by inpac01 | Nov 29, 2021 | Real Estate
부동산 지식 24-Land Use Planning And Control-2.Public Land Use Control
1.Real Estate Planning
2.Public Land Use Control
3.Private Land Use Control
4.Environmental Controls
PUBLIC LAND USE CONTROL
Zoning
Zoning administration
Subdivision regulation
Building codes
Public acquisition and ownership
Environmental restrictions
At the state level, the legislature enacts laws that control and restrict land use,
particularly from the environmental perspective. At the local level, county and
city governments control land use through the authority known as police
power. The most common expressions of police power are county and
municipal zoning. Other examples of public land use control are:
subdivision regulations
building codes
eminent domain
environmental restrictions
development requirements
Governments also have the right to own real property for public use and welfare.
In exercising its ownership rights, a municipality may annex property adjacent
to its existing property or purchase other tracts of land through conventional
transfers. Where necessary, it may force property owners to sell their property
through the power of eminent domain.
Zoning Zoning is the primary tool by which cities and counties regulate land use and
implement their respective master plans. The Constitution grants the states the
legal authority to regulate, and the states delegate the authority to counties and
municipalities through legislation called enabling acts.
The zoning ordinance. The vehicle for zoning a city or county is the zoning
ordinance, a regulation enacted by the local government. The intent of zoning
ordinances is to specify land usage for every parcel within the jurisdiction. In
some areas, state laws permit zoning ordinances to apply to areas immediately
beyond the legal boundaries of the city or county.
Zoning ordinances implement the master plan by regulating density, land
use intensity, aesthetics, and highest and best use. Ordinances typically
address:
the nature of land use– office, commercial, residential, etc.
size and configuration of a building site, including setbacks,
sidewalk requirements, parking requirements, and access
site development procedures
construction and design methods and materials, including
height restrictions, building-to-site area ratios, and
architectural styles
use of space within the building
signage
Ordinance validity. Local planners do not have unlimited authority to do
whatever they want. Their zoning ordinances must be clear in import, apply to
all parties equally, and promote health, safety, and welfare of the community in
a reasonable manner.
Building permits. Local governments enforce zoning ordinances by issuing
building permits to those who want to improve, repair, or refurbish a property.
To receive a permit, the project must comply with all relevant ordinances and
codes. Further zoning enforcement is achieved through periodic inspections.
Types of zones. One of the primary applications of zoning power is the
separation of residential properties from commercial and industrial uses. Proper
design of land use in this manner preserves the aesthetics and value of
neighborhoods and promotes the success of commercial enterprises through
intelligently located zones.
Chapter 8: Land Use Planning and Control 105
Six common types of zone are
residential
commercial
industrial
agricultural
public
planned unit development (PUD)
Residential. Residential zoning restricts land use to private, non-commercial
dwellings. Sub-zones in this category further stipulate the types of residences
allowed, whether single-family, multi-unit complexes, condominiums, publicly
subsidized housing, or other form of housing.
Residential zoning regulates:
density, by limiting the number and size of dwelling units and lots
in an area
values and aesthetics, by limiting the type of residences allowed.
Some areas adopt buffer zones to separate residential areas from
commercial and industrial zones.
Commercial. Commercial zoning regulates the location of office and retail land
usage. Some commercial zones allow combinations of office and retail uses on a
single site. Sub-zones in this category may limit the type of retail or office
activity permitted, for example, a department store versus a strip center.
Commercial zoning regulates:
intensity of usage, by limiting the area of store or office per site
area. Intensity regulation is further achieved by minimum parking
requirements, setbacks, and building height restrictions.
Industrial. Industrial zoning regulates:
intensity of usage
type of industrial activity
environmental consequences
A municipality may not allow some industrial zones, such as heavy industrial, at
all. The industrial park is a relatively recent concept in industrial zoning.
Agricultural. Agricultural zoning restricts land use to farming, ranching, and
other agricultural enterprises.
Public. Public zoning restricts land use to public services and recreation. Parks,
post offices, government buildings, schools, and libraries are examples of uses
allowed in a public zone.
Planned Unit Development (PUD). planned unit development zoning restricts
use to development of whole tracts that are designed to use space efficiently and
106 Principles of Real Estate Practice
maximize open space. A PUD zone may be for residential, commercial, or
industrial uses, or combinations thereof.
Zoning
administration Zoning Board of Adjustment. A county or local board, usually called the
zoning board of adjustment or zoning appeals board, administers zoning
ordinances. The board rules on interpretations of zoning ordinances as they apply
to specific land use cases presented by property owners in the jurisdiction. In
effect, the zoning board is a court of appeals for owners and developers who
desire to use land in a manner that is not entirely consistent with existing
ordinances.
