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Property I
University of Tennessee School of Law
Pulsinelli, Gary A.

Property Outline – Pullsinelli – Spring 2014

1) Tradition, Tension, and Change in Landlord-Tenant Law

a) Leasehold Estates – tenant has a present possessory interest in the leased premises, and the landlord has a future interest (reversion)

i) Term of Years

(1) An estate the lasts for any fixed period of time or period computable according to a formula; fixed calendar dates from beginning to end

(2) Can end early based on a condition, etc w/o notice

(3) If more than one year, SOF applies and must be in writing

(4) Death of L or T has no affect on duration

(5) Term of years ends automatically

(6) If one party breaches, the other may have a right to terminate early (ex. Failure to pay rent)

(7) Surrender – tenant gives up leasehold interest to L and L accepts (writing necessary if the unexpired term is more than one year)

(8) Lease failing as a term of years becomes either a periodic tenancy, tenancy at will, or a license, depending on the particulars of the lease and case

ii) Periodic Tenancy

(1) Lease for a period of some fixed duration that continues for succeeding periods until either L or T gives notice of termination

(2) Beginning must be certain, but termination is uncertain until notice is give -> must give notice to terminate

(3) All conditions/terms carried over from one period to the next unless there is a lease provision to the contrary

(4) Notice of termination must be 6 months for a year or a full period, not to exceed 6 months

(a) Notice provision cuts both ways

(5) May be formed by expressed agreement, implication (lease w/ no set termination but provides for payment at specific period), or operation of law (T holds over, lease invalid)

(6) Death of L or T has no effect on duration

(7) Auto renews until one party terminates

(8) If notice not given, period is auto extended for another period

(a) If either wants to terminate, must give notice at least one period in advance

(9) At CL -> could only end on end of period (ex. End of month), not the middle of the period (ex. Middle of month) – must end on a renewal date

(a) If not:

(i) majority rule is that T must pay thru the next period as well

(ii) minority rule – notice improper, so no effective notice -> must pay until other party makes other arrangements or given proper notice

iii) Tenancy at Will

(1) No fixed period

(2) Endures as long as L and T desire

(3) If lease gives only L right to terminate, a similar right is generally implied for T to make a tenancy at will

(4) If lease only at will of T, generally won’t imply right in favor of L

(5) Unless express agree to tenancy at will, payment of regular rent will cause court to treat at periodic tenancy

(6) Ends at death of L or T or when L or T terminates it b/c mutual will required

(7) No notice at CL, but most if not all states have required notice -> say 30 days or time equal to interval b/w rent

(8) Garner v. Gerrish

(a) Facts – dispute b/w whether def’s tenancy was terminable at will of the lessor – no term stated

(b) I – should CL rule that both have right of termination if on e has that right be followed?

(c) Rule – lease may provide for the termination at will of the tenant ONLY

(d) if only one party has a right to terminate, it is not a tenancy at will

(i) here – it was a LE for T, terminable at his will or death

(e) key – what the parties themselves agreed to

iv) Tenancy at Sufferance: Holdovers

(1) Arises when T remains in possession after termination of tenancy -> T then a wrongdoer liable for rent

(a) L may:

(i) Evict (and seek damages)

(ii) Consent to creation of a new tenancy

1. Generally – taking rent indicates agreement to a new tenancy

2. Periodic adopted in most jurisdictions

(2) must be a voluntary holdover

(3) once L treats T as a trespasser, can’t go back and try to extend lease

(4) terms of expired apply to the new tenancy

b) For Analysis

i) 2 steps

(1) categorize type of lease (which of four is it)

(2) consider consequences of the category

(a) is notice required?

(b) Does the lease renew automatically?

c) The Lease

i) Is it a lease?

(1) Look to the intent of the parties

(2) Looks like lease

(3) Duration (shorter looks like license)

(4) Breadth and exclusivity of possession

ii) Why does it matter?

(1) If a lease, it creates a Landlord-Tenant relationship

(2) A lease is assignable and can’t be terminated at any time

(3) A license can terminate at any time and isn’t assignable

d) Selection of Tenants – Unlawful Discrimination

i) Fair Housing Act – 42 USC §§ 3601-3619, 3631

(1) Applies to all aspects of real estate law

(a) Including L-T law, real estate agents, real estate services, lending, sales of real estate, etc

(2) §3603(b) Exemptions

(a) apply to §3604 other than (c) which is advertising

(b) individual sales of houses (must meet all the criteria)

(c) owner-occupied 1-4 family housing

(3) §3604

(a) goes beyond Civil Rights act -> includes gender, race, religion, sex, familial status (can’t discriminate based on having kids), national origin

(b) occupation, sexual orientation, accent, regional heritage, and marital status not icnluded

(c) advertising – verbal statements or ads in the window included

(i) basically can’t make known in any way or its advertising

(4) 42 USC 1982 – Civil Rights Act of 1866

(a) can’t discriminate based on ancestry or ethnicity, but can on basis of national origin or religion

(b) not limited to discrimination in the real estate context

(c) note – not clear if an apt share counts as a dwelling -> so not clear if refusing to share an apt would be a violation

(i) ad would generally be the real problem

(5) can only discriminate if discrimination falls in one of the exceptions

(6) US v. Starrett City Assoc – selection of tenants/unlawful discrimination

(a) Quotas always a violation of FHA unless they:

(i) Are temporary/not permanent

(ii) Correct past discrimination

(iii)Provide access for the


(a) b/c Def. C had the entire term, was paying rent directly to pl E and was a sale of a business which is a sale of a whole/entire thing

(b) Uses intent test

iii) 2 tests for determining if sublease or assignment:

(1) Black Letter/Duration

(a) If agreement is less than whole term, it’s a sublease

(2) Intent Test

(a) What did parties intend -> wording in doc only evidence

(b) Rule used in TN

iv) Kendal v. Ernest Pestana, Inc

(1) Facts – def. arbitrarily w/held permission from tenant pl. to sublet leasehold

(2) Follows the minority rule

(a) Minority rule – where lease provides for assignment only w/ the prior consent of the lessor, such consent may be w/held only where the lessor has a commercially reasonable objection to the assignment, even in the absence of a provision in the lease stating that consent to assignment will not be unreasonably w/held

(b) Majority rule – where lease contains an approval clause, the lessor may arbitrarily refuse to approve an assignee no matter how suitable the assignee appears and no matter how unreasonable the lessor’s objection

(i) Rationale – L has right to control who occupies his space

(ii) Revolves around principle that if it’s your land you can do as you please w/ it

(3) Rule in Dumpor’s case – granting consent to an assignment may imply consent to future assignments, unless documents expressly state otherwise

g) The Tenant Who Defaults

i) The Tenant in Possession

(1) Berg v. Wiley

(a) Facts – def (lessor of commercial property) to pl for purpose of operating a restaurant on the property, locked pl out of the premises when pl delayed making certain remodeling changes to meet health code requirements

(b) Modern rule – (used in this case) – there’s no self-help. L need to resort to judicial process to evict defaulting tenants

(i) L may not remove breaching default T’s possessions or bar such t’s access to the leasehold w/o resorting to judicial remedies -> concern is to avoid violence

(c) CL rule – (most state follow this) – L may rightfully use self-help to retake leased premises from T in possession w/o incurring liability for wrongful eviction provided 2 conditions are met:

(i) L is legally entitled to possession AND

1. Such as where T holds over after the lease term or where T breaches a lease containing a reentry clause

(ii) L’s means of reentry are peaceable

(iii)Note – T may recover damages if self help used by L but L not entitled to do so