Property II Outline
We are not required to know the 3rd Restatement of Property for Examination purposes since it hasn’t been adopted in many states as of now.
Landlord and Tennant Law
The hallmark of the L/T law is the conveyance of the right to possess. In the L/T relationship, the L is creating a leasehold estate not a freehold estate. Every L à T conveyance creates a future interest where L has a reversion (when the time ends on the lease).
The Leasehold Estates: 4 Ways to Hold Property
Term of years (TOY)
Periodic Tenancy (PT)
Tenancy at will (TW)
Tenancy at Sufferance
CL only covered the first three.
The Term of Years (TOY)
TY is 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.
Fixed period: a term must be for a fixed period. There must be a certain ending date (or the ending date can be calculated).
Can be for one day, one year, 3,000 years, etc….
Limits on the number of years: CL had no limits, but some state statutes have limited the years.
Meaning they won’t let you probably go past 30 years by statute b/c they don’t want a person to hold property for too long.
Rational for this is that the court wants property to flow in the market.
Notice of Termination: TY ends automatically at the end of the term and no notice of termination is required.
Another way to see it is that no notice of termination is necessary to bring the estate to an end because the term of years states from the beginning when it will end.
Death: the death of the L or T has no effect on the duration of a term of TOY
Transferability: interests in TOY are assignable absent a contrary stipulation meaning that they can be conveyed.
Meaning you can convey them unless the lease says that it cannot be conveyed.
Examples:
“L to T for six months, for 1 years, etc.”
On October 1, L leases Blackacre “to T for one year, beginning October 1.” On September 30th of the following year, T moves out without giving L any notice. What are L’s rights?
L doesn’t have any rights – no notice is needed b/c the end of the year is up.
The Periodic Tenancy (PT)
PT is a lease for a period of some fixed duration that continues for succeeding periods until either the L or T gives notice of termination. There is no certain ending date, but certain period is identified: i.e. month-to month or year-to-year.
Notice of Termination is required: if no notice, then the period is extended for another period. Could be extended for a higher dollar amount.
How much notice is needed?
Common Law:
Year to Year tenancy: 6 months notice.
Less than 1 year: notice equal to the length of the period, but no more than 6 months.
The notice must terminate the tenancy on the final day of the period, not in the middle of the tenancy.
If the lease specifies a specific time, then you go by the lease. However if it is silent (and most likely it will be) then:
Month-to-month: requires one month advanced notice, with the effective date of the notice being the last day of the term.
IE “April will be my last month” à last day of April
· Longer tenancies: advanced notice equal to the duration of the period, with a max of 6 months
· 3 month lease – need to give 3 months notice – can’t give more than 6 months notice
o Modern Statutes: month-to-month tenancy can be terminated after 30 day notice.
o Nowadays, this is what most renters have with their L’s.
Death: of the landlord or tenant has no effect on the duration of periodic tenancy.
Two Types of PT:
Express periodic tenancy: “to A from month-to-month; or year-to-year.”
Periodic tenancy by implication: created by informal agreement: i.e., if the tenancy has no fixed period but rent is paid periodically.
Determining the period:
Majority Rule: The period is determined based upon the manner in which rent is RESERVED. Rent is reserved on an annual basis. Thus, if the rent is reserved, it is paid on a year to year basis.
Minority Rule: The period is determined based upon the manner in which rent is PAID. Rent is paid on a monthly basis.
Example: On October 1, L leases Blackacre “to T from year to year, beginning October 1.” On September 30th of the following year, T moves out without giving L any notice. What are L’s rights?
T needed to give 6 months notice (at least) otherwise it would have rolled over.
The Tenancy at Will (TW)
TW is a tenancy of no fixed period that continues so long as both landlord and tenant desire.
Termination: either the L or T can terminate the TW at his will.
If one party has a right to terminate then the other party holds the same right to terminate.
What is important about TW?
