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Title to all property, both real and personal, may be transferred by a will. A will is an instrument prepared in the form prescribed by law that provides for the disposition of a person's property and takes effect after death. The property left by a person who has died is called the estate.
The person making the will is called a testator (testatrix if a woman). Testators do not have to meet as high a standard of capacity to make a will as a person does in order to make a contract. They must have the mental capability at the time of making the will to know the natural objects of their bounty, understand the nature and extent of their property, understand that they are making a will, and have the ability to dispose of their property by means of a plan they have formulated. Even if they do not have the mental capacity to carry on a business or if they make usual provisions in the will, this does not necessarily mean that they do not have the capacity to make a will. An insane person lacks sufficient capacity; however, an insane person who has intervals of sanity has capacity during sane intervals to make a will. Any person, other than a minor, of sound mind ordinarily has the competence to make a will. In a few states minors can, under limited circumstances, make a will.
Limitations on Disposition of Property
The law places few restrictions on the right to dispose of property by will. However, some restrictions include:
A spouse may elect to take that share of property that would have been received had the deceased died without leaving a will, or the share provided by statute, if the spouse's will does not leave as large a share, called the right to take against the will. Most state laws now provide that when an individual dies without leaving a will, a spouse has the right to a set portion of all the property the deceased spouse owned at the time of death. The spouse's portion varies depending on the number of children or other heirs who survive. The surviving spouse in some states may also claim an interest in property conveyed by the deceased spouse during the marriage without consent of the surviving spouse. The right to take against the will can be barred by actions of the surviving spouse. If the surviving spouse commits acts that would have justified the deceased in securing a divorce, the surviving spouse generally cannot elect to take against the will. Except for the cases of a surviving spouse collecting to take against the will and in some cases of a subsequent marriage, birth, or adoption, the testator may exclude or disinherit any person from receiving any portion of the estate. If the testator gives the entire estate to someone else, all persons who would inherit in the absence of a will are excluded. The testator does not even have to mention in a will those persons disinherited except for disinherited children who must be mentioned to prove the testator did not forget them. A nominal sum does not have to be left to those disinherited.
One cannot control by will the distribution of property in perpetuity (for all time). The common law rule against perpetuities requires that an interest in property must vest, if at all, within 21 years after the death of persons living on the date the owner of the property creates the interest. When the interest is created by will, the date of death of the owner constitutes the date of creation.
Terms Common to Wills
A number of terms may refer to individuals named or gifts given in a will. The one receiving a gift of real estate (the beneficiary) is called the devisee; the beneficiary of personal property is a legatee. A device is real property given by will. A bequest, or a legacy, is a gift by will of personal property. The person named in a will as the one to administer the estate is an executor or personal representative. One who dies without having made a will is said to die intestate. A person appointed by a court to settle the affairs of an intestate is an administrator (man) or an administratrix (woman).
Distinguishing Characteristics of a Will
A will has the following outstanding characteristics that distinguish it from many other legal instruments:
The courts construe a will with less technical strictness than a deed or any other kind of written document.
A will devising real property must be executed in conformity with the law of the state in which the property is situated. The law of the state in which the testator was domiciled (had permanent residence) at the time of death governs a will bequeathing personal property.
A will may be revoked at any time during the life of the testator.
Formalities
All states prescribe formalities for wills. These formalities must be strictly followed. A will almost always must be in writing and signed by the testator.
A will written in the testator's own handwriting and dated need not be witnessed in a number of states. In almost all states the will must be witnessed by at least two, and in some states three, disinterested witnesses regardless of how it is written. Usually, the witnesses and the testator must sign in the presence of each other. Many states also require the testator to inform the witnesses that the instrument being signed is the testator's will. This is called a publication.
When the law requires subscribing witnesses, they must be available at the time of probate of the will to identify their signatures and the signature of the testator and to state but they were present when the testator signed the will. If the witnesses cannot be found, two persons must normally identify the signature upon their experience through prior correspondence or business records involving the testator's signature. A will executed in another jurisdiction is valid if correctly executed in the other jurisdiction. If a person's will is not drawn according to the legal requirements, the court may disregard it and the testator's estate may be disposed of in a manner entirely foreign to the testator's wishes.
Special Types of Wills
Under special circumstances, testators can make valid wills that are less formal than usual. Three special types of wills include:
Holographic wills
Nuncupative wills
Soldiers' and Sailors' Wills
Holographic Wills
Holographic wills are written entirely in longhand by the testator. Some states make no distinction between holographic and other Wills. In other states variations of the general law of Wills exist for holographic Wills. In still other states holographic Wills may not be recognized.
