Property Professor Stein
I. Landlord-Tenant Law
A. The Leasehold Estates
1. Tenancy for Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance
B. The Lease
1. Conveyance or Contract?
C. Selection of Tenants (Unlawful Discrimination)
THE LEASEHOLD ESTATES
Leaseholds: The law of Landlord and Tenant, non free holds or tenancies
Freehold Estate: Forms of “owning” land
Leasehold Estates: Forms of “leasing” land
4 Types of Leasehold:
Term of Years: An estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for beginning and ending
Periodic Tenancy: One that can only be terminated by notice effective at the end of the period specified in the lease. It is one established to endure until one of the parties gives the notice required to end it.
Tenancy at Will
Tenancy at Sufferance
Main difference: When does the estate end?
Term of years has a fixed ending date.
TERM OF YEAR
(ex. Most commercial & some residential)
Fixed period of time (does not have to literally be years)
A term must be for a fixed period, but it can be terminable earlier upon the happening of some event or condition.
Termination: No notice is required of termination since it is for a fixed period of time.
Life Terms: “Lease for balance of T’s life” uncertain, most likely not a term of years lease. However, it may still be determinable life tenancy, see Garner v. Gerrish. (This was in Understanding book, ask prof about this.)
Death: Death of L or T has no effect on term of years tenancy.
Unilateral Termination: OK
Lasts for an initial fixed period and then automatically continues for additional equal periods until either the landlord or tenant terminates the tenancy by giving advance notice.
Ex. Month to month leases.
Fixed duration that continues until L or T give notice.
Termination: When either L or T GIVE NOTICE of termination. If neither give notice, the lease will continue indefinitely.
*Periodic tenancies are often created by implication (through actions), not expressly.
Common Law Termination Time:
Under common law, half a year’s notice is required to terminate a year-to-year tenancy.
Periodic tenancy of less than one year require notice of termination must be given equal to the length of time, but not to exceed six months.
The notice must terminate the tenancy on the final day of the period, NOT in the middle of tenancy.
*Many states have shortened the length of notice and have permitted month to month tenancy to be terminated any time following 30 days notice.
Death: Death of landlord or tenant has no effect on duration.
Unilateral Termination: Ok
Problems: pg. 446
1. On October 1, L leases Whiteacre “to T for one year, beginning October 1.” On the following Sept. 30, T moves out without giving L any notice. What are L’s rights?
L has no claim. T did not have to give notice of termination under the “term of years” lease b/c they made an advanced agreement for a fixed amount of time.
b) What if the lease had been “to T from year to year, beginning October 1”?
Periodic Tenancyà T must give 6 months notice for year to year lease (common law rule) or under the modern view, he would only have to give 30 days notice. So he would have had to rent for another year and give notice by June 30. Termination would only take effect on Sept. 30.
Does the notice automatically “rollover” to suffice for the next time period it would be sufficient (assuming it was insufficient the 1st time)?
—Some cts hold that an insufficient notice is forever insufficient.
—Some cts. hold that the notice will count for the next time it would be sufficient.
c) What if the lease had been for no fixed term “at an annual rental of $24,000 payable $2000 per month on the first of each month”?
Most likely a periodic tenancy and it is from year to year. It automatically renews unless either party gives sufficient notice of 6mos (common law) or 30 days (modern view).
2. T, a month to month tenant notified L on November 16, 2001 that she would vacate as of November 30, 2001. T subsequently vacated on that date and paid no further rent to L. L, after reasonable efforts finally relet the premises beginning April 1, 2002. The jurisdiction in question has no statute prescribing the method of terminating a month to month tenancy. L sues T for unpaid rent for the months of December 2001 and January through March 2002. What result?
L could only collect December’s rent. Her earliest termination date would have been Dec. 30
TENANCY AT WILL
A tenancy of no fixed period that endures so long as both landlord and tenant desires.
No fixed period
Lasts only as long as L & T desire.
Termination: any form acceptable under common law.
Conduct also accepted
Some states require notice
Termination usually effective immediately
If lease provides that it can be terminated by one party, it is necessarily at the will of the other as well IF a tenancy at will has been created.
p. 447: A unilateral power to terminate a lease can be engrafted on a term of years o a periodic tenancy; for example, a lease by L to T for 10 years or until L sooner terminates creates a term of years determinable.
L Power to Terminate: cts imply reciprocal right of termination by tenant and thus create a tenancy @ will.
T Power to Terminate: Tenancy @ will, BUT 2nd and 3rd Rest honor the clear intent of parties and say no tenancy at will, rather there is a DETERMINABLE LIFE TENANCY, see Garner v. Gerrish.
Notice of Termination
Term of Years
A unilateral power to terminate a lease can be engrafted on a term of years o a periodic tenancy; for example, a lease by L to T for 10 years or until L sooner terminates creates a term of years determinable
“Year to year” = 6 mos.
Less than yea r= equal to the length of time.
A unilateral power to terminate a lease can be engrafted on a term of years o a periodic tenancy; for example, a lease by L to T for 10 years or until L sooner terminates creates a term of years determinable.
Tenancy at Will
Death of either party
Tenancy at Sufferance
hat come with the land (pay real property taxes)
The right to change, alter it. (Limited to community restrictions, city restrictions, historical sites).
The right to cultivate (limited to planting what is legal).
The right to convey (sell it).
Excavate/mine (BUT…your neighbor has the right of lateral support). (The government also has the right to fly planes over your house and not pay).
You have the right to control your neighbors. If their grass grows too high you can make them cut it.
Dead Hand Control: Controlling property from the grave.
Real property ownership comes with certain limited privileges.
UT Parking tag is a license. It is not a lease or ownership. The license excludes you from being a trespasser but that is about it.
Tickets are a license to not be a trespasser, but it is far from a leasehold.
Mineral rightsà Companies buy oil rights but they still don’t set foot on the land.
Positive easementà right to use someone else;s land….u and landowner have the right to use their land.
Negative easementà You don’t have the right to use their land, but you have the right to limit the way they use their land.
Absolute ownership is not absolute.
When u own property you really own a bundle of rights.
You don’t really own the land, what you own are certain rights to the land.
Landlord Tenant rightsà you have 2 people with rights to the same property
What if the US sold the Grand Canyon to a private company such as Disney?
Places such as these are one of kind so they shouldn’t be sold off. Under the common law, every piece of land is said to be unique. So much so that in property, when a buyer suffers a breach they are entitled to specific performance (b/c money will not make you whole).
Should we have ocean front property be public property or leave it where people own it privately? There are more than one (unlike Grand Canyon) but there are less than the 100 lots in Knoxville.
Why do we allow private ownership at all?
It provides security, at least security of investment.
Property ownership is a way of defining oneself. The things you own help to define you.
Co-operative ownershipà owners all collectively own the building (apartment).
The more crowded we get, the worse private ownership becomes.
Private ownership is a good way to encourage development.
Downside, collectively you could create enormous problems.
How would you develop a system from scratch??? Would you mirror image the American system?
Keep in mind a common law system is inherently very conservative.
This is mainly a common law course, not a lot of statutes.
Not a litigation oriented course. We are going to see a lot of counseling for the client, not a lot of advocacy.
Property law focuses more on couseling and transactions.
MAIN QUESTIONS TO KNOW FOR THIS COURSE
How would u advise your client?
How would u avoid this problem in the future?
How would u draft the documents differently?
Think about all the problems and think about how to head them off.