Landlord-Tenant (Leases) Flashcards
(97 cards)
1
Q
Lease
A
Gives the tenant (lessee) exclusive possession of the premises for a period of time (does not give title).
2
Q
Creation of a Lease (SOF)
A
In general, a lease may be created expressly, either orally or in writing. But a writing is generally required by the SOF for a term of more than one year.
3
Q
Implied Leases (Invalid Writing)
A
An implied lease may be created by the conduct of the parties when the written lease is an invalid writing. The resulting tenancy will be periodic.
4
Q
Implied Leases (Holdover Tenants)
A
An implied lease may be created when a holdover tenant pays rent and the landlord (lessor) accepts the rent.
5
Q
How to Approach a Landlord-Tenant Question
A
(Step 1)- Type of tenancy?
(Step 2)- What is the dispute?
(Step 3)- Has the LL/T transferred their interest in the property? (assignment v. sublease)
6
Q
Types of Leases (TPAS)
A
Include:
- Term of Years
- Periodic
- At-Will
- Tenancy at Sufferance
7
Q
Term of Years
A
Tenancy with a definite beginning and end (e.g. until a set date or for a set number of months or years).
8
Q
Creation of Term of Years
A
Term of years is created by express agreement between the landlord and the tenant for a term specified in the lease. If the duration is for longer than a year, the agreement must be in writing.
9
Q
Termination of Term of Years
A
Term of years is terminated automatically at the end of the fixed period. No notice is required.
10
Q
Periodic Tenancy
A
Has a set beginning date and continues from period to period (e.g. month to month) without a termination date, until proper notice is given.
11
Q
Creation of Periodic Tenancy
A
A periodic tenancy is created expressly or by implication with a holdover tenant.
12
Q
Termination of Periodic Tenancy (Notice)
A
The landlord or the tenant must give appropriate notice of intent to terminate:
13
Q
Periodic Tenancy: Appropriate Notice
A
Notice must be in writing if the lease or state statute so specifies, otherwise it can oral (and equal to the rental period, up to a maximum of six months). E.g. one-year tenancy = 6 months’ notice.
14
Q
Periodic Tenancy: Date of Termination
A
The modern/majority approach is that notice can take place on any date (but it does not take effect until the start of the next rental period). The CL/minority approach is that notice has to be given at the start of the rental period.
15
Q
At-Will Tenancy
A
Has no fixed duration and lasts only as long as the landlord and tenant desire.
16
Q
Creation of Tenancy at Will
A
Tenancy at will is generally created by express agreement of the parties.
17
Q
At-Will Tenancy: When Tenancy Terminates
A
The at-will tenancy terminates if:
- Freely as soon as either party decides
- Either party dies
- The tenant commits waste
- The tenant attempts to assign his interest
- The landlord transfers his interest
- The landlord transfers the premises to a third party for a term of years
18
Q
When a Lease Gives a Landlord a Unilateral Right to Terminate
A
Most courts find a tenancy at will that may be terminated by either the landlord or the tenant.
19
Q
When a Lease Gives a Tenant a Unilateral Right to Terminate
A
Most courts find that the tenant receives either a life estate or fee simple (depending on the language). Although a few courts find a tenancy at will that may be terminated by either the landlord or the tenant.
20
Q
Tenancy at Sufferance (Holdover Tenant)
A
- A tenancy at sufferance occurs when a tenant remains in possession of the leased premises (“holds over”) after the end of the lease term.
- In most states, if a residential tenant holds over, the landlord may recover possession and receive the reasonable rental value for the holdover period.
21
Q
Holdover Tenants: Distinguishing Between Periodic Tenants and Tenants at Sufferance
A
What type of tenancy is created will depend on the landlord’s actions
- If the landlord wants the tenant to remain on the land (evidenced by accepting rent) the tenant becomes a periodic tenant
- If the landlord does not want the tenant to remain on the land (does not accept rent), the tenant becomes a tenant at sufferance until the landlord can get the tenant off the property.
22
Q
Holdover Tenants: Determining Period Length for a Periodic Tenancy
A
If the tenant becomes a periodic tenant, the period is determined by the type of jurisdiction.
- CL- the length of the expired lease, with a maximum of one year
- ML- treat the period as the period for which rent is reserved.
23
Q
Tenant’s Duties
A
Include:
- Pay Rent
- Avoid Committing Waste
- Render Repairs
24
Q
Duty to Pay Rent
A
A tenant has a duty to pay rent. But the tenant is relieved of this duty if all or a portion of realty is destroyed (unless tenant intentionally or negligently caused the destruction).
25
Duty to Pay Rent: Term of Years
The tenant is liable for all unpaid rent in the lease.
- CL rule- the landlord could only sue for rent as it accrued
- ML majority rule- allows for anticipatory repudiation but the landlord has a duty to mitigate (make reasonable efforts to re-rent the property).