Nuncupative Wills
Nuncupative wills are oral wills declared by the testator in the presence of witnesses. Usually such a will can only be made during the testator's last illness. A nuncupative will only applies to personal property, and sometimes only a limited value of personal property may be so disposed. The witnesses frequently must reduce the will to writing within a specified number of days and they must agree as to how the deceased disposed of the property.
Soldiers & Sailors Wills
Most states make special provision for members of the armed forces. They are allowed to make oral or written wills of personal property without complying with the formalities required of other wills. These wills are enforced even after the testator returns to civilian life. They must be revoked in the same manner as other wills.
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., PGS. 542-546*
The tenant's primary duty is to pay the rent. This payment must be made in money unless the contract provides otherwise, such as a share of the crops. The rent is not do until the end of the term, but leases almost universally provide for rent in advance.
Landlords commonly appoint an agent for the purpose of collecting the rent. The death of the principal automatically terminates such a principal-agent relationship. Any rent paid to the agent after this termination and not remitted to the proper party must be paid again.
If the tenant fails to pay rent on time, the landlord may terminate the lease and order the tenant to vacate, or the landlord may permit the tenant to continue occupancy and sue for the rent. However, even if the landlord forces the tenant to vacate the property the tenant is still liable for the agreed rent. Under the common law the landlord could cease and hold any personal property found on the premises. This right has been either curtailed or abolished by statute.
To Protect and Preserve the Premises
Traditionally, a tenant had to make repairs on the premises. This was because a tenant had a duty to keep the leased property in as good condition as the landlord had it when the lease began. some states have enacted statutes requiring the landlord to make repairs. Other states had a warranty of habitability, which makes the landlord responsible for keeping the premises livable. Some statutes even give tenants a form of self-help. The tenant must notify the landlord of needed repairs. If the landlord does not make the repairs, the tenant may fix things and deduct the cost from the rent. Tenants, however, must repair damage caused by their negligence. In some states in which statues have not altered the traditional responsibility, tenants must repair damage except reasonable wear and tear and damage by the elements.
Rights of the Landlord
The landlord has three definite rights under the lease:
To regain possession
To enter upon the property to preserve it
To assign rights
To Regain Possession
Upon termination of the lease, the landlord has the right to regain peaceable possession of the premises. If the tenant refuses this possession, the most common remedy is to bring an action of ejectment in a court of law. Upon the successful completion of this suit, the sheriff will forcibly remove the tenant and any property.
When the landlord repossess leased property, all permanent improvements and fixtures may be retained. Courts determine whether or not the improvements have become a part of the real estate. If they have, they cannot be removed.
To Enter Upon the Property to Preserve It
The landlord has the right to enter upon the property to preserve it. Extensive renovations that interfere with the tenants peaceable occupancy cannot be made. If the roof blows off or becomes leaky, the landlord may repair it or put on a new roof. This occasion cannot be used to add another story. A landlord who enters the property without permission may be treated as a stranger. A landlord has no right to enter the premises to show the property to prospective purchasers or tenants unless the lease reserves this right.
To Assign Rights
The landlord has the right to assign the rights under the lease to a third party. The tenant cannot avoid any duties and obligations by reason of the assignment of the lease. Like all other assignments, the assignment does not release the assignor from the contract without the consent of the tenant. If, for example, the tenant suffers injury because of a concealed but defective water main cover and the landlord knew of this condition, the landlord has liability even though rights under the lease were assigned before the injury.
Duties of the Landlord
The lease imposes certain duties upon the landlord:
To pay taxes and assessments
To protect the tenant from concealed defects
To mitigate damages upon abandonment by the tenant
To Pay Taxes and Assessments
Although the tenant occupies and uses the premises, the landlord must pay all taxes and special assessments. Sometimes the lease provides that the tenant shall pay the taxes. In such event, the tenant has no liability for special assessments for sidewalks, street paving, and other improvements.
To Protect the Tenant from Concealed Defects
The landlord has liability to the tenant if the tenant suffers injury by concealed defects that were known or should have been reasonably known to the landlord at the time of giving the tenant possession of the premises. Such defects might be contamination from contagious germs; concealed, unfilled wells and rotten timbers in the dwelling. The tenant bears the risk of injury caused by apparent defect or defects reasonably discoverable upon inspection at the time that the tenant enters into possession. Most cities and many states have tenement laws that require the landlord to keep all rental property habitable and provided with adequate fire escapes. The question of the habitability of the property relates to major defects in the structure. Any damage due to a failure to observe these laws may subject the landlord to liability for damages.
