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MBE > MBE Real Property > Landlord Tenant > Flashcards

Landlord Tenant Flashcards

Delve into the rights of tenants and landlords. Study tenancy requirements, payment obligations, and the termination of leaseholds.

1
Q

What is a leasehold (landlord/tenant) estate and what are the 4 types?

A

Estate created & governed by a lease signed between the parties.

Types:

  1. Tenancy for years;
  2. Periodic tenancy;
  3. Tenancy at will; and
  4. Tenancy at sufferance
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2
Q

Define

tenancy for years

A

Tenancy with a fixed starting and ending date.

Also called a “term for years,” “fixed term tenancy,” or “estate for years”

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3
Q

When is a tenancy for years required to be in writing?

A

If the lease is longer than one year, must be in writing to satisfy the SOF

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4
Q

When does a tenancy for years terminate?

A

Automatically at the end of the fixed period or end date

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5
Q

Define

periodic tenancy

A

Automatically renews at the end of the period with no set end date (e.g. month-to-month lease)

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6
Q

How is a periodic tenancy created?

A
  1. Express agreement;
  2. Implication; or
    • No explicit end date in agreement
  3. Operation of law
    • Holdover tenant
    • Invalid lease
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7
Q

Define

holdover tenant

A

Someone who overstays their lease without the landlord’s consent. Also called a tenant-at-sufferance.

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8
Q

What actions can the landlord take if they have a holdover tenant?

A
  1. Refuse to accept payment from holdover tenant (tenant becomes tenant-in-sufferance and landlord can evict); or
  2. Bind the tenant to a periodic tenancy by either:
    • Accepting rent; or
    • Giving notice to holdover tenant
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9
Q

What is the effect if the landlord accepts rent from holdover tenant?

A

Periodic tenancy is created for that payment period

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10
Q

Can the landlord raise the rent for a holdover tenant in a periodic tenancy?

A

Yes, as long as the landlord gave notice to the tenant before the original lease expired.

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11
Q

Does leaving personal possessions behind or overstaying the lease for a few hours make someone a holdover tenant?

A

No, landlord cannot impose periodic tenancy

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12
Q

For a holdover tenant with a commercial lease, what is the maximum new lease period that the landlord can impose?

A

One year

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13
Q

How do you terminate a periodic tenancy?

A

Give notice by words or conduct a full period in advance (e.g. if month-to-month, must give one month’s notice). If period is one year, then six months notice is required.

Termination is effective on the last day of the period.

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14
Q

What is tenancy at will and how is it created?

A

Tenancy with no specific term that can be terminated at any time by either party.

Created by express agreement (if no express agreement, court will imply a period tenancy)

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15
Q

How do you terminate a tenancy at will?

A

At any time, either by:

  1. Advance notice by either party (typically required but not always); or
  2. By operation of law upon:
    • Death of either party
    • Waste by tenant
    • Assignment by tenant
    • Transfer of title by landlord
    • Transfer of lease to a third party by landlord
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16
Q

What are the 4 basic duties of a tenant?

A
  1. Pay rent;
  2. Not commit waste (affirmative/voluntary, ameliorative, or permissive);
    1. May also include duty to repair in some jurisdictions/depending on agreement
  3. Not use the premises for an illegal purpose; and
  4. Protect third party invitees from foreseeable dangers on the premises
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17
Q

When can the tenant commit ameliorative waste (make improvements to the property)?

A

If it is reasonably necessary for the tenant’s continued reasonable use of the premises.

Typically need to give landlord advance notice.

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18
Q

Does the tenant have a duty to repair (not commit permissive waste)?

A

Yes, to the extent reasonably necessary to maintain the premises (unless otherwise specified in the lease)

⚠️ No duty for normal wear and tear

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19
Q

What is the effect if a nonresidental lease requires the tenant to “repair and maintain”?

A

Tenant will be liable for damages unless it was the landlord’s fault or it was significant and not the tenant’s fault (e.g. catastrophic damage due to an earthquake)

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20
Q

Are residental leases that require the tenant to make repairs valid?

A

No, landlord still has ultimate duty to repair even if lease says otherwise

⚠️ Exception: no duty to repair damages caused by tenant

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21
Q

Define

fixtures

A

Structures or materials that are permanently affixed to the property and were intended pass with the land.

⭐️ To determine whether something is a fixture, ask yourself: “did the party intend for this to be a fixture?” and “how much property damage would occur if fixture was removed?” The more intent and damage, the more likely it is a fixture

22
Q

Can a fixture be removed?

A

Only if:

  1. Removal will not permanently alter the premises (i.e. property can be restored to pre-fixture condition); and
  2. It is completed in a reasonable amount of time
23
Q

If removal of fixture will substantially/permanently alter the premises, what is required?

