118 terms


Present Possessory Estate
Interest that gives the holder the right to present possession.
Fee Simple Absolute
The largest estate recognized by law. It can be sold, divided, devised, or inherited and has an indefinite or potentially infinite duration. A fee simple is presumed in the absence of express contrary intent.
Defeasible Fees
Fee simple estates that can be terminated upon the happening of a stated event.
Fee Simple Determinable
A fee simple determinable terminates upon the happening of a stated event and automatically reverts to the grantor. It is created by durational language, such as "for so long as," "while," "during," or "until." A fsd can be conveyed, but the grantee takes subject to the estate's being terminated by the specified event.
Possibility of Reverter
Automatically retained by a grantor whenever he conveys a fee simple determinable. Transferable, descendible, and devisable.
Fee Simple Subject to Condition Subsequent
Estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event. The estate does not automatically terminate -- the grantor must take some action. The estate is created by use of conditional words, such as "upon condition that," "provided that," "but if," and "if it happens that."
Right of Entry
The right to terminate, reserved by the grantor. It must be expressly reserved; in contrast with a possibility of reverter, it does not arise automatically. Some courts hold that roe are not transferable inter vivos, but most states agree they are devisable and all states agree they are descendible.
Fee Simple Subject to an Executory Interest
A fee simple that terminates upon the happening of a stated event (because it is determinable or subject to a condition subsequent) and then passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate.
Fee Simple Subject to an Executory Interest
"To A and his heirs for so long as liquor is not sold on the premises; in that event, to B."
Fee Simple Subject to an Executory Interest
"Blackacre to XYZ Church, but if it is used for anything other than church purposes, then to B."
Fee Tail
Estate where inheritability is limited to lineal heirs. It is created by the words "to B and the heirs of his body." NC has abolished the fee tail, and an attempt to create one results in a fee simple.
Life Estate
Estate measured by the life or lives of one or more persons. It may be created by operation of law or by conveyance.
Life Estates by Marital Right (Legal Life Estate)
Dower and curtesy were the common law interests of a spouse in the real property of the other spouse. These interests could not be defeated by conveyance or by creditors.
Life Estate
Estae measured by the life of the grantee, "to B for life."
Life Estate Pur Autre Vie
Life Estate measured by a life other than the grantee's, "to B for the life of C." A life estate pur autre vie also results when a life tenant conveys his life estate to another.
Doctrine of Waste
A life tenant is entitled to any ordinary uses and profite of the land, but cannot do anything that injures the interests of a remainderman or reversioner. A future interest holder may sue for damages or enjoin such acts.
Affirmative (Voluntary) Waste -- Natural Resources
Exploitation of natural resources, such as minerals, by a life tenant is generally limited to situations when: (i) necessary for repair or maintenance of the land; (ii) the land is suitable only for such use; or (iii) it is expressly or impliedly permitted by the grantor. Under the open mines doctrine, if mining was done on the land prior to the life estate, the life tenant can continue mining -- but is limited to the mines already open.
Permissive Waste
Occurs when a life tenant fails to protect or preserve the land. A life tenant is obligated to: (i) preserve the land and structures in a reasonable state of repair; (ii) pay interest on mortgages (not principal); (iii) pay ordinary taxes on the land; and (iv) pay special assessments for public improvements of short duration (improvements of long duration are apportioned between the life tenant and future interest holder). A life tenant is not obliged to insure the premises for the benefit of remaindermen and is not responsible for damages caused by a third-party tortfeasor.
Renunciation of Life Estate
If a life tenant who receives the estate by will or intestatcy renounces his interest, the future interest following the life estate is generally accelerated so that it becomes immediately possessory.
Future Interest
Gives its holder the right or possibility of future possession of an estate. It is a present, legally protected right in property.
Estate left in a grantor who conveys less that she owns; A conveys "to B for life." It arises by operation of law; it does not have to be expressly reserved. It is alienable, devisable, and inheritable. Its holder can sue for waste and for tortious damage to the reversionary interest.
Future interest in a third person that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate, and it cannot follow a time gap after the preceding estate. It must be expressly created in the instrument creating the preceding possessory estate; A conveys "to B for life and then to C and his heirs."