To Mitigate Damages Upon Abandonment by the Tenant
Unless the landlord accepts the abandonment, a tenant who abandons leased property before the end of the lease term still has an obligation to pay the rent due through the end of the term. Under the common law the landlord could do nothing and sue the tenant for the unpaid rent. However, in most states the landlord now has a duty to take reasonable steps to mitigate the tenant's damages by attempting to secure a new tenant. If a new a tenant occupies the premises, the landlord's damage from the first tenant abandoning the property equals the difference between the rent the original tenant had to pay and the rent the new tenant pays. In this way, the original tenant's obligation amounts to less than the original rent called for by the lease and the new tenant's payments mitigate the landlords damage due from the original tenant.
Termination of the Lease
A lease for a fixed time automatically terminates upon the expiration of that period. The death of either party does not ordinarily affect the lease. If the leased property consists of rooms or apartments in a building and fire or any other accidental cause destroys them, the lease terminates without liability on the part of the tenant. In the case of leases of entire buildings, serious problems arise if fire, tornado, or any other cause destroys the property. Under the common law the tenant had to continue to pay rent even though the property was destroyed. Some states retain this rule; other states have modified it. A landlord who has a 10-year lease on a $100,000 building destroyed by fire one year after signing the lease would not be inclined to rebuild if fully covered by fire insurance. The landlord would find it more profitable to invest the $100,000 and continue to collect the rent. To prevent this, statutes may provide that if the landlord refuses to restore the property, the lease terminates. The lease itself may contain a cancellation clause. If it does not, the tenant can carry fire insurance for the amount of possible loss. Even when the lease will thus terminate, the tenant will probably wish to carry fire insurance for personal property and, if the premises are used for a business purpose, may carry Insurance to indemnify for business interruption or loss of business income.
The landlord may agree to the voluntary surrender of the possession of the premises before the lease expires. This terminates the lease. However, an abandonment of the premises without the consent of the landlord does not constitute a termination of the lease, but a breach of contract.
If the lease runs from year to year or from month to month, the party wishing to terminate it must generally give the other party a written notice of this intention. Statutes prescribe the time and the manner of giving notice; they may also specify other particulars, such as the grounds for a termination of the tenancy.
If either party fails to give proper notice, the other party may continue the tenancy for another period.
Eviction
Tenants sometimes refuse to give up possession of the property after the expiration of the lease or fail to comply with requirements of the lease or laws. In such a case, a landlord may seek an eviction of the tenant. eviction is the expulsion of the tenant from the lease property. The laws of the states vary, but all have some form of summary eviction law. The summary action brought by the landlord is called a forcible entry and detainer action. The tenant has a right to written notice and a court hearing. However, the court will set an early right to written notice and a court hearing. However, the court will set an early date, usually 7 to 15 days after notification of the tenant, for the trial. If the landlord wins, law enforcement officers may enforce the eviction in a few days. The proceedings permit quick recovery of real property by the one legally entitled to it.
Improvements
Tenants frequently make improvements during the life of the lease. Many disputes arise as to the tenant's right to take these improvements after the lease is terminated. Courts must determine whether an improvement has become a fixture, which must be left on the land, or whether it remains personal property. If the improvements are trade fixtures, or fixtures used in business, and can be removed without substantial injury to the leased property, the tenant may remove them. If a farm tenant builds a fence in the normal way, the fence is a fixture, and the tenant has no right to remove it upon leaving. A poultry house built in the usual way is a fixture and cannot be removed. In a similar case a tenant built the poultry house on sledlike runners. When ready to leave, the tenant had the poultry house hauled away and took it when vacating. The court held the shed had not become a fixture but remained personal property.
Unless prohibited by law, one may freely contract away rights or may waive them, so the parties may agree as to how to treat fixtures. In one case a tenant built a permanent frame house on leased property with the landlord agreement that the house could be moved at the end of the lease. The landlord was bound by this contract.
Discrimination
Federal law prohibits landlords from discriminating against tenants or proposed tenants because of race, color, religion, sex, familial status, or national origin. The term familial status refers to whether the tenant has children. Additionally, some states and even municipalities prohibit discrimination based on such aspects as physical or mental handicaps, age, or marital status.
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Legal Information Institute (LII)---Landlord Tenant Law Materials
LII, maintained by Cornell Law School, provides an overview of landlord-tenant law, links to statutes, federal and state judicial court decisions, and other materials.
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
Tenancy from year to year
Tenancy at will
Tenancy by sufferance
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
Right to use the premises
Right to assign or sublease
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*
