LandLord/Tenant

Question 1

How to approach land lord tenant problems?

Answer 1

1. identify type of tenancy
2. Which of the 4 basic disputes is it?
3. Has landlord/tenant transferred their interest

Question 2

Tenancy for Years

1. definition
2. creation
3. term
4. termination

Answer 2

1. definition: any fixed term tenancy (fixed starting date and ending date)
2. creation: express agreement of the landlord + tenant
3. term: term fixed
4. termination: automatically terminates at ending date

Question 3

Periodic Years

1. definition
2. creation (2)
3. term
4. termination

Answer 3

1. definition: a fixed starting date, however, no fixed ending date (automatically renewing)
2. creation: express agreement of the parties or implication
3. term: indefinite
4. termination: upon giving of proper notice (either side)

Question 4

When can tenancy for years be oral?

Answer 4

Leases under one year can be oral, if longer than a year, has to be in writing

Question 5

Termination of a periodic tenancy requirements?

Answer 5

Either side gives notice by words or conduct

1. Notice must be given equivalent to the period up to a maximum of six months (e.g. if month to month, then one month notice) ≤ 6 months
2. When to give
   CL: notice had to be given at start of rental period
   Majority: notice given in the middle takes effect at the start of the next rental period

Question 6

Tenancy At-Will

1. creation
2. termination (3)

Answer 6

1. can only be created by express will of the parties
2. ways to terminate

a. either landlord or tenant expresses will for lease to terminate (no timing/notice requirement)
b. automatically on death of landlord or the tenant
c. automatically if either party tries to transfer their interest

Question 7

Tenancy at Sufferance is

Answer 7

A tenant has a tenancy for years, it expires, and the tenant stays adverse to the landlord’s wishes

Question 8

A holdover situation is where?

Answer 8

A tenant has a tenancy for years, it expires, and the tenant stays

Question 9

What becomes of a holdover tenant?

Answer 9

1. periodic tenant; or, (if landlord wants tenant)
2. tenant in sufferance (if landlord does not want tenant)

-depends upon landlord

Question 10

Crucial fact in looking at a holdover tenant?

Answer 10

does the landlord accept rent from the tenant?

Yes=periodic tenant

No=tenant at sufferance

Question 11

If a holdover tenant becomes a periodic tenant, the period is

Answer 11

The period for which rent is paid

Question 12

Common Disputes between landlord and tenant

Answer 12

1. fights over rent
2. Condition of the Premises and Who has the obligation to maintain
3. Fight over possession
4. Dispute over improvements

Question 13

How to analyze fights over rent?

Answer 13

1. how much rent is landlord entitled to recieve

Question 14

How much rent is landlord entitled to receive in

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

Answer 14

1. the entire amount
2. landlord is entitled to receive rent through the notice period required to terminate
3. Generally, none due
4. Depends
   a. if becomes periodic tenancy, then periodic rules apply
   b. if tenant at sufferance, then liable for the reasonable rental value of the property for time on land

Question 15

What is anticipatory repudiation in Landlord tenant contracts

Answer 15

If a tenant walks out, the landlord does not have to wait for the rent to accrue, can sue for everything

Question 16

What is landlord’s duty to mitigate

Answer 16

If they want to sue for breach, they have to take reasonable steps to rent the premises

If not, court will reduce award to tenant by what they feel he could have recieved

Question 17

Tenant defenses they can raise as to why they should not be obligated to pay that rent.
(6)

Answer 17

1. failure to deliver possession
2. if the tenant is evicted
3. surrender
4. destruction of the leased premises
5. Offsets
6. other contractual defenses

Question 18

When does a failure to deliver possession of premises occur?

Answer 18

Common law/Majority: landlord’s duty to deliver possession at the start of the lease, then tenant excused from paying until receipt of possession

American Rule: it is the tenant’s obligation to take possession

Question 19

When does an actual eviction occur?

Answer 19

whenever the tenant has been physically removed from

all (total) or part (partial)*

of the premises by the landlord or someone acting upon behalf of landlord

Question 20

If a tenant is actually evicted from all or part of the premises, what is their rent obligation?

Answer 20

They have a defense to paying any rent

Question 21

When does constructive eviction occur?

3

Answer 21

A substantial interference with the tenant’s use and enjoyment of the leased premises
(amounting to being enforced off the property)
+
Caused by the landlord or someone acting on his behalf
+
Tenant MUST move out in a reasonable time

Question 22

When does constructive eviction occur as the result of actions of the third party?

Answer 22

When the landlord knew or should have known of the actions of the third party

Question 23

If there is a total constructive eviction, what is the rent obligation?

What if it is partial?

Answer 23

• excused from paying any rent for a total

- rent abatement of the portion evicted from for a partial

Question 24

Surrendering possession of the land to the landlord will be a defense to rent if?

