Chapter 1, ³What is Property?´ y Freedom to use (zoning + nuisance), exclude (licensees, easements, tenancies, concurrent estates), transfer (sell), and permanence. Chapter 15, ³Introduction to Landlord-Tenant Law´ Generally: Title=Ownership, Possession=physical control y Commercial -> Tenant responsible to obtain possession y Residential -> L responsible (best position, economic efficiency, social justice) y Privity of K (E129-133) and Privity of Estate (129-133) Chapter 16, ³Creation of the Tenancy´ Hannan v. Dusch, pp. 438-441. (E121-127) y American rule v English rule ³The Lease´ pp. 428-431 (E129) y Contractual nature of lease=Conveyance & Contract; Form leases + bargaining power Fair housing statute, and problems, 431-438 (E158, 294) y Selecting tenants and sales, Fair Housing Act, discrimination based on gender, sex, Chapter 17, ³Condition of Leased Premises´ Reste Realty Corp. v. Cooper pp. 482-503. (E148) y Substantial interference with tenant use and enjoyment; flooding Hilder v. St. Peter, pp. 482-503. (E150-152) y Implied warranty of habitability (IWH); Tenant remedies for L breach of IWH Chapter 18, ³Transfer of Leasehold Interest´ Kendall v. Ernest Pestana, pp. 450-459 (E135-136) y Lease provisions restricting assignment or sublease Chapter 19, ³Termination of the Tenancy´ Berg v. Wiley, pp. 460-469 (E143) y Landlord remedies; Remedy derived from statute and ComLaw; Landlord self-help Sommer v. Kridel, pp. 469-481; pp. 427-28 (E145-146) y Landlord duty to mitigate damages caused by abandonment Chicago Board of Realtors v. City of Chicago, pp. 508-515 (E157) y Bargaining power; Affordable housing.
Common law approach: lease as conveyance i. pp. Landlord Tenant
Property has (exceptions noted): 1. Had to pay rent even if structures were destroyed 4. b. a. (E121-127) a. state statutes generally by 30 days notice
II. zoning. not contract law ii. Either party may end tenancy. takings [home owner s assoc. takings) Historical Background a. which requires 30 days notice. ii. looks at things as if they were an ongoing set of understandings Creation of the Tenancy -> Hannan v. Term of years tenancy 1. Favored the landlord prior to reforms in the 1970s 1. future interest) Exclusivity ( concurrent interest. 5. traditional pro-landlord still e. tenancies) Power to exclude (easements. governed by property. Classic example is month-to-month lease 3. 3. No fixed duration. Categories of estates LOOK AT INTENT TO DETERMINE i. intellectual property. O only must refrain from interfering with T s use and enjoyment. Most arise by implication now. L transferred right of possession to the tenant. 438-441. An advance agreement that will continue for a designated period of time 2. Periodic tenancy 1. After transfer. Minority: Unless no reason for year to year. Tenancy at will 1. automatically continues for additional equal periods until either landlord or tenant terminates the tenancy by giving advance notice. Tenant had sole duty to repair and maintain structures on the premises 3. Modern law: i. I. Required to continue the tenancy and pay rent even if landlord breached lease 5. Agriculture Urban ii. Expires: at common law by oral or written notice. If year to year. and the dissolution of the relationship f. Freedom of action (ex. Feudal system: King Landlord Tenant b.]) Tangibility (ex. Expires: when agreed period ends. no further duty 2. as long as landlord and tenant desire. Conveyance Contract d. Dusch. 6 month notice is generally required.1. 2. inequality in bargaining power led courts to interpret terms in favor of residential tenants. Lasts for initial fixed period. Property Model: transfers a bundle of rights. 2. 2. covenants. nuisance. intangible property) Permanence (ex. But in commercial leases (anything but a home). Landlord had no duty to mitigate damages if tenant abandoned c. Residential leases (renting a home) enjoy greater protections now from judicial decisions and statutes. Expires: at common law whenever landlord or tenant chose. Estate Service or product iii. 4. tenancies.
