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Contents
1General terms
2Leases of land
3History of leases of land
4Types of tenancies
o 4.1Fixed-term tenancy or tenancy for years
o 4.2Periodic tenancy
o 4.3Tenancy at will
o 4.4Tenancy at sufferance
5Formalities
o 5.1Term
o 5.2Transparency and fine print
o 5.3Rent
o 5.4Exclusive possession
6Provisions specific to car rental
7Leasing property
o 7.1Deposit
o 7.2Insurance
8Sublease
9Equipment leasing
10See also
11References
12External links
General terms[edit]
A lease is a legal contract, and thus enforceable by all parties under the contract law of
the applicable jurisdiction.
In the United States, since it also represents a conveyance of possessory rights to real
estate, it is a hybrid sort of contract that involves qualities of a deed.
Some kinds of leases may have specific clauses required by statute depending upon
the property being leased, and/or the jurisdiction in which the agreement was signed or
the residence of the parties.
Common elements of a lease agreement include:
Names of the parties of the agreement.
The starting date and duration of the agreement.
Identifies the specific object (by street address, VIN, or
make/model,serial number) being leased.
Provides conditions for renewal or non-renewal.
Has a specific consideration (a lump sum, or periodic
payments) for granting the use of this object.
Has provisions for a security deposit and terms for its
return.
May have a specific list of conditions which are therein
described as Default Conditions and specific Remedies.
May have other specific conditions placed upon the parties
such as:
o Need to provide insurance for loss.
o Restrictive use.
o Which party is responsible for maintenance.
Termination clause (describing what will happen if the
contract is ended early or cancelled, stating the rights of
parties to terminate the lease, and their obligations)
All kinds of personal property (e.g. cars and furniture) or real property (e.g. raw land,
apartments, single family homes, and business property, which includes wholesale and
retail) may be leased. As a result of the lease, the owner (lessor) grants the use of the
stated property to the lessee.
Leases of land[edit]
The narrower term 'tenancy' describes a lease in which the tangible property is land
(including at any vertical section such as airspace, storey of building or mine). A
premium is an amount paid by the tenant for the lease to be granted or to secure the
former tenant's lease, often in order to secure a low rent, in long leases termed
a ground rent. For parts of buildings it is most common for users to pay also by
collateral contract, or by the same contract, a service charge which is normally an
express list of services in a lease to minimize disputes over service charges. A gross
lease or tenancy stipulates a rent that is for the global amount due including all service
charges.
A cancelable lease (UK: determinable/breakable lease) is a lease that may be
terminated (formally determined) solely by the lessee or solely by the lessor without
penalty. A mutually determinable lease can be determined by either. A non-cancelable
lease is a lease that cannot be so terminated. Commonly, "lease" may imply a non-
cancelable lease, whereas "rental agreement" may connote a cancelable lease.
Influenced by land registration, commonly tenancies initially granted for more than a
year are referred to more simply as leases. [6]
The lease will either provide specific provisions regarding the responsibilities and rights
of the lessee and lessor, or there will be automatic provisions as a result of local law. In
general, by paying the negotiated fee to the lessor, the lessee (also called a tenant) has
possession and use (the rental) of the leased property to the exclusion of the lessor
and all others except with the invitation of the tenant. The most common form of real
property lease is a residential rental agreement between landlord and tenant. [7] As the
relationship between the tenant and the landlord is called a tenancy, this term generally
is also used for informal and shorter leases. The right to possession by the tenant is
sometimes called a leasehold interest. A lease can be for a fixed period of time (called
the term of the lease). A lease may be terminated sooner than its end date by:
Break/cancellation (this depends upon the terms of the
lease)
A negotiated deed of surrender or yielding-up.
