Author Archive: Travis Eller

Distress for Rent

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At common law the landlord had a right to distress for rent.  If rent was unpaid the landlord could seize any property found in the leased premises and hold in ransom for rent or sell it to cover unpaid rent.  Property the tenant uses in a trade or business was exempt.Continue reading→

Landlord Liability for Criminal Acts of Third Parties

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Landlord’s Liability for Criminal Acts of Third Parties

In general a person has a duty to protect others for criminal acts of third persons absent a special relationship.  Special relationships may exist for innkeepers and common carriers.[1]

At common law no such special relationship between landlord and tenant and the landlord had no duty to protect the tenant from third party criminal act.  Courts have historically been reluctant to move away from this common law rule for a variety of reasons.Continue reading→

Protecting Tenants at Foreclosure Act of 2009

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A new federal law protects innocent tenants from eviction after foreclosure.[1]

The purchaser at foreclosure takes the property subject to any unexpired lease.  The law also requires the foreclosure auction purchaser to give notice to vacate to any month-to-month tenant.  The notice must be served at least ninety days prior to its effective date.

The law expires at the end of 2012.

[1] S. 896, Public Law No: 111-22, signed by Pres. Obama May 22, 2009.

Purchaser in Possession

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In most jurisdictions a purchaser who takes possession under a real estate purchase agreement is not a tenant.[1]  The Uniform Landlord-Tenant Act excludes “occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his interest”.[2] 

Possible ramifications include the seller being denied the right to pursue the summary unlawful detainer process to regain possession from a defaulting purchaser, the remedy of distress is not available, and the seller is not liable for defective conditions of the premises.  

Some commentators have argued that since early possession does not naturally arise from the vendor-vendee relationship the parties are best viewed as landlord and tenant.  Some courts have agreed.

This argument may be most persuasive when there is a lease with an option to purchase and the option remains unexercised.[3]

[1] See Schoshinski, American Law of Landlord and Tenant, §1.7.

[2] See Uniform Residential Landlord and Tenant Act at   http://www.law.upenn.edu/bll/archives/ulc/fnact99/1970s/urlta72.htm (last accessed 04-20-09).

[3] Napper v. National Mortg. Group, Inc., 194 Ga.App. 148, 390 S.E.2d 70 (1990).

Tenancy at Sufferance

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A tenancy at sufferance as it is defined in most jurisdiction arises in narrow circumstances and is “as illusory as the rings of Saturn viewed edge-on”.[1] The tenancy at sufferance arises when a tenant under one of the other types of tenancy wrongfully holds over.  The definition varies by statute in some jurisdictions.[2]

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Tenancy at Will

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A tenancy at will is terminable by either party or upon the death of either party.  No particular formal notice to terminate is required.  However, some courts have required the landowner to demand possession and allow a reasonable time for the occupant to vacate.  

If a lease is terminable at the will of only one party courts have interpreted the agreement variously as terminable by either party, a life estate, or even a fee simple title. 

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