. Housing as individual concern Housing as social problem iv. Contracts Model: Much more based on relationships. state statutes generally by 30 days notice iii. converts to month to month.
Tenancy at sufferance 1. term. as property won t lay dormant ii. Privity of contract: relationship between two parties who enter into contract to adhere to all terms. iii.e. Basis of obligation is implied covenant in the lease that premises will be vacant when term starts. usu can t negotiate). L liable if put in). L-T relationship fundamentally unequal. permissible deductions do not include wear and tear. L fails to deliver actual possession. T agree plead guilty. ii. term. but arises when a person in rightful possession of the land wrongfully continues after the right ends. supports intent of parties. L only obligated to deliver legal right when term begins. risk allocation (asymmetric info. penalties for L. and common sense to expect possession. rent acceleration (any violation would permit L to demand all remaining rent). L-T Bargaining Power certain provisions unenforceable or even illegal (i. even if A re
IV. or to even get in 2.iv. L keep deposit in separate account or reduce amt. Security deposits i. T can Negotiate rent. usual provisions: limiting amount. Dusch (1930. no duty to oust trespasser or holdover. c. liable if breach. 1. e. confession of judgment if dispute. Usually arises when holdover tenant 2. Tenancy on good behavior 1. interest paid. Applied: Hannan v. American Rule (minority) 1. Delivering possession i. Statute of Frauds: lease for a term of more than one year must be in writing. Mandate arbitration. Based on theory of contract. To protect tenants we can: 1. a. ii. move in and keep if not violate lease terms III. Key concepts i. security against vacating without notice and leaving the unit dirty and damaged and rent unpaid iii. Reasoning: No express covenant giving landlord responsibility. description of premises. i. 2/3 of states have regulatory statutes. Expires: L has sole discretion to decide to evict or hold tenant to a new tenancy. set forth basic terms (parties. p459) i. requiring it put in trust account. refund within specified time period d. upholding application of American Rule (attn: minority view!) Landlord has no obligation to make sure that the property is clear and ready for move in. landlord has not warranted against wrongful acts of third parties 3. or Eviction notice of less than 30 days.
. Not a true estate. pets. Facts: tenant entering into 15 year commercial lease. By statute. L must deliver actual possession in addition to legal right 2. encourages continuous leasing. American rule based on view L should not be responsible for 3rd party. 2. English also supports policy of efficiency and fairness. English rule based on view L in better position. Entering into the lease agreement a. Privity of contract always stays until the lease is done. issues of certainty. Policy: Government could make a STANDARD LEASE -> Require all modifications handwritten. earlier tenant still in possession ii. Less economic waste. and can usually recover damages for the period of wrongful occupancy. If land-locked by hostile neighbors. rent) and must be signed b. English Rule 1. Criticism is that this tends to be unfair to the tenant v. L has superior ability to ensure the property is vacant 4. Holding: affirmed for D. Assignments and Subleasing a. 3.
Assignment i. (If only a portion of the property is transferred for the entire term. A takes on all or only part of T s property obligations (i. or signs same contract as L-T. (and T2. L/T: privity of K (no longer have estate) 2. Landlord | Tenant | Sublessor Hypo 2. L/T: privity of K. T can sue for indemnity if he has to pay for A s mistakes. Transfer of PART OF remaining term. assignee must have notice of covenant before acquiring the interest b. L/A: privity of estate (only with the very last A) vi. If Sublessor signs K with L. T/S: privity of K. L-S have privity of K.Tenant2 --. T/A: privity of K 3. Privity of estate: One per level. depends on the agreements. v. L-T-S triangle (think as two L/T relationships) 1.executes lease or assignment. and sometimes to the tenant as well. Right of re-entry or termination does NOT create a sublease. Only bound by terms that touch and concern the land (most not have subset. Always party in possession! (can have two Privity of estate-> LT AND TS) Always less than Privity of K. Landlord has Privity of K with T and Privity of Estate with S. but not entire interest (eg 50 acres of the 100 you have) vii. right to sue if covenants of lease breached. must touch and concern the land (affect use and enjoyment). ii. Relationship between two parties re conveyance of the estate in land. Sublease i. Transfer of all of the remaining lease. Partial assignment: transfer for rest of term. ii. Subtenant can t have more rights than T Hypo 1. estate 2. For a covenant to be binding: original parties must intend successors to be bound. Assignee is liable to the landlord. then Partial Assignment) ii. can pay less rent) iii.Tenant3 v. estate
. rights/duties obligated to perform that run with the land as real covenants/equitable servitudes. iii. iii. unless novation (L-T formal agree T not on hook) which repeals contract. portion of K that deal with land.e. but sometimes extra like T give massages) iv. T must transfer the ENTIRE remaining term. Terms are negotiated by the tenant and subtenant iv. Landlord has Privity of K with T1 and Privity of Estate with T3. L-T-A triangle 1. c. T3 if they agree to assume all the covenants in the lease") Landlord | Tenant1 --.