Indefeasibly Vested Remainder
A vested remainder created in an existing and ascertained person, and not subject to a condition precedent. The remainderman has a right to immediate possession upon nnormal termination fo the preceding estate. It is a vested remainder that is not subject to divestment or diminution.
Vested Remainder Subject to Open
A vested remainder created in a class of persons, "children," that is certain to become possessory, but is subject to diminution by the birth of additional persons who will share in the remainder as a class.
Vested Remainder Subject to Open
A conveys "to B for life and then to the children of C." B and C are living and C has one child, D. D has ____.
Vested Remainder Subject to Complete Divestment
A vested remainder subject to a condition subsequent.
Vested Remainder Subject to Complete Divestment
A conveys "to B for life, then to C and his heirs, but if C dies unmarried, then to D and his heirs." C has a ____ by D's executory interest.
Contingent Remainder
Created in unborn or unascertained persons, or subject to a condition precedent.
Contingent Remainder -- subject to condition precedent
A conveys "to B for life and then to C and his heirs if C marries D."
Contingent Remainder -- unborn or unascertained persons
A conveys "to B for life and then to the children of C." C is childless.
Destructibility of Contingent Remainders
At common law, a contingent remainder was destroyed if it failed to vest before or upon the termination of the preceding freehold estate. A conveys "to B for life, then to C if she reaches age 21." If B dies before C reaches age 21, C's remainder is destroyed. Most states have abolished; C's interest converted to an executory interest upon B's death because it will divest A's reversionary estate when C turns 21.
Doctrine of Merger
When a person acquires all the present and future interests in land except a contingent remainder, under the common law, the contingent remainder is destroyed. Not applicable if the lfie estate and the next vested interest were created by the same instrument.
Rule in Shelley's Case (Rule Against Remainders in Grantee's Heirs)
At common law, if the same instrument created a life estate in A and gave the remainder only to A's heirs, the remainder was not recognized, and A took the life estate and the remainder. The Rule has been abolished in most states. In NC, it still applies to transfers of property that took effect on or before 10/1/87.
Doctrine or Worthier Title (Rule Against Remainders in Grantor's Heirs)
At common law, a remainder in the grantor's heirs is invalid and becomes a reversion in the grantor. For example, if A grants Blackacre "to B for life, then to the heirs of A," B has a life estate, and A has a reversion." Applies only to inter vivos transfers (not wills), and only if the word "heirs" is used.
NC Law: Doctrine or Worthier Title (Rule Against Remainders in Grantor's Heirs)
In NC, DOWT has been abolished as a rule of law AND as a rule of construction. In NC, the meaning of a grant to a grantor's own heirs will be determined by the intent of the grantor without any presumptions.
Executory Interest
Future interests in third parties that either divest a transferee's preceding freehold estate ("shifting interests"), or follow a gap in possession or cut short a grantor's estate ("springing interests"). Subject to RAP but are not destructible.
Transferability of Remainders and Executory Interests
Vested remainders are transferable, descendible, and devisable. At common law, contingent remainders and executory interests were not transferable inter vivos, but most courts today hold that they are freely transferable. Contingent remainders and executory interests are descendible and devisable, provided survival is not a condition to the interests taking.
Class Gifts
A "class" is a group of persons having a common characteristic. The share of each member is determined by the number of persons in the class. A class gift of a remainder may be vested subject to open (where at least one group member exists) or contingent (where all group members are unascertained).
When the Class closes --- The Rule of Convenience
In the absence of express contrary intent, a class closes when some member or the class can call for distribution of her share of the class gift. No one born after that time may share in the gift. Persons in gestation at the time the class closes are included in the class.
Survivorship of a class members to the time of closing is usually unnecessary to share in a future gift unless survival was made an express condition. However, certain terms are construed to create implied survivorship conditions (e.g., widow, issue, heirs, next of kin).
A fiduciary relationship with respect to specific property wherein the trustee holds legal title to the property subject to enforceable equitable rights in a benficiary. The creator of the trust is the settlor who much own the property at the time of trust creation and must have had the intent to create the trust.
