May a trespasser remove her annexed chattel from the landowner’s property?

Correct Answer:

No, regardless of whether the chattel was installed in good faith

Explanation

No, a trespasser may not remove her annexed chattel from the landowner’s property, regardless of whether the chattel was installed in good faith. A fixture is a chattel that has been so affixed to the realty that it has ceased being personal property and has become part of the realty. A trespasser (e.g., an adverse possessor before the running of the statute of limitations) normally loses her annexations whether or not affixed in good faith and regardless of whether the chattel increased the value of the land. However, if the trespasser acted in good faith and the chattel increased the value of the land, she may recover the value added to the land.

How much notice is required to terminate a tenancy for years?

Correct Answer:

No notice

Explanation

No notice is required to terminate a tenancy for years. A tenancy for years is a tenancy that continues for a fixed period of time until it automatically terminates without the landlord or the tenant giving notice.

One year’s notice is not required to terminate a tenancy for years. Despite its name, a tenancy for years may continue for any fixed period of time (e.g., 10 days). As mentioned above, it terminates automatically at that period’s end.

  In contrast, a periodic tenancy is a tenancy that continues from period to period until terminated by proper notice by either the landlord or the tenant. Six months’ notice is required to terminate a periodic tenancy from year to year. One month’s notice is required to terminate a periodic tenancy from month to month.

Two years into a four-year tenancy for years, T “assigns my entire interest to T2 for one year”

What kind of lease is created?

Correct Answer:

Which of the following transfers creates a sublease from T to T2?

Explanation

If two years into a four-year tenancy for years, T “assigns my entire interest to T2 for one year,” the effect of the transfer is to create a sublease between T and T2. The label given by the parties does not determine whether a transfer is an assignment or a sublease. Rather, a complete transfer of a tenant’s entire remaining lease term is an assignment, and a transfer retaining any part thereof is a sublease. Here, although T “assigned” his interest to T2, he transferred only one of the remaining two years of the lease. Thus, the transfer is a sublease rather than an assignment.

If six months into a seven-month tenancy for years, T transfers his interest “to A for the balance of the leasehold term,” the effect of the transfer is an assignment of the lease from T to T2 because it includes T’s entire remaining lease term.

If one year into a five-year tenancy for years, T transfers his interest “to T2 for four years; however, if T2 breaches the original lease terms, T may reenter and retake the premises,” the effect of the transfer is an assignment of the lease from T to T2. T transferred the remaining four years of the lease to T2, and by the slight majority view, T’s reservation of a right of reentry does not result in a sublease, but rather is still an assignment.

If six months into a seven-month tenancy for years, T transfers his interest “to A for the balance of the leasehold term,”

What is the effect of the transfer?

The effect of the transfer is to create a sublease between T and T2. The label given by the parties does not determine whether a transfer is an assignment or a sublease. Rather, a complete transfer of a tenant’s entire remaining lease term is an assignment, and a transfer retaining any part thereof is a sublease. Here, although T “assigned” his interest to T2, he transferred only one of the remaining two years of the lease. Thus, the transfer is a sublease rather than an assignment.

If six months into a seven-month tenancy for years, T transfers his interest “to A for the balance of the leasehold term,”

What is the effect of the transfer?

If one year into a five-year tenancy for years, T transfers his interest “to T2 for four years; however, if T2 breaches the original lease terms, T may reenter and retake the premises,”

What is the effect of the transfer?

The effect of the transfer is an assignment of the lease from T to T2. T transferred the remaining four years of the lease to T2, and by the slight majority view, T’s reservation of a right of reentry does not result in a sublease, but rather is still an assignment.

A tenancy at will is a leasehold estate that continues only until the landlord or the tenant gives notice and time to quit.

What are the minor types of tenancies?

These tenancies are forms of ______ ownership in land, where multiple persons have the right to enjoyment and possession.

Joint tenancies, tenancies in common, and tenancies by the entirety

Concurrent ownership

If the landlord may choose to accept rent and bind the hold-over tenant to  create a ______tenancy by operation of law.

a new periodic

Periodic tenancies also can be implied from a lease that states no definite time period but provides for periodic rent payments. However, the type of leasehold estate created is a periodic tenancy.

True or False?

Joint tenancies, tenancies in common, and tenancies by the entirety are not leasehold estates in land.

True.

They are forms of concurrent ownership in land, wherein multiple persons have the right to the enjoyment and possession of the land at the same time.

When a landowner owns a chattel that she affixes to the realty, whether the chattel is a fixture depends on the objective intention of the annexor. A fixture is a chattel that has been so affixed to the realty that it has ceased being personal property and has become part of the realty. The annexor’s intention, which governs in common ownership cases, is determined by considering:

1. The nature of the chattel (i.e., how essential it is to the normal use of the realty);

2. The manner in which the chattel is attached to the realty (the more substantially attached, the more likely it was intended to be permanent);

3. The amount of damage that would be caused by the chattel’s removal; and

4. The adaptation of the chattel to the use of the realty (e.g., custom window treatments, wall-to-wall carpet).

NOT all chattels affixed to realty by the landowner are fixtures. They become fixtures only if this was her  (subjective or objective) intention, determined as explained above.

Total actual eviction occurs when:

the entire premises

paramount

A landlord and tenant enter into a valid lease agreement in which the tenant covenants to repair the premises.

If the leased premises are destroyed without the fault of either the landlord or the tenant, must the tenant undertake the repairs?

