Leaseholds

Mitgation

1) Landlord has economies of scale to fill apt 2) Landlord can re-coop cost of re-letting as consequential damages 3) having no duty encourages economic and physical waste 4) having no one in property encourages accident or vandalism (esp w/ commerical leases) Cons: 1) Encourages abandonment/invitation to vandalism 2) Tenant shouldn't impose duty by wrongdoing 3) req'ing mitigation imposes acceptance of surrender

landlord remedies for tenant breaching lease

1) Let lease run course and sue for past rent; sue at term's end for compensatory damages 2) Sue for anticipatory breach; must have clear evidence that party intends to breach (will get difference between market and contract) 3) Accept surrender and re-let 4) Re-let on tenant's account; in effect, find someone to fufill the end of tenant's lease, thereby still holding tenant responsible if tenant #2 defaults

tenant rights

1) The right of exclusive possession and quiet enjoyment. 2) If any of the implied warranties are breached, the tenant has the right to do one of the following: a) Sue for damages b) Terminate the lease c) To withhold rent until the breach is dealt with d) To pay for any necessary repairs herself and deduct it from the rent.

Tenant duties

1) To honor the terms of the lease - payment of rent, prevent damage from occurring to the property, etc. 2) To give the landlord reasonable notice about any repairs that need to be made to the property - if the tenant fails to provide notice and a third party is injured on the property the tenant may be held liable for any harm to a third party.

landlord dutys

1. to comply with the Fair Housing Act 2. to honor an implied warranty of possession 3. to honor an implied warranty of habitability 4. to comply with all local housing codes 5. to honor an implied warranty of quiet enjoyment 6. the landlord is liable for tort damages to the tenant and her guest for any harm that comes to them caused by the negligence of the landlord in maintaining the property.

commercial leasing

A commercial lessor can't unreasonably and arbitrarily withhold consent to an assignment by the lessee, unless you put it in the contract. (Some jurisdictions) 2) Majority rule allows arbitrary refusal of consent, although in many cases lessor is found to waive right to refuse. 3) Increasing minority of states has permitted lessor to withold consent only when it has a commericially reasonably objection to assignment (Rstmt 15.2). NOT commercially reasonable to refuse consent solely because of lessor's personal tastes, convenience or sensibility or to charge a higher rent. Court thinks this is better approach. 4) Public policy favors reasonable alienation + lessor is still protected because original lessee remains liable as surety 5) Also finds contract reasoning: because lease is a contract, contracts include duty to act in good faith and to deal fairly. Must exercise discretion in good faith.

duty to pay rent

A commercial or residential tenant owes duty to pay the agree-upon amount of rent for the leased premises to the landlord at the agree-upon time and terms. Common commercial rental arrangements:Gross lease, Net lease,Double net lease Net, net, net lease (triple net lease), Unlawful detainer action

Surrender

A tenancy for years also terminates upon surrender. Surrender consists of the tenant giving up his leasehold interest to the landlord and the landlord accepting. Usually the same formalities are required for the surrender of a leasehold as are necessary for its creation. Thus, a writing is necessary for the surrender of a lease- hold if the unexpired term is more than one year.

Tenancy at sufferance

A tenancy which is created when one is in wrongful possession of realty, even though the original possession may have been legal. only happens after the expiration of a tenancy for years.

assignment of lease

A transfer by a tenant of his or her rights and duties under a lease to another. The party who transfers the rights is the assignor. The party to whom rights have been transferred is the assignee. The assignor remains responsible for his or her obligations under the lease

lease

A transfer of the right to the possession and use of the real property for a set term in return for certain consideration.

Good faith duty to operate

Covenant of continued operation can be implied into commercial lease containing percentage renal provisions in order for the lessor to receive that for which the lessor bargained Substantial minimum

sublease

Occurs when a tenant transfers only some of his or her rights under the lease. The sublessor transfers those rights to the sublessee. No legal relationship is formed between the landlord and the sublessee.

Landlord right to enter/repair

Tenant cant unreasonably withhold consent A tenant is liable to the landlord for voluntary waste. the tenant has no duty to the landlord to make any substantial repairs A tenant is under an obligation to return the premises in the same nature and character as received. In most states, statutes or case law now give the tenant an option to terminate the lease if the premises are destroyed without the tenant's fault, even in the presence of an explicit covenant to repair However, in nonresidential leases, the tenant's covenant to repair is enforceable, Landlord can enter without consent during an emergency Landlord shall not abuse the right of access

tenant right to possesssion

a lease grants the tenant exclusive possession of the leased premise (1) for the term of the lease or (2) until the tenant defaults on the obligations under the lease. A landlord may not enter leased premises unless the right is specifically reserved in the lease.

implied warranty of habitability

a warranty provides that the leased premises must be fit, safe, and suitable for ordinary residential use. If landlord's breach affect's tenant's use or enjoyment of premises, tenant may: Withhold amount from rent reflecting this loss of value. Repair defect and deduct expenses from rent. Cancel lease if it constitutes a constructive eviction. Sue for damages for amount leasehold value reduced

Constructive eviction

action by a landlord that compels a tenant to leave the premises (as by rendering the premises unfit for occupancy)

nonfreehold estate

an estate in which the tenant has a right of posession of the property but not title to the property

leasehold estate

created by an agreement (lease) that transfers possessory interest in a property from the owner(landlord or lessor) to the holder (tenant or lessee) a leasehold is not an ownership interest. it is a possessory interest. you dont own it you only possess it.

Landlord duty to maintain premesises

landlord must keep property in compliance with codes( Statutes that impose specific standards to maintain and repair premises Provide minimum standards for heat, light, water)

Tenancy at will

lessee or lessor can leave or be kicked out at any time. no periodic period so you can leave in the middle of the month

Periodic

renew automatically at specified periods unless either the landlord or the tenant chooses to end the relationship

Term of years

specific period of time determined by the parties

leasehold

tenant interest in property

Duty to deliver possession of the leases premises

the landlord owes the tenant a duty to deliver possession, not to interfere with the tenants right to quiet enjoyment, and maintain the leased premises. 1. Majority Rule "English Rule" - landlord has duty to give tenant both legal right of possession and actual possession. If prior tenant is holding over, it is duty of landlord to get him out. 2. Minority View "American Rule" - landlord need deliver only legal right of possession. Holdover tenants become new tenant's problem and he has to sue to get them out at his own expense.

Tenant duty not to commit waste or particiapte in illegal activities

the tenant owes the landlord a duty not to use leased premises for illegal or non-stipulated purposes, not to commit waste, not to disturb other tenants and to pay rent.