If the lease states that the T can terminate, the courts say it’s most likely NOT a TAW but a terminable life estate
If the lease states that the LL can terminate, then that creates a TAW by either the LL or T (even though may not have been intent of the parties). In other words, either the LL or T can terminate the TAW if the lease states that the LL can terminate.
CL: terminated immediately – without any advanced notice – on the day the T abandoned the premise or the L delivered notice of termination to him.
Modern Statutes: Nowadays in most states TW’s will terminate with 30 days advanced notice by the T to L, making it really a periodic tenancy.
Death: of the parties terminates TW.
Rent: no requirement of the rent charge. And generally no rent is charged in TW.
Transferability: interests in TW’s are not assignable, not devisable, and not inheritable.
Courts: do not prefer TW’s b/c very unclear in its terms, etc.
NOTE: The problem arises when the instrument is not clear whether it is creating a TY, PT, or TW. In these situations, following the Garner case, focus on the intent of the parties, and if it does not fit in these 3 categories, find something else such as term of years determinable or life estate determinable.
The Tenancy at Sufferance: Holdovers
Tenancy at sufferance arises when a tenant remains in possession (holds over) after termination of the tenancy. The tenant’s entry onto the premises was rightful, but continuing to stay there is not.
Think of it as another way to hold property that occurs when:
Tenant is in lawful possession,
The lease terminated
Tenant remains in occupancy of the premises (he is holding over)
NOTE: look to see why T is holding over – take into account voluntary or involuntary reasons that the T might stay in an analysis.
Rationale: is said to be for the benefit of T’s as a class b/c it secures to the incoming T’s the possession of the premises on the date bargained for, and since leases tend to begin and end at certain periods, and property values are based on continuity of income, it is socially important for the L to be able to deliver possession on a stipulated date.
Remedies:
Landlord’s remedy: L has two options at COMMON LAW:
Evic
r competition b/t L’s.
Selection of Tenants (Unlawful Discrimination)
There are three types of protection against discrimination of the L toward the T.
14th Amendment: Equal Protection Clause – Suits based on this is unlikely.
Civil Rights Act 42 U.S.C. § 1982
Fair Housing Act 42 U.S.C. § 3061, 3603, 3604
Civil Rights Act 42 U.S.C. § 1982/1866
This act is narrower than FHAin that it reaches only racial discrimination
It does not deal with discrimination in the provision of service and facilities
It does not prohibit discriminatory advertising.
This act is broader than FHA in that it contains none of the exemptions of FHA.
Burden of Proof is on the P in that he/she must prove intentional or purposeful discrimination to bring a prima facie case.
States: “all citizens of the U.S. shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”
NO EXCEPTIONS like FHA
ONLY touches upon racial discrimination; not a good thing to use if you are handicapped, etc
Fair Housing Act 42 U.S.C. § 3061, 3603, 3604 – Apply only to residential leases.
Scope of Prohibited Conduct – 3604: It basically prohibits the seller or renter to discriminate against persons because of:
Race
Color
Religion
Sex
Handicap
Familial Status
National Origin
It’s unlawful:
To refuse to sell or rent a dwelling because of race, color, religion, sex, handicap, familial status, or national origin.
To discriminate against any person in terms/conditions/privileges of sale or rental of the dwelling b/c…
To make, print, or publish any notice/statement/advertisement that indicates any preference, limitation, or discrimination based on…
No matter what you cannot discriminate in writing.
You can verbally discriminate if you are renting the room in your house.
If you don’t want a white woman in your home, you can verbally discriminate to her but you can’t put it in writing.
o To represent that a dwelling is not available for sale or rental when such dwelling is in fact so available.
o A refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoyment of a dwelling.
o To fail to construct the multi-familiar dwellings in a manner accessible by handicapped persons.
o Discrimination in the financing of housing and in the provision of brokerage.
§ IE Discriminatory ads: “able-bodied, bachelor, near churches, couples only, empty nesters, exclusive, executive, responsible, no smokers, no alcoholics.”
§ IE Non Discriminatory ads: “near bus lines, credit check required, no drug or drinking, reference of school district, senior discount, nursery.”
