Leases Flashcards
(42 cards)
Landlords have a right to
Collect rent
Seek contribution for certain repairs
Enter the premises (usually upon reasonable notice)
Tenants have a right to
Possess the land
Reap profits in some ways
Exclude (including the landlord in some cases)
Withhold the rent when landlords have not fulfilled promises
Sublease
*Term of Years
Time: fixed period with specified end date
Notice to terminate is not required
Most states do not require landlords to give a reason for terminating the lease (“no cause” termination)
There are instances where landlords do not have the absolute freedom the evict the tenant (ex. retaliation)
*Periodic Tenancy (most common)
Time: initial fixed period, then auto-renewal for successive period
Notice to terminate: for the length of period but not to exceed 6 months
Ex. if notice of one month is required, and a tenant gives notice on 1/12 that they are leaving on 1/31,
- Majority: they still have to pay february rent
- Minority: the notice is not valid, so tenancy does not end
*Tenancy at Will
Time: no fixed duration
Notice to terminate: either party can terminate immediately without notice
Most modern day jurisdictions require 30 days notice
*The Tenancy at Sufferance
Time: When T “holds over” at the end of a lease
You had a right to possess the property, but the lease ended
Termination: Election options for the L at common law
1. Treat the T as a trespasser & evict
- Modernly, not treated as trespassers anymore: L’s cannot use self-help & must follow processes for eviction
2. Treat the T as a new tenant under a new lease
- Commonly by accepting a new lease payment
- T beware—L could significantly increase rent (but statutory restrictions on exactly how much they can)
Commercial Context
sophisticated parties that have an end in mind (money). L & T both have an investment strategy, so courts feel better that on the front end of the arrangement they have come to terms with what will happen at the end of the lease
Residential Context
it involves money, but it also involves shelter
Vasquez v. Glassboro Service Ass’n
Whether the migrant farmworker should be entitled to procedural protections when he is fired and evicted without notice.
Institutional arguments: who should be making this type of decision?
For no procedural protections when evicted:
1. Legislatures job to decide who gets notice of a hearing.
2. And the legislature decided in a comprehensive law that migrant workers were not included in the list of who gets protections.
3. If they wanted to include migrant workers they would have.
4. And if the court includes the migrant workers in protection, they would encroach upon the separation of powers.
For procedural protections when evicted:
1. The courts and the legislature in many cases work together. The statute does not afford the protections to P but there is a CL doctrine that may or not apply here, and that is a court’s job to figure out.
2. Court’s job to modernize CL in accord w/ the sensitivities of the time, including sensitivities that are already recognized by legislature.
3. Legislature has already said they do not like self help eviction bc it can cause violence or homelessness. By holding the self help doctrine doesn’t apply here, they are consistent w/ the legislative intent that self help eviction is bad.
Vasquez v. Glassboro Service Association, Inc.
Whether the migrant farmworker should be entitled to procedural protections when he is fired and evicted without notice.
Fairness arguments
For no procedural protections when evicted:
Shouldn’t have to house someone that isn’t producing anything
Unfair to take away the employers right to ensure that they can contract the terms
Lets let people make deals they want to make. Some workers may prefer a job that could fire them than no job.
For procedural protections when evicted:
Failure to provide worker w/ reasonable opportunity to find alternative housing
Unfair, doesn’t speak english, no bargaining power
Terms of the K emphasize the inequality of bargaining power
Unfair K bc no evidence he got a copy in english
He had no access to anything else
There were more beds, there was no necessity to kick him out
Being a bad worker doesn’t mean that you should be subject to the indignity of becoming immediately homeless. A company does not have the right to make that kind of relationship.
A person with the power to reject this agreement would have rejected it.
Vasquez v. Glassboro Service Association
Whether the migrant farmworker should be entitled to procedural protections when he is fired and evicted without notice.
Utility arguments for no procedural protections
For no procedural protections:
If we start imposing mandatory terms, employers are going to not fully staff all beds in anticipation of having to house people they fire.
Employers could cut jobs or pay less
This will mandate a term that will hurt the people the term is mandated to protect
if L transfers her interest during a tenancy
The successors to L are generally subject to the agreements they have made with prior T’s
*Three Rules of Transfer:
- Assignees in possession are liable to the original landlord for certain things in the original agreement including rent
- They are liable to the landlord for privity of estate (and may be liable for privity of contract) - Assignees who later sublease remain liable for certain things, including the rent
- Unless a sublessee assumes the obligations in the original lease, the sublease is not liable to the original landlord
*Privity of estate: a conveyance of property relationship
The only promises that flow w/ the conveyance are ones that run w/ the land
Look to see if it is a sublease or assignment
Only one party can be in privity of estate with L
*Assignment
a transfer of the rest of the interest in land
Privity of estate transfers to T1
*Sublease
T is only conveying part of their interest, not all of it (they hold onto a remainder)
Privity of estate does not transfer
*Privity of contract: a conveyance of the contractual relationship
They assume all of the obligations of the original lease
Infinite parties can be in privity of K with L
Look to see if:
1. T has been released from the K
2. T1 has assumed the obligations
Landlord’s Consent to Sublease/Assign
Restraints on alienation are frowned upon (we want the living to be able to buy/sell on the market)
Needing the L’s consent to transfer is an alienation, BUT is generally enforceable bc it keeps L from having to accept random T w/o checking their credit history
This limits T’s ability to find any replacement and move out
Without a restraint provision, the presumption is that T can transfer
Minority rule for L’s consent to transfer in the commercial context
the landlord can arbitrarily refuse to approve transfer of T’s interest.
Majority rule for L’s consent to transfer in the commercial context
(Kendall v. Pestana): court implies a reasonableness standard as a default rule when a commercial lease says transfers are only allowed with the landlords consent and the lease is silent as to whether the landlord has to give a reason
Factors:
1. financial responsibility,
2. suitability of the use for the particular property,
3. legality of the proposed use,
4. need for alteration of the premises, and
5. nature of the occupancy
Should a court enforce an explicit provision in a lease that specifically says that decisions on subleases and assignments are “in the landlord’s sole and arbitrary discretion”?
Conflict
policy against inhibiting the alienability of property v. the policy of supporting the landlords interests in controlling the future use of the property
Should a court enforce an explicit provision in a lease that specifically says that decisions on subleases and assignments are “in the landlord’s sole and arbitrary discretion”?
arguments for enforcing
Court’s goal is to determine the arrangement that was actually made by the parties & the rule of reasonableness is an effort to enforce the probable intent. But when parties clearly express their intent, courts don’t need to delve into their probable intent.
It’s not that L wants to act unreasonably, she just doesn’t want to have to defend in court every decision not to transfer
Immunizing L’s from having to come to court actually helps tenants because it allows L’s to charge a lower rent overall
L already controls the property’s future through her reversion. She wouldn’t have leased it without the right to block transfers. So, allowing this kind of control actually makes her more willing to rent, which helps keep property in use and supports alienability overall.
Should a court enforce an explicit provision in a lease that specifically says that decisions on subleases and assignments are “in the landlord’s sole and arbitrary discretion”?
Arguments against enforcing
Why would we ever permit anyone to act unreasonably?
Imposing the duty of reasonableness supports the policy against inhibiting the alienability of property
Do the reasons for and against implying a reasonableness requirement in the commercial context differ in the residential context?
Argument it is especially important to impose reasonableness requirement in a residential context because
Residential tenants are likely to be less sophisticated than commercial tenants & may not realize what they are signing
Likely unequal bargaining power (L have a more powerful position)
