Skip to main contentI. Types of Leases
A. Term of Years Lease
- Definition: A lease with a fixed end date
- Key Characteristics:
- Can be calculated from the lease terms (e.g., “one year from January 1, 2026”)
- Duration can be any length (45 days, 100 years, etc.)
- No notice required to terminate - predetermined by the parties at lease inception
- Statute of Frauds: If lease exceeds one year (one year + one day or more), it must be in writing to be enforceable
- “In writing” can be informal (cocktail napkin, lipstick on toilet paper, etched in toilet seat)
- If not in writing, defaults to periodic tenancy (month-to-month)
B. Periodic Tenancy
- Definition: Lease with successive periods (month-to-month, week-to-week)
- Key Characteristics:
- Continues from period to period until terminated
- Notice required to terminate
- Generally 30 days advance notice for month-to-month
- One full-term advance notice for other periods (e.g., one week for week-to-week)
- If tenant fails to give sufficient notice, bound to another term
C. Tenancy at Will
- Definition: Lease that continues as long as both parties want
- Key Characteristics:
- No fixed end date
- No successive periods
- Can be terminated at any time
- Automatically terminates upon:
- Death of either party
- Sale of the property
- Assignment to another tenant
- Waste committed by tenant
- WARNING: If termination power is solely in tenant’s hands (e.g., “stay as long as you want”), this may create a life estate instead
- Must be careful when inviting friends to stay
- Should specify: “You can stay as long as you want, but I can terminate at any time”
D. Tenancy at Sufferance (Holdover Tenant)
- Definition: Tenant remains in possession after lease terminates
- Landlord’s Remedies:
- Sue for damages
- Eviction through court process
- Hold tenant to new periodic tenancy (defaults to month-to-month)
II. Delivery of Possession
A. English Rule (Majority View)
- Landlord must provide both:
- Legal possession (tenant has legal right to be there)
- Actual possession (tenant can physically occupy)
- If prior tenant still occupying, landlord’s duty to remove them
B. American Rule (Minority View)
- Landlord only required to provide legal possession
- No requirement to provide actual possession
- If prior tenant still there, new tenant’s duty to evict them
C. Best Practice on Exam
- Discuss both rules
- Conclude with English rule as majority view
- Rationale: Prevents confrontation and violence between tenants
III. Assignments vs. Subleases
A. General Distinction
- Assignment = Transfer of EVERYTHING
- Sublease = Transfer of LESS THAN EVERYTHING
B. Determining Factors
Most controlling factor: Duration of the lease
- Transfer of all remaining time = likely assignment
- Transfer of less than all time (even one day less) = sublease
- Reserving any portion of premises (e.g., closet) = sublease
Intent and surrounding circumstances (majority view)
- Majority view: Look at intent and circumstances, not just what parties call it
- Minority view: What parties call it controls
- Red flag: If in “quotations,” someone is saying it (not foundational fact)
C. Assignment - Legal Consequences
Privity relationships:
- Assignee is in privity with landlord
- Original tenant remains in privity of contract with landlord
- Everyone can sue each other (landlord, original tenant, assignee)
Payment obligations:
- Assignee pays landlord directly
- Assignee can sue landlord and vice versa
- Original tenant still liable if assignee doesn’t pay
Multiple assignments (L → T → A1 → A2 → A3):
- Only landlord, original tenant, and last assignee (A3) can be sued
- A1 and A2 cannot be sued (no privity) UNLESS they assumed the lease obligations
- “Assumed” or “personal liability” = puts assignee on the hook
D. Sublease - Legal Consequences
Privity relationships:
- No privity between sublessee and landlord
- Sublessee cannot sue landlord
- Landlord cannot sue sublessee
- Original tenant (sublessor) acts as sublessee’s landlord
Payment obligations:
- Sublessee pays original tenant
- Original tenant still pays landlord
- Landlord must go through original tenant for remedies
E. Transfer Restrictions (Restraint Clauses)
- Strictly construed in favor of tenant
- “Tenant cannot sublease” → tenant can still assign
- “Tenant cannot assign” → tenant can still sublease