Forfeiture
By operation of statute (rare)
A lease should be contrasted with a license, which may entitle a person (called
a licensee) to use property, but which is subject to termination at the will of the owner of
the property (called the licensor). An example of a licensor/licensee relationship is a
parking lot owner and a person who parks a vehicle in the parking lot. A license may be
seen in the form of a ticket to a baseball game or a verbal permission to sleep a few
days on a sofa. The difference is that if there is a term (end time), a degree of privacy
suggestive of exclusive possession of a clearly defined part, practised ongoing,
recurrent payments, a lack of right to terminate save for misconduct or nonpayment,
these factors tend toward a lease; by contrast, a one-time entrance onto someone
else's property is probably a license. The seminal difference between a lease and a
license is that a lease generally provides for regular periodic payments during its term
and a specific ending date. If a contract has no ending date then it may be in the form of
a perpetual license and still not be a lease.
Under normal circumstances, owners of property are at liberty to do what they want with
their property (for a lawful purpose), including dealing with it or handing
over possession of the property to a tenant for a limited period of time. If an owner has
granted possession to another (i.e., the tenant) then any interference with the quiet
enjoyment of the property by the tenant in lawful possession is itself unlawful.
Similar principles apply to real property as well as to personal property, though the
terminology differs. The right to sub-lease may or may not be permitted to a tenant.
Where it is permitted, the lease granted directly by the owner is called a "headlease", or
sometimes a "master lease". Headlease tenants and their tenants who may in turn also
sublet are termed mesne /miːn/ landlords from the old French for middle. The
headlease tenant has no right to grant a sublease which extends beyond the end of the
headlease.[8]
To circumvent privity of estate which is the general principle flowing from privity of
contract, laws exist in several jurisdictions to bind subtenants to some of the restrictive
covenants (terms) of the headlease, for instance in England and Wales those which
have been held by courts to touch and concern the land. [9]
A transfer of a remaining interest in a lease, assignment, is a type of (alienation) is
often possible and an implied rights to assign exist by compulsory law or as a default
position in some jurisdictions. Sharing or parting with possession can be a breach of
certain leases resulting in action for forfeiture.
Enfranchisement is the obtaining of the landlord's title and is most commonly
negotiated with the landlord where a tenant pays only a ground rent. Merger is where
the landlord and tenant happen to be the same and can terminate a lease where there
are no subtenants in certain jurisdictions.
In the United States a lessee may negotiate a right of first refusal clause into their
land or property lease giving them the right to make a purchase offer on the property
before the leasor can negotiate with third-party buyers. This gives tenants the ability to
commit to a piece of property before any other potential buyers have the opportunity. [10][11]
Types of tenancies[edit]
Fixed-term tenancy or tenancy for years[edit]
A fixed-term tenancy or tenancy for years lasts for some fixed period of time. It has a
definite beginning date and a definite ending date. Despite the name "tenancy for
years", such a tenancy can last for any period of time—even a tenancy for one week
may be called a tenancy for years. At common law the duration did not need to be
certain, but could be conditioned upon the happening of some event, (e.g., "until the
crops are ready for harvest" or "until the war is over"). In many jurisdictions that
possibility has been partially or totally abolished.
A fixed term tenancy comes to an end automatically when the fixed term runs out or, in
the case of a tenancy that ends on the happening of an event, when the event occurs. If
a holdover tenant remains on the property after the termination of the lease, s/he may
become a tenant at sufferance because the lessor/landlord has suffered (or allowed) the
tenant to remain as a tenant instead of evicting him or her. Such a tenancy is generally
"at will," meaning the tenant or the landlord may terminate it at any time, upon the
providing of proper statutory notice.
Periodic tenancy[edit]
A periodic tenancy, also known as a tenancy from year to year, month to month, or
week to week, is an estate that exists for some period of time determined by the term of
the payment of rent. An oral lease for a tenancy of years that violates the Statute of
Frauds (by committing to a lease of more than—depending on the jurisdiction—one
year without being in writing) may actually create a periodic tenancy, depending on the
laws of the jurisdiction where the leased premises are located. In many jurisdictions the
"default" tenancy, where the parties have not explicitly specified a different
arrangement, and where none is presumed under local or business custom, is a month-
to-month tenancy.
