Term
| What duty, if any, does a landlord owe to a tenant to deliver possession under the "American" or minority view? |
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Definition
| Under the "American" rule (minority view) The landlord is required to only provide for legal possession- physical possession is not a requirement. Therefore the landlord has no duty to oust a trespasser or holdover tenant. |
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Term
| What duty, if any, does a landlord owe to a tenant to deliver possession under the "English" or majority view? |
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Definition
| Under the "english" (majority view) the landlord is required to deliver both legal and physical possession. |
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Term
| In an ambiguous conveyance will courts favor a Tenancy in common or a Joint tenancy? |
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Definition
| Courts will typically favor Tenancy in Common |
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Term
| What is the Repugnancy Doctrine in regards to ambiguous conveyances? |
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Definition
| Where there are two irreconcilable clauses, the first shall be the one that governs. |
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Term
| In camp v. camp there was an ambiguous conveyance because of the phrase "as tenants in common w/ right of survivorship" how did the courts reconcile this language? |
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Definition
| The court in Camp v. Camp explained that when a phrase is ambiguous and intent is unclear must use the repugnancy doctrine to resolve the ambiguity. In this case because the tenancy in common came first that was the courts choice. |
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Term
| How is a Term of Years tenancy created? |
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Definition
1. Must be fixed period of time. Cant be indefinite (i.e. "for the duration of the war")
2. Tenancy automatically ends at the end of the specified period |
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Term
| What are the characteristics of a periodic tenancy? |
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Definition
1. Landlord gives possession to tenant for unspecified duration w/ agreement to pay periodically; and
2. Termination occurs after landlord or tenant gives proper notice. |
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Term
| How is a periodic tenancy created? |
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Definition
1. By agreement- (a.)express (for specified period):"to A from year to year, month to month etc." (b.) Implied (more common): land is leased without a set date for termination but provision is made for payment of rent quarterly, etc.
2. By law (a.) Tenant remains in possession after end of term, Lessee can consent to remaining Tenant and collect rent as periodic tenant for additional term
(b.)Invalid lease: if lease is invalid (i.e. due to statute of frauds) but tenant remains (i.) a tenancy at will is created with possession alone; (ii) A periodic tenancy is created with both possession and payment of rent |
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Term
| What notice must be given in a periodic tenancy? When must termination occur? |
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Definition
Typically must be equal to length of the period the property was leased- i.e. month, week, etc. Except for yearly periodic tenancies where 6 mos. is required
2. Common Law-Termination occurs typically occur on the last day of the following period (i.e. if notice is given on July 20 termination doesn't occur until Aug 31); when terminated by proper notice terminates at the end of a period.
b. However some states permit termination other than at the end of a period if "sufficient" notice is given as defined by statute. |
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Term
| How is a Tenancy at Will created? |
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Definition
| Tenancy at will have 1) no stated duration of the tenancy and 2) Either party can terminate at any time |
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Term
| What type of notice is required in a tenancy at will? |
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Definition
1) Common law: no notice is required
2) modern: usually some notice required; usually 30 days |
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Term
| How is a tenancy at will different from a license? |
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Definition
| A tenancy at will has possessory interests |
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Term
| How do courts typically resolve an ambiguous lease? |
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Definition
| Courts will typically first determine if the lease is a term of years; if not then determine if it is a periodic tenancy; if neither than they will declare it a tenancy at will. |
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Term
| What is/was the policy rationale behind the "American" rule with regards to a landlord's duty to transfer possession? |
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Definition
| Traditionally the landlord/tenant relationship was one of equality (a view that is decreasing in modern times). Courts typically stress landlord has not warranted against acts of a third party. Tenant has just as much power as the landlord to bring a suit and recover possession but in fact has a greater incentive. |
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Term
| When a tenant holds over what rights do lessee's have? |
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Definition
| When a tenant holds over lessee can 1)evict the Tenant as a trespasser or 2) waive the right to evict and continue/impose/create new tenancy. If this is done without a new agreed upon lease the new agreement is implied bu law and hold the same terms and conditions as the original expired lease. This can be accomplished by accepting rent after expiration of the lease. |
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Term
| Is a Lessee's decision to continue tenancy revocable? |
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Definition
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Term
| If Lessee elects to continue a relationship with tenant after expiration of original lease what type of tenancy is created? For less than one year?; For greater than one year (majority rule, and minority rule)? |
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Definition
For less than one year generally it creates a periodic tenancy w/ original period carried over.
For greater than one year most courts create a yearly periodic tenancy. However some will (i)specify the length based on the way rent is paid; some will (ii.)specify length based on original length of term; some legislatures (iii.) allow for acceptance of rent; some allow for double rent for the period tenant holds over
(minority view) treat tenancy as a term of years instead of periodic tenancy. |
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Term
| For Statute of Frauds purposes where there is an oral lease for more than one year which type of tenancy is created? |
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Definition
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Term
| Does a landlord owe tenant a warranty of habitability? |
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Definition
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Term
| What is a quitclaim deed? |
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Definition
| A deed that has no covenants of title. The grantor makes no representations or warranties concerning state of title. Grantee assumes all risk associated with quality of title. |
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Term
| With respect to damages that can be awarded based on a breach of the warranty to quiet enjoyment what are damages based on expectation interest? reliance interest? Restitution interest? Which of the three is used in majority of cases? |
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Definition
Damages with respect to Expectation interests are based on the market value of the premises for the time period that the tenant is deprived of possession.
