PROPERTY

What is property?

the relationship of people to things

What does property include?

Several rights including: ownership, possession, use, sell, transfer, improve, future/reversionary

What is a leasehold?

A conveyance of property and a contract

What is a tenancy for a term of years?

A lease for a particular period of time that automatically ends (without notice) at the end of the period.

What must be known for a tenancy for a term of years?

The definite ending date at the time the lease is entered into

Can a tenancy for a term of years end earlier?

Yes, if the tenant defaults

What is a tenancy for term of years determinable?

A lease for a particular period of time that could terminate earlier.

What is important about a tenancy for term of years determinable?

It is usually not for residential leases, as many jurisdictions have a minimum for residential.

What is a periodic tenancy?

A lease for successive periods of time of the same duration that automatically renews unless notice of termination is given.

What does a periodic tenancy require to terminate?

Either party to give notice

How much notice must be given for a periodic tenancy?

If less than 1 year, it must be equivalent to the period but not more than 6 months.

How is a periodic tenancy created?

Can be created in the lease itself but is sometimes created as an operation of law at the end of a tenancy for a term of years if the tenant remains in possession

How do many states modify the notice required for periodic tenancy?

They often require 30 days notice.

What is the traditional rule for notice for periodic tenancy?

Notice must be proper (for the right duration) or is otherwise completely ineffective.

What is the modern rule for notice for periodic tenancy?

Notice doesn’t go into effect until at least 30 days has elapsed, and the tenancy has to end at the end of a month.

What is a tenancy at will?

A lease at the will of either or both parties; very uncommon.

What is the traditional rule for tenancies at will?

No notice is required to terminate; the death of either party or assignment by tenant terminates the tenancy; if lease is at the will of one party, it is automatically at the will of the other.

What is the modern rule for tenancies at will?

Most jurisdictions require at least 30 days notice by either party to terminate; the lease is interpreted as it’s written.

What is a tenancy at sufferance?

The tenant holds over and remains in possession after a lease has ended.

What is the holdover doctrine?

The landlord can evict or bind the holdover tenant to a new periodic tenancy.

When does a landlord waive their right to evict a holdover tenant?

If they accept rent after they’ve held over; can evict for other reasons

What happens if the landlord notified the tenant of a rent increase prior to termination?

The holdover tenant is now bound to a new term and new rent if proper notice was given by the landlord.

What are risks to the landlord in a landlord/tenant relationship?

Tenant may not pay.

Tenant may damage property.

Abandonment.

Market rents increase substantially (economic).

What are risks to the tenant in the landlord/tenant relationship?

Landlord may not maintain the property.

Undesirable neighbors.

Security deposit isn’t returned.

Market rents declining (economic).

What is the landlord duty to deliver possession?

The landlord has the duty to deliver possession of the leased premises on day 1 of the lease.

What is the English rule for duty to deliver possession?

Majority rule; landlord is obligated to put tenant in actual physical possession on day 1 of the lease.

What is the American rule for duty to deliver possession?

Minority rule; landlord is only required to give tenant the legal right of possession on day 1 of the lease.

What is the general rule for transfers of property rights?

All property interests are freely transferable unless otherwise limited.

How is an assignment or sublease determined?

By essence of the transaction

How are provisions interpreted when they restrict transfer of property rights in leaseholds?

Narrowly against the landlord

What are the types of transfers of leaseholds?

Subleases and assignments

What is the traditional rule for consent in transfers of leases?

Landlord can refuse for any or no reason if there is a provision requiring consent.

What is the modern rule for consent in transfers of leases?

Consent should only be withheld for a commercially reasonable reason (good faith & fair dealing).

What is the restatement view for consent in transfers of leases?

Restraint on alienation that requires the landlord’s consent shouldn’t be withheld unreasonably; there must be a valid reason.

What is a sublease?

A transfer of less than all interests of the lease.

Where do privity of estate & privity of K lie in a sublease?

With the original tenant

What is an assignment of a lease?

A transfer of all interests of the lease

Where do privity of estate & privity of contract lie in an assignment of a lease?

Privity of estate is with the assignee; privity of contract is with the original tenant.

What is the original tenant’s role in an assignment of a lease?

Surety/guarantor

How can the original tenant escape responsibility from a lease?

Through release or novation

What is the difference between release and novation?

A release is that in which a landlord releases the original tenant from liability; a novation is a new agreement whereby the landlord agrees that the assignee will take over the entirety of the lease and the original tenant is no longer responsible.

What is a partial assignment of a lease?

A transfer of the physical possession of a part of the lease premises for the remainder of the lease.

What is a default of a lease?

A breach of one of the tenant’s obligations.

What are the landlord’s remedies when a tenant defaults?

The landlord can sue for damages, terminate the lease, evict the tenant, and reclaim the property.

What is abandonment?

Tenant leaves and has no intention of returning.

What is surrender?

Tenant has tendered the surrender of the lease and the landlord has accepted.

Can a landlord use self-help to retake possession?

No, they must use their legal remedy.