Either the landlord or the tenant may terminate a periodic tenancy when the period or
term is nearing completion, by giving notice to the other party as required by statute or
case law in the jurisdiction. Neither landlord nor tenant may terminate a periodic
tenancy before the period has ended, without incurring an obligation to pay for the
months remaining on the lease. Either party must give notice if it intends to terminate a
tenancy from year to year, and the amount of notice is either specified by the lease or
by state statute. Notice is usually, but not always, at least one month, especially for the
year-to-year periodic tenancy. Durations of less than a year must typically receive notice
equal to the period of the tenancy—for example, the landlord must give a month's notice
to terminate a tenancy from month to month. However, many jurisdictions have
increased these required notice periods, and some have reduced the capacity of a
landlord to use them drastically. For jurisdictions that have local rent control laws, a
landlord's ability to terminate a residential tenancy is substantially reduced. For
example, in California, the cities of Los Angeles, Santa Monica, West Hollywood, San
Francisco, and Oakland have "rent stabilization ordinances" that limit a landlord's ability
to terminate a periodic tenancy, among other restrictions.
The notice must also state the effective date of termination, which, in some
jurisdictions, must be on the last day of the payment period. In other words, if a month-
to-month tenancy began on the 15th of the month, in a jurisdiction with a last
day requirement the termination could not be effective on the 20th of the following
month, even though this would give the tenant more than the required one month's
notice.
Tenancy at will[edit]
A tenancy at will is a tenancy which either the landlord or the tenant may terminate at
any time by giving reasonable notice. Unlike a periodic tenancy, it isn't associated with a
time period. It may last for many years, but it could be ended at any time by either the
lessor or the lessee for any reason, or for no reason at all. Proper notice, as always with
landlord/tenant law, must be given, as set forth in the state's statutes. If there is no
formal lease, the tenancy at will is the one that usually exists. In rare cases it may occur
where the tenancy is not for consideration. Under the modern common law, a tenancy
at will without compensation is very rare, partly because it comes about only if the
parties expressly agree that the tenancy is for no rent, commonly where a family
member is allowed to live in a home (a nominal consideration may be required) without
any formal arrangements. In most residential tenancies for a fixed term, for
consideration, the tenant may not be removed except for cause, even if there is no
written lease. (However, an oral lease for more than 12 months is not enforceable if the
statute of frauds in the jurisdiction includes leases of more than 12 months.) Many
residential leases convert to "at will" tenancy subject to 30 days' notice. Alternatively, a
tenancy at will (without a specific time limit) may exist for a temporary period where a
tenant wishes to take possession of a property and the landlord agrees, but there is
insufficient time in which to negotiate and complete a new lease. In this case, the
tenancy at will is terminated as soon as a new lease is negotiated and signed. The
parties may also agree on the basis that if the parties fail to enter into a new lease
within a reasonable time period, then the tenant must vacate the premises.
If a lease exists at the sole discretion of the landlord, the law of the jurisdiction may
imply that the tenant is granted, by operation of law, a reciprocal right to terminate the
lease at will. However, a lease that explicitly exists at the will of the tenant (e.g. "for as
long as the tenant desires to live on this land") generally does not imply that the landlord
may terminate the lease; rather, such language may be interpreted as granting the
tenant a life estate or even a fee simple.
A tenancy at will is broken, again by operation of law, if the:
Tenant commits waste against the property;
Tenant attempts to assign the tenancy;
Tenant uses the property to operate a criminal enterprise;
Landlord transfers his/her interest in the property;
Landlord leases the property to another person;
Tenant or landlord dies.
The specifics of these rules differ from jurisdiction to jurisdiction.