26
Duty to Pay Rent: Periodic Tenancy
The tenant is liable for the rental obligation up until proper notice is given to terminate the lease.
27
Duty to Pay Rent: Tenancy At-Will
The tenant is liable for the amount of rent stated in the agreement that is already owed.
28
Duty to Pay Rent: Tenancy at Sufferance
The tenant is liable for the reasonable rental value of the property.
29
Tenant Defenses to Paying Rent
Include:
- Failure to Deliver Possession
- Tenant has Been Evicted
- Tenant Surrenders Premises to Landlord
- Destruction
- Warranty of Habitability
30
Duty to Deliver Possession
- Majority (English) rule- the landlord has an obligation to deliver possession of the property to the tenant
- Minority (American) rule- the landlord has no obligation to deliver possession of the premises; the tenant must take it.
31
Tenant Evictions
If the tenant has been evicted, it is an excuse for not paying rent. Includes actual eviction and constructive eviction.
32
Constructive Eviction
- When the landlord has allowed the condition of the premises to deteriorate to the point that the tenant is essentially being forced out (the use and enjoyment of property is substantially interfered with).
- However, remember that the tenant must actually move out within a reasonable time following the acts constituting the substantial interference.
33
Constructive Eviction by a Third Party?
Even if the acts constituting the substantial interference are due to third parties, the landlord can be liable because the landlord should have had reason to know that the interference would cause a constructive eviction.
34
Tenant Surrenders Premises to Landlord
In order to claim this defense to paying rent, the landlord must accept the surrender and retake possession of the premises.
35
Destruction
- Under the CL, destruction generally did not excuse payment of rent because the tenant was still in possession of the actual land (unless T leased only a portion of a building)
- Under the ML, no distinction is drawn between leasing all or a portion of the building. Destruction will be a defense to payment of rent (unless tenant intentionally or negligently causes the destruction).
36
Duty to Avoid Committing Waste
Is the same as that for life tenants (remember permissive waste, voluntary waste, and ameliorative waste)
37
Permissive Waste
Unlike a life tenant, a lease tenant's duty to avoid waste is not limited to the extent of income derived from or the reasonable rental value of the property.
38
Ameliorative Waste
Under the modern view, a tenant may commit ameliorative waste if:
- Expressly authorized; or
- There is a change in circumstances that warrants the improvements to be made (if improvement does not depreciate property value)
- Otherwise the lease tenant will be liable.
39
Duty to Render Repairs: Modern K Theory
Under the Modern K Theory, courts look at the covenants that are in the lease.
40
Modern K Theory: Absence of a Provision
If there is no provision governing repairs, the CL estate rule applies (landlord has no duty but the tenant does have a duty for minor repairs under its duty not to commit waste). However, the tenant is not required to rebuild if the destruction was not his fault.
41
Modern K Theory: General Covenant to Repair
If such a covenant is present, the tenant is required to repair the premises. This covenant often excepts ordinary wear and tear and "acts of God'
42
Modern K Theory: Covenant to Repair Without Exception
If a tenant agrees to such a clause, then the tenant must make all repairs, regardless of how the damage is caused.
43
Duty to Render Repairs: Modern Trend
In the absence of a contrary agreement, the tenant is not required to rebuild if the destruction was not his fault.
44
Landlord Duties
Include:
- Duty to Deliver Possession
- Statutory Duties
- Duty to Repair
45
Duty to Deliver Possession
The landlord has a duty to deliver possession of the premises to the tenant at the start of the lease term.
46
Duty to Deliver Possession: English Rule
The majority rule requires delivery of actual possession.
47
Duty to Deliver Possession: American Rule
The minority rule requires delivery of the legal right to possession only.
48
Statutory Duties of Landlord
State law usually creates certain duties for the landlord, such as the provision of running water and heat.
49
Landlord's Duty to Repair
The lease document may create certain duties for the landlord, such as the duty to repair within the leased premises.
50
Liability to a Landlord
A party may be liable to a landlord through either privity of K or privity of estate.
51
Rent-Acceleration Clauses
The modern majority rule permits such clauses in leases. Therefore, a landlord can accelerate rent upon a breach of the tenant.
52
Landlord's Remedies for Abandonment
If the tenant abandons the premises, the landlord may:
- retake the premises
- ignore abandonment and continue to hold tenant liable for rent or
- reenter and relet the premises
53
What is Abandonment on Behalf of a Tenant?
When the tenant vacates the premises without intent to return + fails to pay rent.
54
Abandonment: Duty to Mitigate on Behalf of Landlord
(Modern majority view)- landlord has a duty to mitigate by attempting to relet premises (BOP is on landlord to show mitigation)
(Minority/CL view)- there is no duty to relet.
