Landlord Tenant Law

Question 1

What is a tenancy for years?

Answer 1

A tenancy for years is an lease for a fixed, determinable amount of time. The time need not be measured in specific numbers of years and can be for more or less than a year. A lease until 12/31/2016 is an estate for years. If the termination date is uncertain, the tenancy is not an estate for years. Expires at end of term.

Question 2

Does SOF apply to leases?

Answer 2

Yes, if the lease is for a term of more than one year.

Question 3

When does an tenancy for years expire?

Answer 3

Upon the expiration of the stated term?

Question 4

What is a periodic tenancy?

Answer 4

Tenancy that will continue for a year or some lesser stated period and for repeated similar periods unless the lease is terminated a the tend of a given period by property notice from either the LL or the T . Automatic renewal feature is chief characteristic of estate. PT may be created by express agreement or may arise by inference where the lease is silent about duration but the patios have aged that rent shall be paid at specific periods.

Question 5

How is the length of period established in period tenancy?

Answer 5

When lease is silent on duration and parties agree on a annual rent amount, tenancy from year to year. If rent is paid monthly, generally month to month. But if parties agree on an annual rent to be paid monthly, generally year to year.

Question 6

What is a tenancy at will?

Answer 6

Tenancy that is terminable at will by either LL or T. No fixed duration. Can be created by express agreement or it is implied when there is no agreement as to term and no agreement to pay rent on a periodic basis. If L gives LL right to terminate, usually same right is implied for T. Generally continues until terminated.

Question 7

What is tenancy at sufferance – hold over doctrine?

Answer 7

This occurs when T “holds over” after expiration of his lease – for example, refuses to vacate. When this happens, a tenancy at sufferance arises.

Question 8

What are LL’s options when a T at Sufferance arises?

Answer 8

LL can elect to a) treat T as a trespasser; or b) hold the T to a new tenancy. If b, the period is determined by how the rent is paid in the original lease. Holdover period may not be fore more than a year.

Question 9

What rights, if any, does an incoming T have in a hold over situation?

Answer 9

May be able to bring own action for removal.

Question 10

What is rent?

Answer 10

Rent is a if not the most basic obligation of the LL/T relationship. Typically runs with the land.

Question 11

What happens if T doesn’t pay rent?

Answer 11

At common-law, failure to pay rent did not give LL rt to recover possession bc the rent covenant and the rt of possession were independent. The modern lease, as well as the laws of some jdx, gives LL the right of re-entry when rent isn’t paid. Typically, then, the LL can evict or demand rent. LL can seek to evict T for failure to pay rent, but under most state laws cannot engage in self help, i.e., must bring an action for eviction pursuant to summary eviction statutes – notice, demand for payment, serve.

Question 12

If rent is the T’s primary duty, what is the LL?

Answer 12

To deliver possession. In most jurisdictions, the LL must deliver actual possession, not just the right of possession.

Question 13

What remedies does a T have if LL fails to provide possession?

Answer 13

In an actual possession jdx, T may void the lease and collect any damages that the T may have suffered as a result of the failure of the LL to deliver possession. Or, the T can uphold the lease and withhold rent for the time that he or she was unable to move onto the property. If the T is only denied partial possession of the property, the only available remedy for the T is to deduct from rent payments a proportional share of the rent that corresponds to the amount of the possession of the property that was denied to the tenant.

Question 14

What is the covenant of quiet enjoyment?

Answer 14

Every lease has this covenant, and it is implied if the parties do not expressly include language in the lease. At common law, and the same is still true in many jurisdications now, the T could stop paying rent if the LL violated this covenant.

Question 15

What are the ways in which a LL can breach the covenant of quiet enjoyment?

Answer 15

Actual eviction; partial actual eviction; constructive eviction.

Question 16

What is actual eviction?

Answer 16

The most obvious example is that the LL physically throws out the T and locks the door. However, Actual eviction can also take effect if a third party acquires a legal right to evict the tenant from the landlord and then does evict the tenant. For example:

Ethel owns a building in which Lucy rents one of the apartments. Obviously, if Ethel wrongfully throws Lucy out of the apartment, she will have breached the duty to allow the tenant quiet enjoyment. Consider this scenario, however. Ethel takes a loan from First National Bank and mortgages the building as collateral. Ethel defaults on the loan and First National Bank repossesses the building. If First National Bank evicts Lucy, then Ethel will be liable to Lucy for the damages caused by the eviction. This is because the landlord who conveys the property to the tenant has the duty to allow the tenant quiet enjoyment. If the quiet enjoyment of the tenant is disrupted through the fault of the landlord (as in this case), then the landlord has breached the covenant and is liable for damages.

Question 17

What is partial actual eviction?

Answer 17

If the T is evicted from any part of the premises, the rent obligation stops entirely until he or she repossesses the entire property. In addition, the T can stay in possession of the rest of the property without paying rent. Rent obligation will only begin again once that other part of the property is restored to the tenant. (This rule is harsher than the rule re delivery of partial possession bc this breach considered worse.)

Question 18

What is constructive eviction?

Answer 18

Even absent a physical eviction, a person can be considered to be “constructively” evicted if the LL interferes with the T’s use and enjoyment of the property to a great enough extent.

Question 19

What are the elements of a constructive eviction?

Answer 19

3 elements: a) LL must have committed wrongful actions or must have wrongfully neglected to maintain the property so that the existing conditions represent a “substantial interference” with the T’s enjoyment of the property; b) T must give notice to LL of the problem and the LL must fail to take the steps necessary to remedy the situation; c) T must actually leave the property because of the interference within a reasonable time.