Subject to any notice required by law, a tenancy at will also comes to an end when
either the landlord or the tenant acts inconsistently with a tenancy. For example, the
changing of locks by the landlord is an indication of the end of the tenancy, as is the
vacation of the premises by the tenant. However, in some jurisdictions, such as
California, a landlord is prohibited from using a "self help" remedy, such as changing the
locks, to terminate a tenancy, particularly a residential tenancy. Doing so may constitute
a "constructive eviction" and expose the landlord to civil and criminal liability.
Tenancy at sufferance[edit]
A tenancy at sufferance (sometimes called a holdover tenancy) exists when a tenant
remains in possession of a property after the expiration of a lease, and until the landlord
acts to eject the tenant from the property. Although the tenant is technically
a trespasser at this point, and possession of this type is not a true estate in land,
authorities recognize the condition in order to hold the tenant liable for rent. The
landlord may evict such a tenant at any time, and without notice.
The landlord may also impose a new lease on the holdover tenant. For a residential
tenancy, this new tenancy is month to month. For a commercial tenancy of more than a
year, the new tenancy is year to year; otherwise it is the same period as the period
before the original lease expired. In either case, the landlord can raise the rent, so long
as the landlord has told the tenant of the higher rent before the expiration of the original
lease.
Formalities[edit]
Formal requirements for a lease are determined by the law and custom of the
jurisdiction in which real property is located. In the case of personal property, it is
determined by the law and custom of the jurisdiction in which the rental agreement is
made.[citation needed]
A tenancy for a duration greater than one year must be in writing in order to satisfy
the Statute of Frauds.
Term[edit]
The term of the lease may be fixed, periodic or of indefinite duration. If it is for a
specified period of time, the term ends automatically when the period expires, and no
notice needs to be given, in the absence of legal requirements. The term's duration may
be conditional, in which case it lasts until a specified event occurs, such as the death of
a specified individual. A periodic tenancy is one which is renewed automatically, usually
on a monthly or weekly basis. A tenancy at will lasts only as long as the parties wish it
to, and may be terminated by either party without penalty.
It is common for a lease to be extended on a "holding over" basis, which normally
converts the tenancy to a periodic tenancy on a month by month basis. It is also
possible for a tenant, either expressly or impliedly, to give up the tenancy to the
landlord. This process is known as a "surrender" of the lease.
There have been recent restrictions and limitations in New York City regarding lease
terms. One limitation in particular stated that units can not be leased for a period of less
than two weeks and any unit leased for less than 90 days may not allow guests or pets
in the unit.[12]
Transparency and fine print[edit]
As stated by the Australian Consumer Law (ACL), 2013, a lack of transparency
regarding a term in a standard-form consumer contract may cause a significant
imbalance in the parties' rights and obligations. [13]
A term is considered transparent if it is:
expressed in reasonably plain language
legible
presented clearly
readily available to any party affected by the term
Terms that may not be considered transparent include terms that are hidden in fine
print or schedules or phrased in complex or technical language. [13]
Rent[edit]
Rent is a requirement of leases in some common law jurisdictions, but not in civil law
jurisdictions. In England and Wales it was held in the case of Ashburn Anstalt v
Arnold that rent was not a requirement for there to be a lease, however the court will
more often construe a licence where no rent is paid as it is seen as evidence for no
intention to create legal relations. There is no requirement for the rent to be a
commercial amount; a peppercorn or rent of some nominal amount is sufficient for this
requirement.
Exclusive possession[edit]
A sharing arrangement with much of a landlord's property or, for no specific room of a
building for instance, may defeat a finding of a lease, however this common requirement
of a lease is interpreted differently in many jurisdictions.
In addition to the above, a car rental agreement may include various restrictions on the
way a renter can use a car, and the condition in which it must be returned. For example,
some rentals cannot be driven off-road, or out of the country, or towing a trailer, without
specific permission. In New Zealand you may have to specifically endorse a promise
that the car will not be driven onto Ninety-Mile Beach (because of the hazardous tides).