S is subject to eviction if T not in compliance with lease 3. sole discretion: arbitrary denial permitted. no legal liability connection in theory S/L. T assigns to A. desire to obtain higher rent for the premises is not valid basis for refusal. yes: contract law fairness provides that transferee accepting benefits of contract is impliedly bound to perform obligations. partial is a sublet. 2. no building a fence) 2. A1 gets off scott free. i. Why does it matter? S generally can t be sued by L (where A can) BUT 1. L/S: privity of K (only if separate agreement) or 3P beneficiary law (a type of K. Two types of restrictions i. commercially reasonable basis considering factors like financial responsibility. no: freedom of contract. g. h. f. T assigns to A1. S obligations: 1. Questions to ask i. L can prevent assignment with Contract Language: i. HYPO: L/T relationship. 3rd party beneficiary doctrine (majority rule). L may sue under third party beneficiary. HYPO: L/T relationship. A stops paying rent.V. flat prohibition ii. sophisticated transferee should determine liability it wishes to incur Right to assign or sublease a. privity not required for burden to run to successors. (S insulate themselves from liabiity) 2. S can be required to comply with certain general restrictions on T s lease (eg. legality of new use. Who is liable to whom? ii. landlord consent 1. but cannot sue S at all. reasonable denial allowed: can deny on objective. no standard/silent: traditionally interpreted as sole discretion. minority test: intent of parties ii. inconsistent with expectations of parties. Privity of estate (if A did not sign K with L) c. if T say S abide by all provisions of lease) vi. Sublease doesn t in theory affect L-T relationship. HYPO: L/T relationship. sublease may pose trap for unwary. b. nature of new use. emerging modern trend to reasonable e. majority test: period of time where the transfer is made. whether use will compete with L business or existing tenants. L can sue A2 under privity of estate. Prohibit assignment -> L s absolute discretion
. but clauses still upheld 2. L can sue T under privity of estate and privity of contract. lessor will be able to enforce them against S. and A under privity of estate. need for alterations to the premises. How do you know which one it is? 1. can deny for any reason whatsoever. A1 assigns to A2. Assignment and Sublease compared i. S stops paying rent. Should we abolish assignment/sublease distinction? 1. What are the parties obligations? e. L can sue T under privity of contract. S can sometimes be sued directly for rent iii. must terminate L-T agreement. L may sue S. T sublets to S. L can sue T under privity of contract.e. Whole transfer is a assignment. 2.
3. L may sue A. 3. issues of limitations on alienation. This is the default assumed right unless specified provision against it d. d. suitability of new use. L cannot terminate T-S. Exceptions: if T s covenants in original lease bind successors in equitable servitudes.
