Real Property

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Real Property
2012-06-25 20:26:51
Real Property Law

Landlord Tenant
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  1. Four Leasehold or Nonfreehold Estates
    • o  1. Tenancy for Years
    • o  2. Period Tenancy
    • o  3. Tenancy at Will
    • o  4. Tenancy at Sufferance
  2. Tenancy for Years
    • o  aka Estate for Years or Term of Years
    • o  This is a lease for a fixed period of time, which period could be one day, two months, 50 years. When you know the termination date from the start, you have the tenancy for years.
    • o  Because a term of years states from the outset when it will terminate no notice is needed to terminate.
    • o  A term of years greater than one year must be in writing to be enforceable because of the Statute of Frauds.
  3. Period Tenancy
    • o  This is a lease which continueds for sucessive intervals until Landlord or Tenant gives notice to terminate
    • o  The periodic tenancy can be created expressly. For example, L conveys to T from month to month or year to year or week to week
    • o  The periodic tenancy can also arise by implication (see next card)
  4. Period Tenancy By Implication
    • o  1. Land is leased with no mention of duration, but provision is made for payment of rent at set intervals
    • o  2. An oral term of years in violation of the Statute of Frauds creates an implied periodic tenancy measured by the way rent is tendered.
    • o  If L and T negotiate and orally agree to a 5-year lease at $1000/month, this is not a tenancy for years because it violates the Statute of Frauds. If T sends L a check for $1000 and L accepts it, T's first rental payment renders his interest an implied periodic tenancy with the intervals based on the way rent is tendered
    • o  3. The holdover: In a residential lease, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease an implied periodic tenancy arises measured by the way rent is now tendered.
  5. Period Tenancy Termination
    • o  Notice must be given, usually written.
    • o  Common law notice: at least equal to the length of the period itself unless otherwise agreed.
    • o  month-to-month: one month's notice (same in VA)
    • o  week-to-week: one week's notice (same in VA)
    • o  Exception: year-to-year or greater:
    • o  comon law: six month's notice
    • o  VA: three month's notice (by statute)
    • o  Parties may lengthen or shorten by private agreement.
    • o  The periodic tenancy must end at the conclusion of a natural lease period.
  6. Tenancy at Will
    • o  This is a tenancy for no fixed duration.
    • o  For example, "To T for as long as L or T desires."
    • o  Unless the parties expressly agreeto a tenancy at will, the payment of regular rent will cause a court to treat this as an implied periodic tenancy (becoming rare)
    • o  The tenancy at will may be terminated by either party at any time but a reasonable demand to vacate is usually needed
  7. Tenancy at Sufferance
    • o  Created when T has wrongfully held over past the expiration of the lease. We give this wrongdoer a leasehold estate to permit L to collect rent.
    • o  The tenancy at sufferance lasts only until L either evicts T or elects to hold T to a new tenancy
  8. Tenant's Duties
    • o  1. T's liability to 3d parties
    • o  2. T's duty to repair
    • o  3. T's duty to pay rent
  9. Tenant's Duties T's liabiliy to 3d parties
    • o  T is responsible for keeping the premises in reasonably good repair.
    • o  T is liable for injuries sustained by 3d parties T invited even where L expressly promised to make all repairs.
  10. Tenant's Duties T's duty to repair
    • o  T must maintain the premises and make ordinary repairs
    • o  T must not commit waste (voluntary, permissive, ameliorative)
    • o  T's duty to repair when T has expreslly covenanted in the least to maintain the property in good condition for the duration of the lease:
    • o  Common law: T was liable for any loss to the property including loss due to force of nature
    • o  Majority view: T may terminate the lease when premises are destroyed without T's fault
  11.  Waste & Fixtures
    • o  When a tenant removes a fixture he commits voluntary waste
    • o  A fixture is a once movable chattel that, by virtue of its annexation to realty objectively shows the intent to permanently improve the realty.
    • o  Examples: heating systems, furnace, lighting installations, storm windows
    • o  T MUST NOT REMOVE A FIXTURE NO MATTER THAT SHE INSTALLED IT (may replace with what was there at beginning of lease)
    • o  Testing whether T's installation = fixture
    • o  1. Express agreement b/t L and T is binding and controls
    • o  2. In the absence of agreement, T may remove a chattel that she has installed so long as removal does not cause substantial harm to the premises
    • o  3. If removal will cause substantial damage, then in objective judgment T has shown the intent to install a fixture
  12. Tenant's Duties T's duty to pay rent
    • o  1. If T breaches this duty and is in possession of the premises: L's only options are to evict through courts or continue the relationship and sue for rent due. If L moves to evict, she is nonetheless entitled to rent from T until T, who is now a T at sufferance, vacates.