There will certainly be a requirement to show a driver's license, and only those drivers
appearing on the contract may be authorized to drive. It may include an option to
purchase auto insurance (UK: motor insurance), if the renter does not already have a
policy to cover rentals—another important consideration for multiple drivers. Some
agencies may even require a bond payable if the car is not returned in order, often held
in the form of a credit-card authorization—voided if the car is returned per agreement. A
renter should be advised that he or she will be responsible for any tolls, parking or traffic
violations incurred upon the vehicle during the rental period. There should also be
advice on handling thefts, accidents, break-downs, and towing.
Further terms may include added fees for late returns, drop-off at a different location, or
failure to top up the petrol immediately before the return.
Finally, there may be provisions for making a non-refundable deposit with a booking,
terms for payment of the initial period (with discounts, vouchers, etc.), extended periods,
and any damages or other fees that accrue prior to the return.
Leasing property[edit]
A rental agreement is often called a lease, especially when real estate is rented. Real
estate rentals are initiated by a rental application which is used to build the terms of the
lease. In addition to the basics of a rental (who, what, when, how much), a real estate
rental may go into much more detail on these and other issues. The real estate may be
rented for housing, parking a vehicle(s), storage, business, agricultural, institutional, or
government use, or other reasons.
Who: The parties involved in the contract, the lessor
(sometimes called the owner or landlord) and the lessee
(sometimes called the renter or tenant) are identified in the
contract. A housing lease may specify whether the renter is
living alone, with family, children, roommate, visitors. A
rental may delineate the rights and obligations of each of
these. For example, a "sub-let" to a stranger might not be
permitted without permission of the landlord. This also
applies to whether or not pets may be kept by the renter.
On the other hand, the renter may also have specific rights
against intrusions by the landlord (or other tenants), except
under emergency circumstances. A renter is in possession
of the property, and a landlord would be trespassing upon
the renter's rights if entry is made without proper notice and
authority (e.g., 24 hours' notice, daytime, knock first, except
for emergency repairs, in case of fire, flood, etc.).
What: Rented real estate may include all or part of almost
any real property, such as an apartment, house, building,
business office(s) or suite, land, farm, or merely an inside
or outside space to park a vehicle, or store things. The
premises rented may include not only specific rooms, but
also access to other common areas such as off-street
parking, basement or attic storage, laundry facility, pool,
roof-deck, balconies, etc. The agreement may specify how
and when these places may be used, and by whom. There
may be detailed description of the current condition of the
premises, for comparison with the condition at the time the
premises are surrendered.
When: the term of the rental may be for a night (e.g., a
hotel room), weeks, months, or years. There may be
statutory provisions requiring registration of any rental that
could extend for more than a specified number of years
(e.g., seven) in order to be enforceable against a new
landlord.
Sublease[edit]
In real estate law, sublease (or, less formally, sublet) is the
name given to an arrangement in which the lessee (e.g.
tenant) in a lease assigns the lease to a third party, thereby
making the old lessee the sublessor, and the new lessee
the sublessee, or subtenant. This means they are not only
leasing the property, but also subleasing it simultaneously.
[15]
For example, if a company leases an office space directly
from a landlord, the lessor, and subsequently outgrows the
office, then the company can sublease the smaller office
space to another company, the subtenant, and enter into a
new lease for a larger office space, thereby hedging their
real estate exposure.
The sublessor remains liable to the original lessor in
accordance with the initial lease, including all remaining
rent payments, including operating expenses and all other
original lease terms. In a down-market, the original lessee
may require a lower rent payment from the sublessee than
what he or she may have originally paid, leaving the
remaining rent owed to the lessor to be paid by the original
lessee. However, if market prices have increased since the
original lease was signed, the sublessor might be able to
secure a higher rent price than what is owed the original
lessor. However, many commercial leases stipulate that
any overages in rent be shared with the landlord, the
lessor.