55
Abandonment: When the Landlord Succeeds in Reletting
The landlord is still entitled to recover damages based on the difference between what the tenant owed for rent and what the landlord collected from reletting.
56
Retaliatory Eviction
An eviction in response to tenant's complaints about landlord. Is prohibited in most states.
57
Tenant's Remedies for Landlord's Breach
Statutes in many jurisdictions provide tenants with the remedies of:
- Withholding rent; or
- Repairing the premises and deducting the cost or repair from subsequent rent payments.
58
Landlord's Liability for Injuries Caused by a Condition of the Premises:
A landlord is only liable if:
- An undisclosed dangerous condition exists + known or should have been known to landlord + unknown to the tenant
- A condition exists that is dangerous to persons outside of the premises
- The premises are leased for admission to the public
- Parts of land are retained in the landlord's control but are available for use by tenant
- Landlord has contracted to repair; or
- Landlord has been negligent in making repairs
59
Anticipatory Repudiation
Under the modern law, when the lease is for a tenancy of years + the tenant abandons the property --> the landlord may sue immediately for all rent due on the entire agreement (subject to landlord's duty to mitigate damages).
60
Security Deposit
May be maintained by landlord only to the extent necessary to cover actual loss that the deposit was intended to secure.
61
Types of Security Deposits
- Deposits that constitute a sum of money against which the landlord may draw to make up any default or to pay for damages
- Deposit that will be forfeited upon default
- Deposit that is denominated as advance rent
62
Security Deposits: Sum of $ from Which Landlord May Withdraw from
A landlord must account to the tenant for anything the landlord withdraws from the deposit. At the end of the tenancy, any balance goes to the tenant.
63
Effect of Death of Either Party on a Lease
- (Tenancy for years or periodic tenancy)- upon death of tenant, In the absence of a contrary lease provision, the leasehold will pass as PP through the tenant's estate.
- (Tenancy at Will)- is terminated by the death of either party
- Furthermore, if the landlord holds a LE in the leased property, the lease is considered void upon the death of the landlord.
64
Effect of Landlord's Sale of Leased Property
Generally, there is no effect on tenant, unless the lease provides otherwise, the tenant will simply have to pay rent to the new landlord.
65
Implied Warranty of Habitability
Requires the landlord to deliver and maintain premises that are safe, clean, and fit for human habitation.
66
Tenant's BOP for Asserting Breach of Implied Warranty of Habitability
Tenant must show:
- A defect in essential residential facilities (some jurisdiction permit latent & patent, other jurisdictions require latent)
- Landlord notice of the defect
- That they provided landlord with reasonable time to make necessary repairs.
67
Applicability of Implied Warranty of Habitability (Residential v. Commercial)
The implied warranty of habitability does not apply to commercial leases. Furthermore the following residential leases may be excluded:
- Leases for single-family residence
- Agricultural leases
- Long-term leases
- Casual leases made by non-merchant landlords
68
Can the Implied Warranty of Habitability Be Enforced By Subsequent Buyers?
Yes
69
Housing Code Violations in Context of Breach of the Implied Warranty of Habitability
- Some jurisdictions claim that a violation = automatic breach
- Other jurisdictions claim that the housing code is the standard (substantial compliance will be sufficient if habitability is not affected)
- Other jurisdictions look at whether premises are uninhabitable in view of a reasonable person standard.
70
Tenant Remedies Upon Breach of Implied Warranty of Habitability
Include:
- Excusal from further performance under the lease
- Ability to vacate the premises
- Ability to treat the lease as canceled, and get rent abatement
- The tenant may seek money damages
- The tenant may seek reformation or other traditional contract or tort remedies
71
Measuring $ Damages for Breach of the Implied Warranty of Habitability
- Some courts look at value of the premises as warranted -- value of the premises as received (agreed rent is mere evidence)
- Other courts look at the agreed rent -- fair rental value of premises received.
72
Covenant of Quiet Enjoyment
When the landlord promises that the tenant will not be disturbed by the landlord (or someone claiming through the landlord) during tenant's possession. Every lease contains a covenant of quiet enjoyment (express or implied).
73
When is the Covenant of Quiet Enjoyment is Breached?
Generally, when there is an actual or constructive eviction by the landlord.
74
Tenant's Options When Covenant of Quiet Enjoyment is Breached by Actual Eviction
- (Majority rule)- tenant may treat the lease as terminated and is relieved of all liability to pay rent (even if tenant remains on the premises)
- (Minority rule)- rent abatement is attributable to the portion from which the tenant has been evicted.
75
Tenant's Options When the Landlord Breaches the Covenant of Quiet Enjoyment by Constructive Eviction
Tenant may treat the lease as terminated and is entitled to rent abatement (but they are not relieved of all liability for rent).
