Ch 2: Landlord and Tenant

Question 1

How should you analyze landlord-tenant issues? (T)

Answer 1

Analyze landlord-tenant issues in this manner:

Was a tenancy created? (Statute of Frauds issues with the lease)

Characterize the type of estate (term, when/how it terminates)

Was the tenancy transferred to a third party? (assignment or sublease)

What are the rights and duties of the tenant and landlord?

Was the interest terminated? (expiration, breach of lease covenant)

What remedies are available? (damages, equitable relief)

Question 2

How is a term of years tenancy created? (T)

Answer 2

Agreement (i.e., lease)

Question 3

What is the duration of a term of years tenancy? (T)

Answer 3

Fixed period (e.g., 1 month, 3 years)

Question 4

How is a term of years tenancy terminated? (T)

Answer 4

End of term (automatic)

Breach of certain covenants (e.g., rent, habitability)

Question 5

How is a periodic tenancy created? (T)

Answer 5

Agreement

Presumed when the lease has no specified termination date

Operation of law (e.g., holdover tenant)

Question 6

What is the duration of a periodic tenancy? (T)

Answer 6

Periodically (for the period) renews until terminated.

Question 7

How is a periodic tenancy terminated? (T)

Answer 7

End of period (proper notice required)

Breach of certain covenants

Question 8

How is a tenancy at will created? (T)

Answer 8

Agreement

Implied when a person is allowed to possess the premises without paying rent

Question 9

What is the duration of a tenancy at will? (T)

Answer 9

Indefinite period

Question 10

How is a tenancy at will terminated? (T)

Answer 10

At any time (with reasonable notice)

Question 11

How is a tenancy at sufferance created? (T)

Answer 11

Implied when the tenant keeps possession after the lease expires (i.e., holdover tenancy)

I’m suffering because this bitch won’t leave

Question 12

What is the duration of a tenancy at sufferance? (T)

Answer 12

Continues until terminated

Question 13

How long must a lease be for to require it comply with the Statue of Frauds? (T)

Answer 13

The Statute of Frauds requires that a lease for a term that is longer than one year be in a writing that:

Identifies the parties and the premises

Specifies the duration of the lease

States the rent to be paid and

Is signed by the party to be charged.

Question 14

What is the tenant’s duty to pay rent? (T)

Answer 14

The tenant typically has a duty to pay rent unless the premises are destroyed (this terminates the lease and excuses the tenant from paying rent) or the landlord commits a material breach of the lease (e.g., by completely or partially evicting the tenant).

Question 15

What is the tenant’s duty to avoid waste? (T)

Answer 15

A tenant—like a life tenant (see above)—has a duty to avoid waste unless this duty is relieved by the lease, a statute, or an ordinance.

Question 16

What should you look for to identify waste in a problem? (T)

Answer 16

The word “waste” will likely be absent from the fact pattern, so look for the following:

A tenant or other party in possession who shares an interest in the land and

Conduct affecting value (pay attention to verbs indicating the addition/removal of a feature or inaction).

Question 17

What is the duty to repair in a nonresidential lease? (T)

Answer 17

If the lease specifies that the tenant must repair and maintain the property, then the tenant is liable for property damage (except damage caused by the landlord).

Question 18

What is the duty to repair in a residential lease? (T)

Answer 18

A lease provision that places the burden of repair on the tenant is generally void, but the tenant may be required to notify the landlord of the need for such repairs.

Question 19

What are the landlord’s remedies for a tenant’s breach? (T)

Answer 19

If a tenant fails to pay rent, then most jurisdictions allow the landlord to terminate the lease and enforce a forfeiture clause (if any) to regain possession of the premises. However, most states preclude recovery of future rent. And in states that apply anticipatory repudiation to leases, damages are limited to the difference between future rent under the lease and

(1) the reasonable rental value of the premises or

(2) the actual rent collected upon reletting the premises.

Question 20

What is a landlord entitled to if a tenant is late on their rent? (T)

Answer 20

If a tenant pays rent late, then the landlord is entitled to damages and may remove the tenant if the delay in payment constitutes a material breach of the lease.

Question 21

What happens if a tenant unjustifiably abandons a leasehold? (T)

Answer 21

A tenant who unjustifiably abandons a leasehold surrenders her rights under the lease.

Question 22

What happens if a tenant unjustifiably abandons a leasehold and the landlord accepts the surrender? (T)

Answer 22

If the landlord accepts the surrender, then the lease is terminated and the tenant is not liable for future rent.

Question 23

What happens if a tenant unjustifiably abandons a leasehold and the landlord does not accept the surrender? (T)

Answer 23

If the landlord rejects the surrender, then the landlord may enforce the lease but must mitigate damages.

Question 24

What happens when a tenant refuses to leave? (T)

Answer 24

When a tenant refuses to leave, the landlord may

(1) evict the holdover tenant through legal action after the tenant receives written notice to vacate the premises or

(2) bind the holdover tenant to a new periodic tenancy.

