Property 2 Spring 2013
Leaseholds: The Law of Landlord and Tenant
Chapter 6: Tradition, Tension, and Change in Landlord-Tenant Law
The Leasehold Estates (Three types):
– The Term of Years
o Definition and Basic Characteristics:
§ 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, once the term is created or becomes possessory.
§ It is a lease for a single, fixed term of any length. The term must either be set out clearly in the lease, or by reference to a formula that will produce a fixed calendar date – both beginning and ending of the leasehold.
· “For five years, ending on July 1, 2015”
· “For today until the end of the hunting season” (assuming there is a determinable date ending)
o How to Create:
§ By expressed agreement (preferably written)
o Duration:
§ Though it is called a term of years, it can be of any length.
· “A month, six months, ten years – so long as it is fixed”
o How to Terminate:
§ It automatically terminates at the end of the term
§ Death does not terminate
– The Periodic Tenancy
o Definition and Basic Characteristics:
§ A lease for a recurring term that continues for succeeding period until either the landlord or tenant gives notice of termination.
o How to Create:
§ By expressed or implied agreement
§ By parties intentions or by operation of law
o Duration:
§ It may appear to have a specified duration, but absent notice, extends for successive periods.
· “T for 5 years – no fixed end date – for a total rental amount of $2,400 per year, payable in monthly payments of $200.
· The above example is a year-to-year periodic tenancy agreement.
§ Relevant terminology:
· Rent is RESERVED for …
· Rent is PAID for…
o In determining the period the Majority Rule is to look to the manner in which rent is RESERVED; Minority Rule is determined by the manner in which rent is PAID.
§ “For an annual rent of $12,000, payable in monthly installments od $1,000”
· The above is a year-to-year periodic tenancy agreement.
o How to Terminate:
§ NOTICE is necessary to terminate.
§ If notice is not given, the duration of the lease automatically extends for an additional period.
§ If the lease specifies a timeframe for giving notice, then the lease governs – unless the timeframe is unreasonable.
§ If a statue specifies a time for giving notice, the statute will govern
· IF lease is silent and no statutes applies…
o COMMON LAW APPLIES
§ Six months’ advance notice is necessary to terminate a year-to-year tenancy, and notice equal to the length of the period (but not more than six months) is necessary for periods of less than a year.
§ Notice is only effective as of the END OF THE PERIOD.
§ Month-to-month requires one month advanced notice, with the effective date of the notice being the last day of the term.
§ Longer tenancies requires advanced notice equal to the duration of the period, with a maximum of 6 months, with the effective date of the notice being the last day of the term.
o MODERNLY
§ Most states have statutes that expressly specify termination requirements, most providing for a 30 day advanced notice requirement for a month-to-month tenancy if the lease is silent.
– The Tenancy at Will
o Definition and Basic Characteristics:
§ A tenancy of indefinite duration – no fixed period or time.
· “Tenancy for no fixed period or revolving period that endures so long as the landlord and tenant desire”
§ Not favored by the courts
§ MUST be bilateral – either the leaseholder or the tenant may terminate at any point.
o How to Create:
§ By expressed agreement
§ Could be implied but might be considered a periodic leasehold estate…
o Duration:
§ No established duration or fixed term/period
o How to Terminate:
§ If the lease provides…
· Lease is silent on who may terminate
· Lease specifies that either party may terminate
· Lease specifies that only L may terminate
· Lease specifies that only T may terminate
§ AT COMMON LAW (MAJ.), EITHER PARTY MAY TERMINATE THE LEA
its in a dwelling containing living quarters occupied or intended to be occupied by not more than 4 families living independently if owner also resides there
o * May not be advertised in a manner that reveals the discriminatory intent.
§ Fourteenth Amendment to US Constitution
· What rights arise:
o Federal Amendment to the US Constitution that prohibits discrimination by the States
· What are the factual basis a tenant/potential tenant must asset to bring claim:
o Requires State action
§ 42 USC Sect. 1982
· What rights arise:
o The 1866 Civil Rights Act
o “All citizens of the US shall have the same right, in every State and Territory, as is enjoyed by White Citizens thereof to … lease, sell … real and personal property.”
· What are the factual basis a tenant/potential tenant must asset to bring claim:
o Prohibits discrimination on the basis of race or ethnicity with respect to sales or rentals of real property.
o Comparison of 42 USC Sect. 1982 and Fair Housing Act:
§ Fair Housing Act forbids on more grounds (but applies residential housing alone)
§ Fair Housing Act has exemptions
§ Section 1982 is narrower than the Fair Housing Act in that it reaches only racial discrimination, and does not address discrimination in the provision of services and facilities, and does not prohibit discrimination in advertising.
§ Section 1982 is broader than the Fair Housing Act in that it contains none of the exemptions.
Delivery of Possession
Landlord has an implied-in-law obligation to deliver to the tenant the legal right to possession. However, the landlord does not have an implied-in-law obligation to deliver actual physical possession.