The board conducts hearings of specific cases and renders official
decisions regarding the land use based on evidence presented.
A zoning board generally deals with such issues and appeals as:
nonconforming use
variance
special exception or
conditional use permit
zoning amendment
If the board rejects an appeal, the party may appeal the ruling further in a court
of law.
Nonconforming use. A nonconforming use is one that clearly differs from
current zoning. Usually, nonconforming uses result when a zoning change
leaves existing properties in violation of the new ordinance. This type of
nonconforming use is a legal nonconforming use. A board usually treats this
kind of situation by allowing it to continue either
Zoning Board
of
Adjustment
Variance
–hardship
Amendment
–change
zone
Special
exception
–public good
Nonconforming
use
–legal
–illegal
Chapter 8: Land Use Planning and Control 107
indefinitely
until the structures are torn down
only while the same use continues, or
until the property is sold
For instance, a motel is situated in a residential area that no longer allows
commercial activity. The zoning board rules that the motel may continue to
operate until it is sold, destroyed or used for any other commercial purpose.
An illegal nonconforming use is one that conflicts with ordinances that
were in place before the use commenced. For instance, if the motel in the
previous example is sold, and the new owner continues to operate the
property as a motel, the motel is now an illegal, nonconforming use.
Variance. A zoning variance allows a use that differs from the applicable
ordinance for a variety of justifiable reasons, including that:
compliance will cause unreasonable hardship
the use will not change the essential character of the area
the use does not conflict with the general intent of the ordinance
For example, an owner mistakenly violates a setback requirement by two feet.
His house is already constructed, and complying with the full setback now
would be extremely expensive, if not impossible. The zoning board grants a
variance on the grounds that compliance would cause an unreasonable hardship.
A grant of a zoning variance may be unconditional, or it may require
conditions to be fulfilled, such as removing the violation after a certain time.
Special exception. A special exception grant authorizes a use that is not
consistent with the zoning ordinance in a literal sense, yet is clearly beneficial
or essential to the public welfare and does not materially impair other uses in
the zone.
A possible example is an old house in a residential zone adjacent to a retail
zone. The zoning board might grant a special exception to a local group that
proposes to renovate the house and convert it to a local museum, which is a
retail use, since the community stands to benefit from the museum.
Amendment. A current or potential property owner may petition the zoning
board for an outright change in the zoning of a particular property. For example,
a property zoned for agricultural use has been idle for years. A major employer
desires to develop the property for a local distribution facility, which would
create numerous jobs, and petitions for an amendment. The board changes the
zoning from agricultural to light industrial to permit the development. Since a
change in zoning can have significant economic and social impact, an appeal for
an amendment is a difficult process that often involves public hearings.
Subdivision
regulation In addition to complying with zoning ordinances, a developer of multiple
properties in a subdivision must meet requirements for subdivisions.
108 Principles of Real Estate Practice
Subdivision plat approval. The developer submits a plat of subdivision
containing surveyed plat maps and comprehensive building specifications. The
plat, as a minimum, shows that the plan complies with local zoning and building
ordinances. The project can commence only after the relevant authority has
approved the plat.
Subdivision requirements typically regulate:
location, grading, alignment, surfacing, street width, highways
sewers and water mains
lot and block dimensions
building and setback lines
public use dedications
utility easements
ground percolation
environmental impact report
zoned density
Concurrency. Many states have adopted policies that require developers,
especially of subdivisions, to take responsibility for the impact of their projects
on the local infrastructure by taking corrective action. Concurrency is a policy
that requires the developer to make accommodations concurrently with the
development of the project itself, not afterwards. For example, if a project will
create a traffic overload in an area, the developer may have to widen the road
while constructing the project.
FHA requirements. In addition to local regulation, subdivisions must meet
FHA (Federal Housing Authority) requirements to qualify for FHA financing
insurance. The FHA sets standards similar to local ordinances to ensure an
adequate level of construction quality, aesthetics, and infrastructure services.
Building codes Building codes allow the county and municipality to protect the public against
the hazards of unregulated construction. Building codes establish standards for
virtually every aspect of a construction project, including offsite improvements
such as streets, curbs, gutters, drainage systems, and onsite improvements such
as the building itself.
Building codes typically address:
architectural and engineering standards
construction materials standards
building support systems such as life safety, electrical,
mechanical, and utility systems
Certificate of occupancy. Building inspectors inspect a new development or
improvement for code compliance. If the work complies, the municipality or
county issues a certificate of occupancy which officially clears the property for
occupation and use.