T1 still Privity of K) 4. Majority: L may be arbitrary! 1. Incompatible with use 2. L should have freedom to decide who to lease to. Q: Can landlord arbitrarily object to a commercial assignment? No. 2. Fundamental 3. Common law: caveat lessee tilting duty toward tenant unless lease provision assigned repair to L. Accepted conditions 5. Minority: L must still be commercially reasonable 1. commercial justifications for alienability not as strong in residential. (L doesn t want to risk T1. also US land speculation and more dynamic to promote investment. modern extend L affirmative obligation to correct. alienability. No language on consent -> Tenant can assign however they want.
ii. Quiet Enjoyment Narrow legal right to possession and can t do things make T hard to do what want with land. only sue L for damages b. ii. (See Reste) i.
g. (Absent novation. Trend: toward tilting duty toward L in response to the substandard housing old common law fostered c. should be able to look to T b. non-commercial factors that will involve L. L argues a. Conveyance. 3. Considerations for quiet enjoyment (Which acts as Constructive Eviction) 1. Kendall has not been codified by the California Legislature.f. 4. Holding: adopts rising minority view. Landlord s Duty to Maintain Premises a. 3. Can church prevent assignment to abortion provider? P458 1B (not if A can show L performs or supports abortions) What if there is a clause that requires landlord s consent for assignment? i. T right to get benefit of bargain but circular h. stare decisis but all knew changing at time d. v. ii. 2. L should benefit from the bargain. Applied: Kendall v. Must be commercially reasonable objection. right to get higher value of property vs. Restraints on alienation are bad (economic efficiency. Reasoning: 1. people not willing put money in if can t get out) 2. L s ownership is protected. T could stop paying rent to force issue?) iii. Facts: provision in lease of commercial hangar space that T may not assign or sublet without L s consent. L has good economic protection. sophistication of parties. For T because a. Pestana (p473) i. Percentage lease (for store profit) -> T has incredible discretion. VI. but no standard whether consent may be unreasonably withheld iii. Should we extend Kendall to residential leases? consider relative reliability. iv. may withhold consent only for commercially reasonable objection iv. Stare decisis. T not negotiate for it c. and even in that case T could not move out. K implies fair dealing and good faith. Independent covenants 4. K implies fair dealing b. Omission rather than an act
. The term is unambiguous.
Reasonable consent -> Can permit L to deny assignment because T is already a good tenant.
so even if burglary next door.6. and lacks negotiation skills or opportunity to negotiate. Landlord not automatically liable for 3rd party interference with Quiet Enjoyment i. can be act of third party if L control (i. Constructive eviction: Condition that L control over that substantially interferes with tenant s beneficial use and enjoyment. Facts: D leased basement of office for jewelry firm.e. iv. f. find higher rent place. Scope: reasonable person would find premises uninhabitable. Peter (p519) tons of things broken and smell of sewage and L never fixed. Local housing codes: provides certainty. or limited minimal repair duties. most not enough. public policy adequate housing 2. LL must have CLEAR duty. and D vacated. rejecting argument that permanent interference was required. e. terminate lease. Procedure: T must give notice to L. like 1 floor flood. v. ii. iv. L has burden to repair regardless of lease provisions. Procedure: provide L with notice of specific problem and allow reasonable time for repair. NEVER collect back rent v. Adequate notice b. Implied Warranty of Habitability (Hilder v.e. Cooper (p509) 1. Tenant should have demanded effective remedy to flooding. then must vacate premises. Repair and deduct Usually statutory guidelines regulate. but not necessarily totally useless or permanent iii. not work! i. Terminate and sue for damages 2. Wrongful conduct: any affirmative act. Remedies 1. pay rent but try to get some back) 3. look at terms of contract. but some are skimpy or virtually no local codes at all state codes also work 2. idea that housing is commodity/package of services. Remedies for violating Quiet Enjoyment 1. Substantial interference: major enough to render dwelling uninhabitable. defined by 1. no new duty on L. whenever it rained it flooded. Withhold rent .risky
. Look at lease! Noise controlled or regulated? Smoke entering apt->maybe. Rescind lease If possible. pro: typical tenant poor/not skilled in repair/looking for residential housing. Applied: Reste Realty v. Long delay in seeking to quit lease ii. or omission flowing from lease. Arguments for IWOH: 1. Fitness for human habitation: Hilder v. St. Successor L sued for rent. sue for difference) 2. T may vacate. neighbors loud noise) 2. T got entire rent back. L never fixed. 2. some ok). and L had breached duty to repair 3. 2. implication the place was valueless. Terminate lease and sue for damages a. Special damages moving expenses b. St Peter) i. anti: reduces quantity of affordable housing because compliance with warranty imposes extra costs on Ls which they pass on to Ts through increased rents which Ts will be unable to afford iii. Holding: Concluded there had been constructive eviction. Difference between FMV and old rent (i. Remain in possession and sue for damages (CL rule. Elements 1. Better if: a. rather gives T a remedy for L breach of existing duty ii. reasonable time to correct it. statutory duty. Stay in place and sue for reduction in value. Remedies 1. a. broader in everything for health and welfare. Act promptly d. and no liability for future rent (there s also partial constructive eviction. 3.