A

Landlord approval. If no approval → tenant has committed affirmative waste

24
Q

Is the tenant ever required to remove fixtures?

A

No, as long as the fixtures don’t breach the lease

25
Q

What actions can a landlord take if the tenant has materially breached their lease and remains on the property?

A
  1. Continue lease & sue for damages on late rent; or
  2. Evict tenant
26
Q

Is late rent payment a material breach of the lease?

A

Yes

27
Q

What actions can a landlord take if the tenant has materially breached their lease and has abandoned the property?

A
  1. Treat as surrender and retake the premises;
  2. Ignore & hold tenant responsible for unpaid rent (minority); or
  3. Re-lease premises (majority)
28
Q

If the tenant abandons the property, is the landlord required to mitigate damages?

A

Majority: Yes, should make good faith effort to rent to other tenants and can seek damages from tenant for losses.

Minority: No, landlord can seek damages for all unpaid rent

29
Q

Can a landlord sue for future rent due?

A

No, only for past rent

30
Q

Define

self-help eviction

A

When the landlord seeks to evict a tenant by bypassing the normal eviction process (e.g. changing locks, etc)

Generally not allowed.

31
Q

What are the landlord’s duties to the tenant?

A
  1. Give possession;
  2. Implied warranty of habitability; and
  3. Covenant of quiet enjoyment
32
Q

What are a landlord’s tort liabilities?

A

Landlords have a duty of reasonable care → can be liable for injuries:

  • In common areas & non-common areas if defect is hidden;
  • From existing defects that landlord knew of and failed to notify tenant about;
  • From negligent repairs made by landlord; and
  • From failure to make repairs required by housing code
33
Q

What is the landlord’s duty to give possession?

A

Majority: Landlord must deliver legal + actual, physical possession

Minority: Landlord need only deliver legal possession (right of possession)

34
Q

Define

covenant of quiet enjoyment

A

Covenants that tenant has right to quiet use and enjoyment of the premises, without interference from landlord

35
Q

How can a landlord breach the covenant of quiet enjoyment?

A
  1. Actual eviction; or
  2. Constructive eviction
36
Q

Define

actual eviction

A

Wrongfully excluding tenant from all or part of the premises

37
Q

Define

constructive eviction

A

Landlord’s actions are incompatible with the tenant’s quiet use and enjoyment

38
Q

Elements needed to establish constructive eviction

A
  1. Substantial interference caused by a landlord’s act or omission, i.e. chronic and severe problems (e.g. broken pipes, leaky roof);
  2. Notice: landlord fails to correct problem within reasonable time after being given notice; and
  3. Vacate: tenant vacates property within a reasonable period of time after landlord fails to repair
39
Q

Whose responsibility is it to prevent nuisance?

A

Landlord

40
Q

Define

implied warranty of habitability

A

Warrants that residential premises meet the basic standard of living

Examples:

  • Heat in winter
  • Running water
  • Plumbing
41
Q

Does the implied warranty of habitability apply to commercial leases?

A

No, only residential

42
Q

Who specifies the minimum habitability standard?

A

Local housing code or case law

43
Q

If the landlord breaches the implied warranty of habitability, what actions can the tenant take?

A
  1. Move out & terminate the lease;
  2. Repair & deduct;
  3. Withhold rent (can either reduce or withhold entirely until court determines fair rental value; must be placed into escrow account); or
  4. Remain & sue for damages
44
Q

Can the warranty of habitability be waived or modified in the lease?

A

No, can never be waived or modified in the lease

45
Q

Define

doctrine of retaliatory eviction

A

Landlord cannot retaliate against a tenant who reports housing code violations (e.g. cannot evict, refuse to renew a periodic tenancy, or raise tenant’s rent)

46
Q

What is an assignment and to whom is the assignee liable?

A

Transfer of the entire lease to new tenant (assignee)

Assignee is in privity with landlord and liable for all rent owed to the landlord

47
Q

What is a sublease and to whom is the subleasee liable?

A

Transfer of only part of the lease term to the subleasee

Subleasee is in not privity with the landlord and thus is liable to the subleasor only.

48
Q

Is the subleasee (subtenant) bound by covenants?

A

No, unless expressly stated

49
Q

Can a tenant freely assign or sublease the property?

A

Yes, unless otherwise specified in the lease

50
Q

If the lease prohibits assignment or subletting without the landlord’s permission, but doesn’t specifiy the standard for approval, when can the landlord withhold permission?

A

Only when commercially reasonable

51
Q

If the lease prohibits subletting/assignment, but the landlord knows of it and fails to object, what is the effect?

A

Prohibition is considered waived

52
Q

If the property is condemned, does the tenant need to continue making rent payments?

A

If partial (tenant still has partial use of the property) or temporary: Yes, but tenant is entitled to compensation for dispossession from condemnation

If full condemndation: No

MBE Real Property (6 decks)

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