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Flashcards in Landlord/tenant Deck (39):

Types of leasehold/non-freehold estates

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


Tenancy for years

A lease for a fixed period of time.

* No notice is needed to terminate (because a term of years states from the outset when it will terminate).

* A term of years greater than 1 year must be in writing to be enforceable (because of the Statute of Frauds).


Periodic tenancy

A lease that continues for SUCCESSIVE intervals until L or T gives proper notice to terminate.


Periodic tenancy: creation (generally)

1. Express
2. By implication


Periodic tenancy: express creation

Periodic tenancy can be created expressly.

E.g., "To T from month to month" (or year to year, week to week, etc.).


Periodic tenancy: creation by implication

1. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.

2. An oral term of years in violation of the Statute of Frauds (intervals measured by the way rent is tendered).

3. The holdover.


Periodic tenancy: the holdover

In a residential lease, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises, measured by the way rent is now tendered.

E.g., T holds over after the expiration of her 1-year lease, but sends another month's rent check to L, who cashes it.


Periodic tenancy: terminating

Must give notice, usu. in writing.

How much notice:
– At common law, must give notice at least equal to the length of the period itself, unless otherwise stated.
– If the tenancy is year-to-year, must only give 6 month's notice.
– Parties may lengthen or shorten the common-law notice provisions by private agreement.

* The periodic tenancy must terminate at the end of a natural lease interval.


Tenancy at will

A tenancy for no fixed duration.

* Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat this as an implied periodic tenancy.


Tenancy at will: terminating

Tenancy at will may be terminated by either party at any time, BUT a reasonable demand to vacate is usu. needed.


Tenancy at sufferance

When T has wrongfully held over past the expiration of the lease.

* L can recover rent.


Tenancy at sufferance: terminating

Tenancy at sufferance lasts only until:
1. L evicts T, or
2. L decides to hold T to a new tenancy.


Tenant's duties

1. Liability to 3d parties
2. Duty to repair
3. Duty to pay rent


T's liability to 3d parties

(Tort law)

1. T must keep the premises in good repair.
2. T is liable for injuries sustained by 3d parties T invited, even where L promised to make all repairs.


T's duty to repair when lease is silent

1. T must maintain the premises and make ordinary repairs.
2. T must not commit waste.
3. T must not remove a fixture (which is voluntary waste)


What is a fixture?

A once-movable chattel that, by virtue of its annexation to realty, OBJECTIVELY shows the intent to permanently improve the realty.

E.g., heating systems, custom storm windows, furnace, certain lighting installations.

* Fixtures pass with ownership of the land.


When does a tenant installation qualifies as a fixture?

1. Express agreement controls: any agreement on point is binding.

2. In the absence of agreement, T may remove chattel that she installed so long as removal does not cause substantial harm to the premises.
– If removal will cause substantial damage, then the installation is objectively intended to stay permanently (subjective intent does not matter).


T's duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease:

1. At common law, historically: T was liable for any loss to the property, including loss due to force of nature.

2. Today, majority view: T may end the lease if the premises are destroyed w/o T's fault.


T's duty to pay rent: breach + possession

L can only:
1. Evict through the courts, or
2. Continue the relationship and sue for rent due.

* If L moves to evict, L is still entitled to rent from T, who is now a tenant as sufferance, vacates.

* L must not engage in self-help (e.g., changing the locks, forcibly removing T, removing T's possessions). Self-help is outlawed and punishable civilly and criminally.


T's duty to pay rent: breach + no possession

L may:

1. Surrender: treat T's abandonment as an implicit offer of surrender (giving up the lease), which L accepts.
– If the unexpired term is greater than 1 year, surrender must be in writing to satisfy the Statute of Frauds.

2. Ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there. (Available only in minority of states.)

3. Re-let the premises on T's behalf, and hold T liable for any deficiency. (Majority rule.)
– T must at least try to re-let the premises (mitigation principle).


