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Property II
Villanova University School of Law
Taggart, Walter John

A. Identify the type of Lease
-You know it is a lease when there is exclusive possession with accompanying rights such as to sue for trespass or nuisance
            -As opposed to an easement which is not exclusive
-Tenancy for Years- fixed period (like a typical 1-year lease)
            Creation: To A for 2 years
            Termination: Automatic, without notice needed
-Periodic Tenancy – period to period until notice of termination (like mine)
            Creation: To A from moneth to month or rent payable first of every month
            Termination: One party must give notice equal to one time period
-Tenancy at will – no stated duration – continues until one party wants to end it
            Creation: To T as long as LL permits or to T for as long as T desires
            Termination: Either party can bring it to an end, or death
-Holdover tenancy – remaining in property at the end of a tenancy
            Creation: Staying at the end of the lease
            Termination: When LL evicts you
B. Delivery of Actual Possession at Beginning of Lease Term
-LL must deliver legal right of possession but jurisdictions are split as to whether or not LL has to deliver actual physical possession
            1. Majority think it’s LL’s problem to fix in a “reasonable time”
                        -Tenant can
                                    a) terminate the lease
                                    b) remain in the lease but withhold rent
                                                -If only a portion of premises is interfered with, T can only withhold a                                                        proportional amount of rent
                                    c) T can waive this
                                    d) T is entitled to damages for finding substitute housing
            2. If there is a trespasser, minority of jurisdictions think its the T’s problem
                        -This is stupid because 1) the trespasser could be the LL or 2) the LL is in a better position and                             more likely to be able to deal with trespasser (old T)
                        -Tenant can
                                    a) T has all remedies LL would have if not for lease
                                                -Sometimes, although it does not make sense, these jurisdictions give LL these                                                       remedies as well (how can 2 people have exclusive rights)
                                    b) T can modify agreement
            -Everyone agrees tenant does not have to move in immediately
C. Interference with Physical Possession During Lease Term
A. LL is bound to give T legal right of possession
            -LL would be in breach if
            a) 3rd party with paramount title than LL were to come
                        -T only has a claim if party with paramount title were to interfere with T’s possession
                        -T can waive this if LL told him + T consents but if T does not know there’s no consent
            b) LL took right of possession back from T
            c) A trespasser is T’s problem generally
B. Quiet Enjoyment
            -If not expressly provided for, it is implied
            -Breach occurs by any of the following and entitles T to cease rent payment
            1. Actual Total Eviction
                        -Effectively, the lease is terminated so T has no duty to pay and can collect damages proportional                         to the breach of covenant
            2. Actual Partial Eviction
                        -If any portion is evicted by LL, T rent obligation abates entirely until its restored Smith
                        -If LL lets a 3rd party put up a wall encroaching on leased premises is partial eviction and T is                                now out of obligation to pay rent, it may not cancel lease though Smith v McEnany
                        -Restatement suggests T can only abate rent proportional portion evicted
                                    -Unfavorable because LL can screw T with no recourse
                        -Not partial eviction if T loses access to 1 of 2 doors when lease merely granted                                                     “common access” Echo
                        -Partial eviction from paramount title
                                    e.g. property to T with easement is later litigated so easement is terminated
                                    -T can terminate lease, recover damages, or pay proportionally abated rent
            3. Constructive Eviction
                        -Interference so bad you might as well evict T – no beneficial use or enjoyment of                                                 property possible Echo
                                    -Quiet enjoyment action is same rule with lower threshold and more limited                                                           remedy (damages and not voiding lease)
                        -Three elements:
                                    a. By LL
                                                -A covenant of LL not to compete can be this
                                    b. Substantial interference with T use and enjoyment
                                                -Court will look to the purpose of the lease and foreseeability of the                                                                        interferance
                                                -Also the duration and nature of interferance
                                                -Also the ability to mitigate the interferance
                                    c. Complete Vacation
                                                -Cannot make claim if you still live there
                        -T is entitled to full rent abatement but must vacate premises to make the claim
                                    -T must also give LL notice before exercising rights and allow LL reasonable time to                                              remedy the interference
                                    -T can also get a declatory judgment thus having courts “permission” to execute                                         these rights while still having premisis
                        -T can waive this right if T had actual knowledge of interferance or LL told T and T expressly                              waived it
