Lease Considers Separation of Right of Possession from the Ownership

Introduction

Lease is an agreement, written or unwritten, transferring the right to exclusive possession and use of real estate for a definite period of time. Lessee is the person who rents land or property from a lessor. The lessee is also known as the “tenant”, and must uphold specific obligations as defined in the lease agreement and by law. The lease is a legally binding document, and if the lessee violates its terms, he or she could be evicted. Lessor is the owner of an asset that is leased under an agreement to the lessee. The lessor grants the right of possession to the lessee but retains the right to retake possession after the lease term has expired. Possession is a property right or interest through which one can exercise dominion or control over something to the exclusion of all others. The owner of real property has the right to exclusive possession of her land, which includes the airspace above and the space below the surface within the exterior boundaries of the property. An owner of real property is not entitled to possess all space above her land outward to infinity but has the right to be free from those intrusions into the space that would interfere with the reasonable occupation and Quiet Enjoyment of the surface. Possession of property adverse to the rights of the true owner results in acquisition of title by the possessor under the doctrine of Adverse Possession. The doctrine is based upon statutes that limit the time for recovery of property, thereby operating as a bar to one’s right to recover property that has been held adversely by another for a specified length of time.

Rights and Liabilities of Lessor and Lessee

In the absence of a contract the lessor and the lessee of immovable property possess the rights and are subject to the liabilities mentioned in the rules following are applicable to the property leased-

Rights and liabilities of the lessor

(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover

(b) the lessor is bound on the lessee’s request to put him in possession of the property

(c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption.

The benefit of such contract shall be seized to and go with the lessee’s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. 

Rights and liabilities of the lessee

(a) If during the continuance of the lease any agreement is made to the property, such agreement shall be deemed to be comprised in the lease

(b) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void

Prohibited that, if the inquiry be occasioned by the wrongful act or default of the lessee, he shall be entitled to avail himself of the benefit of this provision

(c) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor

(d) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor

(e) the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth provided he leaves the property in the state in which he received it

(f) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free access and egress to gather and carry them

(g) The lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease

Nothing in this clause shall be deemed to authorize a tenant having an un transferable right of tenancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee

(h) The lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take of which the lessee is, and the lessor is not aware, and which materially increases the value of such interest

The lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf

(i) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left

(j) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor

(k) the lessee may use the property and its products as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto

He must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes

(m) On the determination of the lease, the lessee is bound to put the lessor into possession of the property.

Limitation of Lessor’s Liability

(a) Lessee agrees that the liability of the Lessor under this Lease and all matters pertaining to or arising out of the tenancy and the use and occupancy of the Premises, shall be limited to Lessor’s interest in the Premises, and in no event shall Lessee make any claim against or seek to impose any personal liability upon any individual, corporate officer, general or limited partner of any partnership, or principal of any firm or corporation that may now or hereafter become the Lessor. Notwithstanding anything contained in this Lease, Lessee and its successors and assigns agree that Lessee shall look solely to the estate and property of Lessor in the real property comprising the Premises for the collection of any claims, judgments or liabilities requiring the payment of money by Lessor or its successors or grantees in the event of any claim against Lessor arising out of this Lease or any of the terms, covenants and conditions of this Lease to be observed or performed by Lessor, and no other assets of Lessor or Lessor’s successors or Lessor’s parent or affiliates shall be subject to tax, execution or other procedures for the satisfaction of Lessee’s claims. Lessor agrees that the liability of the Lessee under this Lease and all matters pertaining to or arising out of the tenancy and the use and occupancy of the Premises, are personal to Lessee and the Guarantor and other than the Guarantor, in no event shall Lessor make any claim against or seek to impose any personal liability upon any individual, corporate officer, general or limited partner of any partnership, or principal of any firm or corporation, member or manager that may now or hereafter become a part of Lessee.

(b) Lessor shall have no liability for consequential damages resulting from, nor may Lessee terminate this Lease as a result of, Lessor’s failure to give consent, approval or instruction reserved to Lessor. Lessee’s sole remedies in any such event shall be an action for injunctive relief or, in the alternative, an action to recover actual compensatory damages in the event that Lessor unreasonably withholds its consent or approval in cases where such Lessor is not permitted to withhold its approval in its sole and absolute discretion.

(c) Lessor shall be free at all times, without need of consent or approval by Lessee, to assign its interest in this Lease and/or to convey its fee or leasehold interest in the Premises. Lessor shall give notice to Lessee of any such conveyance. Each conveyance by Lessor of Lessor’s interest in the Lease or the Premises prior to the expiration or termination of this Lease shall be subject to this Lease and shall relieve the grantor of any further obligations or liability as Lessor, and Lessee shall look solely to Lessor’s successor in interest for all obligations of Lessor accruing from and after the date of the conveyance. Lessee hereby expressly grants Lessor the right to sever this Lease if Lessor does in fact sever this Lease, then and in such event, this Lease with Lessee shall be and remain a unitary lease with respect to the Sites then demised pursuant to the Lease.

Lease Separation of Right of Possession from the Ownership

There are two types of property: Real property and Personal Property. Most of the legal concepts and rules associated with both types of property are derived from English Common Law. Modern law has incorporated many of these concepts and rules into statutes, which define the types and rights of ownership in real and personal property.

Personal property, also referred to as movable property, is anything other than land that can be the subject of ownership, including stocks, money, notes, Patents, and copyrights, as well as intangible property.

Real property is land and ordinarily anything erected on, growing on, or affixed to it, including buildings and crops. The term is also used to declare any rights that issue from the ownership of land. The terms real estate and real property generally refer to land. The term land, in its general usage, includes not only the face of the earth but everything of a permanent nature over or under it, including minerals, oil, and gases. In modern usage, the word premises have come to mean the land itself or the land with all structures attached. Residential buildings and yards are commonly referred to as premises.

The difference between real property and personal property is ordinarily easily recognizable. The character of the property, however, can be altered. Property that is initially personal in nature becomes part of realty by being annexed to it, such as when rails are made into a fence on land.

In certain cases, however, the intention or agreement of the parties determines whether property that is annexed retains its character as personal property. A Landlord and Tenant might agree that the new lighting fixture the tenant attaches to the ceiling of her dwelling remains the tenant’s property after the expiration of the lease.

Property may be further classified as either private or public. Private property is that which belongs to one or more persons. Public property is owned by a country, state, or political subdivision, such as a Municipal Corporation or a school district

Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. In most cases, the matrimonial home is a house that is owned by either one or both spouses and, at the date of separation, is ordinarily occupied by the family. Note that this section only requires that one of the spouses has ‘an interest’ in the property and does not require that interest to be ownership. Therefore, a matrimonial home can also be a property in which one or both spouses have a lease interest or even an interest in such personal property as a trailer or houseboat. Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. In some situations, there can be more than one property considered a matrimonial home for FLA purposes. However, for the vacation property to be able to meet the requirements under the act, it must be ‘ordinarily occupied’ by the spouses as a family residence for a portion of the year and not just temporarily or occasionally occupied.

Conclusion

Possession is a property interest under which an individual to the exclusion of all others is able to exercise power over something. It is a basic property right that entitles the possessor to continue peaceful possession against everyone else except someone with a superior right. It also gives the possessor the right to recover personal property that has been wrongfully taken and the right to recover damages against wrongdoers. To have possession, an individual must have a degree of actual control over the object, coupled with intent to possess the object and exclude others from possessing it.