Charitable trust
A charitable trust must have a charitable purpose. The rules governing charitable trusts differ from those applicable to private trusts in three important ways: (i) a charitable trust must have indefinite beneficiaries; it may be perpetual; and the cy pres doctrine applies. Charitable trusts may be enforced by an actionof the attorney general of the state.
The Rule Against Perpetuities
No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being (measuring life) at the creation of the interest. If there is any possibility the interest might vest more than 21 years after a life in being, the interest is void. The Rule applies to contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase (not attached to a leasehold), rights of first refusal, and powers of appointment.
When Perpetuities Period Begins to Run
The time the interest is created and the perpetuities period begins to run depends on the instrument and the interest created: For interests granted by will, it runs from the date of the testator's death; for deeds, it is the date of delivery. The period runs on an irrevocable trust from the date it is created; it runs on a revocable trust from the date it become irrevocable.
"Must Vest"
An interest vests for purposes of the Rule when it becomes: (i) possessory, or (ii) an indefeasibly vested remainder or a vested remainder subject to total divestment.
"Lives In Being"
Unless other measuring lives are specified, one connected with the vesting of the interest is used. Any lives may be denominated measuring lives, provided they are human and of reasonable number.
Effect of Violating Rule
Violation of the Rule destroys only the offending interest. The exception is the rare case of "infectious validity" where the testator would probably have preferred the entire gift to fail.
The Rule Against Restraints on Alienation
Generally, any restriction on the transferability of a legal (as opposed to equitable, e.g., spendthrift clause in trust instrument) interest is void.
Disabling Restraint
Type of restraint on alienation, under which attempted transfers are ineffective. One on any type of legal interest (fee simple, life estate, etc.,) is void.
Forfeiture Restraint
Type of restraint on alienation, under which an attempted transfer forfeits the interest.
Promissory restraint
Type of restraint on alienation, under which an attempted transfer breaches a covenant.
Valid Restraints on Alienation
Forfeiture and Promissory Restraints on Life Estates; Forfeiture restraints on transferability of future interests; restraints on partition by co-tenants (provided it is limited to a rsble time); reasonable restrictions in commercial transactions; rights of first refusal; and restrictions on assignment and sublease of leaseholds (requiring landlord's consent.
Concurrent Estate
An estate in land can be held concurrently by several persons, all of whom have the right to enjoyment and possession of the land.
Joint Tenancy
A joint tenancy's distinguishing feature is the right of survivorship. when one joint tenant dies, the property is freed from her concurrent interest (her survivors do not succeed to it).
Joint Tenancy --- Creation
The common law requires four unitites -- time, title, interest, possession-- to create a joint tenancy. The interests of joint tenancy must be euqal in every way. They must take identical interests, at the same time, by the same instrument, with the same right.
Joint Tenancy -- NC
In NC, "to A & B as joint tenants" creates a tenancy in common. Must contain express right of survivorship language. However, in NC, the owner of real property can use a single instrument to create a JT w/ROS. No strawman is required.
Joint Tenancy -- Severance
A voluntary or involuntary conveyance by a jt of her undivided interest destroys the joint tenancy. The transferee takes as a tenant in common. When there are more than 2 jts, conveyance by one destroys the jt only to the extent of the conveyors interest. Severance may not occur where one jt does not transfer her entire interest.
JT-- Judgment Liens
Usually when a plaintiff obtains a money judgment against a defendant, that judgment becomes a lien on the defendant's real property in the county where the judgment is docketed. The lien runs with the land, burdening it until the judgment is paid or the lient expires (usually 10 years). If such a lien is acquired against a jt, it does sever the jt until it is actually sold at a mortgage sale.
JT -- Mortgages
In most states, a mortgage is a lien on title and does not sever a jt. Severance occurs only if the mortgage is foreclosed and the property is sold.
JT-- Lease
States are split as to whether on jt's lease of her interest causes a severance.
JT --Contract to convey
Severance results if one jt contracts to convey her interest, but the courts are split on whether an executory contract by all jt works a severance.
JT-- Testamentary Disposition Has No Effect
A will is ineffective to work a severance because at death the testator's interest vanishes.
JT-- Murder
Conceptually, a jt who murders the other jt should not lose her right of survivorship. In some jurisdictions, statutes change this result; in others, a constructive trust is imposed for the decedent's estate.
