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 canít be waived.† In other states like
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 thereís no case overruling it, you canít count on that case still being good law.† That just means that the court hasnít 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 isnít 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 monthís rent or four monthís rent (because her notice was inadequate)?† Can we construe the tenant leaving on November 30th as notice?† What about that action plus her words of November 16th?† Probably sheíll only be liable for one monthís rent.
whatís going on here?† This is about some
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
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
ďThe state has an interest in monopolizing violence.† If thereís going to be violence itís going to be the police or the sheriff that does it and not private individuals.† In that way, itís controlled.Ē
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.
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?† Theyíre not exactly trespassers.† Are they tenants?† Can they stay in the restaurant for 30 days?† No, because they donít 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 donít have a lease, but rather a license, which means you donít have a property right to remain where you are subject to some judicial proceeding terminating that property right.† So itís 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 doesnít need to be written.† Also, most courts hold that the Rule Against Perpetuities doesnít 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 youíre in a state where thatís the law, then all you have to do is say that the tenant has the option to renew every year during the tenantís lifetime or during the tenantís 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 wouldnít 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 ďindentedĒ.† Indentures were used when people couldnít 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 weíll call a lease ďan indenture of leaseĒ.†