76
Acts by Landlord that Often Constitute Constructive Eviction
- Breach of the following CL duties:
- Making and keeping the premises habitable in a short-term lease of a furnished dwelling
- Disclosing latent defects existing in the premises, known to the landlord, and undiscoverable by tenant at time lease was made
- Maintaining common areas used by all tenants
- Using due care in making promised or volunteered repairs
- Refraining from making fraudulent misrepresentations concerning the condition of the leased premises; or
- Abetting immoral conduct or abetting nuisances on properties owned by the landlord that may affect the leased premises.
77
What Happens When a Landlord's Breach of the Covenant of Quiet Enjoyment Does Not Constitute Actual or Constructive Eviction?
Most states hold that a tenant who remains on the premises can seek money damages from the landlord.
78
Fights over Possession (Material Breach)
Generally, the landlord can retake the property if the tenant has committed a material breach of the lease.
79
Fight over Possession: Use of Force v. Use of the Courts
- CL- the LL was entitled to use reasonable force to retake possession of the premises from the tenant.
- ML- the majority of jurisdictions no longer allow the use of any force and the landlord must use the legal process (LL has to give tenant notice to either cure the breach or vacate, there will then be a judicial hearing to determine whether the tenant has committed a breach, and if so, the tenant will be evicted).
80
Fight Over Improvements
- CL- anything except for a trade fixture, affixed to the land became a part of the land and had to stay.
- ML- if the fixture can be removed without affecting the premises, the tenant is entitled to remove the fixture (no distinction between regular and trade fixtures).
81
Landlord's Transfer of Interest
Keep in mind that a landlord can assign a lease to another landlord.
82
When a Landlord Has Transferred Interest, Who is Entitled to Collect Rent?
The landlord of record, on the date the rent is due, is entitled to that rent.
83
Assignment
When the tenant transfers to a third person (the assignee) all of his rights, title, and interest in the leased premises. The assignee comes into privity of estate with the landlord.
84
Sublease
When a tenant transfers to a third person (the subtenant or sublessee) less than all of his rights, title, and interest in the leased premises. Subtenant does not come into privity of estate with the landlord (but does come into privity of estate with sub-landlord).
85
Privity of K
The relationship that exists between the original parties to an agreement. Privity of K will always exist between original parties and only original parties, unless there is a novation. Therefore, original tenant will always be liable to original landlord unless there is a novation.
86
Privity of Estate
Arises through the succession in rights to the same property by multiple parties.
- The landlord gives a portion of his rights, the right to presently possess and use the property for lease duration, to the tenant, creating privity of estate.
- if the tenant then grants anything less than his full rights and interest in property to another party, that subsequent party does not enter into privity of estate with landlord.
87
Assignment: Liability of Parties
The assignee comes into privity of estate with LL, while the tenant remains in privity of K with LL (unless there is a novation). Assignee is liable to LL unless they re-assign to new assignee. The tenant is liable to LL unless there is a novation.
88
Sublease: Liability of Parties
The sublessee comes into privity of estate and privity of K with tenant, owing tenant rent. The tenant continues to owe rent to LL.
89
Significance of Not Being in Privity of Estate
A landlord will not be able to sue a subtenant for unpaid rent or any other breach of the lease agreement. Instead, landlord must sue tenant, who can then sue subtenant for breaching the sublease agreement.
90
Novation
A separate agreement where the landlord, original tenant, and assignee agree to discharge the original tenant (the original K party) and render the assignee liable as if he signed the original lease.
91
Eviction of Sublesees or Assignees
Keep in mind that if the landlord is not receiving rent, this is a material breach of the lease and the landlord can have the assignee or sublessee evicted.
92
Covenants Against Assignments and Subleases (Construction)
Such covenants are construed strictly against the landlord (lease interests are generally transferable). To prohibit both an assignment and a sublease, the lease must be specifically state that both are prohibited.
93
Covenants Against Assignments and Subleases: Rule in Dumpor's Case
Under this rule, once a covenant against assignment is waived it is unenforceable as to the next assignment. But the rule does not apply to:
- Subleases
- Waivers when the landlord specifies that the waiver is "one-time only"
94
Silent Consent Clause
When a covenant against assignment and subleases does not give a standard or condition for the giving or withholding of consent.
95
Interpreting a Silent Consent Clause
- Majority approach- landlord has the right to withhold consent for any reason or no reason at all (but watch out for housing discrimination laws)
- Minority approach- landlord can withhold consent as long as it is reasonable.
96
Factors for Determining if a Landlord's Non-Consent to Assignment is Reasonable
Obj standard. Factors include:
- Proposed assignee's ability to pay
- Suitability of the premises for the proposed use
- Need for alterations
97
Can a Co-Tenant Reject Another Co-Tenant's Assignment?
A co-tenant has no right to object to an assignment by another co-tenant.