Public acquisition
and ownership If efforts to regulate privately owned property are inadequate or impractical
in a particular situation, or if there is a compelling public need, a county or
local government may acquire property by means of direct purchase.
Chapter 8: Land Use Planning and Control 109
A government body might acquire land because of the public need for:
thoroughfares and public rights-of-way
recreational facilities
schools
essential public facilities
urban renewal or redevelopment
In many cases, public acquisition of property is a voluntary transaction between
the government entity and the private owner. However, if the private party is
unwilling to sell, the government may purchase the property anyway. The power
to do this is called eminent domain.
Eminent domain. Eminent domain allows a government entity to purchase a
fee, leasehold, or easement interest in privately owned real property for the
public good and for public use, regardless of the owner’s desire to sell or
otherwise transfer any interest. In exchange for the interest, the government must
pay the owner “just compensation.”
To acquire a property, the public entity initiates a condemnation suit. Transfer of
title extinguishes all existing leases, liens, and other encumbrances on the
property. Tenants affected by the condemnation sale may or may not receive
compensation, depending on the terms of their agreement with the landlord.
Public entities that have the power of eminent domain include:
all levels of government
public districts (schools, etc.)
public utilities
public service corporations (power companies, etc.)
public housing and redevelopment agencies
other government agencies
To acquire a property, the public entity must first adopt a formal resolution to
acquire the property, variously called a “resolution of necessity.” The resolution
must be adopted at a formal hearing where the owner may voice an opinion.
Once adopted, the government agency may commence a condemnation suit in
court. Subsequently, the property is purchased and the title is transferred in
exchange for just compensation. Transfer of title extinguishes all existing leases,
liens, and other encumbrances on the property. Tenants affected by the
condemnation sale may or may not receive compensation, depending on the
terms of their agreement with the landlord.
In order to proceed with condemnation, the government agency must demonstrate
that the project is necessary, the property is necessary for the project, and that the
location offers the greatest public benefit with the least detriment.
As an eminent domain proceeding is generally an involuntary acquisition, the
condemnation proceeding must accord with due process of law to ensure that it
does not violate individual property rights. Further, the public entity must justify
its use of eminent domain in court by demonstrating the validity of the intended
public use and the resulting “public good” or “public purpose” ultimately served.
110 Principles of Real Estate Practice
The issue of eminent domain versus individual property rights has recently come
under scrutiny in light of a 2005 Supreme Court ruling that affirmed the rights of
state and local governments to use the power of eminent domain for urban redevelopment and revitalization. The ruling allowed that private parties could
undertake a project for profit without any public guarantee that the project would
be satisfactorily completed. The ruling brought the issue of “public use” into
question, as the use of the re-development could well be private and even a
private for-profit enterprise. The winning argument was that the “public purpose”
is served when redevelopment creates much needed jobs in a depressed urban
area. As a result of this decision, many see the power of eminent domain and the
definition of public good as being in conflict with the constitutional rights of
private property ownership. New and different interpretations of the public’s
right to pre-empt private property ownership by eminent domain may be
expected.
by inpac01 | Nov 26, 2021 | Real Estate
부동산 지식 23-Land Use Planning And Control-1.Real Estate Planning
1.Real Estate Planning
2.Public Land Use Control
3.Private Land Use Control
4.Environmental Controls
REAL ESTATE PLANNING
1.Goals of land use control
2.The master plan
3.Planning objectives
4.Plan development
5.Planning management
Goals of land use
control Over time, public and private control of land use has come to focus on certain
core purposes.
These are:
preservation of property values
promotion of the highest and best use of property
balance between individual property rights and the public
good, i.e., its health, safety and welfare
control of growth to remain within infrastructure capabilities
incorporation of community consensus into regulatory and
planning activities
The optimum management of real property usage must take into account both
the interests of the individual and the interests of the surrounding community.
While maintaining the value of an individual estate is important, the owner of
an estate must realize that unregulated use and development can jeopardize
the value not only of the owner’s estate but of neighboring properties.
Similarly, the community must keep in mind the effect of government actions on individual property values, since local government is largely supported by taxes based on the value of property.
A community achieves its land usage goals through a three-phase process, as
the exhibit illustrates:
development of a master plan for the jurisdiction
administration of the plan by a municipal, county, or
regional planning commission
implementation of the plan through public control of zoning,
building codes, permits, and other measures
Municipal, county, and regional authorities develop comprehensive land use
plans for a particular community with the input of property owners. A
planning commission manages the master plan and enforces it by exercising
its power to establish zones, control building permits, and create building
codes.
