Flashcards in Code III - Leases Deck (28):
What is a lease?
A lease is a bilateral contract by which one gives the use of a thing for a term in return for a rent.
What are the three elements of a lease?
The thing; the rent; and conent. 1. A lease conveys possession of a thing, whereas a sale conveys ownership. 2. The rent must be certain or determinable through a method agreed upon by the parties. Rent need not be in money. The court cannot fix the rent if it has been left up to a third party, unless the rent has been established and then is subject to redetermination, then the court may fix the rent.
What are the form requirements for a lease?
Leases are valid between the parties whether oral or written. Leases are subject to the public records doctrine. An unrecorded lease cannot be enforced against a third pary who purchases the property from the lessor. Notice of lease can be recorded.
What are the types of leases?
1. Residential--when the thing is to be occupied as a dwelling; and 2. Agricultural--when the thing is a predial estate to be used for agricultural prupoes; 3. Mineral--when the thing is to be used for the production of minerals; 4. Commerical; 5. Consumer--movalbe intended for person/familial use. When the lease is mixed-use, the dominant purpose controls.
Who may grant a lease?
One who has possession of a thing of another may lease it. Because such a lease is binding on the parites, the non-owner lessor warrants the lessee's peaceful possession.
Does a lease need to contain a precise term to be valid?
No, the term may be fixed or indeterminate.
What are the limits on the duration of a lease?
Duration of a term may not exceed 99 years. A lease in excess of 99 years is not invalid for that reason, the term can be reduced.
What happens with a lease with an indefinite term?
1. Agricultural lease--will be deemed year to year. 2. Non-agricultural lease of an immovable/residential lease of a movble--will be deemed month to month. 3. Non-residential lease of a movable will be day to day.
What is tacit reconduction?
A lease with a fixed term is tacitly reconducted if the lessee continues in possession and no steps are taken to terminate the lease for: 1. 30 days in agricultural leases; 2. One week in on-agricularal leases with fixed terms of longer than one week; and 3. One day in leases with fixed terms equal or less than one week.
What is the effect of tacit reconduction?
1. Lease continues under the same provisions of the old lease except that it is treated as an indeterminate term lease.
How does the lease terminate?
1. If lease has fixed term, lease terminates upon the expiration of that temr. 2. Lease with indeterminate term--may be temrinated by either party by notice. (written for immovables/residential leases of movables). Notice must be given 30 days before the end of the period in a lease with a term of longer than one moth; 10 calender days in month to month; 5 calendar days for leases less than amonth; any time prior to expiration for less than one week.
What are the lessor's three basic obligations?
1. Deliver the thing; 2. Maintain the thing in a condition suitable for the purpose for which it was leases; 3. Protect the lessee's peaceful possession of the thing.
What is the lessor's delivery oblgiation?
Thing must be delivered at the agreed time in good condition.
What is the lessor's mainteance obligation?
1. Must mae all repairs necessary to maintain thing in condition suitable for its purpose; 2. Lessess is liable for repairs caused by his fault; 3. Lessee must tolerate all repaires that cannot be postponed until the end of the lease.
What is the lessee's right to repair and deduct?
If lessor refuses to make necessary repairs, the lessee may make the reapries and demand immediate reimbursement or deduct the cost from the rent. Lessee must first make demand.
What is the lessor's dury to maintain lessee in peaceful possession?
Warranty of peaceful possesion includes distrubances by person with acceess to the thing with the lessor's consent/occupy adjacent property belonging to the lessor.
What is lessor's liability for destruction/changes in the thing?
So long as lessor is not at fault, damages are not recoverable by the lessee. 1. Total loss--lease is terminated if no lessor fault, but the lessor does not owe damages. 2. Partial loss--if lessee was not at fault, may obtain dissolution/reduction in rent. However, if the impairment was caused by external circumstances (e.g., zoning) to the leased thing, lessee is entitled to dissolution only, not reduction.
What are lessor's responsibilities for vices and defects?
1. Lessor is liable for all defects and vices that prevent thing from being used for its intended prupose, unless it arises from the lessee's fault.
Can the warranty against vices and defects be waived?
Yes, may be waived by clear and unambiguous langauge that is brought to the attention of the lessee. Cannot waive if 1. Lessor knew/should have known of defects; 2. Cannot limit liability for gross negligence/intentionala acts; 3. They relate to vices that are seriously dangerous.
What are the lessor's obligations to third parties for lessee's activities?
An owner lessor can be liable for a lessee's activities on the premises. (615 Bourbon Street)
What are the duties of the lessee?
1. Pay the rent; 2. Use the thing as a prudent adminsitratior according to the purpose for which it was leased; 3. Return the thing in the same condition, minus normal wear and tear. If lessee uses thing for different purpose/damaging way, lessor may get injunctive relief/dissolve lease/recover damages.
What happens when the lessee fails to pay rent?
If the lessee fails to pay rent when due, the lessor may dissolve the lease and regain possession of the thing.
Can the lessor act as the lessee's agent in reletting premises?
Yes, if lessee has abandoned the premises, the lessor has the right to retake possession of the premises and to relet them as a mandatary for the lessee. If this occurs, the lease is not terminated, and the lessee is not relieved of his obligations under the lease. (unless lessor acts in way incompatible with earlier lease.)
What is the lessee's right to sublease, assign or encumber?
A lessee can sublease the leased thing, or assign and encumber his rights under the lease unless this right has been expressly prohibited in the lease contract.
What is asiignment of a lease?
An assignemnt is a transfer of a contract, I.e., both rights and duties, while a sublease is a transfer of a right only. Effects of assingment is that two parties have agreed to pay the lessor. Unless lessor agrees to novation, the two debtors are solidary obligors.
What is a sublease?
A sublease is a transfer of the lessee's right of occupancy. Sublessee does not promise to pay the lessor anything. No third party beneficiary in sublease.
Can a lessor abuse his right to reject assignment of sublease?
No, abuse of right occurs when the right is exercised with predominant intent to harm the other party.