Property Law Review

Practice problem 3:

INTRODUCTION:

1. LL can argue that: T breached the contract because T refused to take possession of the property after the binding lease had been made, 2. LL is not required to repair the problems because the lease didn’t include an express covenant of repair, 3. T surrendered the possession of the property by abandonment so he had a right to find a substitute T, 4. LL has a right to the lost rent from the intended substitute T.

1. T can argue that: T had control with the intent to control and exclude others from control, 2. T did not abandon premises b/c he asserted his intent to move in, 3. LL is required to repair problems b/c of WOH, 4. lease is binding and not void, 5. LL waived his right to evict when he accepted rent, 6. T is not liable to LL for lost rent b/c substitute lease never took effect

BINDING LEASE:

All of the essential terms are present in the lease to make it binding because it includes the parties, description of premises, term, and rental sum. However, in some jurisdictions a tenant must take possession of the property in order for the lease to arise. LL here will argue that the lease is void because T refused to take possession at the start of the lease.

POSSESSION:

T may argue that, even if in such a jurisdiction, T took possession at the start of the lease and remained in possession the entire time, therefore the lease was in effect. T was in possession of the property based on the fact that T: had control of the property because he had both keys, showing that he remained in control of who entered; he had the intent to control based on the letter he sent LL stating that he wished to move in when repairs were fixed; and he had the intent to exclude others control because he posted signs on the doors which stated that he occupied the property and all others were not allowed, which indeed did exclude others. This also shows that T had no intent to abandon the premises.

In a majority state, if T had abandoned the premises, LL would have a duty to mitigate by reletting to another T, whereby LL would have the right to lost rent from original T, as the LL did do in this case.

If T had abandoned the premises in a minority state, LL would not have the duty to mitigate and could recover all of the rent from T. However, if the LL did chose to relet the premises, T would be free from the lease and not have to pay LL anything.

TERMINATION OF LEASE:

LL will argue that he has grounds to evict T because he materially breached the express covenant to pay rent by not paying on April 1st. However, T can argue that LL cannot evict him because he waived his right to terminate the lease when he accepted rent payment from T on April 7th.

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