duty will arise out of property law (estate) or contract.
assignment with novation.
sublease... a "daisy chain"...
the landlord remains in privity of contract, and the tenant comes into privity of contract with the subleasee, with no agreement to the landlord unless the subleasee agrees to take on the responsibilities to the landlord
versus an assignment...
the property relationship between the parties has changed, and the assignee is taking all of the property interests of the original party and thereby taking the relationship of privity of estate from the assignor, such that the landlord and tenant no longer have a property interest left, instead the assignee takes the interest. but as to the contract, the original tenant is still in privity with the landlord and will also be in privity with the assignee. unless the assignee agrees to be bound, there is no privity of contract between the assignee and the landlord.
novation = the landlord is specifically agreeing to release the first tenant and take on the new tenant
these relationships are only relevant so long as there is a breach of contract. if there's a breach (such as not paying rent) you can only recover if there is a privity relationship.
ernst v. conditt: was the transferee a sublease (no remedy against the subleasee) or assignment (remedy available). let's say that this had been an assignment, and ernst then had an argument against rogers. what could rogers do?
yeah, if you contract for it, you can have a XXX but in CA the landlord's right to reject leases is subject to a reasonableness clause. there is a duty of good faith, and not allowing the sublease for arbitrary reasons is not acting in good faith.
in NY, commercial leases are silent: if you bargain for it, a commercial landlord can withhold un/reasonably. but for residential, consent to assignment can't be unreasonably withheld and consent to sublease cannot be unreasonably withheld. AND if it is unreasonably held (risk of adverse determination is on the tenant, however).
limits to occupancy in sublease/ roommate
what happens if a tenant breaches under a lease? such as failure to pay rent, or what if the tenant has abandoned the property?
berg v. wiley
berg is claiming loss of property
intentional infliction of emotional distress
damage to chattel (personal property that was taken/damaged)
wrongful eviction
what is the court addressing?
1. was the finding on abandonment/ surrender correct?
2. was wiley's retaking possession held correctly as a matter of law?
abandonment surrender is a factual one, not a legal one: the court would have needed to consider if the tenant's frame of mind was that she wanted to abandon the property. and if there was evidence in the record for the reasonable fact finder to know then there is abandonment? in this case there was enough evidence to know that the tenant did not surrender.
now do we know whether or not the eviction was wrongful.
the test:
1. landlord must operate under legal entitlement (must have the right to it)
2. the landlord must enter "peaceably"
this test comes from the common law of landlord tenant.
does the landlord have right of entry for repossession here? yes -- forfeiture of possession clause
wiley contends that a non-peaceable entry would have had a confrontation. since he retook when she wasn't there, obviously it was peaceable (considering the events that had already transpired between the parties).
the court doesn't buy this: just because she wasn't there, there was still tension between the parties and that the landlord was taking the law into his own hands, which makes the retaking non-peaceable. the only peaceable way is to go through the courts.
why?
because the tenant who finds him/herself in breach, the tenant can act unpeaceably.
see the article about mr. bryce
going through the courts takes time and cost tax-payer money, but it does involve an additional element of reason will help to temper the emotions that flare under real property
summary proceedings to recover possession can take a year (often does, in new york)... is this right or wrong?
sommer v. kridel, 74 NJ 446
when the tenant does abandon, are the landlord's rights different?
duty to mitigate. does sommer have one? this court says yes: because taken the facts of
next class:
holy properties v. kenneth cole
rios v. carrillo
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