In addition to public land use planning and control, some private entities,
such as subdivision associations, can impose additional standards of land use
on owners within the private entity’s legal jurisdiction. Private controls are
primarily implemented by deed restrictions.
The master plan
Public land use planning incorporates long-term usage strategies and growth
policies in a land use plan, or master plan. In many states, the process of land
use planning begins when the state legislature enacts laws requiring all counties
and municipalities to adopt a land use plan. The land use plan must not only
reflect the needs of the local area, but also conform to state and federal
environmental laws and the plans of regional and state planning agencies. The
state enforces its planning mandates by giving state agencies the power to
approve county and local plans.
The master plan therefore fuses state and regional land use laws with local land
use objectives that correspond to the municipality’s social and economic
conditions. The completed plan becomes the overall guideline for creating and
enforcing zones, building codes, and development requirements.
Planning objectives
The primary objectives of a master plan are generally to control and
accommodate social and economic growth.
Amount of growth. A master plan sets specific guidelines on how much growth
the jurisdiction will allow. While all communities desire a certain degree of
growth, too much growth can overwhelm services and infrastructure.
To formulate a growth strategy, a plan initially forecasts growth trends, then
estimates how well the municipality can keep pace with the growth forecast. The
outcome is a policy position that limits building permits and development
projects to desired growth parameters. A growth plan considers:
nature, location and extent of permitted uses
availability of sanitation facilities
adequacy of drainage, waste collection, and potable water systems
adequacy of utilities companies
adequacy and patterns of thoroughfares
housing availability
conservation of natural resources
adequacy of recreational facilities
ability and willingness of the community to absorb new taxes,
bond issues, and assessments
Growth patterns. In addition to the quantity of growth, a master plan also
defines what type of growth will occur, and where. Major considerations are:
the type of enterprises and developments to allow
residential density and commercial intensity
effects of industrial and commercial land uses on
residential and public sectors, i.e., where to allow such uses
effect of new developments on traffic patterns and thoroughfares
effects on the environment and environmental quality (air, water,
soil, noise, visual aspects)
effect on natural resources that support the community
code specifications for specific construction projects
Accommodating demand. As the master plan sets forth guidelines for how
much growth will be allowed, it must also make plans for accommodating
expanding or contracting demand for services and infrastructure. The plan
must identify:
facilities requirements for local government
new construction requirements for streets, schools, and social
services facilities such as libraries, civic centers, etc.
new construction required to provide power, water and sewer
services
Plan development
In response to land use objectives, community attitudes, and conclusions drawn
from research, the planning personnel formulate their plan. In the course of
planning, they analyze
population and demographic trends
economic trends
existing land use
existing support facilities
traffic patterns
Planning management
Public land use management takes place within county and municipal
planning departments. These departments are responsible for:
long-term implementation of the master plan
creating rules and restrictions that support plans and policies
enforcing and administering land use regulation on an everyday
basis
The planning commission. In most jurisdictions, a planning commission or
board comprised of officials appointed by the government’s legislative entity
handles the planning function.
The commission oversees the operations of the department’s professional
planning staff and support personnel. In addition, the commission makes
recommendations to elected officials concerning land use policy and policy
administration.
The planning commission is responsible for:
approving site plans and subdivision plans
approving building permits
ruling on zoning issues
by inpac01 | Nov 23, 2021 | Real Estate
부동산 지식 22-Real Estate Leases-Default and Termination
The Lease Contract
Types of Lease
Default and Termination
Uniform Residential Landlord and Tenant Act
DEFAULT AND TERMINATION
Remedies for default
Default by tenant
Default by landlord
Causes for lease termination
Remedies for default
A landlord or tenant who violates any of the terms and covenants of the lease
has breached the contract and is in default. In the event of a default, the
damaged party may pursue court action, including suing for
damages
cancellation of the lease
specific performance
A successful suit for specific performance compels the defaulting party to
perform the contract obligation that was breached. For example, if a landlord fails
to replace carpeting as promised in the lease, the tenant can sue to obtain the
landlord’s specific performance of installing a new carpet.
Default by tenant Tenant default occurs most commonly from failure to pay rent or maintain the
premises. If a tenant is in default, the landlord may file a suit for possession,
also called a suit for eviction. If successful in this suit, the landlord can
repossess the property and evict the tenant. The landlord also has the right to
sue for damages.
Before filing a suit for possession, the landlord must give the tenant proper
notice to pay monies due or otherwise cure the default before a deadline, or else
vacate the premises. If the deadline passes without satisfaction, the landlord may
96 Principles of Real Estate Practice
file the suit and obtain a judgment for possession. The landlord may then obtain
an order directing the sheriff to complete the eviction, forcibly if necessary.