• unless the covenant expressly includes such repairs
• if the covenant fails to expressly exclude such repairs
• the landlord’s warranty of habitability does NOT require the landlord to undertake such repairs

Under the implied warranty of habitability, the landlord covenants that the premises are suitable for human residence. Although a residential landlord’s obligations under this implied warranty are not waivable (e.g., by a tenant’s covenant to repair), if the premises are destroyed without the fault of either party,

Who has a duty to restore the premises absent lease language to the contrary.

 neither party has the duty to restore the premises

L leases property to T. L subsequently assigns L’s interest to L2. T thereafter continues paying rent to L.

May L2 evict T for failure to pay rent?

es, L2 may evict T for failure to pay rent if T received reasonable evidence of the assignment.

*Remember an assignment is:

 A complete transfer of the tenant’s entire remaining lease term is an assignment

L leases property to T. L subsequently assigns L’s interest to L2. T thereafter continues paying rent to L.

Does L2 assume the covenants in the original lease?

No.  L2 is liable for the burdens of all covenants running with the land that burdened L under the oringal lease.

L2 can enforce all covenants running with the land benefitting L

L leases property to T. L subsequently assigns L’s interest to L2. T thereafter continues paying rent to L.

Who is in privity of contract?

How does it benefit T?

T remains in privity of contract with L

It provides T with remedies against L for L2’s breach of covenants contained in the original lease that run with the land.

What is a leasehold?

(Two prongs)

• A nonfreehold estate in land (possession for a limited time)
• An estate in land, T and L have possessory interests.

If L leases property to T, and L subsequently assigns L’s interest to L2, whom may T hold liable when X, a paramount title holder, ejects T?

L or L2 (but, not individually)

L2 is liable for all lease covenants that run with the land, includein the covenant of quient enjoyjment.

When a landlord substantially interferes with quiet enjoyment, the T may:

Vacate the premises, terminate the lease, and sue for damages

Under what doctrine?

Constructive eviction doctrine

1. The interference must be by the landlord or by persons acting for him.

2. The premises must be uninhabitable (e.g., flooding, absence of heat in winter, or other serious impairment of the property’s habitability).

3. The tenant must vacate the premises within a reasonable time, thereby showing that the premises were uninhabitable.

If constructive eviction is only upon the tenant's

vacating the premises

What are remedies the tenant cannot use?

• remaining in possession of the premises
•  refusing to pay rent until the interference ceases
•  continuing to pay rent and suing for damages.

If two years into a four-year tenancy for years, T “assigns my entire interest to T2 for one year,”

What is the effect of the transfer betweenT and T2.

sublease between T and T2

 Here, although T “assigned” his interest to T2, he transferred only one of the remaining two years of the lease. Thus, the transfer is a sublease rather than an assignment.

If four years into a six-year tenancy for years, T orally transfers his entire interest to T2 for two years,

the attempted assignment is ineffective.

 Under what legal doctrine is the assignment ineffective?

How is are tenancies terminated by operation of law

by the tenant?

1. death
2. waste
3. attempts to assign his tenancy

How is are tenancies terminated by operation of law

by the landlord?

1. death
2. transfer of landowner interest in property
3. executes term lease to a third person 

Garner v. Gerrish

Who had power to terminate?

Landlord or tenant 

landlord sought ejectment under a TAW lease.  Lease granted tenant quiet enjoyment until "date of his own choice."

Lease did not allow landlord cancellation at same remedy.  Rejected the CL rule of livery of seisin, and held to the statute.  When parties created the "at will" lease, termination was only at the grantee's choice.

(Garner v. Gerish)

Federal Fair Housing Act

prevents housing discrimination for what services?

 finance of housing and brokerage services.

negotiations for sale, unfairly deny, publish notice of preference or limitation.

Based on family status, and on sex would be the limitation of occupancy of housing by person count (IS OR IS NOT) discriminatory based on the grounds in an effort to maintain the economic value of the property.

is NOT

The have the right to protect the value, and the landlord must avoid discrimination based upon race, color, religion, sex, familial status, national origin.

Under English Rule,

Suppose that L and T have entered into a lease to begin on Jan. 1st.  On that date, T arrives at the premises, ready to take possession, only to find a former tenant holding over.

Is this L's problem, or T's? 

Who is responsible for placing the T in  physical possession?

Open to entry by tenant , by implied covenant of physical possession.  Open to tenant for physical possession. It is the L's responsibility to put T in physical possession or to remove holdover tenant

• Tenant does not "buy into" litigation
• Landlord :
• knows relationship is existing
•  LL has best position to take action, knowing they are going to stay.
•  business of leasing and is more familiar with L-T law
•  key witness for testimonial evidence that tenant is holdover tenant.

Under American Rule,

Suppose that L and T have entered into a lease to begin on Jan. 1st.  On that date, T arrives at the premises, ready to take possession, only to find a former tenant holding over.

Is this L's problem, or T's? 

Who is responsible for placing the T in  physical possession?

T must remove holdover tenant.

• No implied covenant of physical possession. 
• The English rule prevents LL from renting premises while tenant is in possession.  LL may not necessarily be in a better position from the knowledge.
• Prospective tenants may request a clause to require both physical and legal possession of the property.
• The LL should not be responsible for the wrongful conduct of a leaseholder.  Without fault, a third party  should not be responsible for the acts of the tenant at fault (holdover tenant).
• New tenant is the one that wants possession.

English rule of possession – absent any stipulations, every lease has an ______ covenant that the landlord shall open the premises for the entry of the tenant, on the day the lease term begins.

Hannan v. Dusch

implied

American Rule -  Recognizes lessee’s legal right to possession, but

(does or does not) imply a duty on the lessor.

Subleases may be a transaction whereby a tenant grants an interest in the leased premises ____ than his own, or reserves to himself a ________interest in the term.

Ernst  v. Conditt

less than his own, a reversionary interest

If the instrument transfers the lessee's estate for less than the entire term - even for a day less- it is a sublease.