Flashcards in Landlord Tenant Deck (67)
What two ways can they be created?
A lease given by the landlord (lessor) provides the tenant (lessee) exclusive possession of the premises for a period of time.
Expressly or Impliedly
How is a lease created impliedly?
by the conduct of the parties (either NO valid writing or A tenant holds over and the landlord accepts rent)
How is a lease expressly created?
By words or in Writing. If term of lease extends beyond one year, Statute of Frauds require it to be in writing
What are the four types of Tenancy for leases?
Tenancy in For Years
Tenancy at Will
Tenancy T Sufferance (Holdover tenancy)
What are the characteristics of Tenancy for Years
lease has definite beginning and an end. Must not be years as the title suggests but still a set period. (e.g., the lease expires on a set date or remains in effect only for a set number of months or years).
a. No Notice required is required to terminate a lease for a term of years at the end of the specified duration (termination date known at inception)
What are the characteristics of Periodic Tenancy?
can be expressly or impliedly (holdover tenant)
a. Continuous and open-ended
b. No ending date
c. Tenancy automatically renews
d. Notice is required to end, modernly measured by the rent interval
What are the characteristics of Tenancy at Will?
Occupation of real property owned by another until such time as the landlord and tenant desire the relationship to end (not a traditional lease, limited protection) No Fixed End Time!!
a. created by agreement between the tenant and the landlord
b. Cannot be transferred by the tenant to someone else since the landlord controls the right to occupy
c. Termination (personal in nature) – Death of T or LL; T commits waste; attempts to assign; LL transfers his interest or the premises
What are the characteristics of a Tenancy at Sufferance (Holdover tenancy)
occurs when a tenant remains in possession of the leased premises ("holds over") after the end of the lease term.
a. not a true tenancy. In most states, if a residential tenant holds over, the landlord may recover possession of the property and receive the reasonable rental value for the holdover period.
b. If the tenant thereafter pays the monthly rent and the landlord accepted the payment, a month-to-month periodic tenancy has now been formed.
What are remedies for LLs at common Law? At modern law?
i. Common Law- Self help was allowed to physically remove breaching tenant
ii. Modernly- Don’t take the law into your own hands, take them to court
In general, what are the LL's duties to the T under common law? Under Modern Law?
1. Common Law: No LL duties unless the lease expressly said so, T has possession and therefore responsibility for premises
2. 2. Modern Law: (default): Implied Warranty of Habitability (IWH) Covenant of Quiet Enjoyment (CQE)- N/A at Common Law
What Guarantees the premise will be safe, clean and fit for human habitation; Ensures that bare living requirements are met STANDARD: by housing code or court decision (examples: Examples No heat in winter; no running water; vermin; danger to health and human life; trash accumulation; undisclosed lead paint)
a. Implied Warranty of Habitability (IWH)
when is implied warranty of habitability (IWH) implied only?
in residential leases
How does IWH work when something breaks? (eg. heater breaks during winter)
2. How it works: requires T to give LL reasonable time to fix the problem if LL fails to fix, then T does and deducts cost of repairing the problem from rent owed
***** No requirement that tenant vacate the premises
THINK- more personal and more closely tied to the premises, less severe GENERALLY THE REMEDY IS NOT AN END OF THE LEASE
Define Covenant of Quiet Enjoyment CQE
Duty to tenant by LL. A tenant's right to possess and use his or her property without disturbance. LL promises that the tenant will not be disturbed by the landlord or someone claiming through the landlord (attempted eviction by person with superior title) during his possession
What may a tenant do if CQE was breached and T was actually evicted or constructively evicted?
ii. A tenant may treat the lease as terminated and withhold rent if the CQE has been breached by an actual or constructive eviction
iii. Think- broader protection, the habitation and the disturbance of the tenant’s peaceful occupation. Oftentimes more severe, AND OFTENTIMES THE REMEDY IS A TERMINATION OF THE LEASE
Describe Constructive Eviction (CE) (nonfeasance)
(nonfeasance) LL allows the premises to deteriorate forcing T from the land Implied in every lease is a covenant of quiet enjoyment
- Withholding something required by statute constitutes CE Nonfeasance
What are the two types of CE?
Full CE and Partial CE
Is partial CE a defense to rent? explain
NO, its rather an abatement to the rent attributable to that portion of the premises.
Is Full CE a defense to rent?
Describe Actual Eviction (AE)
Is it a defense to rent? Explain
(malfeasance) Where LL physically removes T from all or part of the premises. An actual eviction occurs when the landlord, or someone claiming through him, disturbs the landlord in his possession of the property.
Yes, defense to payment of rent
True even if there is only partial eviction
Failure to deliver possession- American vs. English Destruction of the leasehold- no fault of either party. Duties under common law? Under modern law? American rule?
a. Common law rule- LL is duty bound to deliver the possession of premises to T
b. Modern Majority- If can not do so, then T is excused from having to pay rent until LL succeeded in delivering possession to premises.
c. American Rule- no obligation to deliver, rather an obligation for T to take it (Min.)
what are offsets?
Abatement (reducing or withholding rental payments) – DIY
How are offsets applied at common law? modern?
a. Common Law: Promises were independent; if LL didn’t do something, cant touch rent (property versus contracts)
b. Modernly: In all residential leases the LL is to maintain the residential property in a habitable condition (IWH)
1. Can offset costs, provided T gives LL notice and a reasonable time to repair
T or F, General rule: A landlord is not liable to the tenant, or others on the premises with the consent of the tenant, for injuries caused by a condition of the premises
What is the exception?
except for an undisclosed dangerous condition that is known or should have been known to the landlord, but which is unknown to the tenant.
Early Termination of lease Without Agreement: common law? modern law?
Hint missing tennant
i. Common Law-Tenant has duty to find replacement tenant or continue to pay rent
ii. Modern Jurisdictions- Landlord has duty to attempt to mitigate damages- try to relet
generally what are the two main duties a T owes a LL?
generally to pay rent and not commit waste
For a T's duty to pay rent what is the T's duty Common Law Estate Theory? Under Modern Theory?
a. Common Law Estate Theory- Absolute duty, even if the leased premise is destroyed
b. Modern Theory- No duty to pay rent if premise destroyed UNLESS Tenant was the cause of the destruction
Duty by the tenant owed to the landlord to avoid/not commit waste- major concern- what are the 3 types?
What is voluntary waste? What is T liable for?
Something T is doing to the land, cannot intentionally or negligently damage anything on the property
1. T is liable for the cost of correcting what they have done, their duty was to avoid this damage