    • o  LANDLORD MUST NOT ENGAGE IN SELF HELP, such as changing the locks or forcibly removing T, or removing any of T's possessions; Self-help is flatly outlawed and is punishable civilly and criminally
    • o  2. T breaches this duty but is out of possession: SIR
    • o  -Surrender: L could choose to treat T's abandonment as an implicit offer of surrender which L accpets; that is, T shows by words or actions that she wants to give up the lease. If the unexpired term is greater than one year surrender must be in writing.
    • o  -Ignore: the abandonment and hold T responsible for unpaid rent just as if T were still there. This option is available only in a minority of states
    • o  -Relet: the premises on the wrongdoer tenant's behalf, and hold him or her liable for any deficiency. Majority rule: L must try to relet, mitigate.
  13. Landlord's Duties
    • o  1. Duty to deliver possession
    • o  2. Implied covenant of quiet enjoyment
    • o  3. Implied warranty of habitability
    • o  4. Retaliatory eviction
  14.  Landlord's Duties Duty to deliver possession
    • o  English/majority rules: L put T in physical possession of the premises. If at the start of T's lease a prior holdover T is still in possession, L has breached and the new T gets damages
    • o  American/minority rule: L need only provide T with legal possession and not physical possession
  15. Landlord's Duties Implied covenant of quiet enjoyment
    • o  Applies to both residential and commercial leases.
    • o  T has a right to quiet use and enjoyment of the premises without interference from L.
  16. Landlord's Duties implied covenant of quiet enjoyment actual wrongful eviction
    Occurs when L wrongfully evicts T or excludes T from the premises
  17. Landlord's Duties Implied covenant of quiet enjoyment Constructive Eviction
    • o  SING (like Dido when her apartment floods)
    • o  Substantial Interference: due to L's actions or failure to act. Not necessarily permanent but must be chronic.
    • o  Notice: T must notify L of the problem and L must fail to act meaningfully/responsibly.
    • o  Goodbye: T must vacate w/in a reasonable time after L fails to fix the problem.
  18. Landlord's Duties Implied covenant of quiet enjoyment
    • o  L is not liable for acts of other T's
    • o  BUT
    • o  1. L must not permit a nuisance on site
    • o  2. L must control common areas
  19. Landlord's Duties Implied warranty of habitability
    • o  Applies only to residential leases (not commercial)
    • o  Non-waivable
    • o  The premises must be fit for basic human living, meaning bare living requirements must be met. Standard may be supplied by housing code or case law.
    • o  Examples - no heat in winter, no plumbing, no running water
    • o  T's entitlements when the implied warranty of habitability is breached: MR3
    • o  M: move out and terminate the lease (not required)
    • o  R: repair and deduct, only reasonable
    • o  R: reduce rent or withhold all rent until the court determines fair rental value; escrow account to show good faith
    • o  R: remain in possession, pay rent and affirmatively seek money damages
  20. Landlord's Duties Retaliatory eviction
    • o  If T lawfully reports L for housing code violations, L is barred from penalizing T, by, for example, raising rent or ending the lease or hasrassing T or taking other reprisals
    • o  This is T's protective device
  21. Assignment versus Sublease Generally
    • o  T may freely transfer interest in whole (assignment) or in part (sublease).
    • o  In lease, L can prohibit T from assigning or subletting w/out L's prior written approval.
    • o  But once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L reserves the right.
  22. Assignment
    • o  T1 to T2 = privity of estate
    • o  So L and T2 are liable to each other for all of the covenants in the original lease that "run with the land"
    • o  examples - promise to pay rent, to paint, to repair
    • o  L and T2 are not in privity of contract unless T2 assumed all promises in the original lease
    • o  L and T1 are no longer in privity of estate; but they remain in privity of contract.
    • o  Thus, L and T1 are secondarily liable to each other.
  23. Sublease
    L and sublessee (T2) are in neither privity of estate nor privity of contract. T2 liable to T1 and vice versa.
  24. Landlord's Tort Liability
    • o  Common law: caveat lessee
    • o  for tort - L was under no duty to make the premises safe
    • o  Exceptions: CLAPS
    • o  Common areas: hallways and stairwells
    • o  Latent defects rule: L must warn T of hidden defects that L knows about or should know about (duty to warn, not repair)
    • o  Assumption of repairs: L who voluntarily makes repairs must complete them with reasonable care
    • o  Public use rule: L who leases public space and who should know, b/c of the nature of the defect and the length of the lease that T will not repair, is liable for defects on premises
    • o  Short term lease of furnished dwelling: L is liable for any defect that proximately harms T