부동산 지식 20-Real Estate Leases-The Lease Contract
The Lease Contract
Types of Lease
Default and Termination
Uniform Residential Landlord and Tenant Act
The Lease Contract
A lease is both an instrument of conveyance and a contract between principal
parties to uphold certain covenants and obligations. As a conveyance, a lease
conveys an interest, called the leasehold estate, but does not convey legal title to
the property. For this reason, a leasehold is also called a less-than-freehold
estate.
The four principal types of leasehold estate are:
estate for years: has a specific lease term
estate from period-to-period: the lease term automatically
renews
estate at will: has no specified lease term
estate at sufferance: a tenancy without consent
The legal essence of a valid lease is that it conveys an exclusive right to use and
occupy a property for a limited period of time in exchange for rent and the return
of the property after the lease term is over. Leasehold estates are distinguished
from freeholds by their temporary nature. Every leasehold has a limited duration,
whether the term is 99 years or not stated at all, as in an estate at will. While the
lease conveys exclusive use, it may also restrict such use to conform to the
landlord’s desires. For example, an apartment lease may prohibit a tenant from
using or storing hazardous materials within the premises.
Like other contracts, a lease becomes a binding agreement when the parties
accept the terms of the agreement and communicate their agreement to the other
party. Recording of a leasehold conveyance is not a requirement for validity,
although it is usually good procedure to do so.
In a lease arrangement, the owner is the landlord, or lessor, and the renter is
the tenant, or lessee.
Leasehold rights
and obligations Tenant’s rights and obligations. A lease conveys a leasehold interest or
estate that grants the tenant the following rights during the lease term:
exclusive possession and occupancy
exclusive use
quiet enjoyment
profits from use
A tenant has the sole right to occupy and use the premises without interference
from outside parties, including the landlord. The landlord may enter the premises
for specified purposes such as inspections, but the interference must be
reasonable and limited. In addition, the landlord can do nothing outside of the
lease’s express provisions that would impair the tenant’s enjoyment of income
deriving from use of the premises. For example, the landlord can not place a
kiosk in front of a retail tenant’s entry in such a way as to prevent customers
from entering the store.
The lease defines the tenant’s obligations, which principally are to:
pay the rent on time
maintain the property’s condition
comply with the rules and regulations of the building
Landlord’s rights and obligations. In conveying the leasehold estate, the
landlord acquires a leased fee estate, which entails the rights to:
receive rent
re-possess the property following the lease term
monitor the tenant’s obligations to maintain the premises
The lease defines the landlord’s obligations, which principally are to:
provide the necessary building support and services
maintain the condition of the property
Death of tenant or landlord. A valid lease creates obligations that survive the
death of the landlord or tenant, with certain exceptions. A tenant’s estate
remains liable for payment of rent if the tenant dies; the landlord’s estate
remains bound to provide occupancy despite the landlord’s death.
Conveyance of leased property. The landlord may sell, assign, or mortgage
the leased fee interest. However, transferring and encumbering the leased
property do not extinguish the obligations and covenants of a lease. Buyers and
creditors, therefore, must take their respective interests subject to the terms of
the lease.
Contract
requirements State contract laws determine the requirements for a valid lease. These
laws generally require the following conditions.
Parties. The principal parties must be legally able to enter into the agreement;
i.e., meet certain age, sanity, and other requirements.
Chapter 7: Real Estate Leases 91
Property description. The lease must identify the property by legal description
or other locally accepted reference.
Exclusive possession. The landlord must provide an irrevocable right to
exclusive possession during the lease term, provided the tenant meets all
obligations.
Legal and permitted use. The intended use of the property must be legal. A
use that is legal but not permitted does not invalidate the lease but constitutes
grounds for default.
Consideration. The lease contract must be accompanied by consideration to the
landlord for the rights conveyed. How the consideration is paid does not affect
the lease’s validity, so long as the parties comply with the terms of the lease.
Offer and acceptance. The parties must accept the lease, and communicate
their acceptance to the other party, for the lease to take legal effect.