Default by landlord The most common form of landlord default is failure to provide services and
maintain the property condition. When a landlord defaults on the terms of the
lease, tenants may sue for damages. In an instance where the landlord’s
negligence or disruptive action has rendered the property unoccupiable, a tenant
may vacate the premises and declare that the lease is cancelled by default. This
action, called constructive eviction, can nullify the tenant’s lease obligations if
the claim succeeds in court. In order to obtain a constructive eviction judgment,
the tenant must vacate the premises.
For example, a landlord will not repair a roof and will not allow an office
tenant to make the repair and deduct the cost from the rent. A thunderstorm
soaks the suite and ruins several pieces of office equipment. By refusing to act,
the landlord has breached the lease covenant to maintain the premises. The
tenant moves out, claiming the lease null and void. The tenant also sues the
landlord for damages to the equipment and for recovery of relocation expenses.
Causes for lease
termination A lease may terminate for any of the following causes.
Breach or default. Breach of contract or default, as previously discussed,
may terminate a lease.
Term expiration. In a tenancy for years, the lease automatically terminates
at the end of the lease term.
Notice. Proper notice by either party may terminate a periodic leasehold, or
a tenancy at will.
Voluntary agreement. Both parties can agree to terminate a lease at any
time.
Property destruction. Destruction of the property is grounds for
terminating lease obligations.
Condemnation. A taking by eminent domain proceedings generally
terminates a lease.
Foreclosure. A foreclosure extinguishes all prior interests in a property,
including a leasehold.
Death of tenant or landlord, with qualifications. A lease for tenancy at
will terminates on the death of either landlord or tenant. A lease also
terminates on the death of the landlord if the landlord held a life estate
interest in the property, since the landlord could not have conveyed an
interest that extended beyond his or her own interest.
Except in the circumstances mentioned, a lease does not terminate on the
death of the landlord or tenant. Sale of the property also does not terminate a
lease.
Abandonment. If a tenant abandons a leased property and demonstrates no
intention of fulfilling the obligations of the lease, the landlord may re-take
possession and pursue legal recourses for default. In such a case, the tenant
remains liable for payment of rent. The landlord also has the option of
terminating the lease, which releases the tenant from responsibility for rent.
Chapter 7: Real Estate Leases 97
However, the landlord may be able to sue for damages and at the same time
re-let the property.
It is important to note that vacating leased premises does not in itself
constitute abandonment, and certainly not if the tenant continues to abide
by the lease obligations.
Uniform Residential Landlord and Tenant Act
Areas of regulation
The Uniform Residential Landlord and Tenant Act (URLTA) is a model
law enacted as a blueprint for state laws to regulate leasing and management
practices of landlords with residential properties. Numerous states have
enacted tenant-landlord regulations in response to the law.
The act aims to:
equalize and standardize rights of landlord and tenant
protect tenants from unethical practices
prevent unfair, complex leases and their enforceability
One important effect of URLTA is that it prompted legislation at the state level
that empowered the courts to nullify residential leases that violated URLTA
guidelines, particularly where a lease gave unfair advantage to the landlord.
Areas of regulation URLTA legislation primarily addresses the lease contract, deposits and
advances, obligations of landlord and tenant, the landlord’s rights of access,
and standards for eviction.
Lease agreements. URLTA sets standards for improving oral,
vague, or unbalanced lease agreements. The law’s positions on these
issues are:
unclear lease term: becomes a periodic tenancy
rent amount: fair market value or court’s opinion
waiving of rights: certain rights cannot be waived
The law intends to avoid irregularities and vagueness in the lease term and rent
obligations, as these can cause exaggeration in a landlord’s claim for the
amount of rent due from a defaulting tenant. A vague lease term can also lead
to a dispute about the duration of a tenant’s possession rights. A landlord, for
example, could claim that a lease has expired in order to acquire a higherpaying tenant. URLTA also discourages the landlord practice of persuading
tenants to waive rights they do not understand or are unaware of.
Deposit and advance. URLTA requires leases to be clear about:
maximum deposit amount
the tenant’s right to earn interest on the deposit
98 Principles of Real Estate Practice
commingling deposit or advance with other monies
deadline for returning deposits
procedures and criteria for return of the deposit to the tenant
Although URLTA applies to how landlords can handle deposits and advances,
state laws also strictly regulate how brokers and agents may handle tenant
monies.
