Property Class Notes 4/2/04

Statutory tenancy

In fairly recent years, beginning in 1975, there has been more and more regulation of the landlord-tenant relationship, especially in the residential setting. Virtually every state has created some form of regulated tenancy. Sometimes this has been created by judicial action only. For example, every lease may be found to create a implied warranty of inhabitability that can’t be waived. In other states like Ohio, there are statutes that create certain obligations on the landlord and the tenant that also can’t be waived. The tenant, for example, must put trash in the appropriate receptacles and not do any damage to the property. The landlord has to keep up the premises in reasonable condition and not interfere with the tenant’s occupancy. Tenants are entitled to the return of their deposit within 30 days of the end of the lease. If the landlord is going to withhold any portion of the deposit, they must give you written notice of why. So it’s a good idea to take pictures of your apartment to show that it’s in decent condition. If the landlord doesn’t give back your deposit within 30 days, you can sue for double the deposit plus attorney’s fees. By the way, whenever you send notices required by statute, send them by certified mail.

Precedent in this area is of somewhat dubious value because the law is changing very quickly as far as the law goes. That means that if you look at a case from 1955 decided by a state Supreme Court and there’s no case overruling it, you can’t count on that case still being good law. That just means that the court hasn’t considered the subject recently, and the law may well change the next time it comes up.

A periodic tenancy problem

A month to month tenant notifies the landlord in the middle of November that she is going to vacate the premises two weeks later. The tenant leaves, and the landlord tries to relet the premises, but isn’t able to until April. The landlord sues for the rent between December and April. How much should the landlord recover? The rule is that the notice must coincide with the period of the tenancy. So if your tenancy is the first of the month to the end of the month, the 30 days notice must be given on the first of the month so that the 30 days will be up at the end of the month. The tenant will owe some rent: but will she owe one month’s rent or four month’s rent (because her notice was inadequate)? Can we construe the tenant leaving on November 30^th as notice? What about that action plus her words of November 16^th? Probably she’ll only be liable for one month’s rent.

Walls v. Giuliani

So what’s going on here? This is about some squatters in New York and whether there was a tenancy at sufferance. It depends whether the owner (in this case the city of New York) acquiesced to their presence. What’s the difference between a squatter (a trespasser) who have no rights and tenants, who are entitled to certain rights? The court finds that the plaintiffs have stated a claim, though they have a problem of proving it. What did the city do? The tenant’s entry, though under some circumstances it could be described as a trespass, cannot be so described in this case. There is no dispute that unless there is some political process at work here that the tenants are going to get kicked out.

Will the landlords have to use the Forcible Entry and Detainer statute, or will they be able to use self-help? This is why it matters whether the squatters are tenants or trespassers. Under the statute, even a tenancy at sufferance cannot be terminated without 30 days notice. That means that the tenants will be entitled to stay in the building for at least another 30 days. The FED statutes create a tradeoff: the tenants get some protection, but the landlords get a quicker procedure. For example, consider Housing Court, a branch of the Municipal Court. That’s what a FED statute is.

So what is self-help? The landlords might do things like change the locks, turn off the heat, and other sort of underhanded stuff. When is self-help allowed under the New York statute? You can’t be put off your property in a forcible manner. If you are, then you are entitled to treble damages. But just what do we mean by forcible? It means anything that will tend to result in a confrontation more forcible than a discussion. If a court adopts this view, and most of them have, then there really isn’t any such thing as self-help whether a statute prohibits it or not.

“The state has an interest in monopolizing violence. If there’s going to be violence it’s going to be the police or the sheriff that does it and not private individuals. In that way, it’s controlled.”

This may not apply to commercial leases. Force is much more likely to be permissible as between businesses than between a landlord and a private, individual tenant. In commercial situations, the same policies are not at stake.

The lease

Say two kids get forcibly kicked out of a restaurant for not wearing shoes. Do they have any cause of action? Maybe they have some kind of tort if excessive force was used. Do they have a cause of action like the tenants in Walls v. Giuliani? They’re not exactly trespassers. Are they tenants? Can they stay in the restaurant for 30 days? No, because they don’t have a lease. We must distinguish between a lease and other things. A lease may or may not be a contract, but it carries certain rights, including the right not to be dispossessed. If you get kicked out of a movie theatre, you don’t have a lease, but rather a license, which means you don’t have a property right to remain where you are subject to some judicial proceeding terminating that property right. So it’s important to distinguish between leases and licenses.

The statute of frauds applies to leases, but not short-term leases. Generally, all transfers of real property have to be in writing to be effective. One exception is short term leases. If you have a lease for a year or less (or three years or less in some places), it doesn’t need to be written. Also, most courts hold that the Rule Against Perpetuities doesn’t apply to leases because they are a form of vested estate. But options on the renewal of leases may violate the Rule Against Perpetuities. But if you’re in a state where that’s the law, then all you have to do is say that the tenant has the option to renew every year during the tenant’s lifetime or during the tenant’s lifetime plus 21 years. What would kind of get around the problem, but not really, would be to make it a periodic tenancy. But that wouldn’t give the tenant the same thing that this gives the tenant. The tenancy could be terminated with appropriate notice. What is being bargained for in our example is a lease that can be renewed at the same rate basically forever.

What is an indenture? Think of the word “indented”. Indentures were used when people couldn’t read much. If you wanted to know if someone else had a copy of what you have, you would tear a piece of paper with a jagged edge and then you could always check if they fit together. This has no meaning anymore really, but sometimes we’ll call a lease “an indenture of lease”.

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