Only one thing is impossible for God: To find any sense in any copyright law on the planet.
Landlord and Tenant (part A)
by
Charles Lamson
A contract whereby one person agrees to lease land or a building to another creates the relationship of landlord and tenant. Such an agreement does not require special words or acts for creation unless the lease lasts for more than a year, in which case it must be in writing. The tenant's temporary possession of the premises and payment of rent for its use constitutes the possession of the premises and payment of rent for its use constitute the chief characteristics that determine the relationship of landlord and tenant. The landlord may retake possession of the property at the end of the lease.
 |
The owner of the leased property is known as the landlord, or lessor. The person given possession of the leased property is the tenant, or lessee. The contract or agreement between the landlord and tenant is called a lease (see Illustration 1). The amount the tenant agrees to pay the landlord for the possession of the leased property is called the rent.
ILLUSTRATION 1 Sample Lease
A tenant differs from a lodger or roomer in that the former has the exclusive legal possession of the property, whereas the latter has merely the right to use the premises subject to the control and supervision of the owner.
The Lease
The lease may be oral or written, express or implied, formal or simple, subject, however, to the general a statutory requirement that a lease of land for a term longer than one year must be in writing to be enforceable. If a dispute arises between the tenant and the landlord over their rights and duties, the court will look to the terms of the lease and the general body of landlord and tenant law to determine the decision.
In order to avoid disputes, a lease should be in writing and should cover all the terms of the contract. The parties should include such items as a clear identification of the property, the time and place of payment of rent, the notice required to vacate, the duration of the nature of the tenancy, and any specific provision desired by either party, such as the right of the landlord to show the property to prospective purchasers or an agreement requiring the landlord to redecorate.
Types of Tenancies
Four separate and distinct classes of tenancies exist, each of which has some rule of law governing it that does not apply to any other type of tenancy. The four classes of tenancies are:
Tenancy for Years
A tenancy for years is a tenancy for a definite period of time, whether it is one month, one year, or 99 years. The lease fixes the termination date. However, by law most states limit the length of time a lease may last. A lease for a time greater than the statutory limit is void. The payment of the rent may be by the month even when a tenancy for a specified number of years exists. No notice to terminate the tenancy need to be given by either party when the lease fixes the termination date. Most leases provide that they will continue to run on a year-to-year basis after the termination date, unless the tenant gives notice to the landlord not less than a specified number of days before the termination date that the tenant intends to leave on that date.
Tenancy from Year to Year
A tenancy for an indefinite period of time with rent set at a yearly amount is known as a tenancy from year to year. Under such a tenancy, a tenant merely pays the rent periodically, and the lease lasts until proper notice of termination has been given. A tenancy of this kind may also be by the month or any other period agreed upon. If by the month, it is called a tenancy from month to month. The length of the tenancy is usually determined by the nature of the rent stated or paid, although there could be a tenancy from year to year with the rent paid quarterly or monthly.
Notice to terminate this type of tenancy must exactly follow the state law governing it. Notice must normally be in writing. In a tenancy from month to month, the law usually requires notice 30 days before a rent due date.
Tenancy at Will
A tenancy at will exists when the tenant has possession of the property for an uncertain period. Either the tenant or the landlord can terminate the tenancy at will, since both must agree to the tenancy. This tenancy, unlike any of the others, automatically terminates upon the death of the tenant or the landlord, if the tenant attempts to assign the tenancy, or the landlord sells the property.
Tenancy at Sufferance
When a tenant holds over the tenancy after the expiration of the lease without permission of the landlord, a tenancy at sufferance exists until the landlord elects to treat the tenant as a trespasser or as a tenant. The landlord may treat the tenant as a trespasser, sue for damages, and have the tenant removed by legal proceedings. If the landlord prefers, payment of the rent due for another period may be accepted, and the the tenant's possession may be recognized as rightful.
Rights of the Tenant
A lease gives the tenant certain rights, as follows:
Right to Possession
By signing the lease, the landlord warrants the right to lease the premises and that the tenant shall have possession during the period of the lease. During the term of the lease, tenant have the same right to exclusive possession of the premises as if they owned the property. If someone questions the owner's right to lease the property, the landlord must defend the tenant's right to exclusive possession. Failure of the landlord to give possession on time or to protect the tenant's rights subject the landlord to liability for damages.
A nuisance that disturbs the tenant's quiet enjoyment of the property often causes disputes between landlords and tenants. Courts have held that failure to remove a dead rat from the wall, failure to stop disorderly conduct on the part of other tenants, and frequent unnecessary entrances upon the property by the landlord or agents constitute acts that destroy the tenant's right to quiet enjoyment and constitute a breach of warranty on the part of the landlord.
If the nuisance existed at the time the tenant leased the property and the tenant knew of its existence, the right to complain would be deemed to have been waived. Also, if the landlord has no control over the nuisance, the tenant cannot avoid the contract even though the nuisance arose subsequent to the signing of the lease. If the landlord fails or refuses to abate a nuisance over which the landlord has control, the tenant not only may terminate the lease, but may sue for damages. In other cases the tenant may seek an injunction compelling the landlord to abate a nuisance.
Right to Use the Premises
Unless the lease expressly restricts this right, the tenant has the right to use the premises in anyway consistent with the nature of the property. A dwelling cannot be converted into a machine shop, nor can a clothing store be converted into a restaurant. Damage to leased property other than that which results from ordinary wear and tear is not permissible. In the case of farming land, the tenant may cut wood for personal use but not to sell.
Right to Assign or Sublease
If the tenant transfers all interest in the lease to another party who agrees to comply with its terms, including the payment of the rent to the landlord, there is an assignment. In an assignment, the assignee pays the rent directly to the landlord. Assignment must include the entire premises. In a sublease, the tenant transfers the premises for a period less than the term of the lease or transfers only a part of the premises. The tenant usually collects the rent from the subtenant and pays the landlord. Ordinarily a written lease prohibits assigning or subleasing the premises unless the lessor gives written consent thereto first. Residential leases commonly restrict the use of the premises to the tenant and the immediate family or to a certain number of persons. Unless the lease expressly prohibits both assignment and subleasing, either may be done. If the lease prohibits only subleasing, then the lease may be assigned.
Joint occupancy closely relates to subleasing. A provision in the lease prohibiting subleasing does not forbid a contract for a joint occupancy. In joint occupancy the tenant does not give up exclusive control of any part of the premises. The tenant merely permits another party to jointly occupy all or a part of the premises.
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., PGS. 529-534*
end
|
No comments:
Post a Comment