Property Law Spring 2017

Professor Marc H. Greenberg

Golden Gate University School of Law

Landlord Tenant Part 1

 Landlord.Tenant Part 1
• The Leasehold Estates
– The Term of Years – any lease that lasts for a fixed period of years – duration
can be less than a year, and some state laws fix the maximum duration – no
notice of termination is needed to bring the lease to an end.
– The Periodic Tenancy – a lease for a period of fixed duration that continues for
succeeding periods until notice of termination is given by tenant or landlord
(ie: month to month, or year to year). Notice is usually the same amount of
time as the period – the exception being that a year to year lease usually
requires 6 months or less notice to terminate – these notices terminate the lease
on the last day of a period – not in the middle .
– The Tenancy at Will – is a tenancy with no fixed period – it goes on as long as
landlord and tenant desire it to. It ends when one party gives notice of
termination, or upon the death of a party.
– Corollary – the death of the tenant in a term of years or periodic tenancy does
not terminate the lease – but the landlord will have to mitigate damages before
being able to seek rent recovery against the estate of the deceased tenant.
 Landlord.Tenant Part 1
• Garner v. Gerrish
– A lease which sets a termination date at the sole discretion and choice of the
lessee creates a life estate in the lessee – essentially it is a “lease for life”
–Is this a new category of lease?
–Why would a landlord ever want to grant such a lease to a tenant?
–Is there any fact or evidence in the decision that suggests that Donovan did
not intend to create a lease for life?
– Why does Garner, as executor of Donovan’s estate, bring this eviction
action without evidence that Donovan’s intent was not to grant a life estate to
Gerrish?
–Is there any ambiguity in the terms of this lease?
 Landlord.Tenant Part 1
• The Tenancy at Sufferance: Holdovers
– this arises when a tenant remains in possession (holds over) after
termination of the tenancy. Landlords have two options in dealing with
tenancies at sufferance – evict the tenant, or consent to a new lease –
usually a periodic tenancy of some duration.
–The Lease – when is a lease not a lease? It is one if the agreement
between the parties gives rise to a landlord-tenant relationship. Leases are
both conveyances of an estate in land, and contracts governing the terms
of occupancy and possession.
–Leases that intend to extend beyond a year are generally required to be
in writing, or will be found void and unenforceable under the Statute of
Frauds.
–The use of standard forms in both residential and commercial leases –
can you negotiate terms? How should you amend standard forms?
 Landlord.Tenant Part 1
• Selection of Tenants (Discrimination and the Fair Housing Act)
– The FHA prohibits discrimination in sale or rent of property based on
race, color, religion, sex, familial status, handicap or national origin.
– Discrimination via denial of lease or sale, or the placing of terms or
conditions, or in the advertising or listings of property is prohibited
– A discriminatory motive is not required – only proof of a discriminatory
impact is required.
– Note that age discrimination is not prohibited by the FHA. This allows
senior citizen communities to set a minimum age limit (usually 55 for
tenants). Landlords can also set limits on the number of occupants in a
leased property, although they must comply with fairly liberal federal
limits; and landlords are entitled, on a showing of added expense, to
pass on added utility or related expenses based on high number of
occupants in a property.
– Query – can a landlord in a gay section of a town refuse to rent to a
straight couple?
 Landlord.Tenant Part 1
• Hannan v. Dusch (delivery of possession)
– In the absence of an express covenant to deliver possession of leased
premises at the start of a lease, who should bear the burden of delivery
of possession when a wrongdoer (a holdover tenant) prevents that
delivery?
– The English rule imposes an implied covenant of delivery on the
landlord
– The American rule requires only that the landlord deliver legal
possession, leaving the burden of dealing with the holdover tenant to
be borne by the new tenant.
– This is rarely a problem as standard lease forms include an obligation
by the landlord to deliver possession on the first day of the lease.
– Which rule do you favor and why?
 Landlord.Tenant Part 1
• Ernst v. Conditt (Subleases and Assignments)
– What is the difference between a sublease and an assignment of lease?
– If you are the first tenant, and seek to be free of further liability under
the primary lease, does it matter if you sublease the property as
opposed to assign it? Why and in what way does it matter?
– Can you assign part of a lease? Why or why not?
• Kendall v. Ernest Pestana, Inc.
– The lessor of commercial property is entitled to require a tenant to
obtain consent prior to subletting or assigning the lease – while this is a
restriction on the alienation of the leasehold estate, it is conditioned by
the requirement that denial of approval must be for a valid reason, and
cannot be arbitrarily withheld. This rule has not been generally applied
to cases dealing with residential property. Why not?