Law School Resources
Landlord - Tenant
Landlord Tenant-a conveyance of title.
LICENSES: GENERAL RULE:
1. A license arises when there is NO right of
exclusive possession by the occupier.
2. A license is a permit to enter upon the
property of another. E.G. hunting!
3. A license is non-exclusive.
4. The test is whether the owner of the property
retains control and access to the property.
5. The test is fact determinative.
Licenses: 3 Types
LICENSE: NO PROPERTY INTEREST WHAT SO EVER!
The right to exclusive possession is what
distinguishes a tenant's interest from that of a
licensee.
Possession:
1. Minimal amount of physical control
2. Exclusion of others
L/T: A PROPERTY INTEREST: A CONSTITUTIONAL RIGHT
TO DUE PROCESS!
1. Hotel-Motel
2. Employment coupled with occupancy.
ANALYSIS: Primary relationship is created out of
an ER/EE
relationship. Not a landlord/tenant relationship.
Look for lack of exclusive control (locks-common
entrance etc.) to defeat L/T relationship.
3. Conveyance- Hypo:
A executes a valid P & S of BA to B on 6/1/98
closing on 9/1/98.
B wants to move in on 8/1/98 and pay A's carrying
costs.
9/1/98 B refuses to close
B refuses to lease
B refuses to leave
Must A take B to court?
MAJORITY: A license not a tenancy exists?
Why? Equitable Interest: an equitable interest is
greater than an interest in the land. E.G. you can't
give yourself an easement over your own land.
Because no equitable interest is passed- only a
license exists.
MINORITY: A tenancy exists because of the control
aspect on B's part.
MA Rule: Up in the air!
BEST ADVICE: Say no to B! If A persists:
1. Written agreement: This is NOT a L/T
relationship!
2. No exclusivity.
3. CYA Letter to A.
4. If closing doesn't occur-the seller can evict
w/o due process and put B on the street.
5. Licensing fees double during term of
prohibited occupancy.
MA BOARDING HOUSE RULE: After 90 days-license
converts to tenancy at will!
THE TENANCIES:
1. TENANCY AT SUFFERANCE.
2. TERM FOR YEARS.
3. PERIODIC TENANCY.
4. TENANCY AT WILL.
TENANCY AT SUFFERANCE
A. CREATION: At the termination of a rightful
possession. A HOLDOVER tenant! A tenancy at
sufferance arises when a person rightfully in
possession retains possession wrongfully after the
right comes to an end.
B. DURATION: Until
1. Owner makes demand for possession or,
2. Owner creates one of the other 3 tenancies.
C. TERMINATION: No true leasehold and therefore
none to terminate. Possession may not be defended
against an action by the owner for repossession.
Tenancy at sufferance is not a tenancy because it
is not an interest in R/E.
THERE IS NO PRIVITY BETWEEN THE OWNER AND THE
OCCUPIER
A tenant at sufferance is little better than a
trespasser because s/he was legally on the land to
begin with. Many states deem it to be a license.
MA-no clear definition- a notch above the
licensee-"slightly more honorific"
A license is "mere naked possession" with no
legal right.
There was a tenancy but for some reason the
tenancy ended.
It occurs when:
1. A HOLDOVER TENANT-the landlord can:
a. Accept rent and transform into a tenancy at
will
or
b. Commence eviction.
2. At common law, death of one of the parties in
a tenancy at will transformed into a tenancy at
sufferance.
NO LONGER THE CASE IN MA!
3. Time period ends.
4. Notice to quit by the landlord. NOTICE THAT
THE TENANCY HAS ENDED!
NOTICE TO EVICT:
Must prove:
1. Collection of rent
2. Proof that the tenancy has terminated.
There must be PROPER SERVICE OF 14 DAY NOTICE TO
QUIT THAT TENANCY HAS TERMINATED
A landlord cannot bring an action for eviction
until 14 days are expired.
THE TENANT MAY CURE!
PERIODIC TENANCY
A. Creation: by express K or orally.
1. Landlord gives possession for an unspecified
time and rent is paid periodically(weekly-monthly
annually).
2. A tenant remains in possession with consent
after termination of prior tenancy and makes
periodic payments.
3. A tenant takes possession under a void lease
and makes periodic
payments.
MAJORITY RULE: Each successive period is a
continuation of the original lease.
ENTRY UNDER A VOID LEASE: (VOID FOR FAILURE OF
S/O/F) A TENANCY AT WILL IS CREATED WHICH IN MOST
JURISDICTIONS BECOMES A PERIODIC TENANCY UPON
PAYMENT OF RENT.