Classic e.g. of a constructive eviction occurs when the LL fails to provide adequate heating or air conditioning services and it is not practical for the T to remedy (eg. the central heating in a high rise office building does not work adequately) or fails to provide a functioning elevator for tenants on a high floor.

Question 20

From perspective of covenant of QE, what is LL’s duty to remedy a problem resulting from another T?

Answer 20

An interesting issue that often arises is whether a LL must prevent a third party (eg. another T in an apartment building) from interfering with the T’s enjoyment of the property. Jurisdictions are split as to whether a LL must prevent other people from interfering with the T’s enjoyment of the property if it is within the LL’s power to do so. All jurisdictions agree that a LL has a responsibility to control common areas such as hallways and to prevent the enjoyment of those areas by the Ts from being interfered with.

Question 21

What is T’s duty with respect to rent in a constructive eviction scenario?

Answer 21

If there has been a constructive eviction, T’s duty of rent is terminated as of the date that T vacated the property. In addition, T may recover compensation from the LL for any damage that was caused by the constructive eviction. Note, however, that T must be careful before leaving the premises. If T leaves the premises and it is later determined in court that there was no constructive eviction, then T liable to pay the rent for the time that he or she was not living on the property.

Question 22

What is the duty of habitability?

Answer 22

Duty to make sure prop in livable condition. Did not exist at CL. Up to T to inspect. If not, T had to take prop as is. Now, many jurisdictions infer an “implied covenant of habitability” automatically in any lease. Almost always limited to dwellings. Thus, if in such a jurisdiction, LL fails to provide heating for a residential apartment in the winter, breach of this implied warranty even though the tenant could go out and buy a heater. Includes duty to comply with codes. LL may not evict a tenant as retaliation for the tenant reporting a violation of a housing code provision. True even if LL has other legitimate grounds for evicting T. If the motive for eviction is retaliation for reporting a violation, the eviction is illegal. Of course, proving intent is not easy and the tenant has the burden of proving the improper motive. Some states will shift the burden to LL to prove a proper motive for the eviction if the eviction happens within a certain period of time after the reporting of the violation.

Question 23

What are T’s remedies when LL breaches implied cov of habitability?

Answer 23

The following remedies might be available to T depending on J: a) T can move out and terminate the lease; b) T can repair the condition and deduct the repair price from the rent due under the lease; c) T can reduce or withhold rent until a court determines what would constitute a fair reduction of the rent due to the condition. (Although, a court would require T to put the rent money in escrow until such a determination can be made.); d) stay in lease and sue for damages for breach. T can also go to authorities and LL cannot retaliate.

Question 24

Does LL have a duty to repair?

Answer 24

Generally speaking no, in the absence of a express agreement, although the duty to maintain habitable premises may imply repairs to some extent. However, LL has duty to maintain common areas. Also LL may have duty to repair hidden defects that T couldn’t uncover even w/ reas inspection. Finally, if LL undertakes repairs, must do so competently (non-negligently) or else could be liable to T or others.

Question 25

Does T have a duty to repair?

Answer 25

T has a duty to make ordinary repairs so that the property is maintained in essentially the same condition it was in when the T first occupied the property. T is not obligated to prevent or repair ordinary wear and tear that comes with T’s ordinary usage of the property.

T is not obligated to make substantial repairs that are necessary as a result of a catastrophe. However T is obligated to try to prevent substantial damage from occurring if it is reasonable for T to do so.

Question 26

What is waste?

Answer 26

Waste is destructive use of the property. T has a duty to avoid waste to the same extent that any holder of a present interest has a duty to the holder of a future interest to avoid waste. This means that T may not destroy the property, may not consciously allow the property to disintegrate into a state of complete disrepair and may not make any significant changes in the property without the landlord’s permission.

Question 27

What are the three kinds of waste?

Answer 27

Voluntary, permssive, ameliorating

Question 28

What is voluntary waste?

Answer 28

Affirmative act by T. Intentional or negligent conduct that damages property

Question 29

What is permissive waste?

Answer 29

Omission/non-act by T causes damange, like failure to make timely repairs to maintain the property.

Question 30

What is ameliorating waste?

Answer 30

Conduct by T. that alters the premises, sometimes in ways that might actually increase value. Substantial change–such as replacing old structure with a new one.

Question 31

What other duties does a T have?

Answer 31

Duty not to commit nuisance; duty to not use premises for illegal activities;

Question 32

What are common defenses to paying rent?

Answer 32

Similar to basic contract theories of exude – Illegal purpose (lease made for an illegal purpose; then unenforceable; LL may not recover rent); Later purpose becomes illegal (then lease ends); frustration of purpose.

Question 33

What happens in case of eminent domain?

Answer 33

Part of property taken, T entitled to value of part taken; all – lease terminates.

Question 34

What happens if property destroyed?

Answer 34

At common law, if not the fault of LL, no excuse to rent. Exceptions is if the leased prop is office or apt in a building and building is destroyed.

Question 35

What is difference between an assignment and a sublease?

Answer 35

Assignment transfers all of the rights an obligations of entire leasehold. Sublease transfers less than all. Sublessee not in privity (vertical) of contract with LL. Absent an express provision to contrary, leases may be assigned or sub-leased. Transfers in violation of express clauses are voidable. Acceptance of rent, is waiver.

Question 36

What is abandonment and surrender in lease context?

Answer 36

Abandoment occurs where T vacates the leased premise. Not sufficient alone to discharge T’s obligations under lease, incl to pay rent. Surrender, though, can occur if both parties agree expressly to part company or through action of LL – like T leaves, and LL moves in.