Landlord/Tenant Law

Question 1

What are the types of leaseholds/non-freehold estates?

Answer 1

1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance

Question 2

What is the tenancy for years?

Answer 2

Tenancy for years = a lease for a FIXED PERIOD of time
aka Estate for Years or Term of Years

** NO notice requirement for termination because agreement states at outset when lease expires

** If term = +1 yr (366 days) must be in writing (SOF)

Question 3

What is the periodic tenancy?

NOTE: NY Distinction

Answer 3

A lease that continues for successive intervals until L or T gives proper notice of termination

Express creation: month-to-month; yr-to-yr; week-to-week

Implied creation:

1) Lease has no duration, but rent is paid at set intervals
2) Oral lease for +1 year (violates the SOF); interval is based on intervals when rent is tendered
3) If L elects to holdover residential lessee who stayed on past conclusion of the original lease, periodic tenancy based on interval of payment

** NY DISTINCTION: the L who elects to holdover a tenant creates an implied MONTH-TO-MONTH periodic tenancy, UNLESS otherwise agreed

Question 4

How is aperiodic tenancy terminated?

Answer 4

Termination by giving notice at least duration of the period

Private agreements, parties may LENGTHEN or SHORTEN the common law periods

Must end at the end of natural lease period (e.g. ends on 1st, termination on 1st)

Question 5

What is a tenancy at will?

NOTE: NY Distinction

Answer 5

A tenancy for NO FIXED duration

** Must be expressly agreed-to: if not, court will treat as implied periodic tenancy

** Tenancy may be terminated by EITHER PARTY at ANY TIME (but a reasonable demand to vacate is usually needed)

** NY DISTINCTION: in NY the terminating L must give a MINIMUM of 30 days written notice of termination

Question 6

What is a tenancy at sufferance?

Answer 6

Is created when T has WRONGFULLY held over past the expiration of the lease

** Created so L can recover rent from T who wrongfully holds over past expiration

** This tenancy last ONLY UNTIL L either evicts T or elects to hold T to a new tenancy

** See Hold-Over Doctrine

Question 7

What is theHold-Over Doctrine?

NOTE: NY Distinction

Answer 7

If a T CONTINUES to possess property after his lease is up, the L can

(i) evict T; OR 
(ii) hold T to NEW TENANCY			

Commercial T = may be held to a year-to-year (if the lease was for ≥ 1yr) otherwise month-to-month
Residential T = can ONLY be held to month-to-month (REGARDLESS of lease term)

** If there is NOTICE of rent increase BEFORE lease expires, then new tenancy will be at increased rent

NY DISTINCTION: The L’s acceptance of rent subsequent to the expiration of the term will create an IMPLIED month-to-month periodic tenancy (unless otherwise agreed)

** If a T who holds a lease of INDEFINITE duration, and henotifies L of intention to VACATE premises, but fails to leave, the LL MAY CHARGE 2X the rent

Question 8

What are a tenant’s duties?

Answer 8

1) Liability to 3rd party INVITEES
2) Duty to REPAIR
3) Duty to PAY RENT

Question 9

What are a tenant’s duty to 3rd parties?

Answer 9

Tort Law

1) T is responsible for keeping the premises in good repair
2) T is liable for injuries sustained by 3rd parties, even where L promised to make all repairs

NOTE: T may be able to seek indemnification from L

Question 10

What is a tenant’s duty to pay rent?

NOTE: NY Distinction

Answer 10

1) If T doesn’t pay rent AND remains on premises, L…
- may EVICT T through courts (and collect unpaid rent)
- may continue the relationship and SUE for rent
- may NOT engage in SELF-HELP (civil and criminal liability)

** NY DISTINCTION: L who engages in self-help is liable for treble damages

2) If T doesn’t pay rent BUT T is off premises, L may “S-I-R”…

SURRENDER: L could choose to treat T’s abandonment as an implicit offer and acceptance of surrender
** NOTE: if unexpired term is > 1 yr, must be in writingsigned by L (SOF)

IGNORE: L could ignore the abandonment and hold T responsible for the unpaid rent (minority rule)

RE-LET: the L can re-let the premises and hold T responsible for the shortfall

• • Majority rule: L must at least TRY to re-let (mitigate)
• • NY DISTINCTION: does NOT require a L to mitigate

Question 11

What is a tenant’s duty to repair?

