Landlord/Tenant Law

Question 1

The Four Leasehold (nonfreehold) Estates

Answer 1

1) Tenancy for Years
2) Periodic Tenancy
3) Tenancy at Will
4) Tenancy at Sufferance

Question 2

Tenancy for Years (aka Estate for Years/Term of Years)

Answer 2

• a lease for a fixed period of time (2 months, 5 weeks, 50 years)
• terminates automatically, not notice required
• if greater than one year MUST BE IN WRITING to be enforceable

Question 3

Periodic Tenancy

Answer 3

• Defined: a lease which continues for SUCCESSIVE intervals, until L or T give proper notice to terminate
• May be EXPRESS or IMPLIED (no mention of duration w/ pymt at set intervals; oral term of years that violates SofF; holdover T)
• **Termination: **requires notice, usually in writing, at least equal to the length of the period itself (e.g. in month-to-month, one month’s notice required).
  
  • EXCEPT, if year-to year, only 6 months required 3)
  • Periodic tenancy MUST END at the conclusion of a natural lease period (e.g. if lease period starts at first of month, give notice May 15, T bound until June 30)
  • Freedom of K - can lengthen or shorten notice requirements by pre-agreement

Question 4

Implied Periodic Tenancy - 3 ways

Answer 4

1. Lease with no mention of duration, but rent to be paid at set intervals
2. An oral tenancy for years in violation of Statute of Frauds creats an implied periodic tenancy
   
   1. period measured by the way rent is tendered
3. The holdover - in a residental lease L elects to hold over a T who has wrongfully stayed on past the conclusion of original lease.

Question 5

Tenancy at Will

Answer 5

• A tenancy for no fixed duration, e.g. “To T for as long as L or T desires.”
• Disfavored - unless parties EXPRESSLY agree to a tenancy at will, if there’s payment of regular rent court will treat as an implied periodic tenancy.
• May be terminated by either party at any time (but most states requrie a reasonable demand to vacate first)

Question 6

Tenancy at Sufferance

Answer 6

• Created when T has wrongfully held over past the expiration of the lease.
• will be short! lasts only until L either 1) evicts T or 2) decides to hold T to new tenancy (implied periodic tenancy)

Question 7

Tenant’s Duties

Answer 7

1. T’s liability to 3rd parties
2. T’s duty to repair (inc. waste/fixtures)
3. T’s duty to pay rent

Question 8

T’s Liability to 3rd Parties

Answer 8

• responsible for keeping the premises in good repair
• liable for injuries to 3rd parties T invited, *even where L promised to make all repairs. *(may be able to seek indemnification from L)

Question 9

T’s Duty to Repair when lease SILENT

Answer 9

• T must maintain the premises and make ordinary repairs
• T must NOT commit waste
  
  • voluntary, permissive, or ameliorative
• Fixtures
  
  • when T removes fixture = voluntary waste
  • fixture = a once moveable chattel that by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty
  • T MUST NOT REMOVE, no matter that T installed!

Question 10

When is an Installation a Fixture?

Answer 10

• express agreement OR
• T may remove chattel 1) that she installed 2) so long as removal doesn’t cause substantial harm to the premises
  
  • If removal WILL cause substantial damage, then T has shown intent to install fixture
  • OBJECTIVE test - T’s subjective intentions do not matter
  • **Trade/Commercial **fixtures exception - generally removable if not an integral part of the premises and T pays for damages caused by removal.
• FIXTURES PASS WITH OWNERSHIP OF THE LAND

Question 11

T’s Duty to Repair - Express Covenant

Answer 11

When lease contains express covenant that T will maintain property in good condition:

At COMMON LAW: T was liable for ANY loss to the property, including loss due to force of nature.

TODAY: T may end the lease if premises are destroyed without T’s fault.

Question 12

T’s Duty to Pay Rent

T breaches, remains in possession

Answer 12

• L’s options:
  
  • evict through the courts
    
    • entitled to rend until T (at sufferance) vacates.
  • continue the relationship and sue for rent due (holdover)
• L MUST NOT engage in self help (changing loks, forcibly removing T, etc.)
  