Tenancy by the entirety
A marital estate akin to a joint tenancy. In cl jurisdictions it arises presumptively in any conveyance to a husband and wife. Only death, divorce, murtual agreement, or execution by a joint creditor of both the husband and wife can sever a tenancy by the entirety. An individual spouse cannot convey or encumber tenancy by the entirety property. A deed or mortgage executed by only one spouse in ineffective.
Tenancy in Common
A concurrent estate with no right of survivorship. Tenants can hold different itnerests in teh property, but each is entitled to possession of the whole. Interests are alienable, devisable, and inheritable. Today, multiple grantees are presumed to take as tic, not as jt.
TIC-- Rights and Duties of Co-Tenants -- Possession
Each co-tenant has the right to possess all portions of the proeprty but has no right to exclusive possession of any part. A co-tenant out of possession cannot bring a possessory action unless she is "outsted" (another co-tenant claims right to exclusive possession).
TIC-- Rights and Duties of Co-Tenants -- Rents and Profits
In most states, a co-tenant in possession has the right to retain profits from her own uses of the property; she need not share profits with other co-tenants absent ouster or an agreement to the contrary. She must, however, share net rents from third parties and net profits gained from exploitations of land, such as mining.
TIC-- Rights and Duties of Co-Tenants -- Effect of one concurrent owner's encumbering the property
A jt of tic may encumber her interest (by mortgage or judgment lien, for example) but may not encumber the itnerests of other co-tenants. If, for example, one tic mortgages her interest, the mortgageee can foreclose only on the mortgaging co-tenant's interest. If a jt is involved, a mortgage (in a lien theory state) or lien does not sever the jt, but a foreclosure sale will. Note, that in the case of a jt, a mortgagee or lienor runs the risk that the obligated co-tenant will die before foreclosure, extinguishing the mortgagee's or lienor's interest.
TIC-- Rights and Duties of Co-Tenants -- Remedy of Partition
Any co-tenant has a right to judicial partition, either in kind or by sale and division of proceeds.
TIC-- Rights and Duties of Co-Tenants -- Expenses for Preservation of Property-- Contribution
A co-tenant who pays more than her pro rata share of necessary repairs is entitled to contribution from the other co-tenants, provided she has notified the other co-tenants of the need for repairs.
There is no right of contribution for the cost of improvements unless there is a partition.
Contribution can be demanded for taxes or mortgage payments paid on teh entire property. However, reimbursement to a co-tenant in sole posession is limited to the enxtent that expenditures exceed the rental value of her use.
TIC-- Rights and Duties of Co-Tenants -- Duty of Fair Dealing
A confidential relationship exists among co-tenants; one co=tenant's acquisition of an outstanding title or lient that may affect the estate is deemed to be on behalf of other co-tenants. It is difficult for one co-tenant to adversely possess against other co-tenants.
Landlord and Tenants -- Leasehold
A leasehold is an estate in land, under which the tenant ha a present possessory interest in the leased premises and the landlord has a future interest (reversion).
Tenancy for Years
A tenancy for years continue for a fixed period of time.
Tenancy for Years-Creation
Tenancies for years are usually created by written lease. Under the Statute of Frauds, a writing is required if the lease is for more than one year. In NC, a writing is required if the lease is for more than 3 years.
Tenancy for Years-- Termination
A tenancy for years ends automatically at its termination date. In most leases, the landlord reserves a right of entry, which allows him to terminate the lease if the tenant breaches any of the lease's covenants.
In many jurisdictions, a landlord may, by statute, terminate the lease upon the tenant's failure to pay the promised rent, even in the absence of a reserved right of entry.
Tenancy for Years- Surrender
A tenancy for years may also terminate if the tenant surrenders the tenancy and the landlord accepts. The same formalities required for creation of the leasehold are required for surrender (if unexpired term exceeds one year, surrender must be in writing).
Periodic Tenancies
A tenancy that continues for successive periods (month-to-month, for example until terminated by proper notice by either party.
