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What happens if the leased premises are destroyed through no fault of T or L?
Absent lease language or statute to the contrary, neither party has a duty to restore the premises, but T must continue to pay rent.
What if T specifically covenants to make repairs?
His duty will be higher than the duty implied by the law of waste. * *T has a duty to repair even ordinary wear and tear unless express excluded but no duty for structural repairs or fire unless expressly included.
What is T\'s duty not to use the premises for illegal purpose?
If T uses the premises for an illegal purpose, L may terminate the lease or sue for damages and obtain injunctive relief. * *Must be more than occasional unlawful conduct.
What is T\'s duty to pay rent?
At Common Law, rent is due at the end of each term. Modern leases usually contain a provision making rent payable at some other time.
What is the duty to pay rent if the lease terminates before the time originally agreed upon?
T must pay a proportionate amount of the agreed rent.
What is the effect if the security deposit is termed a \"bonus\"?
Generally, the deposit can only be held to the extent of actual damages, but if the deposit is termed a \"bonus\" L can keep the bonus if T is evicted.
What is L\'s duty if T is on premises but fails to pay rent?
Evict via the unlawful detainer statute or sue for rent. * *Common law you could only sue
Can tenant raise counter claims in a unlawful detainer suit?
What is L\'s right when tenant unjustifiably abandons the property?
T is liable for rent lost by abandonment unless surrender is accepted.
What are the landlord’s duties to tenant?
1) Duty to deliver possession 2) Quiet enjoyment 3) Warranty of Habitability 4) No Retaliatory eviction
What is L\'s duty to deliver possession?
Most states require L to put T in actual possession of the premises at the beginning of the leasehold term. * *eg, L is in breach if he has not evicted the holdover tenant.
What is L\'s duty to provide quiet enjoyment?
Every lease has an implied covenant that neither L or a paramount title holder will interfere with T\'s quiet enjoyment and possession.
How will such covenant be breached?
1) Actual eviction - excluded from the entire premises 2) Partial eviction - tenant is excluded from part of the premises 3) Constructive eviction - L does something or fails to do something that renders the property uninhabitable. 3)
What\'s L\'s duty of implied inhabitability?
If L doesn\'t keep the home up to local housing code, T may: 1) Make repairs and offset the cost from rent 2) Terminate the lease 3) Abate rent to an amount equal to the fair rental value in view of the defects 4) Remain possession, pay in full and sue for damages
What is L\'s duty against retaliatory eviction?
In many states L may not terminate lease in retaliation for T\'s exercise of legal rights.
When can T transfer his leasehold interest?
Absent express restriction in the lease, T may freely transfer his leasehold interest in whole or in part.
What is an assignment?
A complete transfer of the remaining term.
What is a sublease?
Transfer where T retains any part of the remaining term (other than the right to reenter upon breach).
What are the consequences of assignment?
An assignee stands in the shoes of the original tenant, in a direct relationship with L. (privity of estate)
Does the original tenant remain liable for rent after assignment?
Yes, because the original tenant is in privity of contract.
Can an assignee reassign his leasehold interest?
Yes and his privity of estate ends. (i.e., not liable for a subsequent assignee\'s failure to pay)
What are the consequences of a sublease?
The sub lessee is a tenant of the original lessee and pays rent directly to the original lessee. * *Sub lessee not personally liable to the lessee.
What is the effect on the sublease if L terminates the lease?
The sublease automatically terminates with the lease.
What are the rights of the sub lessee?
Cannot enforce any covenants made by L in the main lease except for implied habitability.
How are covenants against assignment or sublease construed?
Generally strictly construed against the landlord.
What is the effect of waiver of such a covenant?
Valid covenant is waived if L knows and does not object, and once waived it is waived for all future transfers unless expressly reserved.
What is the effect of a transfer in violation of the lease?
If T assigns or subs in violation of the lease, the transfer is not void. L may only terminate lease or sue for damages.
What is the effect of L\'s assignment?
1) The assignee is liable for all covenants 2) The original L is still liable on all of the covenants made in the lease.
What is the tort liability of L?
1) L is liable for concealed dangerous conditions 2) Liable for injuries to members of the public he should have known of the dangerous condition, believes T may admit public before repair, and fail to repair 3) Liable for not taking reasonable care in repairs he undertakes after T takes possession
What is L\'s general duty of reasonable care?
Many courts also now hold L owes a general duty of reasonable care toward residential tenants, and is liable for negligence in failing to repair a defect he had notice of and opportunity to repair.
What is T\'s tort liability?
See Torts.
What is a fixture?
A chattel that has been so affixed to the land that it has ceased being personal property and has become part of the realty. Eg, a house
How do fixtures pass?
With the ownership of the land.
What are nonpossessory interests in land?
Easements, profits, covenants, and servitudes are nonpossessory interests in land, creating a right to use land possessed by someone else.
What is an easement?
Easement holder has the right to use another\'s land for a special purpose, but has no right to possess. * *Eg, lay pipe, access a road, etc.
How long does an easement last?
It is presumed to be of perpetual duration unless the grant specifically limits the interest.
What are the types of easements?
1) Affirmative - holder make affirmative use of the servient tenement 2) Negative - entitles the holder to compel refrainment * *Negative easements a really covenants.
What is an easement appurtenant?
An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land.
What is necessary for an easement to be appurtenant?
two tracts: 1) the dominant tenement (the estate benefited by the easement), 2) and the servient tenement (the estate subject to the easement right).
Does an easement appurtenant pass with transfer of the land?
Yes, regardless of whether it is mentioned in the conveyance.
What is an easement in gross?
The holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land the, right to erect a billboard
Is an easement in gross transferable?
Only if it serves an economic commercial interest.
How is an easement created?
Negative easement can only be created expressly. Affirmative easements can be created by (PING): 1) P - Prescription 2) I - Implication 3) N - Necessity 4) G - Grant or Reservation
How is an easement created by express grant?
It is in writing and signed by the holder of the servient tenement. * *Unless it doesn\'t fall within the SOF
How is an easement created by express reservation?
When a grantor conveys title to land but reserves the right to use the land for a special purpose. * *Under the majority view the easement can only be reserved for he grantor.
How is an easement created by implication from existing use?
An easement may be implied if: 1) Prior to the division of a single tract, 2) An apparent and continuous use exists on the “servient” part, 3) Reasonably necessary for the enjoyment of the “dominant” part, and 4)Court determines that the parties intended the use to continue after division.
How is an easement created by implication w/o any existing use?
1) Subdivision - lots are w/ reference to a map that shows streets leading to lots 2) Profit a Pendre - Holder has implied easement to cross over the land reasonably necessary
How is an easement created by necessity?
Arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line. * *The owner of the servient parcel has the right to locate the easement.
How is an easement created by prescription?
Acquiring an easement by prescription is analogous to acquiring property by adverse possession. * *Same requirements as adverse possession
What is the scope of an easement?
In the absence of specific limitations in the grant, courts assume the easement was intended to meet both present and future needs of the dominant tenement. *eg, easement may widen to accommodate bigger cars
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