Damages based on reliance interest concern but are not limited to cost pertaining to rents but other costs expended in reliance of the lease.
Restitution interests are where the landlord must return any benefit she has received from the tenant if retention would result in unjust enrichment. Typically this means the landlord must refund rent that the tenant has paid, which is attributable to the time period that the tenant is deprived of possession. |
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Term
Lucy owns two adjoining single-family homes located at 310 Pine Street and 320 Pine Street. She lives in the house at 310 Pine Street and rents out her neighboring property, a two-bedroom house. On April 1, Lucy rented the property at 320 Pine Street to Troy. The parties signed the residential rental agreement, which you've seen twice before.
Troy moved in the next day. On May 25 Troy left for a three-week vacation to hike and backpack in Canada. Before he left, he gave Lucy the key to his house and told her when he would return. While he was gone, Lucy entered the house several times for different reasons: to take in a package that UPS left for Troy on the front porch, to check for water leaks after a heavy rain storm, and to borrow two cups of sugar from Troy's kitchen when she ran out and didn't want to drive to the store.
Lucy has always wanted a swimming pool. At the end of May, she hired Barney to construct a pool in her back yard at 310 Pine for a total cost of $22,000. Barney started the project on June 1 and finished on June 11. Lucy's back yard is small, with a depth and width of only 40 and 60 feet, respectively--too small for a deluxe-size pool, with a nice surrounding deck. To get a bit more space, she had Barney relocate the chain link fence that separates the two back yards. Barney moved the fence ten feet into the back yard at 320 Pine. See the following map of the two properties.
On June 15 Troy returned from his Canadian vacation and picked up his key from Lucy. He noticed the new pool right away, commenting, in a resigned tone of voice, that he had liked his back yard the way it was. Lucy snapped at him to "stop whining about it" and said he could use the pool any time, as long as he wore a swimming suit. Troy had timely paid the rent for April, May and June, but when July came, he intentionally failed to pay the rent. On July 3, Lucy asked Troy for the money. He refused to pay, claiming she has violated his rights under the lease. Does Lucy have the right to collect any rent from Troy for July and for the remainder of the term? If so, how much? |
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Definition
The issue is whether Lucy's construction of the swimming pool amounts to an actual partial eviction, which entitles Troy to abate all or part of the rent.
Troy has a strong case. He has the benefit of an express covenant of quiet enjoyment (paragraph 7 of the Rental Agreement). He did not default prior to Lucy's construction of the pool, so there is no issue as to his entitlement to quiet enjoyment under the condition that he must pay rent and perform his obligations. Thus, Lucy cannot interfere with Troy's right to exclusive possession of the leased property.
Does Troy's lease cover the 10-foot strip that's in question? Although the lease describes the premises only by street address, without a formal description of the land, it's reasonable to conclude that the premises included the entire back yard as it existed at the commencement of the term.
Lucy has two possible defenses. First, she is not excluding Troy from the part of his back yard covered by pool improvements because she said he can use the pool. This defense seems weak, especially because the relocated fence makes access for Troy difficult.
Second, Lucy might point to paragraph 11, which allows her to enter the leased premises to make improvements. This defense also seems weak. The purpose of the clause seems to be to allow the landlord to make improvements that benefit the leased property, not to repossess part of the leased premises in order to add improvements that benefit neighboring property.
Troy probably will prevail in his claim that Lucy has committed a partial actual eviction. The effect on his obligation to pay rent will depend upon the rule followed by the jurisdiction. There are three possibilities:
1. Under the traditional view (Smith v. McEnany), Troy does not have to pay any rent, even if he remains in possession for the remainder of the term, provided the area of encroachment is considered more than de minimis. Based upon the facts of McEnany (one-to-two foot-wide encroachment), this is probably more than de minimis.
2. Some states authorize total non-payment of rent only if the eviction is "substantial." There's a good chance this eviction isn't substantial because Troy still has use of all of the house and a high percentage of the original yard. If the eviction isn't substantial, Troy is entitled to rent abatement based on the extent to which the encroachment reduces the property's rental value. This might not be very much.
3. The Restatement 2d of Property (Landlord and Tenant) rejects total non-payment of rent as a remedy for partial eviction, calling for abatement of rent in all cases. Under this view, it doesn't matter whether the encroachment is substantial.
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The events of May do not matter. Maybe Troy relinquished possession to Lucy when he gave her the key. Clearly he didn't abandon the premises because he had paid rent in full and he planned to return. It doesn't matter whether Lucy or Troy was in possession when she constructed the pool. Likewise, Lucy's entries in May are a "red herring." She has an express right to enter to inspect and to make repairs (paragraph 11), which covers the water leaks. She may have Troy's implied consent to take in the UPS package. Her "borrowing" the sugar may have been a technical trespass, but this is not a significant interference with Troy's possessory rights. She owes him two cups of sugar or its value, but this doesn't breach the covenant of quiet enjoyment. |
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Term
| How do we know we have an implied reciprocal negative covenant? |
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Definition
| Must have 1.)an owner of two or more lots;2.) who conveys some but not all of the lots subject to restrictions; that 3.) benefit the land the transferor retained; and 4) the transferred property and the retained property have such a relationship that it is equitable for the transferee to infer that the transferor will limit the use of the retained property to the same extent that the transferee is limiting that of the transferred parcel(s) |
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