy: The periodic tenancy lasts for an initial fixed period (e.g., one month) and then automatically continues for additional equal periods until either the landlord or the tenant terminates the tenancy by giving advance notice. The classic example is the “month-to-month” residential lease.
3.      Tenancy at Will: The tenancy at will has no fixed duration and endures only so long as both the landlord and the tenant desire. Today most tenancies at will arise from implication, not from an express agreement.
4.      Tenancy at Sufferance: The tenancy at sufferance arises when a person in rightful possession of land wrongfully continues in possession after the right to possession ends. Most authorities agree that this is not technically an estate in land, but rather a convenient label. The landlord is free to evict the “tenant” at any time.
b.      Creation of the Tenancy
1.      The lease is the heart of the landlord-tenant relationship. Almost all states have a Statute of Frauds that requires a lease for a term of more than one year to be in writing, to set forth the key lease terms, and to be appropriately signed.
                                       ii.      Selecting the Tenant
1.      The common law did not restrict a landlord’s freedom in selecting or evicting tenants. Today federal and state statutes prohibit certain types of discrimination in the rental or sale of real property. For instance, the Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3619, bars discrimination based on race, color, religion, sex, familial status, national origin, or handicap in connection with the sale or rental of most dwellings.
2.      Case: Neithamer v Brenneman Property Services, Inc.
a.      Facts: Gay, HIV positive plaintiff applied to lease a townhouse through defendant property managers. Plaintiff alleged he told defendants he had had credit problems due to financially supporting his lover, who had died of AIDS. Defendants informed plaintiff that the owner rejected his offer, and subsequently rejected several offers from plaintiff. After an acrimonious telephone conversation, plaintiff filed suit.
                                                                                                              i.       The court applied burden-shifting framework of McDonnell-Douglas Corp to fair housing discrimination cases. Plaintiff had established a prima facie case as to his gay sexual orientation, and defendants knew or suspected that he was. In order to make a prima facie case of discrimination, plaintiff had to also establish that he was disabled, as that word is used in the Fair Housing Act, 42 U.S.C.S. § 3601 et seq., and defendants knew or suspected he was. Sufficient clues that plaintiff’s disability was known or suspected by defendants precluded summary judgment.
1.      Special rule-> If there is an invisible disability then it gets unique treatment-> no need for solid evidence, just enough to show a strong suspicion.
b.      Holding: Defendants’ motion for summary judgment was denied, because there were substantial material facts in dispute; specifically, there were enough “clues” to allow a reasonable jury to conclude that defendants suspected that plaintiff was infected with HIV or AIDS.
                                     iii.      Selecting the Estate
1.      Suppose the landlord and tenant are ready to enter into a leasing relationship, which estate would they select?
a.       Term of Years Tenancy: The term of years tenancy endures for a designated period that is either fixed in advance (e.g., five years) or computed using a formula that is agreed upon in advance. This tenancy automatically expires when the agreed period ends, without any notice of termination.
                                                                                                              i.      Has a fixed duration, date is certain
b.      Periodic Tenancy: The periodic tenancy lasts for an initial fixed period (e.g., one month) and then automatically continues for additional equal periods until either the landlord or the tenant terminates the tenancy by giving advance notice. The classic example is the “month-to-month” residential lease.
                                                                                                              i.      1/1–>2/1–>3/1}30 day intervals
                                                                                                            ii.      Traditionally (CL), no one could terminate during this period.
                                                                                                          iii.      Modern rule, notice on the 20th then the lease ends 30 days later in most jurisdictions, but still in others lease not up until the 1st (a whole period later CL)
1.       In South Carolina, residential leases follow the modern rule, and commercial leases follow the CL rule.
c.       Tenancy at Will: The tenancy at will has no fixed duration and endures only so long as both the landlord and the tenant desire. Today most tenancies at will arise from implication, not from an express agreement.
                                                                                                              i.      Personal agreement, not inheritable or devisable.  
                                                                                                            ii.      Today, by statute, 30 day notice required
d.      Tenancy at Sufferance: The tenancy at sufferance arises when a person in rightful possession of land wrongfully continues in possession after the right to possession ends. Most authorities agree that this is not technically an estate in land, but rather a convenient label. The landlord is free to evict the “tenant” at any time.
                                                                                                              i.      Holdover tenant: If a tenancy end at a certain time and date and the previous tenant(T) wrongfully continues possession, the common law gave the landlord two options in this situation:
1.      Treat T as a trespasser and evict him
2.      Renew T’s tenancy for another term.
a.      Some states require the payment of double rent during holdover period, while others limit the length of the renewed tenancy to no more than one year.
e.       All are different in:
                                                   

standard Housing
1.      By the 1960s, substandard rental housing was a major problem in the United States. Residential tenants, obligated to repair defects in their dwellings in theory, were unable to do so in practice. Housing codes enacted by cities were weakly enforced and thus ineffective. Public interest attorneys sought to remedy these conditions by reforming the common law rules.
2.      Case: In re Clark
a.       Facts: Illustrations of poor living conditions in rental housing.
                                       ii.      Constructive Eviction
1.      Constructive eviction occurs when wrongful conduct of the landlord substantially interferes with the tenant’s use and enjoyment of the leased premises. For example, if a Minnesota law requires the landlord to supply heat to a rented dwelling during the winter, then his failure to do is wrongful conduct which renders the dwelling unusable.
a.        If the landlord fails to fix the problem within a reasonable time after receiving notice, then the tenant may vacate the premises without further rent liability under the lease. Alternatively, most states allow the tenant to remain in possession and sue for damages, while continuing to pay rent.
2.      Case: Fidelity Mutual Life Insurance Co. v. Kaminsky
a.       Facts: When appellee tenant, a gynecologist, abandoned the leased premises, appellant landlord sued for the balance of rent due. Appellee claimed that appellant constructively evicted him by breaching the covenant of quiet enjoyment in that appellant failed to prevent anti-abortion protestors from picketing his office.
                                                                                                              i.      Appellant urged that the trial court erred by denying its motion for judgment non obstante veredicto or to disregard jury findings or, alternatively, that the evidence was factually insufficient to support the jury’s verdict and that the trial court erred by denying its motion for a new trial. The court affirmed the judgment, holding that appellant, not the protestors, caused appellee to abandon the premises, and that the jury’s findings were not so against the great weight and preponderance of the evidence as to be manifestly unjust.
                                                                                                            ii.      The court held, further, that a landlord’s acts or omissions could form the basis of a constructive eviction, appellant’s conduct permanently deprived appellee of use and enjoyment of the premises, and neither appellant’s having made some effort, nor its lack of sponsorship or encouragement of the protestors, was persuasive to the contrary.
Holding: The court affirmed the judgment against appellant landlord on its suit for delinquent rent against appellee tenant, a gynecologist. When the jury found that appellant breached the lease’s covenant of quiet enjoyment by failing to prevent abortion protestors from interfering with his practice and