Periodic Tenancies- Creation
A periodic tenancy can be created by: express agreement; implication (L leases to T at a rent of $100 payable monthly); or operation of law (T remains in possession after the lease expires, and L treats it as a periodic tenancy, or the lease if invalid, but T goes into possession.
Periodic Tenancies-- Termination
Automatically renewed until proper notic of termination is given. Usually, the notice must be one full period in advance and timed to terminate the lease at the end of a period. For a year to year lease, six months' notice is required.
Tenancies at Will
A tenancy at will is terminable at the will of either the landlord or the tenant.
Tenancy at Will -- Creation
Generally, a tenancy at will must be created by an express agreement that the lease can be terminated at any time. Absent such an agreement, periodic rent payments will cause a court to treat it as a periodic tenancy. If the lease gives only the landlord the right to terminate, a similar right will be implied in favor of the tenant. However, if only the tenant has a right to terminate, a similar right will not be implied in favor of the landlord.
Tenancy at Will -- Termination
A tenancy at will may be terminated without notice by any party with the power to do so, or it may be terminated by operation of law (e.g., for death, commission of waste, etc.)
Tenancies at Sufferance
A tenancy at sufferance arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy.
Tenancies at Sufferance-- Termination
A tenancy at sufferance lasts only until the landlord takes steps to evict the tenant. No notice of termination is required.
Tenancies at Sufferance-- Hold Over Doctrine
If a tenant continues in possession after his right to possession has ended, the landlord may: (i) evict him, or (ii) bind him to a new periodic tenancy. Generally the terms and conditions of the expired tenancy govern the new one. However, if the landlord notifies the tenant before the lease expires that occupancy after the terminationw ill be at increased rent, the tenant, by holding over, is held to have acquiesced to the new terms (even if he actually objected).
Exceptions where tenant remains in possession for only a few hours or leaves a few articles of personal property, the delay is not the tenant's fault, or it is a seasonal lease.
A contract that governs the landlord-tenant relationship. Covenants in the lease are generally independent; i.e., if one party breaches a covenant, the other party can recover damages but must still perform his promises and cannot terminate the l-t relationship. The doctrines of actual and constructive eviction and the implied warranty of habitability are exceptions to this rule. Also, many states have created a statutory exception allowing the landlord to terminate the lease for the nonpayment of rent.
Tenant Duties and Landlord Remedies-- Tenant's Duty to Repair (Doctrine of Waste)
A tenant cannot damage the leased premises. There are three types of waste: Voluntary (affirmative) waste results when the t intentionally or negligently damages the premises or exploits minerals on the property; Permissive waste occurs when the t fails to take reasonable steps to protect the premises from damage from the elements. The t is liable for all ordinary repairs, excluding ordinary wear and tear. If the duty is shifted to the landlord (by lease or statute) the t has a duty to report deficiencies promptly; and Ameliorative waste occurs when the t alters the leased property, thereby increasing its valuse. Generally, the t is liable for the cost of restoration. There is a modern exception to this rule which permits a t to make this type of change if he is a long-term t and the change reflects changes in the neighborhood. .
Tenant Duties and Landlord Remedies-- Destruction of premises without fault
If the leased premises are destroyed without the fault of either the l or the t, no waste is involved. In the absence of lease langugage or a statute to the contrary, neither party has a duty to restore the premises, but the t has a duty to continue paying rent. In most state, statutes or case law now give the t the option to terminate the lease in this situation, even in the presence of an explicit covenant to repair.
Tenant Duties and Landlord Remedies-- Tenant's liability for covenants to repair
If the t specifically covenants to make repiars, his duty will be higher than the duty implied by the law of waste. The t has a duty to repair even ordinary wear and tear unless expressly excluded, but has no duty to repair structural failures or damage from fire or other casualty unless expressly included. A t with a duty to repair is liable under such a covenant for all other defects, including reconstruction if the premises are destroyed.
Tenant Duties and Landlord Remedies-- Duty to not use premises for illegal purpose
If the t uses the premises for an illegal purpose, the l may terminate the lease or obtain damages and injunctive relief. Occasional unlawful conduct by the t does not breach this duty.