Landlord’s obligations. Under URLTA, a landlord must:
bargain in good faith with the tenant
provide required maintenance
make repairs
comply with local building codes
provide access and safety services: elevator; fire escapes, etc.
provide a procedure for delivery of official notices
Tenant’s obligations. A tenant must:
bargain in good faith
maintain the condition of the leased premises
abide by (legitimate) rules and regulations of the building
refrain from abusing or causing destruction to the property
limit uses to those approved
avoid unduly disturbing other tenants
Access. URLTA attempts to balance the landlord’s right to access the premises
with the tenant’s right of quiet enjoyment. The landlord has the right to enter the
premises at any time when acting to prevent damage or destruction; to make
repairs or show the property, on giving proper notice; if the purpose is not
arbitrary and the time is reasonable The tenant may not refuse the landlord entry
for acceptable reasons such as emergencies, repairs, inspections, and showings.
Default and eviction. URLTA attempts to establish equitable procedures for
dealing with lease defaults. If the landlord defaults, a tenant may sue for
damages, terminate the agreement, or negotiate a rent abatement. Tenants
generally are not released of liability for rent during a dispute. Rents, however,
may be paid to a court impound pending judgment. If a tenant defaults, the
landlord may terminate and evict, provided proper notice is made and the
landlord can justify the cause for the action.
Exemptions. State laws based on URLTA generally do not apply to transient
occupancies, such as hotel and motel rentals, proprietary leases in cooperatives,
or to occupancy in a residence that is under a contract for deed.
by inpac01 | Nov 22, 2021 | Real Estate
부동산 지식 21-Real Estate Leases-Types of Lease
The Lease Contract
Types of Lease
Default and Termination
Uniform Residential Landlord and Tenant Act
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 landlord to pay the property’s
operating expenses, including utilities, repairs, and maintenance, while the
tenant pays only rent. Rent levels under a gross lease are higher than under a
net lease, since the landlord recoups expense outlays in the form of added
rent.
Gross leases are common for office and industrial properties. Residential leases
are usually gross leases with the exception that the tenants often pay utilities
expenses.
Net lease A net lease requires a tenant to pay for utilities, internal repairs, and a
proportionate share of taxes, insurance, and operating expenses in addition to
rent. In effect, the landlord “passes through” actual property expenses to the
tenant rather than charging a higher rent level. Net leases vary as to exactly what
expenses the tenant is responsible for. The extreme form of net lease requires
tenants to cover all expenses, including major repairs and property taxes.
Net leases are common for office and industrial properties. They are sometimes
also used for single family dwellings.
In practice, the terms net and gross lease can be misleading: some gross leases
still require tenants to pay some expenses such as utilities and repairs. Similarly,
some net leases require the landlord to pay certain expenses. Prudent tenants and
landlords look at all expense obligations in relation to the level of rent to be
charged.
Percentage lease A percentage lease allows the landlord to share in the income generated from
the use of the property. A tenant pays percentage rent, or an amount of rent
equal to a percentage of the tenant’s periodic gross sales. The percentage rent
may be:
a fixed percent of gross revenue without a minimum rent
a fixed minimum rent plus an additional percent of gross sales
a percentage rent or minimum rent, whichever is greater
Percentage leases are used only for retail properties.
Residential lease A residential lease may be a net lease or a gross lease. Usually, it is a form of
gross lease in which the landlord pays all property expenses except the
tenant’s utilities and water. Since residential leases tend to be short in term,
tenants cannot be expected to pay for major repairs and improvements. The
94 Principles of Real Estate Practice
landlord, rather, absorbs these expenses and recoups the outlays through
higher rent.
Residential leases differ from commercial and other types of lease in that:
lease terms are shorter, typically one or two years
lease clauses are fairly standard from one property to the next, in
order to reflect compliance with local landlord-tenant relations
laws
lease clauses are generally not negotiable, particularly in larger
apartment complexes where owners want uniform leases for all
residents
Commercial lease A commercial lease may be a net, gross, or percentage lease, if the tenant is a
retail business. As a rule, a commercial lease is a significant and complex
business proposition. It may involve hundreds of thousands of dollars for
improving the property to the tenant’s specifications. Since the lease terms are
often long, total rent liabilities for the tenant can easily be millions of dollars.
Some important features of commercial leases are:
long term, ranging up to 25 years
require tenant improvements to meet particular usage needs
virtually all lease clauses are negotiable due to the financial
magnitude of the transaction
default can have serious financial consequences; therefore,
lease clauses must express all points of agreement and be
very precise
Ground lease A ground lease, or land lease, concerns the land portion of a real property.
The owner grants the tenant a leasehold interest in the land only, in exchange
for rent.