Answer 24

1. surrendered
   +
2. landlord accepts possession back (≠ trying to re-rent/mitigate damages)

If so, then do not have to pay rent

Question 25

Destruction of the premises is a defense to payment of rent if? Common law? Majority? Exception?

Answer 25

Common law: destruction only releases if the tenant leases a portion of a structure (if leases all, then not a defense) Majority: if a tenant leases land and the structure is destroyed, then it is a defense -unless tenant is responsible to the destruction (negligently or intentionally)

Question 26

Offsets to the payment of rent occur when?

Answer 26

- tenant must give landlord notice of problem - Landlord must have reasonable time to address the problem, then, if no action - Tenant can remedy the situation and offset cost against rent due A duty is violated -Warranty of habitability

Question 27

A warranty of habitability is? | to claim breach?

Answer 27

implied in residential leases Requires the landlord to maintain the premises in a habitable condition - tenant must give landlord notice of problem - Landlord must have reasonable time to address the problem, then, if no action - Tenant can remedy the situation and offset cost against rent

Question 28

discharge arguments to payment of rent | 3

Answer 28

1. impossibility 2. frustration of purpose 3. impracticability

Question 29

Landlord’s Obligations to maintain premises | common law v. majority

Answer 29

Common Law: no obligation absent express promise in a lease Majority: implied warranty of habitability + other statutory obligations

Question 30

Tenant's Obligations to maintain premises?

Answer 30

No obligation to maintain the premises | but must avoid committing waste

Question 31

If tenant is suing landlord for failure to maintain premises, then what type of action If as a defense to landlord's request for rents

Answer 31

contract action Offeset to rent

Question 32

Who is liable in tort to a licensee, invitee in a landlord tenant situation?

Answer 32

Generally, the tenant as the possessor of the land

Question 33

When is a landlord liable in tort? | 2

Answer 33

- common passageways - if landlord leases premises knowing of a defect that is not readily apparent, then liable until tenant can inspect and remedy condition

Question 34

What is tenant's duty to avoid waste?

Answer 34

Cannot commit voluntary, permissive, or ameliorative waste.

Question 35

In a tenant/landlord relationship, who has possession of the property

Answer 35

If a lease is entered into and the landlord has leased property to the tenant, then the tenant is the one who has the possessory right to the property.

Question 36

Landlord can only retake the property prior to expiration of tenancy if:

Answer 36

there is a material breach of the lease

Question 37

If a landlord is allowed to retake the property, what is allowed Common law v. majority

Answer 37

Common law: could use reasonable force Majority: must go to legal process

Question 38

Will courts uphold a retaliatory eviction?

Answer 38

No, any attempt to raise rents or evict out of a tenants exercise of rights will be voided

Question 39

Dispute over Improvements in tenant/landlord relationship? What can be removed?

Answer 39

Anything that the tenant affixes to the land can be removed at the expiration of the lease, so long as the property is left in substantially the same condition as when the tenant arrives

Question 40

If the fixture be removed and the premises left in substantially the same condition as when the tenant arrived? (a) If so, when must it be removed (b) unless

Answer 40

before the expiration of the lease | -the tenant has no reason to know when the lease is going to end (tenancy of will) --> given reasonable time

Question 41

When can structural changes be removed?

Answer 41

Presumption is that they cannot be removed because they change the nature of the structure

Question 42

If an adverse possessor puts improvements on the land and is evicted before taking possession, what happens to the improvements?

Answer 42

The true owner can take the improvements

Question 43

What happens when Landlord transfer's interest? Who is rent due to?

Answer 43

Whoever is the landlord of record on the day that rent is due is entitled to that money

Question 44

What happens when a tenant transfer's their interest? 1. When is the transferee an Assignee 2. When is the transferee a Sublessee

Answer 44

Assignee = gets all of tenant's remaining interest Sublessee = tenant only transfers a portion of their interest to the transferee

Question 45

In order for the original landlord to enforce rents/rent contract against a new tenant

Answer 45

we must meet the requirements for a covenant running with the land: Assignee meets the test, sublessee does not

Question 46

Who can landlord evict: assignee v. sublessee? Who can landlord sue for rent: assignee v. sublessee?

Answer 46

Both Only assignee can be sued

Question 47

If a tenant assigns their interest, who can landlord sue for rent?

Answer 47

Assignee or tenant

Question 48

How can an assignee get off the hook for paying rent? How can an original tenant?

Answer 48

Assignee if they reassign Tenant cannot without a novation

Question 49

Transfer of interest in a lease is generally

Answer 49

freely transferable

Question 50

A landlord may write a prohibition on transfer into a lease but will be

Answer 50

Narrowly construed 1. To prohibit both an assignment and a sublease, must state both 2. If consent is involved: then landlord must act reasonably (if consent is not involved, landlord can act however)

Question 51

What is the rule in dumper's case?

Answer 51

1. applies to prohibition on assignments only 2. If the prohibition is waived once by the landlord, then it is deemed waived for the duration of the lease unless the landlord reaffirms.