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Tenant Landlord Law Outline

Updated Tenant Landlord Law Notes

Property Outlines

Property

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TENANT / LANDLORD LAW

Leasehold Estates

  1. Rules

    1. Leasehold Estates. Four types of leasehold estates: (1) term of years; (2) periodic tenancy; (3) tenancy at will; (4) tenancy at sufferance. The term “lease” may signify a (1) lease, (2) license agreement, or (3) life estate.

      1. Term of years. Lasts for fixed period. “Defeasible” if L can retake after breach.

      2. Periodic tenancy. Continues for succeeding periods until either L or T gives notice of termination. Notice must be given >6 mos. in advance for year-to-year, and equal to length for month-to-month. Ends at end of period, not middle (e.g. month-to-month tenancy begins on July 1; notice on November 15 of end; ends January 1, not December 15).

      3. Tenancy at will. Endures as long as T or L desires. Different from term of years determinable (which could be, e.g., 10 years or until L terminates).

      4. Tenancy at sufferance. If T is a holdover, depending on the jurisdiction this may create a (1) periodic tenancy (majority), (2) term of years (balance), (3) eviction. Term or period may be same as previous, with max term of one year. May convert to tenancy at will by statute.

        1. Holdovers & new tenants. See, infra, at Delivery.

      5. “Lease for life” and other estates. The doctrine of numerus clausus (“closed number”) limits the creation of new types of estates. When this runs into parties’ intentions, however, it may be void. Garner. Several states allow a “lease for life,” e.g. (1) a lease that will terminate at the death of T (Garner); (2) a lease that lasts as long as T does X (Philpot v. Field (Tex. Civ. App. 1982)); (3) same, but with rebuttable presumption for TAW if ambiguous (Myers v. E. Ohio Gas Co.).

    2. Delivery. Two rules for L’s duty to deliver property to T: (1) English, (2) U.S.

      1. English rule. L has implied covenant to open entry to T at beginning of term. (Trend is toward this rule.)

      2. American rule. L only bound to put T in legal possession; no duty to oust wrongdoers/holdovers. Hannan.

  2. Analysis

    1. Lease for life. Courts are reluctant to create new categories of property rights, but when there is no reason not to create a new category, they are willing to do it.

    2. Delivery.

      1. English rule. The advantage of the English rule is it prevents T from having to initiate lawsuit to begin lease; L is usually in best position to remove wrongdoers.

      2. American rule. The advantage of the American rule is L should not be at fault for wrongdoer’s wrongdoing. T should sue the wrongdoer himself. If there were a trespasser, T would always be responsible under either rule. Also, L and T can bargain over this in contract. Hannan.

  3. Major Cases

    1. Garner v. Gerrish (N.Y. 1984) (423)

      1. (Wachtler, J.) L signed lease with T giving T privilege of terminating lease at date of his choice. L died. L2 tried to evict, but court felt no need to put lease in boxes of life estate determinable or tenancy at will when L1/T wanted “lease for life.”

    2. Hannan v. Dusch (Va. 1930) (438)

      1. (Prentis, J.) L leased land to T, but A was holding over. T sued L. Under English rule, L would have duty to deliver the property and remove A. Under the American rule, which the court adopted, removal was T’s responsibility.

Subleases & Assignments

  1. Rule

    1. Subleases & assignments. When T signs lease with L, they enter into two forms of privity (voluntary agreement): (1) privity of contract (contractual promises between T and L) and (2) privity of estate (conveyance of right of possession). T may not unilaterally break these promises; rather, if T wishes to convey an interest of her lease to someone else, needs a “release” from L in form of (1) sublease or (2) assignment.

      1. Sublease, defined. If T1 conveys T2 interest in leased premises less than his own, or gives all but reversionary interest (i.e. time before the lease expires when T1 may repossess), T1 creates a sublease. T1 remains responsible to L, but T2 is in privity of estate with T1, i.e. T2 must pay T1 rent and any damages from breaches that “touch and concern” the rented property. (T1 may also extract enforceable promise from T2 to pay rent, which would put T2 in privity of contract with L as third-party beneficiary. See 449.).

      2. Assignment, defined. If T1 conveys T2 her entire interest under the lease, she creates an assignment. This does not affect T1’s privity of contract (i.e. T1 is still responsible for the original contract), but breaks the privity of estate between T1 and L. T2 is now in privity of estate with L. T1 is still a surety for the assignee, but T2 “assumes” T1’s promises to L.

    2. Sublease or assignment? The importance of the distinction is that L may only sue T2 for a breach of the lease if T2 is assignee. Two methods for determining: (1) formal and (2) intent.

      1. Formal method. If T1 conveys entire interest of the property to T2, assignment. Anything less is a sublease, including reserving T1 a reversionary interest, T1 T2 for one day less than own lease, etc.

        1. Partial assignments. If T1 conveys to T2 all of his interest in a physical part of the premises, most courts will call this a partial assignment, not a sublease.

        2. Power of termination / right of reentry. If T1 provides that if T2 breaches any obligation of the lease T1 may terminate arrangement and retake possession, substantial minority finds a sublease here (p. 447).

      2. Intent method. Determine what T1 and T2 meant. Words of the contract itself are not controlling. Ernst.

    3. Premature termination. These rules true for subleases and assignments.

      1. Power to forfeit. If L exercises power to forfeit because of breach by T1, T1 & T2 lose interests.

      2. Surrender. If T1 “surrenders” her interest, rights of T2 remain intact. Now, even if T2 is sublessee, privity of estate exists between L & T2. Parris-W. Maytag Hotel Corp. v. Continental Amusements Corp. (Iowa 1969).

    4. Approving sublessors & assignees. As most states do not allow T to unilaterally assign or sublet, T must request L’s permission. There are different rules for whether L may...

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