Wednesday, December 14, 2005

Outline - Property - VI - Landlord-Tenant

Property (2005-2006)


  1. Leasehold Estates
    1. Term of Years – No notice of termination required.
    2. Periodic Tenancy
      1. Year-to-year – Half year notice
      2. Periods less than a year – Notice requires one period, no more than half year
    3. Tenancy at Will
      1. No fixed period
      2. Endures as long as both landlord and tenant want
      3. Termination
        1. Common Law – A lease giving tenant power to terminate also gives landlord same power.
        2. Minority – A lease terminable at lessee’s will creates life tenancy determinable. [Garner v. Gerrish, NY]
      4. Can be grafted onto term of years or periodic tenancy, making them determinable
    4. Tenancy at Sufferance: Holdovers
      1. Eviction (plus damages)
      2. Express or implied consent to creation of new tenancy
        1. Implied periodicity based on when rent due
        2. Implied periodicity not to exceed one year
      3. Crechale & Polles v. Smith – Refusal to extend lease negated by acceptance of rent checks and failure to eject.
  2. Statute of Frauds - Certain sorts of contracts must be written down. Here’s a helpful mnemonic:

    Marriage (such as pre-nuptials) Year - Anything that involves more than one year (relevant here) Land Executor Goods greater than $500 Surety

  3. Selection of Tenants – Fair Housing Act
    1. Class protected
      1. Race
      2. Color
      3. Religion
      4. Sex
      5. Familial status
      6. National origin
    2. Actions prohibited
      1. Refusal to sell or rent after bona fide offer
      2. Refusal to negotiate for sale or rental
      3. Otherwise making unavailable or denying
      4. Discrimination in terms, conditions, or privileges
      5. Discrimination in provision of services or facilities
      6. Making, printing, or publishing indications of preference, limitation, or discrimination
      7. Misrepresenting availability
    3. Exemptions
      1. Any single family home if the owner does not own more than three such homes.
      2. A room or unit in a dwelling meant for no more than four independent families if the owner lives in one.
    4. Prosecution and burden shifting [Soules]
      1. Prima facie case
        1. Plaintiff is member of class
        2. Plaintiff qualified for rent
        3. Plaintiff was denied or rejected
        4. Apartment/dwelling still available
      2. Defense
        1. Legitimate reason for denial unrelated to status
        2. Plaintiff had bad attitude
        3. Consideration of other tenants
      3. Rebuttal – Plaintiff now must show defense was pretextual rather than legitimate.
  4. Delivery of Possession
    1. English Rule (majority) – There is an implied covenant requiring the lessor to put the lessee in possession.
      1. More likely to get possession
      2. Landlord better positioned to prosecute evictions
    2. American Rule (minority) – There is no implied duty upon the lessor as against wrongdoers to lessee’s right of possession. [Hannan v. Dusch]
      1. Unfair to hold landlords liable
      2. Incentives well-aligned
  5. Assignments and Subleases
    1. Assignment – Transfer of all remaining interests
    2. Sublease – Transfer of less than all remaining interests
    3. Privity
      1. Privity of contract remains between landlord and first tenant unless specified (e.g., assignee or sublessee assumes all covenants or agrees to be bound by terms and conditions of master lease, making landlord third-party beneficiary of subcontract) [Ernst v. Conditt]
      2. Privity of estate between landlord and assignee
      3. No privity at all between landlord and sublessee
      4. Landlord may recover from those in privity, either of estate or of contract
    4. Consent (minority) – Where commercial lease requires prior consent, consent may be withheld only for commercial objections. [Kendall v. Ernest Pestana – Contractual nature, obligation to “good faith” and “fair dealing”]
      1. Financial responsibility of proposed assignee
      2. Suitability of use for particular property
      3. Legality of proposed use
      4. Need for alteration of premises
      5. Nature of occupancy (e.g., office, factory, clinic)
      6. Protection of landlord in ownership and operation of the particular property [Krieger v. Helmsely-Spear]
  6. Tenants in Default
    1. Default
      1. Tenant fails to pay rent.
      2. Tenant fails to observe some other lease obligation.
    2. Tenant in possession [Berg v. Wiley]
      1. Where tenant has not abandoned, forcible reentry is wrongful eviction.
      2. Self-help repossession is wrongful eviction.
    3. Tenant who has abandoned possession [Sommer v. Kridel]
      1. Majority – Duty to make reasonable effort to mitigate damages
      2. Minority – No duty to mitigate damages


Anonymous said...

Nice outline. It helped me.

Bruce said...

Thanks! Glad I was able to help!

123 said...

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Jenn said...

thank you! very helpful!

Bruce said...

Jenn, glad I was able to help! :)