- Must say both to prohibit all transfers
Rule in Dumpor’s Case:
- If landlord permits one transfer despite no-transfer clause
- Landlord waives ability to object to future transfers
- UNLESS landlord expressly reserves right to object to future assignments
F. Exam Hint
- If secondary tenant’s name begins with S (Shelly, Sam, Sarah) = sublessee
- If short name (Al, Alex, Ashley) = assignment
IV. Landlord’s Remedies
A. Self-Help - PROHIBITED
- Landlord cannot physically oust tenant
- Must always use judicial process
- Rationale: Prevents confrontation and violence
- Exception: None (always use courts)
B. Surrender
- Offer by tenant to terminate lease
- Landlord must accept for termination to be effective
- If accepted: extinguishes all future obligations
- Landlord can still collect accrued (back) rent
- Look for: tenant tendering keys and last month’s rent in fact pattern
- May need to be in writing if terminating lease over one year remaining
C. Abandonment
- Tenant leaves without justification
- Not a way to terminate lease
- Tenant may be justified in leaving if:
- No hot water, electricity, gas
- Habitability issues
- Landlord’s failure to correct problems
D. Duty to Mitigate
Minority view:
- Landlord has no duty to mitigate
- Can sit back and do nothing, then sue for all unpaid rent
Majority view (CRITICAL - tested almost every year):
- Landlord must use reasonable efforts to find replacement tenant
- If landlord mitigates: Can collect for months until re-letting
- If landlord doesn’t mitigate: Cannot collect anything
- Contracts principle: non-breaching party must mitigate losses
Exam application:
- Discuss both views (one sentence for minority sufficient)
- Conclude with majority view
- Analyze whether landlord made reasonable efforts
- Calculate damages based on mitigation efforts
V. Quiet Enjoyment & Eviction
A. Types of Eviction
1. Actual Eviction
- Physical ouster from premises
- No obligation to pay further rent
2. Partial Eviction
- Partially ousted (can live there but can’t use kitchen/toilets)
- Not heavily tested
3. Constructive Eviction (GUARANTEED ON FINAL)
- Based on landlord’s omission to remedy problems
- Tenant forced to leave even though not physically ousted
B. Constructive Eviction - Elements
Element 1: Substantial Interference
- Must be objectively offensive (not just subjective)
- Reasonable person standard
- 50% of points on this discussion alone
Common examples:
- No hot water
- Toxic mold
- Black mold
- Loud noises from neighbors (if landlord has control)
- Rodents
- Leaks
- Smells (if caused by landlord and correctable)
NOT substantial interference:
- Daddy long-leg spider in corner
- Subjective hypersensitivity
- Things landlord cannot control (smell from across street)
- Registered sex offender neighbor (generally not landlord’s control)
Element 2: Landlord Can Remedy
- Must be something within landlord’s control
- Landlord can reasonably correct the issue
Element 3: Tenant Must Actually Leave
- (Additional elements covered in future sessions)
Waiver:
- If tenant knew of interference when signing lease, may have waived the claim
VI. Important Exam Tips
Types of Leases
- First step: Identify what type of lease exists
- Look for fixed end date, successive periods, or indefinite duration
- Remember Statute of Frauds for leases exceeding one year
Assignments/Subleases
- Duration is most controlling factor
- Analyze intent and surrounding circumstances
- Draw out privity relationships
- Identify who can sue whom
- Watch for “assumed obligations” language
- Check for restraint clauses
Landlord’s Remedies
- Always discuss duty to mitigate when landlord seeks rent
- Surrender requires landlord’s acceptance
- Distinguish justified vs. unjustified abandonment
- Never allow self-help remedies
Quiet Enjoyment
- Constructive eviction guaranteed on final
- Focus on “substantial interference” analysis
- Must be objectively offensive, not subjective
- Must be within landlord’s control
- Use 50% of discussion on substantial interference element
VII. Minority vs. Majority Rules - When to Discuss Both
Full discussion of both required:
- English Rule vs. American Rule (delivery of possession)
- Lien theory vs. title theory (future topic)
One sentence for minority sufficient:
- All other minority/majority distinctions
- Duty to mitigate
- Assignment/sublease determination