  • self help illegal and results in both civil and criminal liability

Question 13

T’s Duty to Pay Rent

T breaches, out of possession

Answer 13

SIR

• Surrender
  
  • = T shows by words/conduct intention to give up the lease
  • L can treat T’s abandonment as implicit offer of surrender, which L accepts
  • If remaining term is greater than one year, surrender must be in writing under SofF (but can be signed notice from L sent to T’s last known address - even if never reaches T)
• Ignore (minority rule)
  
  • MINORITY of states allow
  • ignore and hold T responsible for unpaid rent
• Re-let (majority rule)
  
  • L must make a good faith effort to re-let the premises on T’s behalf, and hold T liable for any deficiency = mitigation

Question 14

Landlord’s Duties

(4)

Answer 14

1. Duty to Deliver Possession
2. Implied Covenant of Quiet Enjoyment
3. Implied Warranty of Habitability
4. No retalliatory eviction

Question 15

L’s Duty to Deliver Possession

Answer 15

• “English”/majority Rule: L must put T in actual, physical possession.
  
  • At start of T’s lease a prior holdover still in possession = L breached, new T get’s damages
• “American”/Minority Rule: misnomer/relic of old west where landlords hundreds of miles away from tenant - L need only provide T with legal, not physical possession

Question 16

Implied Covenant of Quiet Enjoyment

Answer 16

• T has a right to quiet use and enjoyment of premises w/o interference from L
• applies to residential and commercial leases
• Breach by wrongful eviction:
  
  • L wrongfully evicts or excludes T
• Breach by Constructive Eviction (SING)
  
  • Substantial Interference
  • Notice
  • Get out/vacate
• L not liable for acts of other tenants BUT
  
  • L must not permit nuisance on sight
  • L must control the common areas (halways, etc.)

Question 17

Constructive Eviction

(3 elements)

Answer 17

T must show

1. Substantial Interference due to L’s actions or failure to act (chronic temporary or permanent problem)
2. Notice - T must give L notice of the problem and L must fail to act meaningfully
3. Get out/Vacate - T must vacate within a reasonable time after L fails to fix the problem​

Question 18

Implied Warranty of Habitability

Answer 18

• The premises must be fit for basic human habitation (NOT a high std - bare living reqs)
  
  • appropriate std of habitability my be filled in by local housing code/case law
• applies ONLY TO RESIDENTIAL leases
• NON-WAIVABLE
• When breached, T entitled to:
  
  • Move
  • Repair and Deduct
  • Reduce
  • Remain

Question 19

Implied Warranty of Habitability

T’s options when L breaches

Answer 19

1. Move out and end the lease (doesn’t have to, unlike constructive eviction)
2. Repair and deduct reasonable costs from rent (allowed by statute in many jdx’s)
3. Reduce Rent - withhold until court determines fair rental value (usually must place extra rent in escrow to show good faith)
4. Remain in Possession, pay rent, and affirmatively seek money damages

Question 20

Assignment vs. Sublease

Answer 20

• In the absence of prohibition in lease, T may freely transfer interest in whole (assignment) or in part (sublease)
• L can prohibit assignment/sublet in lease w/o L’s prior written consent.
  
  • BUT once L consents to one transfer, waives right to object to future transfers unless expressly reserves right.

Question 21

Assignment

Answer 21

• A transfer of T’s entire interest in property
• Privity of Estate - when T assigns to T2, L and T2 are in privity of estate
  
  • L and T2 liable to eachother for all covenants that run with the land
  • L and T2 are NOT in privity of K, unless T2 assumed all promises in the original K
  • L and T1 - no longer in privity of estate but remain in privity of K
    
    • L and T secondarily liable to eachother - if T2 unavailable (fled or bankrupt) T1 is liable.

Question 22

Sublease

Answer 22

• L and sublessee are in NEITHER privity of estate nor privity of K
• T2 and T1 liable to eachother
• BUT relationship b/w L and T1 = fully intact

Question 23

L’s Tort Liability

Answer 23

Caveat Lessee - L under no duty to make premises save with 5 EXCEPTIONS:

1. Common Areas: L must maintain
2. Latent Defects Rule: L must warn T of hidden defects that L knows or should know of (warn, not repair)
3. Assumption of Repairs: L who voluntarily makes repairs must use reasonable care - liable to T for negligent repairs.
4. Public Use Rule: L who leases public space (convention hall) and who should know, because of the nature of the defect (serious) and the length of the lease (short) that T will not repair, is liable for any defects on the premises.
5. Short Term Lease of furnished dwelling - L is liable for any defenctive condition on sight.

Question 24

Holdover

Answer 24

• When T wrongfully stays past expiration of lease, L may either treat as trespassor (sue for damages/ejectment) or impose new periodic tenancy.
  
  • Terms - If chooses to treat as new periodic tenancy, generally under the same terms (including rent) as the old tenancy
  • EXCEPT if L has told T of future higher rent BEFORE expiration of old lease, that higher rent will apply