X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
1. No- assignment clause. Restraints on alienation are strictly construed against the landlord. But a restriction against assignments does not restrict subleases. An assignment is a conveyance of all of the tenant’s remaining possessory interest in the property. A sublease is conveyance of part of the tenant’s lease term. Here, Lois gave Fast 10 years of her lease, on which 25 years remained. Therefore, L subleased to Fast. Since the lease did not restrict subleases, L did not violate the no-assignment provision. Waiver? Even if L did violate the no-assignment clause by subleasing to F, O has accepted rent directly from Fast. Therefore, O is estopped from denying the validity of the sublease. 2. Trespass to land is an intentional tort of physical invasion of plaintiff’s property. It requires act, intent, causation. Act. The question is whether B’s use of parking spaces 15 through 20 on Sundays is a physical invasion. If B had the right to use the parking spaces, it is not a physical invasion and trespass fails. Grant from B to Oeasement by reservation? An easement by reservation is an express easement in favor of the grantor. It requires a writing to satisfy the Statute of Frauds. Here, B’s deed to O expressly reserved the right to exclusive use of parking spaces 15 through 20 on Sundays for a particular use. It is in B’s deed to O, satisfying the requirement of a writing. Therefore, the easement is valid. Burden runs to L? When possession of the servient estate is conveyed, the new possessor is burdened by the easement if he has notice. Here, O gave L a lease, conveying possession. The question is whether L had notice of the easement. Notice? Notice can be actual, constructive or inquiry. Actual? Actual notice exists if the grantor gave the lessee a copy of the deed containing the easement or told her about its provisions. Here, L’s lease with O grants her parking spaces 1 through 20. It does not appear that the lease excludes Sundays or otherwise mentions Builder’s interest. Therefore, probably actual notice does not exist. Constructive? Constructive notice is provided by a search of the grantor’s deed. Whereas purchasers of land are charged with making a title search and bound by the notice such a search would have provided, tenants are not required to make a title search. Here, L was a tenant. On the one hand, L entered into a 30-year lease. Such a long-term interest might make it reasonable for L to have searched the landlord’s deed. While it may have been prudent for L to make such a search, I do not believe it is required, so L is not charged with the knowledge that such a search would have provided. Inquiry? Inquiry notice exists when conditions existing on the land that would cause the tenant to inquire further as to what interests exist. L occupied the leased premises for five years. Presumably, B made use of the parking spaces every Sunday for those five years. Therefore, L would have had notice that B must have some interest, giving L the duty to inquire further as to what the interest is. Therefore, L had notice of B’s interest and the easement burdens L. Fast’s interest In a sublease, there is a contractual relationship between the tenant (L) and the sublessee (F). The sublessee has no direct relationship with the landlord (O) and no rights stemming from his occupancy, other than the contract. It follows that Fast has no greater rights than does L. Since L is bound by the easement, Fast’s sublease would be likewise limited by the same conditions. It does not matter that F had no notice of B’s easement, because L had notice and F’s rights are derived from L’s rights. Therefore, Fast cannot sue for trespass, because B has a right to use the parking spaces on Sundays. 3. O’s remedy for nonpayment of rent. O and L have a lease for 30 years. When they entered the lease, they were in privity of contract and in privity of estate. L subleased to Fast for 10 years. L and Fast have a contractual relationship whereby Fast owes L rent and L permits Fast to occupy the premises. O and L remain in privity of contract and privity of estate. L remains liable to pay rent to O. Here, F refused to pay rent after the first Sunday of his tenancy. Rent is due monthly. Until F falls in arrears on payment of rent, there is no breach of the lease. If O changed the locks only upon F’s threat that he would not pay rent, but before rent was in arrears, then O has evicted F without justification. If, on the other hand, Fast refused to pay rent when it was due, Fast’s action placed L in breach of the lease. Under common law, a landlord could use self-help to evict a tenant in default, including changing the locks when the tenant was out. However, because of the availability of summary court proceedings in almost every jurisdiction, self-help measures are disfavored. Therefore, O probably does not have the right to change the locks on L’s leasehold. 4. Homeowners v. FastPublic Nuisance? Public nuisance is an unreasonable and substantial interference with a right common to the general public, involving health, safety or property rights of the community. Factors to be considered in determining substantiality are: The type of neighborhood. The court will consider the type of neighborhood as it exists at time of suit. Here, the neighborhood is residential, adjacent to a shopping mall with a range of commercial activities, including, an outdoor food stall on Sundays and probably other restaurants as well. Even though the shopping mall is new to the area, the range of activities that are expectable in this neighborhood has now changed. This factor weighs against finding a pubic nuisance. The nature of the activity. Food smells, although they can be annoying, are not noxious nor are they a health hazard on the order of a slaughterhouse, for example. This factor weighs against finding a pubic nuisance. The proximity of the activity to the plaintiffs. Fast Food’s activity is adjacent to the residential neighborhood. This factor favors finding a public nuisance. The activity’s frequency, duration and continuity. On the one hand, Fast Food operates seven days a week, every week, for probably eight hours or more every day. This is continuous and of long duration. On the other hand, the fumes occur only on especially warm days and when the restaurant was busy. This is an intermitted, rather than a continuous problem. This factor weighs against finding a public nuisance. The degree of damage or annoyance. Discomfort does not rise to the level of damage or annoyance, when considering other activities that have been found to be public nuisances, such as actual health hazards. This factor also weighs against finding a public nuisance. Therefore, I do not believe the neighbors will succeed in a suit for public nuisance against Fast Foods. This answer provided by The Writing Edge, 800-949-PASS, www.writingedge.com.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.