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Property II 2


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Terms of Years
is a lease for a single, fixed terms of any length. Term must be set out in the lease. It is self-terminating. No notice is needed. Term of years can be defeasible, either determinable or subject to conditional subsequent.
What if there is an indeterminate Term?
"for the duration of the war." This creates a tenancy at will (Terminable by either party)because the ending date cannot be perciesly determined. Other's say that the parties intended to creatd a term of yeas because they used an event that neight of them could infuence.
Periodic tenancy
is a leasehold for a recurring period of time, such as month to month or year to year. It continues until either the L or T give advance notice to the other party of a termination.
CL requires- at least 6 months to terminate a one year, and notice equal to the length of the period for periods less than a year (but not more than 6 months.)
How is periodic tenancy created?
By Parties intention or by operation of law. Created under an invalid lease, or a holdover.
What if you are a holdover tenant from a periodic term.
O leases B to T for 100 years, rent payable in monthly installemtns of $1,000. State law invalidates leases for more than 60 years. Terry takes possession and pays the rent monthly for 5 years, when Otis decides he made a bad deal and notifies Terry that the lease is terminated in 60 days. All courts will treat this as a periodic tenancy, but they will differ as whether it is year to year or month to month. By law, Terry's occupany under a void lease created at least a tenancy at will and also by operation of law, the tender and acceptanc of rental payments transformed the leasehold into a periodic tenancy.
Notice necessary to Terminate Periodic Tenancy: Common Law
Six months advance notice is necessary to terminate a year to year tenancy, and notice equal to the length of the period (but not more than 6 months) is necessary for periods of less than a year. Notice is only effective as of the end of the period.
Notice necessary to terminate periodic tenancy: Statutory Changes
Many states have legisated on the subject, typically by reducing the notice period to a single month. A few states stipulate that notice is effective 1 month after t is given, regardless of whether that date happens to coincide with the end of the period
What is the period when a tenant has taken possession under a void lease?
A void lease is usuay oral or a long-term lease that is void under the Statute of Frauds. However, the T has paied rent when has been accepted. All courts agree that a periodic tenancy results but there are three different ways to look at these. Year to year, Period measured by rent stated in void lease, Period measured by way the rent is paid
Year to year
Most courts will conclude that a year to year tenancy results, saying that this is closest to what the parties intended.
Peiod measured by the rent calculation in the void lease
Some courts measure the period by the way the rent is states in the lease.
Period measured by the way rent is paid
Finally, some courts measure the period by the way rent is actually paid.
Tenancy at will
is a leasehold for no fixed time or period. It lasts as long as both parties desire. Termination is bilateral or by operation of law. It may arise out of agreement, or by operation of law, usually upon the failure of some othe rleasehold or intended leasehold.
Distinquished from leaseholds unilaterally terminable
A unilaterally terminable leasehold-- only one party has the right to terminate--- cannot be a tenancy at will. It is a determinable tenancy
Jim leases Acorn farm to pam for "2 years, but Pam may terminate sooner if she wishes."
A determinable term of years is created. If Jim had leased Acorn Farm to Pam "from year to year, but pam may terminate whenever she wishes." a determinable peiodic tenancy is created. Pam need not to give advance notice to terminate, but Jim must do so.
What if a term is both determinabe and for an uncertian duration? If patrick leases a barn to Kathy "for so long as Kathy" desires," What is created?
Two answers:

1.)Older one is Tenancy at Will

2.)More modern (better) is that it is a determinable leasehold life estate. (Garner v. Gerrish)
How can you terminate a Tenancy at Will? By the parties
A landland lord terminates by giving notice. A T terminates either by giving notice or by abandoning the property. Advance notice was not necessay at common law but many states today require notice (usually a month)some only require a landlord to givce notice
How can you terminate a Tenancay at Will? By operation of law
If either party dies, if the tenant attempts to assign his tenancy, or if the landlord conveys his interest in the property, a tenancy at will is terminated by operatino of law. Most states require notice of termination to be given under these circumstances, to the tenancy may continute if both parties desire and, in any case, will last until the end of the required notice period.
Tenancy at Sufference
a tenant has no right to be there but he is not automatically treated as a trespasser either (mostly to avoid triggering adverse possession). For this reason a tenancy at sufference is not a true tenancy.
What can the landlord exercise
1. Eviction and redcovery of damages for the lost possession