Tenant Duties and Landlord Remedies-- Duty to pay rent
At common law, rent was due at the end of the leasehold term. However, leases usually contain a provision making rent payable at some other time. Most states today have stautes providing that if the leasehold terminates before the time originally agreed upon, the tenant must pay a proportionate amount of the agreed rent.
Tenant Duties and Landlord Remedies-- Rent Deposits
The L is not permitted to retain a security deposit beyond teh damages actually suffered. If a rent deposit is denominated a "bonus," the L can retain it after the tenant is evicted.
Tenant Duties and Landlord Remedies-- Termination of Rent Liability-- Surrender
If a t effectively conveys (surrenders) his leasehold interest back to the L, his duty to pay rent ends.
T Duties and L Remedies- L Remedies
T on premises but fails to pay rent -- evict or sue for rent. The only issue in an unlawful detainer proceeding is whether the t has the right to possession; the t cannot raise counterclaims.
T Duties and L Remedies- L Remedies
T abandons -- do nothing or repossess. If the t unjustifiably abandons the property the majority view is that the l has a duty to mitigate damages by seeking to relet the premises. If the l repossesses and/or relets, the t's liability depends on whether the l has accepted the surrender. If surrender is not found, the t is liable for the difference between the promised rent and the fair rental value of the property (or what the property actually rented for). If surrender is found, the t is free from any rent liability accruing after abndonment. Note that the l's resumption of possession for himself constitutes acceptance of surrender.
Landlord duties and T Remedies
Subject to modification by the lease, a statute, or the implied warranty of habitability, the general rule is taht a l has no duty to repair or maintain the premises.
Landlord duties and T Remedies-- Duty to Deliver Possession of Premises
Statutes in most states require the l to put the tenant in actual possession of the premises at the beginning of the leasehold term; the L is in breach if he has not evicted a hold-over t by the beginning of the leasehold term.
Landlord duties and T Remedies-- Quiet Enjoyment
Every lease has an implied covenant that neither the l nor a paramount title holder (ex. a prior mortgagee who forecloses) will interfere with the tenant's quiet enjoyment and possession of the premises.
Landlord duties and T Remedies-- Quiet Enjoyment-- Breach
Actual eviction breaches the covenant of quiet enjoyment. Actual eviction occurs when the L or a paramount title holder excludes the t from the entire leased premises. Actual eviction terminates the t's obligation to pay rent.
Landlord duties and T Remedies-- Quiet Enjoyment-- Breach
Partial Eviction occurs when the tenant is physically excluded from only part of the leased premises. Partial eviction by the L relieves the t of the obligation to pay rent for the entire premises, even though the t continues in possession of the remainder. Partial eviction by a third person with paramount title results in an apportionment of rent; i.e., the t is liable for the reasonable value of the portion she continues to possess.
Landlord duties and T Remedies-- Constructive eviction
If the L does something (or fails to provide a serve he has a legal duty to provide) that renders the property uninhabitable, the t may terminate the lease and seek damages. The conditions must be the results of the L's actions (not a neighbor's or other third party's), and the t must vacate the premises within a reasonable time.
Landlord duties and T Remedies-- Implied Warranty of Habitability
Most jurisdictions imply a covenant of habitability into residential (not commercial) leases. This warranty is nonwaivable. The l's duty is tied to standards of local housing codes. In the event of breach, the t may: (i) terminate the lease; (ii) make repairs and offset the cost against future rent; (iii) abate the rent to an amount equal to the frv in view of the defects; or (iv) remain in possession, pay full rent, and sue for damages.
Landlord duties and T Remedies-- Retaliatory Eviction
A landlord may not terminate a lease or otherwise penalize a t in retaliation for the t's exercise of her legal rights, including reporting housing or building code violation. Many statutes presume a retaliatory motive if the l acts within, for example, 90 -180 days. To overcome the presumption, l must show a valid nonretaliatory reason for his actions.
Assignments and Subleases
Absent an express restriction in the lease, a t may freely transfer her leasehold interst in whole or in part. A complete transfer of the entire remaining term is an assignment. If the t retains any part of the remaining term, other than a right to reenter upon breach, the transfer is a sublease.
Assignments and Subleases--Consequences of Assignment
An assignee stands in the shoes of the original t in a direct relationship with the l. The assignee and the l are in privity of estate, and each is liable to the other on all covenants in the lease that run with the land.
