DIR Return Create A Forum - Home
       ---------------------------------------------------------
       Kanagaroo Kort
  HTML https://kangarookort.createaforum.com
       ---------------------------------------------------------
       *****************************************************
   DIR Return to: Property
       *****************************************************
       #Post#: 37--------------------------------------------------
       Hannan v. Dusch
       By: SunsetSailor Date: January 27, 2011, 10:26 pm
       ---------------------------------------------------------
       Legal Possession v. Actual Possession
       * LL MUST delivery legal possession on the day the lease
       begins: Legal PossessionLL is vesting his title to the T
       to have a present possessory interest in the property
       * Actual Possession is necessary:
       1. (1) where there is an express covenant in the lease
       2. (2)  if the lease contains a covenant of quiet
       enjoyment (one of the rights in the bundle of quiet enjoyment =
       actual possession)
       ISSUE:  In the absence of an express covenant, is the LL
       required to give actual possession to the T
       RULES:
       o ENGLISH RULE:
       1. In the absence of stipulations to the
       contrary, there is in every lease an implied covenant on the
       part of the landlord that the premises shall be open to entry by
       the tenant at the time fixed by the lease for the beginning of
       his term…
       + It must be borne in mind, however, that
       the courts which hold that there is such an implied covenant do
       not extend the period beyond the day when the lesee’s term
       begins.  If after that day a stranger trespasses upon the
       property and wrongfully obtains or withholds possession of it
       from the lessee, his remedy is against the stranger and not
       against the lessor
       * AMERICAN RULE:
       1. The landlord is not bound to put the tenant into
       actual possession, but is bound only to put him in legal
       possession, so that no obstacle in the form of superior right of
       possession will be interposed to prevent the tenant from
       obtaining actual possession of the demised premises…
       2. Under the American rule, where the new tenant fails
       to obtain possession of the premises only because a former
       tenant wrongfully holds over, his remedy is against such
       wrongdoer and not against the landlord—this because the landlord
       has not covenanted against the wrongful acts of another and
       should not be held responsible for such a tort unless he has
       expressly so contracted.
       Remedies
       o Under American Rule: Remedies are against the old
       tenant…new T can sue to recover possession and damages (injuries
       that flow from the loss of possession)
       o English Rule: Remedies are against the LL…new T can
       terminate the lease, he can sue the LL for damages (difference
       b/w cover & contract priceT recovers the cost of cover
       as long as it is reasonable), reformation option (new T can come
       in and occupy the rest of the property that the old T is not
       occupying with rent reduced)  In addition, new tenant can go
       against the Old T to recover possession & damages
       *****************************************************