2. binding the tenant to a new time. This must be done in a reasonable amount of time
Holdover must be voluntary
there is no holdover so long as the tenant's continued possession is the product of circumstances beyond the tenant's control.
Eviction and damages
A landlord may evict the holdover tenant and recover damages, measured by the reasonable value of the use of the property for the holdover period
Damages for wrongful possession
a landlord who opts for eviction may also recover damages for the period of wrongful occupancy. The CL measure of these damages is the fair market value of the occupied premises, plus any special damages
Election of a new term
most states treat the new tenancy as a periodic tenancy. Some treat the new tenancy as a tenancy as a term of years for a max if one year. Very few regard the new tenancy as a tenancy at will, with the tenant liable only for the FMV of the premises.
Length of the new term
Whether a periodic tenancy or a term of years results, courts are divided over how to determine the length of the new term. Some states determine the new term by the way the rent is states in the old lease. But, no longer than one year. Term could be for a higher payment, and the tenanant makes no objection the tenant is liable for the higher rent.
What constitutes election?
the easy case is when a landlord clearly states his election of a remedy. Once the landlord has done so, the election is irrevocable - the landlord cannot change his mind.
Crechale and Polles, Inc. v. Smith
the missisippi supreme court ruled that Crechale's Feb 6th letter constituted his election "to terminate the lease and to treat Smith as a tresspasser. His subsequent acceptance of the tendered rent created a new periodic tenancy. When a landlor never clearly states his intentions and elction must be inferred from his acts.
Statute of Frauds
says all interest in property, freehold and not-freehold, have to be in writing. There is an exception all leases greater than three years. Common law required writing if lease was for greater than 3 years.
American statutes typically require if over than a year. Leases a year or less do not require a writing.
Dual Nature of leaseholds
Contracts and Estates
a lease has both aspects, it is a conveyance of a possessory estate in land and it is a contract.
Traditional View: Estate
in this view a lease ia s conveyance of an estate in and. The tenant has purchased possession of an estate for a term. The responsibility for maintaining the property and the risk of its destruction is upon the tenant. The L oblligation is to deliver possession. The T has the obligation to pay rent no matter what. The landlord has the right to retake possession only if the tenant defauts in paying the rent. Almost no jurisdiction construes a lease exclusively in this maner.
Modern View: Contract
in this view a lease is just another package of bilateral promises that are mutually dependent. If the landlord fails to perform a promise (e.g,. to provide access to tennis courts and a swimming pool" the tenant may refuse to perform his promises (eg. pay rent). The estate view treats theses promises as completely independend; the tenant must pay the rent no matter how many promises the landlord breaks. The T remedy is to sue for damages. Today, courts are apt to treat residential leases as a contract in most respects, but are less quick to do so with commercial leases.
What makes a lease?
⬢ Since lease is an estate, possession must be transferred
⬢ May not be express in writing or by oral statements; look to
o Limitations in use (but be careful- because it can be determinable)
o Descriptions of space- usually estates discuss specific boundaries
o Provisions for periodic rent-
o Limits in time- tend to be more attached to leases as opposed to time.
Theses are factors, not rules.
Easements and licenses vs. Leases
Easements and licenses are rights to use the and of another, although they differ in some important respects. It is not possessory. A lease give exclusive possession
A lessee has all the legal rights of a possessor and may sue others for invasion of his possessory interest
Ejectment (to oust the wrongful possessor)
Tresspass (to recover damages for physical invasion)
Discrimination in Leasing: Civil Rights Act of 1866 & Fair Housing Act
Both apply to sales and leases of real estate, change the historical right to sell or rent to whomever one pleases
Civil Rights Act of 1866 pg. 463
o Goes beyond “state action,” and bars private as well as public discrimination
o Bars only racial discrimination in selling, leasing or all conveyances of real estate (not limited to housing).
o You can get an injunction and or damages
Fair Housing Act
o All sales or rentals (including advertising) of dwellings.
o Bars discrimination based on race, color, religion, nat. origin, sex, children and handicap.
o Remedies: injunction, damages, punitive damages available. And you can get attorney’s fees.
Fair Housing Act- Exemptions
o Private clubs/religious orgs (w/limits)
o Owner-occupier of 4 or less units. Rooms in my bording house or apartments in my building and I am living in one. Not subject to the act.
o Single-family dwellings:
o If owner owns 3 or fewer dwellings; and
o Doesn’t discriminate in ads or use broker services
o Only one transaction per 24 months of not owner-occupier.
FHA – What is discrimination?
o Racial: discriminatory purpose or effect
o Sex: includes harassment
o Familial Status (perhaps not effect)- exempts specially defined senior housing
o Handicapped- broadly defined. Recovering addicts, Aids suffers are protects. Must provide reasonabe accommodations in rules/ services to give equal opp. to use/enjoy. If you have a no dog policy but person need one you must let.

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