Ground leases are primarily used in three circumstances:
an owner wishes to lease raw land to an agricultural or mining
interest
unimproved property is to be developed and either the owner
wants to retain ownership of the land, or the developer or future
users of the property do not want to own the land
the owner of an improved property wishes to sell an interest in the
improvements while retaining ownership of the underlying land
In the latter two instances, a ground lease offers owners, developers, and users
various financing, appreciation, and tax advantages. For example, a ground lease
lessor can take advantage of the increase in value of the land due to the new
improvements developed on it, without incurring the risks of developing and
owning the improvements. Land leases executed for the purpose of development
or to segregate ownership of land from ownership of improvements are
inherently long term leases, often ranging from thirty to fifty years.
Proprietary lease A proprietary lease conveys a leasehold interest to an owner of a cooperative.
The proprietary lease does not stipulate rent, as the rent is equal to the owner’s
share of the periodic expenses of the entire cooperative. The term of the lease is
likewise unspecified, as it coincides with the ownership period of the
cooperative tenant: when an interest is sold, the proprietary lease for the seller’s
unit is assigned to the new buyer.
Leasing of rights The practice of leasing property rights other than the rights to exclusive
occupancy and possession occurs most commonly in the leasing of water rights,
air rights, and mineral rights.
For example, an owner of land that has deposits of coal might lease the mineral
rights to a mining company, giving the mining company the limited right to
extract the coal. The rights lease may be very specific, stating how much of a
mineral or other resource may be extracted, how the rights may be exercised, for
what period of time, and on what portions of the property. The lessee’s rights do
not include common leasehold interests such as occupancy, exclusion, quiet
enjoyment, or possession of the leased premises.
Another example of a rights lease is where a railroad wants to erect a bridge
over a thoroughfare owned by a municipality. The railroad must obtain an air
rights agreement of some kind, whether it be an easement, a purchase, or a
lease, before it can construct the bridge.
총 리스 총 리스 또는 풀 서비스 리스는 집주인이 부동산의
유틸리티, 수리 및 유지 보수를 포함한 운영 비용,
임차인은 임대료만 지불합니다. 총 리스에 따른 임대료 수준은 리스보다 높습니다.
임대인은 추가 비용의 형태로 비용 지출을 회수하기 때문에 순 임대
임차료.
총 임대는 사무실 및 산업 자산에 일반적입니다. 주거용 임대
세입자가 종종 유틸리티를 지불한다는 점을 제외하고는 일반적으로 총 임대입니다.
경비.
순 리스 순 리스는 세입자가 유틸리티, 내부 수리 및
세금, 보험 및 운영 비용의 비례 몫
임차료. 사실상 집주인은 실제 재산 비용을
더 높은 임대료 수준을 청구하는 것보다 세입자에게 순 임대는 정확히 무엇에 따라 다릅니다.
임차인이 부담하는 비용. 극단적 인 형태의 순 임대는 다음을 요구합니다.
세입자는 주요 수리 및 재산세를 포함한 모든 비용을 부담해야 합니다.
순 임대는 사무실 및 산업 자산에 일반적입니다. 그들은 때때로
단독 주택에도 사용됩니다.
실제로 순리스 및 총리스라는 용어는 오해의 소지가 있습니다. 일부 총리스
여전히 세입자가 유틸리티 및 수리와 같은 일부 비용을 지불해야 합니다. 비슷하게,
일부 순 리스에서는 집주인이 특정 비용을 지불해야 합니다. 신중한 임차인과
집주인은 임대료 수준과 관련된 모든 비용 의무를 검토합니다.
청구됨.
퍼센티지 리스 퍼센티지 리스는 집주인이 다음에서 발생하는 소득을 공유할 수 있도록 합니다.
재산의 사용. 세입자가 일정 비율의 임대료 또는 임대료를 지불합니다.
세입자의 정기 총 판매액의 백분율과 동일합니다. 백분율 임대료
아마도:
최소 임대료 없이 총수입의 고정 비율
고정된 최소 임대료와 총 판매액의 추가 비율
임대료 또는 최소 임대료 중 더 큰 금액
백분율 임대는 소매 부동산에만 사용됩니다.
주거용 리스 주거용 리스는 순 리스 또는 총 리스일 수 있습니다. 일반적으로 다음과 같은 형식입니다.
집주인이 모든 재산 비용을 지불하는 총 리스
세입자의 유틸리티 및 물. 주거용 임대차 기간이 짧은 경향이 있기 때문에,
세입자는 주요 수리 및 개선 비용을 지불할 것으로 기대할 수 없습니다. NS
94 부동산실무원칙
집주인은 오히려 이러한 비용을 흡수하고 다음을 통해 지출을 회수합니다.