In residential real estate, it is sometimes illegal to charge
the subtenant more than the original amount in the
sublessee's contract (for instance, in a rent control situation
where the rental amount is controlled by law). Subletting
of social housing is generally illegal, whatever the rent
charged to the subtenant; in the UK it is officially described
as a category of housing fraud.[16] In New York the subletting
of Mitchell-Lama cooperatives is illegal. Mitchell-Lama
residents must maintain a primary residence to remain in
their cooperative.[17]
A sublease can also apply to vehicles as an alternate type
of car rental. In a vehicle sublease, a lessee or vehicle
owner can assign a lease to a third party and by way of
contractual agreement for specific dates. Although this
arrangement is not popular, it is a growing trend in the
travel industry as a less expensive alternative for travelers
and locals.
Equipment leasing[edit]
Leasing is also used as a form of financing to acquire
equipment for use and purchase.[18] Many organizations and
companies use lease financing for the acquisition and use
of many types of equipment, including manufacturing and
mining machinery, vessels and containers, construction
and off-road equipment, medical technology and
equipment, agricultural equipment, aircraft, rail cars and
rolling stock, trucks and transportation equipment,
business, retail and office equipment, IT equipment and
software.[18]
Lease financing for equipment is generally provided by
banks, captives[clarification needed] and independent finance
companies.[19][20]
See also[edit]
Ecoleasing
Finance lease
Leasehold estate
Leasehold valuation tribunal
Leveraged lease
Operating lease
Recital (law)
Renting
Vehicle leasing
References[edit]
1. ^ Stickney and Weil 2007 p. 791 (Glossary of Financial
Accounting: An Intro. to Concepts, Methods, and Use 12e).
2. ^ http://www.accaglobal.com, ACCA -. "Accounting for leases |
F7 Financial Reporting | ACCA Qualification | Students | ACCA
Global". www.accaglobal.com. Retrieved 12 December 2017.
3. ^ 34 Am. Jur. 2d Federal Taxation ¶ 16762 Section 467 rental
agreements defined: "A rental agreement includes any written or
oral agreement that provides for the use of tangible property and
is treated as a lease for federal income tax purposes."
4. ^ It is possible to rent in such a way many things such as
domestic animals, electrical appliances, handbags and jewelry."If
you want it, rent it ... from a 'must have' handbag to an Aston
Martin", The Observer, 2009-01-04. Retrieved on 9 September
2009.
5. ^ California, Department of Consumer Affairs, State
of. "California Tenants - California Department of Consumer
Affairs". www.dca.ca.gov. Retrieved 12 December 2017.
6. ^ For land in the UK, a tenancy or lease granted for more than 7
years must be registered at the land registry and a tenancy or
lease for more than 3 years must be granted and witnessed by
using a deed. HM Land Registry Practice Guide 25. Retrieved
2012-07-08and s52(1) (LPA 1925)
7. ^ O'Sullivan, Arthur; Sheffrin, Steven M. (2003). Economics:
Principles in Action. Upper Saddle River, New Jersey: Pearson
Prentice Hall. p. 523. ISBN 0-13-063085-3.
8. ^ "Real Estate Glossary Business Dictionary Definition Head
Lease". bizoptions.com. Retrieved 5 August 2010.
9. ^ City of London Corporation v Fell [1994] 1 A.C. 459
10. ^ "Drafting a Better and More Effective Right of First
Refusal" (December 2006).LawJournalNewsletters.com.
Retrieved 12 January 2020.
11. ^ Chen, James (9 April 2019). "Right Of First Refusal
Definition." Investopedia. Retrieved 12 January 2020.
12. ^ https://www.law.com/newyorklawjournal/sites/newyorklawjourna
l/2018/01/30/when-can-condo-and-co-op-boards-fine-the-owners-
and-residents/
13. ^ Jump up to: "Rental cars: An industry guide to the Australian
a b
External links[edit]
Look
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