Landlord-Tenant Flashcards
(21 cards)
What are the basic duties that a tenant owes a landlord?
The duty to pay rent, the duty to avoid waste, and sometimes the duty to repair.
In what instances may the duty to pay rent be suspended?
- When a property is destroyed (by no fault of the tenant)
- Eviction (partial or complete)
- Material breach by the landlord (CQE or IWH)
What is the duty to avoid waste?
This is the tenant’s duty to avoid damaging/decreasing the value of the property. Tenants make make changes that increase the value of the property, but typically this requires permission by the landlord under the lease.
What is the implied covenant of quiet enjoyment? What types of property does it apply to?
This is the landlord’s implied promise that they:
- Will not cause the property to become substantially unsuitable for its intended purpose, or allow anyone else under their control to do so (i.e. other tenants, people in common areas).
- Will not interfere with the tenant’s right to possession, or allow anyone else to do so (even if they have superior title).
This covenant applies to both residential and commercial property.
What is constructive eviction? What are the elements of constructive eviction? The consequences?
- The landlord either disrupts the tenant’s possession of the land or causes the property to become substantially unusable for its intended purpose, thereby breaching the covenant of quiet enjoyment
- The tenant provides notice about the problem to the landlord.
- The tenant gives the landlord a reasonable period of time to fix the problem
- The landlord does not fix the problem
- The tenant vacates the property after the reasonable period of time passes.
If a landlord constructively evicts a tenant, the tenant can terminate the lease and stop paying rent.
Note: temporary, de minimus acts of interference with a tenant’s right to possess or enjoy the property will likely not amount to constructive eviction.
What is the implied warrantee of habitability? What types of property does it apply to?
This is the landlord’s implied promise to ensure the property is suitable for residential use, meaning the property does not pose a risk to the tenant’s health and safety. The IWH applies only to residential properties.
Note: a tenant may not waive this right.
What can a tenant do if a landlord breaches the implied warrantee of habitability?
- The tenant provides notice about the problem to the landlord.
- The tenant gives the landlord a reasonable period of time to fix the problem
- The landlord does not fix the problem
- The tenant may…
- remain in the apartment without paying rent (and use this to defend against eviction)
- fix the problem and deduct those expenses from their rent
What can a tenant do if a landlord breaches the implied covenant of quiet enjoyment?
The tenant may withhold rent and pursue constructive eviction.
What is the duty to repair?
Under common law, a landlord does not have any duty to make repairs to the property. This is a duty of the tenant.
Today, in a majority of jurisdictions, a residential landlord is presumed to have a duty to repair, so long as the tenant notifies them about the need for repairs and the damage is not the tenant’s fault. This is regardless of whether the lease assigns the duty to repair to the tenant.
Meanwhile, a commercial lease, the landlord is not generally presumed to have the duty to repair and can place this duty on the commercial tenant.
When there is a tenant and subtenant, what determines who is liable to the landlord?
Parties liable will be those with either privity of contract with the landlord (i.e. have signed a contract) or those with privity of estate with the landlord (i.e. the landlord’s right to possession immediately follows their right to possession) or both.
If more than one party is liable, then they are jointly and severally liable.
Privity of contract means that there is a contractual agreement between the party and the landlord.
Privity of estate means the landlord’s right to possession immediately follows the party’s right to possession at some point.
What are the different types of tenancies?
Term of years (fixed)
Periodic (renews until terminated)
Tenancy at will (indefinite)
Tenancy at sufferance (continues until terminated)
What is a term of years tenancy? What are the rules regarding its creation and termination?
This is a tenancy for a fix period of time (months, years).
It must be created by agreement and ends either at the end of the agreed upon term or upon breach of a covenant.
What is a periodic tenancy? What are the rules regarding its creation and termination?
This is a tenancy that renews each period (month, year, etc) until it is terminated.
It can be created by agreement or is presumed when the lease is not specific (it also applies to hold over tenants).
It ends at the end of a period, provided the party terminating the lease provides proper notice.
Under the modern approach, proper notice is notice given prior to the start of the last term.
What is a tenancy at will? What are the rules regarding its creation and termination?
A tenancy at will is a tenancy for an indefinite period.
It can be created by agreement or by implication when someone allows a third party to possess their premises without owing rent.
It can terminate at any time, provided there is reasonable notice.
What is a tenancy at sufferance? What are the rules regarding its creation and termination?
This is an implied tenancy that occurs when a tenant maintains possession of the property after the expiration of their lease.
It will continue until it is terminated and can be terminated through eviction by the landlord, vacancy by the tenant, or acceptance of payment by the landlord (which creates a periodic tenancy).
Does a landlord need to provide notice to evict a holdover tenant?
No.
What happens when a tenant abandons their lease (i.e. vacates an apartment and returns their keys) before their lease is up?
The landlord can treat this as an offer by the tenant to surrender the property.
The landlord can then either accept this offer, and the lease terminates without the tenant owing future rent.
OR
They can reject it, and consider the lease to still be in effect and the tenant to be in breach. Here, the landlord has a duty to mitigate damages by making reasonable efforts to re-rent the apartment.
What does the process of collecting damages look like if a tenant abandons their lease and the landlord does not accept this abandonment as a surrender?
Anticipatory repudiation does not apply.
The landlord can collect damages as payment for the lease becomes due.
The landlord must also mitigate damages by making reasonable efforts to re-rent the property. They may recover any negative difference between the actual and anticipated rent as the rent becomes due, during the lease term.
What are the remedies when there is a holdover tenant?
The landlord may evict the tenant (without notice), or re-rent the property to the tenant as a periodic tenancy.
What are the remedies if a tenant pays their rent late?
The landlord can sue for damages. If the late payment is a material breach, they may also evict the tenant.