더 높은 임대료.
주거용 임대는 다음과 같은 점에서 상업용 및 기타 유형의 임대와 다릅니다.
임대 기간은 일반적으로 1~2년으로 더 짧습니다.
임대 조항은 한 부동산에서 다음 부동산에 이르기까지 상당히 표준적입니다.
지역 집주인-세입자 관계 준수를 반영하기 위해
법률
임대 조항은 일반적으로 협상할 수 없습니다.
소유자가 모두에게 균일한 임대를 원하는 아파트 단지
주민
상업용 임대 상업용 임대는 임차인이
소매 비즈니스. 일반적으로 상업용 임대는 중요하고 복잡합니다.
사업 제안. 수십만 달러의 비용이 소요될 수 있습니다.
세입자의 사양에 맞게 부동산을 개선합니다. 임대기간이 정해져 있기 때문에
종종 세입자의 총 임대료 부채는 수백만 달러가 될 수 있습니다.
상업용 임대의 몇 가지 중요한 기능은 다음과 같습니다.
장기, 최대 25년
특정 사용 요구 사항을 충족하기 위해 테넌트 개선 필요
사실상 모든 임대 조항은 재정적 문제로 인해 협상 가능합니다.
거래 규모
불이행은 심각한 재정적 결과를 초래할 수 있습니다. 그러므로,
임대 조항은 모든 합의 사항을 명시해야 하며
매우 정확한
지상 임대 지상 임대 또는 토지 임대는 부동산의 토지 부분에 관한 것입니다.
소유자는 그 대가로 임차인에게 토지에 대한 임대 지분만 부여합니다.
임대.
지상 임대는 주로 세 가지 상황에서 사용됩니다.
소유자가 농업 또는 광업에 원시 토지를 임대하고자 하는 경우
관심
미개량 부동산이 개발되어야 하며 소유자 중 한 명이
토지, 개발자 또는 미래의 소유권을 유지하기를 원합니다.
부동산 사용자는 토지를 소유하기를 원하지 않습니다.
개선된 부동산의 소유자가 해당 부동산의 지분을 매각하기를 원합니다.
기본 토지의 소유권을 유지하면서 개선
후자의 두 경우에는 지상 임대가 소유자, 개발자 및 사용자에게 제공됩니다.
다양한 자금 조달, 감사 및 세금 혜택. 예를 들어 지상 임대
임대인은 새로운 토지로 인한 토지 가치 상승의 이점을 누릴 수 있습니다.
개발 및
개선 사항을 소유하고 있습니다. 개발을 목적으로 하는 토지임대차
또는 토지 소유권을 개선 소유권과 분리하기 위해
본질적으로 장기 임대로 종종 30년에서 50년 사이입니다.
독점 리스 독점 리스는 협동 조합 소유주에게 임대 지분을 전달합니다.
임대차계약은 임대인의 임대료와 동일하기 때문에 임대료를 규정하지 않습니다.
전체 협동조합의 정기 비용 분담금. 임대기마찬가지로 소유권 기간과 일치하므로 지정되지 않습니다.
협동 세입자: 이자가 매각될 때 매도인의 소유권 임대
단위가 새 구매자에게 할당됩니다.
권리대여 전속권 외의 재산권을 임대하는 행위
점유 및 점유는 물 권리 임대에서 가장 일반적으로 발생합니다.
항공권, 광물권.
예를 들어, 석탄이 매장된 토지 소유자는 광물을 임대할 수 있습니다.
광산 회사에 대한 권리, 광산 회사에 제한된 권리 부여
석탄을 추출합니다. 권리 임대는 매우 구체적일 수 있습니다.
광물 또는 기타 자원이 추출될 수 있는지, 권리가 행사될 수 있는지,
어떤 기간과 재산의 어떤 부분에. 임차인의 권리는
점유, 배제, 조용함과 같은 공통 임대 이익을 포함하지 않음
임대 건물의 향유 또는 소유.
권리 임대의 또 다른 예는 철도가 다리를 건설하려는 경우입니다.
시정촌 소유의 도로 위. 철도는 공기를 얻어야 한다
지역권, 구매 또는
다리를 건설하기 전에 임대하십시오.간은
by inpac01 | Nov 19, 2021 | Real Estate
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
by inpac01 | Nov 16, 2021 | Real Estate
부동산 지식 19-Real Estate Leases
The Lease Contract
Types of Lease
Default and Termination
Uniform Residential Landlord and Tenant Act
The Lease Contract
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