Property II-BN - OUTLINE: PROPERTY II With Professor...

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OUTLINE: PROPERTY II With Professor Parella Spring Semester, 1998 By Benjamin Neidl ______________________________________ Part One: Landlord and Tenant……………… 2 Part Two: The Modern Land Transaction…. ..38 1
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Part One: Landlord and Tenant I. THE MAJOR THEMES A. The major theme that we see throughout landlord-tenant study is that the law is changing with the times. Property law is very old, and some of the old concepts are very out of sync with the needs of contemporary society. B. Under the old commonlaw view, a lease of premises was considered a transfer of an estate to the tenant (T). However, the modern view is increasingly recognizing leases as more contractual, in which T pays money (rent) in consideration for the use of the premises as shelter. This has many implications for remedies available to each party, and for the responsibilities of the landlord (L). C. Landlord-tenant laws have changed in other ways as well, stemming from the slow abandonment of the notion of a lease as a transfer of an estate. Numerous jurisdictions with specific needs have enacted statutes that satisfy those needs. New York City is the premiere example, with its huge population of apartment dwellers. II. CONDITION OF THE LEASED PREMISES - LANDLORD’S RESPONSIBILITIES A. The Duty to Deliver Possession 1. The Modern or “English” Rule . This is the majority view. L has a duty to deliver the leased premises to T. a. Unless , there is a provision in the lease to the contrary. There is a great deal of freedom of contract in leases. However, sometimes, waivers of the duty to deliver in leases are found unconscionable . This is a tough call. b. This appears to be a reflection of the modern trend of viewing leases as contracts, with some dependent covenants. c. So, if T1 is holding over and T2 is waiting to get in to the leased premises, L has an obligation to take action to remove T1. The most common and logical means by which to do this is by the Summary Proceeding, which is discussed later. 2. New York’s Statute: Real Property Law § 233- a a. In the absence of an express provision to the contrary , there shall be implied in every lease of real property a condition that the lessor will deliver possession at the beginning of the term. In the event of breach of such implied condition the lessee shall have the right to rescind the lease and to recover the consideration paid. Such right 2
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shall not be deemed inconsistent with any right of action he may have to recover damages. a. Notice how the scope of the statute is broad. It applies to “every” lease of real property, including commercial and residential. Similar statutes in other states often limit it to one or the other. a. Also notice, however, that the statute is limited in
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This note was uploaded on 02/18/2008 for the course LAW 1030 taught by Professor Todres during the Spring '02 term at St. Johns Duplicate.

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Property II-BN - OUTLINE: PROPERTY II With Professor...

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