or even slight v.IWOH is also a defense against eviction. and local rent control ordinances c. Compensatory damages (i.rent or other terms iv. Eviction i. Abandonment: 1. ii. then you are basically accepting novation b. L need not accept replacement if not willing to pay FMV. lease as conveyance. good cause: present in some states. remaining length of original lease. and availability of alternatives iii. L better situated to relet unit. traditionally can be lengthy and difficult 2. Retaliatory eviction: when L looks to rid self of troublemaker T who makes things difficult deservedly so for him.
4. L left unit vacant for a year.e. Terminate lease 5. shouldn t have to accept replacement tenant 4. waits to leave. then that one abandons. Termination of the Tenancy a. difficult) 6. statutory protections in most states protecting certain conduct of Ts iii.VII. anything that is part of T s performance 2. policy-pro mitigation: waste of housing resources. if ceiling fall on you. Imminent damage to property? L may obtain restraining order. ct held damages reduce cuz L duty mitigate) v. sole motive. mixed motives: different views allowing remedy if dominant purpose. Privity of estate ends after there is a new tenant 3. T vacates without justification. If there is a pattern of wanton destruction you may be able to. difficult) 7. ii. and T will either do that or vacate iv. Remember. they find a new one. technically. States divided 1. (just like contract law) iii. but if something is easily compensable (like holding deposit for spill on carpet) maybe no eviction. Surrender: T and L mutually agree to terminate lease. offered/showed. Punitive damages (only some jurisdictions. Privity of contract goes on for entire duration. evidentiary presumption of retaliation if L takes action within certain time after protected T action iv. Kridel p494 L lease 2 years to T whose wedding fell through and ask terminate. If you accept the surrender. in public/federally subsidized housing. ending respective rights and duties. not much that just allows L to get damages. Self-help eviction i. burden on L econ efficient 3. AND defaults in payment of rent a. L has duty to mitigate damages (Just like contract law) 2. market rent for comparable units. No self-help if tenant in possession (ok if abandoned or surrendered) 2. deviation of terms in replacement lease. What can T be evicted for? 1. Court-ordered eviction 1. No self help because even peaceable self-help can cause violence! ii. lacks present intent to return. Criticism of self-help: risk of violence. cost of preparing property.
. Classes of termination: i. policy-con mitigation: libertarian view. determining reasonable effort: extent L advertised. Violation by Tenant of lease. Which one is liable? 1. Eviction takes 3 days if uncontested and 3 months if contested. HYPO: One tenant abandons. (see Sommer v. changes locks. unless there is novation 2. possibility of unjustified eviction. Summary eviction: expedited procedure where L serves T with notice describing breach and gives opportunity to cure. Berg v. Wiley p484 L spies on T. L has duty to mitigate damages.