                        -Other Tenants
                                    -Generally LL is not responcible onless he has control over them
                                    -LL is responsible for maintaining common areas though
Plan of Attack
            1. Is the thing in question implied by the lease?
            2. If not, is it an implied duty under warranty of habitability?
            3. If so, what can T do?
A. Warranty of Habitability
            -Common law default to things if not implied by lease itself
                        -Question of fact
                        -Courts impose this duty because why else would you create the lease Marini, Wade
                        -Note: argue in the alternative to old common law where tenant had a right to inspect upon taking                         lease but otherwise it was buyer beware
                                    -Exceptions to this were latent defects, buildings under construction, and short term leases                                     of a furnished house
            -Generally only for “vital thing” such as heat, water, safety, broken steps, etc.
                        -Not for specific things e.g. heat in back storage room
                        -LL must fix vital things that break from wear and tear but not T behavior Marini
                        -Not a breach for minor code violation Wade
                                    -Code violation is not needed or sufficient
                        -Bare Minimum for living Wade
            -Under Housing Codes
                        -Some courts say housing codes set the standard – in application this is a stronger argument if the                         br

eing to fix or attempting to fix Merrill
            -Consider if there is sufficient causation, e.g. would locks have stopped the crime
A. Deciding if it’s a Sublease or an Assignment
            -An assignment gives all rights to third party, anything less is a sublease
            -A novation shows it’s an assignment but LL rarely agrees to this (why let 1 off the hook)
                        -An assignment is what it’s called when both remain on the hook
            -Definitely want to do an assignment for a business (location is everything)
            -Partial assignment is if you give a portion of property for full term
            -If tenant asks transforee to pay him instead of landlord and reserves the right to reenter if rent is not             paid, the courts are split
            -If tenant asks transforee to pay a higher tent to him than he has to pay to landlord, most courts treat this             as assignment but there is some contrary authority
B. Deciding if there is a Privity of Estate or Privity of Contract
            Assignment – when you transfer the total remaining term of the lease
                        a. LL & T – no privity of estate but still privity of k
                        b. LL & AOL – privity of estate and no privity of k
                        c. T & AOL – no privity of estate, usually in privity of k (not if there is a release)
            Sublease- when you transfer less the the total remaining term of the lease
                        a. LL & T – privity of estate and k and equity (because ok k)
                        b. LL & SOL – no privity of estate or k but there is equity(special rule)
                        c. T & SOL – no privity of estate, usually privity of k (depends on if property has                                      certain limitations from lease agreement)
            Don’t forget to ask whether the thing in question is under a privity of estate or k or personal promise
                        -If it’s a personal promise it is separate from others and stays with individual unless there is a                                novation
C. When is LL Consent Required and What Kind of Consent
            -Different jurisdictions require different standards as to the consent required
                        -LL can refuse consent arbitrarily if the lease does not say otherwise Epstein
                        -LL needs at least a “reasonable objection” OR good faith to refuse consent if lease does not say             anything Newman
            -Lesson here is to draft the consent term of lease to be favorable to your client
D. In cases of breach
            -SOL/AOL rights are only as good as T’s rights
                        -AOL or SOL only has the rights of T, such that if T is in breach and loses their rights under k,                              then AOL/SOL consequently lose their rights
            -Deciding if its an assignment or sublease can determine what rights you have and what LL can do, LL can always kick
To work through these, start by figuring out who has the present interest and what it is and then what everyone elses interest in it. The imagine if it went to a party, then restart the process.
Present Possessory Interests