B. DURATION: The duration is indefinite and
CONTINUES FOR SUCCESSIVE LIKE PERIODS until PROPER
NOTICE is given by either landlord or tenant.
C. TERMINATION: Look to terms of notification of
the prior lease or to the terms of intent of the
void lease. Absent any notice provision the notice
required is:
1. Tenancy is year to year-generally 6 months is
required.
2. Less than 1 year-generally 1st of month
following 1 rental period.
TERM FOR YEARS
A. CREATION:
1. Must be in writing S/O/F analysis because an
interest in R/E.
2. Must have defined beginning and end.
3. Defined begin and end tied to calendar dates.
4. Landlord's interest is a reversion.
5. Tenant's interest is for the term.
B. DURATION:
1. Month, multiple of months or years.
2. A happening: right of entry-executory
limitation-possibility of reverter.
C. TERMINATION:
1. No notice required since the lease expressly
contains a specified
expiration date.
TENANCY AT WILL
A. CREATION:
1. Landlord-tenant relationship terminable at
will of either.
2. May be created by express agreement or implied
from facts.
3. Tenant takes possession with consent and no
date of termination is specified.
4. No reservation of periodic payment of rent.
5. Created when tenant takes possession under a
void lease.
B. DURATION:
1. Indefinite as long as NEITHER PARTY TAKES ANY
ACTION INCONSISTENT
WITH CONTINUATION.
C. TERMINATION:
1. Notice by either party.
2. Death of either party.
3. Assignment by the tenant of his possessory
interest.
4. Notice is required.
HYPO:
L---->T Agreement for 1 room Apt for 1/1/98 to
12/31/98.
What do you have? TERM OF YEARS/ESTATE FOR YEARS!
A CONVEYANCE OF INTEREST IN REAL
ESTATE
TERM OF YEARS: 1. A year
2. Multiple years
3. Any fraction of a year!
Must have a definite beginning and a definite
end.
Subject to S/O/F-because it is an interest in
land/real estate.
Majority Rule: Must be in writing if 1 year or
longer. Less than 1 year-may be oral.
MA Rule: Must be in writing regardless of
duration-even 1 day!
HYPO: PERIODIC TENANCY
L----->T Lease 1/1/98----->12/31/98
On 1/1/99 T gives L 1 month's rent and L accepts.
Majority Rule: Acceptance of rent from a holdover
tenant creates a periodic tenancy. THE RENT OFFERED
AND ACCEPTED IS EVIDENCE OF CONSENSUAL INTENT.
MA Rule: Periodic tenancy must be in writing.
ACCEPTANCE OF RENT CREATES A TENANCY AT WILL.
TENANTS AT SUFFERANCE:
1. Do not pay rent.
2. Consensual
3. Liable for rent
PERIODIC TENANCY
For Years
For Months
1/1/96------>1/1/99 ESTATE FOR YEARS
1/1/97------>1/1/98 PERIODIC TENANCY
Notice Period required for a periodic tenancy is
6 months.
Notice Period required for a period of months is
1 month.
E.G. 1/1/97------>1/1/98 Notice must be given by
7/1/97 or period
runs to 1/1/99
TENANCY AT WILL-TENANCY FOR AN INDETERMINATE TIME
PERIOD-NO SPECIFIED OR SPECIFIC TERMINATION DATE. A
TENANCY AT WILL MAY BE TERMINATED BY EITHER PARTY.
At common law, at tenancy at will could literally
be terminated at any time. NO NOTICE WAS REQUIRED.
MODERN-all 50 states have some form of notice
required. Most common notice requirement is 1 month.
Landlord can't bring eviction action until 14
days expire.
Tenant has right to cure!
MA 186.12-requires a minimum of 30 days notice.
A failed estate for years or a failed periodic
tenancy is a tenancy at will.
S/O/F-the lack of a writing, regardless of the
intent of the parties, results in either a license
or a tenancy at will.
ASSIGNMENT V SUB-LEASES
ASSIGNMENT----> EITHER LANDLORD OR TENANT ASSIGNS
100% OF ALL RIGHTS. E.G. Landlord sells
property-assigns lease to new property owner.
SUB-LEASE----> EITHER LANDLORD OR TENANT
TRANSFERS LESS THAN 100%.
******************************************************************************
GENERAL R/O/L: IF A SUBLEASE: THE L/T
RELATIONSHIP REMAINS UNCHANGED. THE TENANT BECOMES
THE LANDLORD OF THE SUB-TENANT.
2 KEY POINTS:
1. NO PRIVITY OF K BETWEEN LANDLORD AND
SUB-TENANT.