Question 25

What is the landlord's duty to give possession? (T)

Answer 25

English (majority) rule – deliver actual physical possession American (minority) rule – deliver the legal right of possession

Question 26

What are the remedies for landlord's breach of the duty to give legal possession? (T)

Answer 26

If the landlord breaches the duty to give legal possession, a tenant may: Refuse to pay rent to acquire possession Terminate the lease Seek damages for time without possession

Question 27

What is the landlord's duty to repair? (T)

Answer 27

Majority rule – implied in residential (not commercial) leases, even when the lease attempts to place the burden on the tenant Common law – no implied duty

Question 28

What are the remedies for landlord's breach of the duty to repair? (T)

Answer 28

If the landlord breaches the duty to repair, a tenant may treat the breach as a constructive eviction or a violation of the warranty of habitability.

Question 29

What is a landlord's warranty of habitability? (T)

Answer 29

Implied in most residential (not commercial) leases Maintain the property so that it is reasonably suited for residential use Prevent or correct conditions that substantially threaten tenant’s health or safety

Question 30

What are the remedies for landlord's breach of the (implied) warranty of habitability? (T)

Answer 30

If the landlord breaches the (implied) warranty of habitability, a tenant may: Notify the landlord and give a reasonable opportunity to cure before: Withholding rent Remedying the defect and deducting the cost from rent or Defending against eviction

Question 31

What is a landlord's duty to uphold the covenant of quiet enjoyment? (T)

Answer 31

Implied in all (residential and commercial) leases Prevent interference (by landlord or someone with superior title) with the tenant’s right to possession Take action against another tenant’s nuisance-like behavior and control common areas

Question 32

What are the remedies for landlord's breach of the (implied) warranty of habitability? (T)

Answer 32

If the landlord breaches the (implied) warranty of habitability, a tenant may: Treat as an actual eviction if landlord removes tenant from the entire premises (terminates lease and duty to pay rent) Treat as a partial eviction if tenant is removed from a portion of the premises: ○ By landlord – all rent is excused ○ By third party with superior claim – reasonable rent still owed for the remaining premises Treat a substantial interference as a constructive eviction

Question 33

What is a constructive eviction? (T)

Answer 33

A constructive (implied) eviction occurs when a landlord breaches a duty to the tenant (e.g., failing to make a repair) that substantially interferes with the tenant’s use and enjoyment of the leasehold (e.g., fails to provide heat or water).

Question 34

When does a constructive eviction excuse the tenant's duty to pay rent? (T)

Answer 34

This excuses the tenant’s duty to pay rent only if: The tenant gives notice and adequate time to permit the landlord to fulfill his duty The landlord fails to do so and The tenant vacates the property within a reasonable amount of time.

Question 35

What is the retaliatory eviction doctrine? (T)

Answer 35

A landlord may not evict a residential tenant in retaliation for the tenant’s complaining, in good faith and with reasonable cause, about a housing code violation or for refusing to pay rent after the landlord breached the duty of habitability.

Question 36

What is a security deposit? (T)

Answer 36

A landlord may require a security deposit, the amount and terms of which are generally set by state statute. The landlord is generally required to promptly return the security deposit at the end of the lease or notify the tenant of the amount retained and why.

Question 37

When can people assign or sublet their leases? (T)

Answer 37

A lease can be freely assigned or sublet absent language to the contrary.

Question 38

What must happen if the lease requires the landlord's permission to transfer but is silent as to the applicable standard? (T)

Answer 38

If the lease requires the landlord’s permission to transfer but is silent as to the applicable standard, then the landlord may: Deny permission only for a commercially reasonable reason (majority rule) or Deny permission at her discretion (minority rule). The landlord’s right to object may be waived if the landlord knows of the assignment or sublease and does not object.

Question 39

What is an assignment? (T)

Answer 39

An assignment transfers the tenant’s lease for the entire remaining duration to an assignee-tenant who then: Has privity of estate with the landlord and Is liable to the landlord for rent and any other covenants in the lease that run with the lease.

Question 40

What happens to the original tenant in an assignment? (T)

Answer 40

Assignment terminates the original tenant’s privity of estate, but the original tenant remains liable for all lease covenants for the duration of the lease (absent a release from the landlord).

Question 41

What is a sublease? (T)

Answer 41

A sublease transfers the tenant’s lease for less than the entire remaining duration to a sublessee-tenant who then: Has no privity of estate or contract with the landlord and Is liable to the sublessor— but not to the landlord unless the sublessee expressly assumes the lease covenants.

Question 42

What happens to the original tenant in a sublease? (T)

Answer 42

The original tenant remains liable for all covenants in the lease for the duration of the lease.

Question 43

When may a landlord assign property? (T)

Answer 43

A landlord may assign lease rights and obligations to an assignee-landlord without the tenant’s consent. The tenant then owes rent and other burdens imposed by covenant to the assignee-landlord, and the assignee-landlord must perform any burden imposed by a covenant that runs with the land. However, the original landlord remains liable to the tenant for all covenants in the lease.