Leasehold Estates Flashcards
What is a tenancy for years?
This is a lease for a fixed period of time. When you know the termination date from the start, you have a tenancy for years. Because a term of years states from the outset when it will terminate, no notice is needed to terminate. A term of years greater than one year must be in writing to enforceable, because of the statute of frauds.
It is also e known as Estate for Years or the Term of Years.
What is a periodic tenancy?
This is a lease which continues for successive intervals until the landlord or tenant give proper notice to terminate. The periodic tenancy can be created in one of two ways:
- Expressly: Landlord conveys to tenant from week to week, month to month, or year to year.
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By Implication:
a. Land is leased with no mention of duration, but provision is made for the payment of rent at a set interval.
b. An oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered.
c. The holdover - in a residential lease, if L elects to holdover a tenant who has wrongfully stayed on past the conclusion of the original lease an implied periodic tenancy measured by how rent is tendered.
How does one terminate a periodic tenancy?
Notice, usually written, must be given. The length of notice, at common law, must be at least equal to the length of the period itself, unless otherwise agreed.
EXCEPTION:** **For a year to year or greater, only 6 months is necessary.
NOTE: The periodic tenancy must end at the conclusion of a natural lease period.
What is a tenancy at will?
This is a tenancy for no fixed duration. Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to find an implied periodic tenancy. The tenancy at will may be terminated by either party at anytime. However, a reasonable demand to vacate is needed, generally.
What is a tenancy at sufferance?
It is created when the tenant has wrongfully held over past the expiration of the lease. We give this wrongdoera leasehold estate (the tenancy at sufferance), to permit the landlord to recover rent. The tenancy at sufferance last only until L either evicts T or elects to hold T to a new tenancy.
What is the hold-over doctrine?
If a tenant continues in possession after his right to possession has ended, the landlord may:
i. evict him, OR
ii. bind him to a new periodic tenancy.
Generally, the terms and conditions of the expired tenancy govern the new one. *Commercial *tenants may be held to a new year-to-year tenancy if the original lease term was for one year or more, or a periodic term based on the frequency of rent payments if the original term was for *less than one year. *
Residential tenants, however, are generally held to a new month-to-month tenancy, regardless of the original term. If the landlord notifies the tenant before the lease expires that occupancy after termination will be at increased rent, the tenant, by holding over, is held to have acquiesced to the new terms.
Exam Tip: There are exceptions to the hold-over doctrine. Watch for situations where: (i) the tenant remains in possession for only a few hours after termination or leaves a few articles of personal property, (ii) the delay is not the tenant’s fault (e.g. severe illness), or (iii) it is a seasonal lease. In these cases, the landlord cannot bind the tenant to a new tenancy.
What is the tenant’s liability/duty to third parties?
The tenant is responsible for keeping the premises in reasonably good repair. Tenant is liable for injries sustained by third parties T invited, even where the landlord promised to make the repairs.
What is the tenant’s duty to repair?
There are two different situations:
a. Tenant’s duty to repair when the lease is silent: the standard is that the tenant must maintain the premises and make routine repairs other than those due to ordinary wear and tear.
i. The tenant must also not commit waste. The law of fixtures also applies here - when a tenant removes a fixture, the tenant commits voluntary waste.
Fixture: a once moveable chattel that by virtue of its annexation to realty objectively shows the intent to permanently improve the land/property. Tenant must not remove a fixture no matter that she installed it - fixtures pass with ownership of the land.
Absent an agreement, the tenant may remove a chattel that she has installed so long as removal does not cause substantial harm to the premises. if removal will cause substantial damage, then in objective judgment, tenant has show the intent to install a fixture.
Exception for commercial tenants: called the trade fixture doctrine, commercial tenants may remove any trade/commercial related fixtures from the premises.
b. Tenant’s duty to repair when tenant has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease: however, the majority view is that the tenant may end the lease if the premises are destroyed without tenant’s fault.
What are the landlord’s option for a tenant that breaches the duty to pay rent? Can the landlord engage in self-help?
a. If the tenant breaches this duty and is in possession of the premises, the landlord’s only options are to evict through the courts or continue relationship and sue for rent due. If the landlord moves to evict, she is nonetheless entitled rent from the tenant until the tenant, who is now a tenant at sufferance, vacates.
**Self Help: **Landlord MUST NOT engage in self-help, such as changing lock, forcibly removing tenant, or removing tenant belongings. Self-help is flatly outlawed, and is punishable civilly and criminally. In New York, tenant is entitled to treble damages.
b. If the tenant breaches this duty, but is out of possession, the landlord has three options (remember SIR):
i. Surrender - treat tenant’s abandonment as an implicit offer of surrender which the landlord accepts. If the unexpired term is greater than one year, surrender must be in writing to satisfy the statute of frauds.
ii. Ignore the abandonment and hold the tenant responsible for the unpaid rent, just as if tenant was still in possession. The option is only available in a minority of states.
iii. Re-let the premises on the wrongdoer tenant’s behalf and hold him or her liable for any deficiency. This is the majority rule.
**New York **does not require landlord to mitigate damages when tenant abandons the premises.
What is the landlord’s duty to deliver possession?
There are two rules:
The majority rule (also known as the English Rule): landlord is required to put the tenant in physical possession of the premises. Thus, if at the start of the tenant’s lease a prior holdover tenant is still in possession, landlord has breached and the new tenant gets damages.
The minority rule (also known as the American Rule): landlord need only give tenant legal possession, not actual possession.
What is the landlord’s duty under the implied covenant of quiet enjoyment? How does the landlord breach this covenant?
This covenant applies to both residential and commercial leases. It is the right of the tenant to quiet use and enjoyment of premises without interference from the landlord.
The landlord breaches this by:
a. Actual wrongful eviction: when the landlord wrongfully evicts the tenant or excludes the tenant from premises.
b. Constructive eviction:** **the elements are (remember SING) -
i. Subtantial Interference due to the landlord’s actions or failures (i.e. permanent or chronic problem).
ii. Notice - the tenant must notify the landlord of the problem and landlord must fail to act meaningfully.
iii. Goodbye (or get out) - the tenant must vacate within a reasonable time after the landlord fails to fix the problem.
Is landlord liable for acts of other tenants?
Generally, no. But there are two exceptions:
- The landlord must not permit a nuisance
- Landlord must control the common areas.
What is the landlord’s duty under the implied warranty of habitability? What are the tenant’s entitlements if it is breached?
This warranty only applies to residential leases. The warranty is non-waivable.
The standard is that the premises must be fit for basic human dwelling. The appropriate standard may be supplied by housing code or case law.
The sorts of problems to trigger breach of the implied warranty of habitability include no heat in winter, no plumbing, or no water.
The tenant is entitled to Move, Repair, Reduce, or Remain:
i. Move out and end the lease;
ii. Repair and deduct, allowable by statute in a growing number of jurisdictions. The tenant may make the reasonable repairss and deduct their cost from future rent.
iii. Reduce rent or withhold all rent until the court determines fair rental value. Typically, the tenant must place withheld rent into escrow to show good faith.
iv. Remain in possession, pay rent, and affirmatively seek money damages.
What is a retaliatory eviction?
If the tenant lawfully reports landlord for housing code violations, landlord is barred from penalizing tenant, by for example, raising rent, ending the lease, or harrassing the tenant or other reprisals. This would amount to a retaliatory evictions.
What is an assignment? What is a sublease?
A tenant may freely transfer his or her interest in whole (an assignment) or in part (a sublease).
