Flashcards in Property 4 - Landlord/Tenant Deck (40)
Tenancy for Years - Definition
Any tenancy that has a fixed starting date and a fixed ending date.
Tenancy for Years - Creation
Can only be created by an express agreement of the parties. Can be oral if 1 year or less, must be in writing if more.
Tenancy for Years - Term
Is fixed by the agreement.
Tenancy for Years - Termination
Automatically at the agreed upon ending date.
Periodic Tenancy - Defintion
Has a fixed starting date but no fixed ending date. It is self-renewing. E.g. month-to-month tenancy.
Periodic Tenancy - Creation
Can be created by express agreement of the parties but is often created in a 'holdover' situation.
Periodic Tenancy - Term
Indefinite. It will continue to renew until it is properly terminated.
Periodic Tenancy - Termination
Can be terminated by either side giving appropriate notice.
Periodic Tenancy - Appropriate Notice
Most jrdx will take words or conduct showing an attempt to terminate. Notice must equal the length of the period up to a maximum of 6 months. At common law notice had to be given at the start of the period. Modern law notice in the middle of the period is effective, but it doesnt take effect until the start of the next period.
Tenancy at Will - Creation
Can only be created by express agreement of the parties.
Tenancy at Will - Term
As long as the parties both want it to go on.
Tenancy at Will - Termination
(1) By either side indicating they want to terminate the tenancy. Automatic termination.
(2) If either side dies.
(3) If either party attempts to transfer interest under the tenancy.
When a tenancy arrangement comes to an end but the tenant does not leave the property.
Results of a Holdover Tenant
(1) If LL wants tenant to remain - they become a periodic tenant.
(2) IF LL doesn't want tenant - they become a tenant at sufferance aka a trespasser.
If LL accepts rent its viewed as wanting them to stay, if they dont accept rent they don't want them to say.
Holdover Tenant - Periodic Tenancy Term
If the holdover tenant becomes a periodic tenant:
(1) at common law the length of the period was to be the same as the length of the period of the expired lease up to a max of 1 year.
(2) Modern approach is to look to the period for which rent is reserved, usually a month-to-month basis.
Fight Over Rent - Tenancy for Years
Tenant is liable for the full rental obligation in the lease.
(1) At common law the landlord would have to sue for the rent as it accrued.
(2) Modern allows LL to sue for anticipatory repudiation, but we impose an affirmative duty on the LL to mitigate by making reasonable efforts to re-rent the premises. Court will reduce any rent awarded to LL by what LL received through mitigation or what they could have if they bothered to mitigate.
Fight Over Rent - Periodic Tenancy
Rent obligation goest through the notice period.
Fight Over Rent - Tenancy At Will
Is rarely the at issue because the rent is usually paid in services.
Tenancy at Sufferance/Holdover Tenant
(1) If it turns into Periodic Tenancy - Is the same as the rental obligation in the expired tenancy.
(2) If it turns into Tenancy at Sufferance - the reasonable rental value of the property.
Tenant Defense - Landlord Fails to Deliver Possession of the Premises
(1) common law/majority - LL is obligated to deliver possession of the property to tenant and tenant doesn't have to pay rent until they do.
(2) american rule/minority - LL has no obligation to deliver at the start of tenancy, it's up to the tenant to take it.
Tenant Defense - Actual Eviction
Where the tenant has been physically removed from the premises by the LL or someone acting on his behalf.
PARTIAL EVICTION = You're evicted from only part oft he property. With partial actual eviction your excuse from having to pay ANY of the rent.
Tenant Defense - Constructive Eviction
The T's right to quiet enjoyment of the property has been substantially interfered with. T must actually move out within a reasonable time following the substantial interference. If it is an act of a 3rd party causing the interference it is still sufficient as long as the 3rd party is acting with the LL's knowledge. Defense to payment of ANY rent.
Tenant Defense - Partial Constructive Eviction
Abatement of rent. T's rental obligation is reduce by a % equal to the % of the land from which he's been constructively evicted.
Tenant Defense - Surrender
The T surrenders the premises to the LL and the LL has to accept possession of the premises back from the tenant. BUT because LL has an affirmative duty to mitigate if you leave and send the LL the keys and he takes them and starts fixing the place up he can say that was part of attempted mitigation. For surrender to work he has to like take them and start renting the place out to his sister rent-free.
Tenant Defense - Destruction
(1) Common law - if you leased land with a building and the building destroyed you still had to pay rent because you were really leasing the land. Unless it was an apartment type deal where you only leased part of the building.
(2) Modern - if there's a destruction of the leasehold you don't have to pay rent. Exception: if the T intentionally or negligently causes the destruction.
Tenant Defense - Offset Defense/Warranty of Habitability
Requires LL to maintain the premises in a habitable condition. If some problem develops, the T must give LL notice and allow a reasonable period of time to fix. If LL doesn't act, T can do whatever is necessary to fix and can offset the cost from the rent due. T doesn't have to move out.
Tenant Defense - Contractual Discharge Argument
Lease can be discharged by impossibility, impracticability, or frustration of purpose. Or violation of quiet use and enjoyment of the property.
Warranty of Habitability - Landlord Obligations
(1) Common law - none.
(2) Modern - implied promise to keep the premises in a habitable condition.
Warranty of Habitability - Tenant Obligations
(1) Common law - none.
(2) Modern - duty to avoid waste. The market value/neighborhood change exception does not apply here for ameliorative waste.