Leasehold Estates — Creation, Termination, and Transfer

What is a leasehold estate?

An estate in land that gives the tenant the right to present possession of the property.

Who has the right to present possession during a leasehold?

The tenant.

What possessory right does the landlord retain during a leasehold?

The right to possession when the tenancy ends.

What are the four types of leasehold estates?

Tenancy for years, periodic tenancy, tenancy at will, and tenancy at sufferance.

What is the defining characteristic of a tenancy for years?

It lasts for a fixed, determined period.

Must a tenancy for years last at least one year?

No. It can last for any fixed period, including one week.

What type of tenancy is a lease with specified beginning and ending dates?

A tenancy for years.

When must a fixed-term lease generally be in writing?

When its term exceeds one year.

Is notice required to terminate a tenancy for years when its fixed term expires?

No. It ends automatically on the specified date.

What is a periodic tenancy?

A tenancy that continues for successive intervals until properly terminated.

What are examples of periodic tenancies?

Week-to-week, month-to-month, and year-to-year tenancies.

Does a periodic tenancy have a predetermined final ending date?

No. It continues for successive periods until properly terminated.

How can a periodic tenancy arise?

By express agreement, implication, or operation of law.

How is an express periodic tenancy created?

The parties expressly agree to recurring rental periods, such as month to month.

What tenancy may arise when no duration is specified and the landlord accepts monthly rent?

An implied month-to-month periodic tenancy.

What tenancy generally arises when an oral three-year lease is unenforceable under the writing requirement, but the tenant enters and the landlord accepts monthly rent?

A month-to-month periodic tenancy.

What generally determines the interval of an implied periodic tenancy?

The interval at which rent is paid and accepted.

Is notice required to terminate a periodic tenancy?

Yes. Proper advance notice is required.

What is the general notice rule for terminating a periodic tenancy?

Notice generally must equal one rental period, subject to the special rule for year-to-year tenancies.

How much notice is generally required to terminate a week-to-week tenancy?

One week.

How much notice is generally required to terminate a month-to-month tenancy?

One month.

How much notice is required to terminate a year-to-year tenancy at common law?

Six months.

What modern notice rule for year-to-year tenancies does the lecture describe?

One month’s notice, although statutory requirements vary.

In what form is notice to terminate a periodic tenancy usually required?

In writing.

What is a tenancy at will?

A tenancy with no fixed duration that continues as long as both landlord and tenant desire.

Who may terminate a tenancy at will?

Either the landlord or the tenant.

How is a tenancy at will usually created?

By an express agreement allowing termination at any time.

What language may create a tenancy at will?

“To tenant for as long as landlord or tenant desires.”

What tenancy may be implied if there is no clear tenancy-at-will agreement and rent is paid regularly?

A periodic tenancy.

What do most states require to terminate a tenancy at will?

Notice and a reasonable amount of time to vacate.

What is a tenancy at sufferance?

The status of a tenant who wrongfully remains in possession after the tenancy expires.

What is a holdover tenant?

A tenant who remains in possession after the tenancy has ended.

When does a tenancy at sufferance arise?

When a tenant wrongfully holds over after the lease expires.

What are the landlord’s two options when a tenant wrongfully holds over?

Evict the tenant or hold the tenant to a new tenancy.

How long does a tenancy at sufferance last?

Until the landlord evicts the tenant or holds the tenant to a new tenancy.

Is termination notice required for a tenancy at sufferance under the lecture’s rule?

No.

May a tenant generally transfer a leasehold interest?

Yes, unless the lease restricts transfers.

What are the two principal types of leasehold transfers?

Assignment and sublease.

What is an assignment?

A transfer of the tenant’s entire remaining lease term.

What is a sublease?

A transfer of less than the tenant’s entire remaining lease term, leaving the tenant a future portion of that term.

What is the key distinction between an assignment and a sublease?

Whether the original tenant retains any future portion of the remaining lease term.

A tenant has six months left and transfers all six months. What is the transfer?

An assignment.

A tenant has six months left and transfers only three months. What is the transfer?

A sublease.

What does privity mean?

A legal relationship between parties.

What is privity of estate?

A legal relationship based on the parties’ interests in the property.

What is privity of contract?

A legal relationship based on contractual promises.

After an assignment, who is in privity of estate with the landlord?

The assignee.

For which lease obligations is an assignee liable through privity of estate?

Covenants that run with the land, such as obligations to pay rent or repair the premises.

After an assignment, does the original tenant generally remain in privity of contract with the landlord?

Yes, unless the landlord releases the original tenant.

Does assigning a lease automatically release the original tenant from contractual liability?

No.

Why may the original tenant remain liable for rent after an assignment?

The original tenant remains bound by the lease through privity of contract.

If an assignee fails to pay rent, whom may the landlord generally pursue?

The assignee through privity of estate and the original tenant through privity of contract.

Aisha assigns her remaining lease term to Miguel, who fails to pay rent. Why may the landlord pursue Miguel?

Miguel is in privity of estate with the landlord.

Aisha assigns her remaining lease term to Miguel, who fails to pay rent. Why may the landlord still pursue Aisha?

Aisha remains in privity of contract with the landlord unless released.

Does a sublease generally create privity of estate between the subtenant and the original landlord?

No.

Does a sublease itself create privity of contract between the subtenant and the original landlord?

No.

With whom does the subtenant have a legal relationship under the sublease?

The original tenant, who acts as the sublandlord.

Who remains liable to the original landlord after a sublease?

The original tenant.

If a subtenant fails to pay rent, may the original landlord generally recover that rent directly from the subtenant based solely on the sublease?

No. The original landlord generally must pursue the original tenant.

Aisha subleases to Miguel, who fails to pay rent. Whom may the original landlord pursue?

Aisha, the original tenant.

If the original tenant must pay rent that the subtenant failed to pay, whom may the original tenant pursue?

The subtenant under their sublease agreement.

What should you check first in a leasehold-estates question?

The tenancy’s duration and how it was created.

What should you check in a lease termination question?

The type of tenancy and the applicable notice requirements.

What should you check first in a lease transfer question?

Whether the tenant transferred the entire remaining term or retained a future portion.

What should you identify to determine liability after a lease transfer?

Privity of estate and privity of contract.