Signatures. The landlord must sign the lease to convey the leasehold interest. A
tenant need not sign the lease, although it is prudent to do so in order to enforce
the terms of the lease. Multiple tenants who sign a single lease are jointly and
severally responsible for fulfilling lease obligations. Thus, if one renter
abandons an apartment, the other renters remain liable for rent.
Oral versus written form. Generally, a lease for a period exceeding one year
cannot be oral but must be in writing to be enforceable because of the Statute of
Frauds. An oral lease or rental agreement is legally construed to be a tenancy at
will, having no specified term. Further, an oral lease terminates on the death of
either principal party.
Lease clauses The clauses of a lease define the contractual relationship between landlord
and tenant. The most important and basic clauses are the following.
Rent and security deposit. A rent clause stipulates the time, place, manner and
amount of rent payment. It defines any grace period that is allowed, and states
the penalties for delinquency.
The lease may also call for a security deposit to protect the landlord against
losses from property damage or the tenant’s default. State law regulates the
handling of the security deposit: where it is deposited, and whether the tenant
receives interest on the deposit. A landlord may require additional financial
security from a tenant of dubious creditworthiness in the form of personal
guarantees, third party guarantees, or pledges of other property as collateral.
Lease term. In the absence of an explicit term with beginning and ending date,
a court will generally construe the lease to be a tenancy at will, cancelable upon
proper notice.
Repairs and maintenance. Repairs and maintenance provisions define the
landlord’s and tenant’s respective responsibilities for property repairs and
maintenance. Generally, the tenant is responsible for routine maintenance of the
premises while the landlord is responsible for general repairs. In residential
leases, the landlord is responsible for major repairs and capital improvements.
Payment of repairs and maintenance costs, however, is entirely negotiable
between landlord and tenant.
92 Principles of Real Estate Practice
Subletting and assignment. Subletting (subleasing) is the transfer by a tenant,
the sublessor, of a portion of the leasehold interest to another party, the
sublessee, through the execution of a sublease. The sublease spells out all of the
rights and obligations of the sublessor and sublessee, including the payment of
rent to the sublessor. The sublessor remains primarily liable for the original
lease with the landlord. The subtenant is liable only to the sublessor.
For example, a sublessor subleases a portion of the occupied premises for a
portion of the remaining term. The sublessee pays sublease rent to the sublessor,
who in turn pays lease rent to the landlord.
An assignment of the lease is a transfer of the entire leasehold interest by a
tenant, the assignor, to a third party, the assignee. There is no second lease, and
the assignor retains no residual rights of occupancy or other leasehold rights
unless expressly stated in the assignment agreement. The assignee becomes
primarily liable for the lease and rent, and the assignor, the original tenant,
remains secondarily liable. The assignee pays rent directly to the landlord.
All leases clarify the rights and restrictions of the tenant regarding subleasing
and assigning the leasehold interest. Generally, the landlord cannot prohibit
either act, but the tenant must obtain the landlord’s written approval. The reason
for this requirement is that the landlord has a financial stake in the
creditworthiness of any prospective tenant.
Rules and regulations. A tenant must abide by all usage restrictions imposed
by the lease’s rules and regulations for the property. These rules aim to protect
the property’s condition as well as the rights of other tenants.
Improvements and alterations. A landlord typically wants to prevent a tenant
from making alterations that later tenants may not desire. By the same token, a
tenant who pays for an improvement wants to know who will own it at the end
of the lease term. An improvements and alterations clause therefore identifies
necessary permissions and procedures, and who owns improvements.
Customarily, tenant improvements become the property of the landlord in the
absence of an express agreement to the contrary.
Options. An option clause offers a tenant the opportunity to choose a course of
action at some time in the future under certain terms. Typical options are the
right to renew the lease, buy the property, and lease additional adjacent space. A
tenant does not have to exercise an option, but the landlord must comply if the
tenant does exercise it.
Damage and destruction. A damage and destruction provision defines the
rights and obligations of the parties in the event the leased premises are
damaged or destroyed. State laws regulate such provisions.
Chapter 7: Real Estate Leases 93
TYPES OF LEASE
Gross lease
Net lease
Percentage lease
Residential lease
Commercial lease
Ground lease
Proprietary lease
Leasing of rights
Gross lease A gross lease, or full service lease, requires the landl
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