2. NO PRIVITY OF ESTATE BETWEEN LANDLORD AND
SUB-TENANT BECAUSE LESS THAN 100% HAS BEEN
TRANSFERRED.
GENERALLY LANDLORD AND SUB-TENANT HAVE NO RIGHT
OF ACTION BETWEEN THEM.
IF AN ASSIGNMENT: THE ASSIGNEE STANDS IN THE
PLACE OF THE TENANT AND THE LANDLORD AND TENANT ARE
LIABLE TO EACH OTHER. PRIVITY OF ESTATE EXISTS. THE
COVENANTS IN THE ORIGINAL ESTATE RUN WITH THE LAND.
DETERMINATION: HAS EITHER PARTY TRANSFERRED 100%
INTEREST? IF LESS THAN 100%-A SUBLEASE HAS OCCURRED.
HYPO: T CONVEYS FOR THE ENTIRE BALANCE OF THE
LEASE BUT RETAINS RIGHT OF RE-ENTRY. A SUBLEASE-NOT
AN ASSIGNMENT!
*******************************************************************************
RULE OF DUMPOR'S CASE: A TENANT HAS THE RIGHT TO
ASSIGN UNLESS THE LEASE EXPRESSLY PROHIBITS
ASSIGNMENT. RULE OF DUMPORS. (aka the finger out of
the dyke theory) IF THE LEASE PROHIBITS ASSIGNMENT
AND THE LANDLORD AGREES TO ASSIGNMENT, NO FUTURE
AGREEMENT BY THE LANDLORD IS REQUIRED. LANDLORD HAS
WAIVED FOR BALANCE
OF THE LEASEHOLD. A LANDLORD MAY DEFEAT EXPRESSLY
BY AGREEING TO ONE TIME ONLY EXCEPTION.
********************************************************************************
Tenant has the right to assign unless the lease
expressly prohibits.
The theory is that one may assign rights but not
liabilities. Third party beneficiary concept.
LEASE
1. is a K.
2. Interest in property.
3. Actionable in tort.
a K
L--------------->T
privity of estate
If either relationship exists-there is privity
either through the K or the Estate. Either one or
the other or both.
PRIVITY OF ESTATE
(direct relationship through the
law in 2 ways)
1. Tenant has right of possession. If tenant has
right of possession-there is privity of estate. If
tenant has no right of possession, there is no
privity of estate.
2. Landlord has right of reversion. The
possession back is waiting to happen. Landlord in
privity of estate through the reversion.
HYPO: ASSIGNMENT
K A-no K No K between L and T1
L------->T---------------T1 T not in possession
P/E P/E L and T1 in P/E
T and T1 owe rent on the hook to L
HYPO: SUBLEASE--ALWAYS GIVES LESS THAN 100%
L-----(10 years)-------->T---------(6
years)------>T1
Sublease always breaks P/E. L and T1 not in P/E
L---------(L1)------------>T
L by sale to L1 is no longer liable for either
(1) covenant of quiet enjoyment or (2) warranty of
habitability.
L1 assumes liability and is in P/E with T.
TERMINATION OF TENANCIES
******VERY PROCEDURE
ORIENTED******
HYPO:
Term of Lease/$1000 per Month
L---------->T
7/1/97------------->6/30/98
As of 2/1/98-T is 90 Days in Arrears
Reason to Evict: Failure to pay rent.
************************************************************************
NOTICE TO QUIT IF PROPERLY SERVED
TERMINATES THE TENANCY
************************************************************************
As attorney for L you must establish:
1. A tenancy existed.
2. Termination of the tenancy.
3. Cause(rent owed for judgment).
PROCEDURE: NOTICE TO QUIT
1. Name of the Parties
2. Description of the Property
3. Notice that: "THE TENANCY IS BEING TERMINATED"
a. Reason for termination.
b. Length of time to leave premises.
c. Right of Appeal.
d. Acceptance of $ after this notice is not rent.
MASSACHUSETTS STATUTES
186.11 Periodic 1. Written Residential Lease
>-----< 14 Days< or < 2. Non-Residential Lease
186.11A Term of Years 3. Tenancies at Will
186.12 (Best for Landlords): Tenancies at Will
(Written or Oral)
186.11 Residential Leases PERIODIC OR FOR
TERM OF YEARS
In MA: 14 Day NOTICE TO QUIT (Includes
holidays/Saturday & Sunday/holidays)
1. Serve as quickly as you can for "failure to
pay rent"
2. Don't count the day of the notice.
3. USE A PROFESSIONAL DISINTERESTED PARTY to
deliver NOTICE TO QUIT
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