NOTE: NY Distinction

Answer 11

SILENT LEASE

1) T must maintain (but nothing more) the premises ANDmake ordinary repairs
2) T must NOT commit waste (voluntary, permissive, ameliorative)

		Fixtures: a T may NOT remove a fixture (voluntary waste)									Fixture = moveable chattel, by virtue of annexation to real property, objectively shows intent to improve (heating systems, custom storm windows, furnace, certain lights)
						Fixture status determined by (1) express agreement (agmt that says no fixture); (2) whether removal cause substantial harm (if so, yes); OR (3) if it's a COMMERCIAL piece of property, a commercial T prior to expiration of a lease is entitled to remove all trade fixtures (i.e.Trade Fixtures Doctrine)

EXPRESS AGREEMENT

At common law historically: T was liable for any loss to the property INCLUDING loss due to force of nature

Today’s majority view: T is off the hook for natural disasters (gives T the option to END lease)

** NY DISTINCTION: T is off hook UNLESS he made express attempt to restore property when destroyed

Question 12

What are the duties of a landlord?

Answer 12

1) Duty to deliver possession
2) The implied covenant of quiet enjoyment
3) The implied warranty of habitability
4) Duty NOT to commit retaliatory eviction

Question 13

What is the landlord’s duty to deliver possession?

Answer 13

1) The majority (English!) rule = L must put T in PHYSICAL possession of the premises
2) The minority (American) rule = L need only give T LEGAL possession

Question 14

What is the landlord’s implied covenant of quiet enjoyment?

Answer 14

T has a right to the quiet use/enjoyment of the premises without INTERFERENCE from L

- Applies to BOTH residential AND commercial leases
- Can be breached by a wrongful eviction
- Can be breached by constructive eviction 

Constructive Eviction = SING

1) Substantial Interference due to LL’s actions or failures
2) Notice was given to L of the problem
3) Goodbye: the T must VACATE the premises within a reasonable time after L fails to remedy

• • L is NOT liable for the acts of OTHER tenants ** EXCEPTION 1: L must not permit a nuisance on site
• • EXCEPTION 2: L must control all COMMON areas

Question 15

What is the landlord’s implied warranty of habitability?

Answer 15

The standard: the premises must be fit for BASIC human dwelling (based on housing code/case law)
Applies ONLY TO residential leases
This warranty is NON-WAIVABLE
E.g., no heat in winter; no running water; OR no plumbing

When warranty is BREACHED, T can MR3
Move out/end lease; or
Repair and deduct; or
Reduce rent and/or withold all rent until a court determines fair rental value (place witheld rent in escrow)
Remain in possession, pay rent and affirmatively seek money damages

Question 16

What is the landlord PROHIBITED from doing if a T reports a housing code violation?

Answer 16

If T lawfully reports L for housing code violation, L is BARRED from penalizing T by, for example...			
	raising rent
	ending the lease
	harassing T
	taking any other reprisals

Question 17

How can a tenant transfer an interest in her lease?

NOTE: NY Distincton

Answer 17

1) Assignment: T may freely transfer interest in whole

L and A are in privity of estate, but not privity of contract unless assignee assumed all promises in the original lease

If A assigns to A1, A loses privity of estate and A1 is now in privity of estate with L

L and T remain secondarily liable to each other. There is privity of contract, but not privity of estate.

** NY DISTINCTION: default rule is no assignment (unless you get written consent from L)

2) Sublease: T may freely transfer interest in part

L and S have neither privity of estate not privity of contract

T and S are liable to each other.

** NY DISTINCTION: when T is in a building with 4 or more units, T has right to sublease subject to L consent, which CANNOT be unreasonably withheld

** NOTE: L may expressly prohibit transfer in lease; BUT once L consents to an interest transfer by particular T, L CANNOT object to further transfers

Question 18

What is the standard for landlord tort liablity and the key exceptions?

Answer 18

Rule = caveat lessee; in tort, LL has NO duty to make the premises safe

5 EXCEPTIONS (“C-L-A-P-S”)

1) Common areas: L must maintain all common areas
2) Latent defect rule: L must WARN T of hidden defects that LL knows about OR should know about
3) Assumption of repairs: L who VOLUNTARILY makes repairs, must complete with reasonable care
4) Public use rule: LL who leases public space (e.g. a convention hall) AND who should know, because of the nature of the defect (large) and the length of the lease (short term), that T will not repair is liable for any defects (known or unknown) on the premises
5) Short term lease of furnished dwelling: L is liable for any defects (known or unknown) on site