L's duties

1. Duty to deliver possession
2. Implied covenant of quiet enjoyment
3. Implied warranty of habitability
4. No retaliatory eviction


L's duties: duty to deliver prossession

The majority rule (the English rule) requires that L put T in actual physical possession of the premises.

* Thus, if at the start of T's lease a prior holdover T is still in possession, L has breached and the new T gets damages.


L's duties: implied covenant of quiet enjoyment

T has a right to quiet use and enjoyment of the premises w/o interference from L

* Applies to both residential and commercial leases.


Implied covenant of quiet enjoyment: ways to breach

1. By actual wrongful eviction (when L wrongfully evicts T or excludes T from the premises).

2. By constructive eviction.


Implied covenant of quiet enjoyment: breach by constructive eviction

Elements of constructive eviction:

1. Substantial interference due to L's actions or failures (could be permanent or chronic problem).

2. Notice: T must give L notice of the problem and L must fail to act meaningfully.

3. Get out: T must vacate w/in a reasonable time after L fails to fix the problem.


Implied covenant of quiet enjoyment: is L liable for acts of other Ts?

Generally, no.

1. L must not permit a nuisance on site.
2. L must control common areas.


L's duties: Implied warranty of habitability

The premises must be fit for basic human habitation.

* Applies only to residential leases.
* Not a high standard—basic living requirements must be met.
* Appropriate standard may be supplied by local housing code or case law.
* Common problems: no heat in winter, no plumbing, no running water.


Implied warranty of habitability: T's entitlements if L breaches

T may:

1. Move out and end the lease (but T does not have to, unlike constructive eviction).

2. Repair and deduct: T may make reasonable repairs and deduct the cost from future rent. (Allowable by statute in a growing # of jurisdictions.)

3. Reduce rent or withhold all rent until the court determines fair rental value. Typically T must place withheld rent in escrow to show good faith.

4. Remain in possession, pay rent, and affirmatively seek money damages.


L's duties: no retaliatory eviction

If T lawfully reports L for housing code violations, L is barred from penalizing T.

E.g., raising rent, ending the lease, harassing T, or taking other reprisals.


Assignments and subleases (generally)

1. In the absence of some prohibition in the lease, T may freely transfer her interest in whole (assignment) or in part (sublease).

2. In the lease, L can prohibit T from assigning or subletting w/o L's prior written approval.

3. Once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L reserves the right.



T transfers her interest in whole.

E.g., T1 transfers the remaining 10 months of her lease to T2.
> L and T2 are in privity of estate (and not in privity of contract unless T2 assumed all promises in the original lease).
> L and T1 are in privity of contract.


Assignment: liabilities

L—T2: privity of estate. L and T2 are liable to each other for all of the covenants in the original lease that run with the land.
* E.g., promise to pay rent, to paint the premises, to repair.

L—T1: privity of contract. L and T1 are secondarily liable to each other (e.g., if T2 is bankrupt or unavailable).



T transfers her interest in part.

* L and sublessee are in neither privity of estate nor privity of contract. So, the relationship between L and T1 remains fully intact.

* But T1 and sublessee are liable to each other.


L's tort liability

Common law of caveat lessee: let tenant beware! L is under no duty in tort to make the premises safe.

1. Common areas.
2. Latent defects.
3. Assumption of repairs.
4. Public use.
5. Short term lease of furnished dwelling.


L's tort liability: common areas

L must maintain all common areas (e.g., hallways and stairwells).


L's tort liability: latent defects rule

L must WARN T of hidden defects that L knows or should know about.

* Duty to warn, not to repair.


L's tort liability: assumption of repairs

If L voluntarily makes repairs, L must complete them with reasonable care.


L's tort liability: public use rule

1. L who leases a public space (e.g., convention hall or museum)
2. and should know that T will not repair
3. because of the nature of the defect (more than de minimis problem) and the length of the lease (usu. short time)
4. is liable for any defects on the premises.


L's tort liability: short term lease of furnished dwelling

L is liable for any defective condition on site if it's a short-term lease (e.g., 1 week) of a furnished dwelling.