Assignments and Subleases--Covenants that
A covenant runs with the land if the original parties to the lease so intend and if the covenant "touches and concerns" the land (benefits the L and burdens the t, or vice versa, with respect to their interests in the property).
Assignments and Subleases-- Rent covenants
Since a covenant to pay rent runs with the land, the assignee owes rent directly to the L. After assgnemtn, the original t is no longer in privity of estate with the L bur remains liable on the original contractual obligation to pay rent (privity of K). If the assignee reassigns the leasehold interest, his privity of estate with the landlord ends, and he has no liability for the subsequent assignee's failure to pay rent.
Assignments and Subleases--Consequences of Sublease--Sublessee Not in Privity with Landlord
A sublessee is the t of the original lessee and usually pays rent to the original lessee, who then pays the L. A sublessee is not personally liable to the L for rent or for the performance of any of the covenants in the main lease unless the sublessee expressly assumes the covenants.
The L may terminate the main lease for nonpayment of rent or breach of other covenants if the lease so states or the power is given by statute. The sublease automatically terminates with the main lease. Also, many states allow a L who does not receive rent to assert a lien on personal property found on the premises; this applies to a sublessee's property as well as that of the original tenant.
A sublessee cannot enforce any covenants made by the L in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.
Assignments and Subleases-- covenants against assignment or sublease
Lease covenants restricting assignment and sublease are strictly construed against the L, thus a covenant prohibiting assignment does not prohibit subleasing and vice versa.
Assignments and Subleases-- covenants against assignment or sublease -- Waiver
A valid covenant against assignemtn is considered waived if the landlord was aware of the assignment and did not object (e.g., by knowingly accepting rent from the assignee). Once the L consents to one transfer, he waives the covenant as to future transfers unless he expressly reserves it.
Assignments and Subleases-- covenants against assignment or sublease -- Transfer in violation of lease
If a t assigns or sublets in violation of a lease provision, the transfer is not void. The L, however, may terminate the lease or sue for damages.
Assignments and Subleases -- Assignments by Landlord
A landlord may assign the rents and reversion interest he owns. This is usually done by deed when the L conveys a building to a new owner. The t's consent is not required.
Once t's are given reasonable notice of the assignemtn, they must recognize and pay rent to the new owner as their l. The benefit of all t covenants that touch and concern the land runs with the l's estate to the new owner.
The burden of the l's covenants that touch and concern the land runs with the landlord's estate to the assignee; thus, the assignee is liable for the performance of those covenants. The original L also remains liable on all of the covenants he made in the lease.
Condemnation of Leaseholds
If the entire leasehold is taken by eminent domain, the t's liability for rent is extinguished because both the leasehold and reversion have merged in the condemnor and there is no longer a leasehold estate. The lessee is entitled to compensation. However, if the taking is temporary or partial, the tenant is not discharged from the rent obligation, but is entitled to compensation for the taking.
Tort Liability of Landlord and Tenant
At common law, a landlord had no duty to make the premises safe. Today, there are several exceptions.
Tort Liability of Landlord and Tenant-- Latent Defect
If, at the time the lease is entered into, the L knows (or should know) of a dangerous condition that the t could not discover by reasonable inspection, the L must disclose (not repair) it. Otherwise, the L will be liable for any injuries resulting from the condition. If the t accepts the premises after disclosure she assumes the risk for herself and others; the L is no longer liable.
Tort Liability of Landlord and Tenant -- Public Use
A L is liable for injuries to members of the public if, at the time of the lease, he:
1) knows or should know of a dangerous condition;
2) has reason to believe the t may admit the public before repairing the condition; and
3) fails to repair the condition
Tort Liability of L and T -- Repairs
Although the L is not liable for injuries from dangerous conditions arising after the t takes possession, if the L undertakes such repairs, he owes a duty of reasonable care. The l also has a duty of reasonable care in maintaining common areas (e.g., halls, elevators). If the L covenants to repair or has a statutory duty to repair (housing codes), he is liable for injuries resulting from failure to repair or negligent repair.
Tort Liability of Landlord and Tenant-- Furnished Short-term residence