Practical effect was that Jews. For disabilities: 1. During WWII. color. demand increases ii. said Civil Rights Act of 1866 stating blacks same right to buy/lease property applies iv. bad relations between LL and T c. sex. 100 apartheid) vi. Negotiations usually center around terms where relationship is assumed to be good: rent. depress construction ii. etc b. Buchanan v. hard to target who benefit iii. Must make reasonable accommodations to allow handicapped person equal opportunity to housing (though not necc pay for by LL) 3. housing fixed. 1930 s private racial zoning and racially restrictive covenants led to Shelley v. little enforcement viii. private discrimination covenants not enforceable in court. Mayer (1968): allowed general language of civil rights act as basis for litigation in private suits. 1920 s had organized private discrimination and restrictive covenants v. and Chinese did end up distributing throughout cities. pro cuz effects are small and speculative. but this didn t happen with blacks (ended up migrate to nearby neighborhoods and white flight) vii. protected categories: race. two exemptions: single family residences rented or sold without broker or advertising (so attack institutional discrimination while protect ind property rights). Why not negotiate the terms in case of bad relationship: tort liability. national origin. Housing is important v.policy a.
IX. Preserve community b. rough financial terms d.
Bargaining power between landlords and tenants. Kraemer (1948) which made racial covenants illegal. which would cover national origin and racial discrimination b. eviction procedure. pets. Land use regulations create artificial shortage iv. and owner-occupied buildings with four or less units (owner live in 4th one)
. incentive LL not fix housing iv. additional tenant. Chicago p535 Chicago 1986 L-T ordinance bringing quality of housing up. Warley (1917): 1st major civil rights case. pre-1968 i. Civil Rights Act of 1866 blacks same right buy/lease property iii. based on the Civil Rights Act of 1968 i. Cons: long term use is bad (esp with high inflation b/c it reduces construction) i. Can t discriminate based on disability 2. Pros: Short term use is good when sudden large increase in demand (WW2) i. and handicap ii. Japanese. reason for high security deposits. L incentives to bargain: eviction process lengthy/difficult. can t construct any new housing. Jones v.
X. Fair Housing Act of 1968: certain types of discrimination prohibited. because that would be putting state power behind discrimination. familial status. Moderate rent control -> much less damage Fair Housing/ Housing Segregation a. ii. ct sustain ordinance) Rent Control a. con cuz each right increases L s costs meaning raised rents and less supply as escape to condo market. not protected: sexual orientation. religion. prohibiting racial zoning. etc? Thought this will generally will undermine your chance of getting apt (will look like a troublemaker). marital status iv. Poor not evicted iii.VIII. Owners of new housing must incorporate design features that make units accessible to handicapped persons iii. might just not think of them c. CA Unhuh Act (1959): moderate help. limits on ability to pay . 1940 s up to index of dissimilarity level 90 (0 integrated. Problem of affordable housing special case (see Chicago Board of Realtors v. security deposit.
new standards for newlyconstructed housing include ramps. Effect: Overall fewer outright denial. later rented to single woman.v. etc. Method of obtaining relief under FHA i. Hispanics differ based on perceived integration. burden shifts to D to prove good faith legitimate reason for the discrimination iii. Broadened to include families w/children (see Soules v. P must establish prima facie case: can be done by showing discriminatory effect 1. And remember that disparate impact is the same as intentional discrimination. US HUD p439 P had 12 year old daughter. disparate impact: D s conduct has disproportionate impact on persons in protected category 2. institution non-discriminatory c. means much more complaints and damages up) iv. Also now include disabilities (need reasonable accommodation . Effect: Smaller cities blacks spread out and diffuse. exception is senior complexes ii. burden shifts back to P to show the legitimate reason served as a pretext for discriminatory purpose d. disparate treatment: how an individual applicant is treated ii. asked about child s age cuz below had elderly couple.) iii. affirmed case dismissal cuz legitimate reason and agent had offered to rent place to another family with kids). Overhauled the enforcement process (although agencies complaints not enforce. few suits filed and ineffective vi.
. Weak effect at first. 1988 FHA Amendment i. terms and conditions similar. Remember you can do whatever you want if you are looking for a roommate or something. litigation and American Litigation Judges proceedings useful cuz more lenient. recommend file with governmental agency (Housing and Urban Development) who mediate first. others see expansion of black area but resegregation e.