Lesson 2
- Terminology & Concepts
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A landlord may be a fee simple owner of
land or simply one with an assignable interest. "The word tenant refers to
only those people who pay consideration to a landlord for the right to
occupy property."
We commonly use the words "landlord and tenant" to
describe modern interests in real estate, but estates in land are
traditionally divided into "freehold and non-freehold". The distinction is
an old one dating from the rather mysterious feudal concept of seisin,
which in common law was used to convey land before the statute of uses. But, in order to follow the legal concepts of interests in
real property it may be enough for now to understand that a property owner
is generally believed to have a free-hold, while a tenant holds a
non-freehold interest in the land.
A non-freehold estate: The estates in land that are non-freehold are:
- tenancy for years;
- periodic tenancy;
- tenancyat will;
- tenancy at sufferance.
These estates are discussed on our pages
dealing with types
of tenancy.
Non-freehold
estates have one particularly important characteristic; each normally
includes a duty on the tenant's part to pay
rent. Since modern statutes did not specifically define who
is a tenant, courts had to determine the Legislature's meaning. After
looking at common law, definitions in dictionaries and other statutes,
Michigan courts found in 1995, affirmed on appeal, that: "the word
tenant referred to only those people who paid consideration to a landlord
for the right to occupy property." The court heard evidence that a
landlord refused to provide electric to a tenant who had not paid rent. And
although the court found for the tenant under an anti-lock-out statute, it
refused to award damages to children of the tenant who had not directly paid
rent.
(Nelson v. Grays 531 N.W. 2d~26
1995. Also see: Grant v. Detroit Association of Woman's Clubs. 505 N.W. 2d.
254 1993)
There is at least one
important respect in which the non-freehold estates were treated differently
from the freehold estates by American law:
a leasehold, or non-freehold is personal,
not real
property. At one time, this
meant that the leasehold was treated differently for purposes of intestate
succession, (death without a will), but most states today treat
leaseholds and freeholds identically for this purpose. Despite the
difference, leasehold and freehold at common law had a key feature in
common: they were both estates in land, typically created by a conveyance.
And until about the 1960s, law regulating landlord tenant relations in
America was dominated by these real estate conveying principals.
Since a tenant was deemed to
receive an estate in land, his rights and duties were treated as independent
of the landlord's rights and duties. Thus if a (very unusual)
landlord promised to keep the property in good repair, a breach of this
promise did not relieve the tenant of their duty to pay rent, since the rent
was owed as payment for the estate, and the promise to do repairs was just a
collateral promise which could be enforced only by a separate contractual
suit brought by the tenant. This doctrine is generally referred to as the
independence of covenants. Similarly, if buildings or
improvements on the land were completely destroyed by fire or other act of
nature, the tenant still had the duty to pay rent. Again, this stemmed from
the idea that the tenant was to pay rent for the land itself, not the
improvements on it.
But since the liberal legal
training that began in the 60s, courts have been showing an almost
revolutionary tendency to move away from the doctrine of independence of
covenants. The most striking example is the present willingness of most
courts to hold that landlords make an
implied warranty of
habitability, which if breached entitles the tenant to
terminate any lease and move out, withhold rent, or use rent moneys to make
the repairs himself. Most states have since even sought to codify the
concept by statute; rationalizing that in spite of "as is" language in a
contract, there still exists an implied warranty of habitability by virtue
of the intended use of a dwelling and the business relationship of landlords
and tenants. Similarly, in many states the tenant's duty to pay rent is now
dependent upon the continued existence of buildings and improvements
on the property, so that fire or flood could relieve them of any tenants
obligations.
One other important
characteristic of a leasehold to understand here is that the tenant, for the
term of their lease, is entitled to
exclusive possession.
This
distinguishes a leasehold from several other types of property interests.
For instance, a guest in a hotel does not normally have a leasehold
interest, but rather, a license to use the property. The same is true
of a lodger in a boarding house. Consequently, statutes applicable to
landlord-tenant relations may not apply and the hotel keeper may have the
right to use "self-help" to evict a non-paying guest even though such
self-help is now forbidden by statute to landlords.
 
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