Part Four: Ownership in Common Flashcards

Question

Can a separate share in a Tenancy in Common (TiC) be devised or passed via intestacy?

Answer 1

when there is a dispute regarding the sharing of the benefits/burdens of a property, judicial accounting requires the co-owners to pay their portions of required expenses or to force co-owners to hand over profits from the property.

Answer 2

it is an explicit affirmative act to exclude the other co-owner from the property. When ouster is commited the co-owner that is being excluded can then ask the ouster tenant to pay rent

Answer 3

Mortgage/Tax/Insurance Expenses Rent Repairs Improvements Unilateral transfer (namely, leases) Look at at slides

Answer 4

Issue: Should the traditional ouster rules apply to divorced or separated spouses, or is an alternative framework more appropriate? Approaches to Ouster in Divorce Cases: Options: Traditional Ouster – Requires an affirmative act of exclusion. Constructive Ouster – Divorce itself may imply ouster; cohabitation is impractical. Fault-Based – Rent recovery depends on who caused the marital breakdown, not who moved out. Need-Based – Focuses on financial resources and equitable distribution rather than fault.

Answer 5

Issue: Whether one TIC can unilaterally bind the estate by leasing to a 3rd party without her co-tenants knowledge and approval? Hold: If a co-tenant disagrees with the lease, they can seek partition (either physical division or sale of the property). Moral obligation vs. legal right – While co-tenants should ideally communicate, there’s no strict duty to do so.

Answer 6

Issue 1: Whether a lease severs JT Issue 2: Does T encumber the lease if the JT is not severed? H1: A joint tenant’s unilateral lease does not sever the joint tenancy. H2: When a joint tenant dies, the right of survivorship takes precedence, extinguishing any lease granted by the deceased tenant. This is unfai to the leasee but favors preserving survivorship rights

Answer 7

The presumption is “in kind” more cases than not the partition gets rebutted and end up sale “In kind” is considered fair but it is impracticable More practicable to sell then garner the proceeds Here the partition in kind was more practicable for sentimental value however more courts would have partitioned by sale (this case is minority)

Answer 8

it is the right to take possession in the future under specified circumstances.

Answer 9

They exist the moment they are created NOT when they are initiated

Answer 10

They are possessory when they are activated, when they are not active they are non-possessory rights

Answer 11

Fairness * Supports an owner’s right to use and control property as they see fit * Promotes individualized, long-term planning (e.g., for family or charitable goals) Right of Alineability * Enhances the property’s transferability by allowing owners to split interests across time * Prevents land from being locked up indefinitely and increases marketability Utility * Incentivizes long-term stewardship, investment, and land preservation * Encourages estate planning and intergenerational wealth transfer * Deters wasteful or shortsighted use of land by current possessors (e.g., life tenants) * Aligns future interest holders’ incentives with preservation of the property Administrability * Legal doctrines like the Rule Against Perpetuities prevent excessive control over property * Ensures future interests remain workable and do not impair land’s usability for future generations

Answer 12

Dead Hand control: restrict the ability of living individuals to use, transfer, or develop property in ways that align with contemporary needs. This can lead to inefficient land use and hinder economic growth. Hierarchy: This reduces alienability, making transactions more complex and limiting property’s economic utility. Can reinforce racial and sex discrimination

Answer 13

1. one cannot grant more than one has 2. the grantor will be presumed to have given away all of the transferred interest without limitations if no limtiations are mentioned 3. whatever is not granted remains with the grantor

Answer 14

reversion possibility of reverter (1) right of re-entry (2)

Answer 15

Determinable (1) Subject to Condition to Subsequent (2) Subject to Executory Limitation (3) Subject to Partial Divestment

Answer 16

Reverts to grantor after a specified amount of time Future interest holder is the grantor, via possibility of reverter

Answer 17

Remainder: Contingent and Vested Executory Interest (3)

Answer 18

A future interest in property that is given to an identifiable (ascertained) person at the time of conveyance and is not subject to any condition precedent. The grantor has predetermined who will receive the property once the preceding estate naturally ends. Example: “O conveys Blackacre to A for life, then to B and her heirs.” B has a vested remainder because B is identifiable and does not have to satisfy any condition before inheriting the property.

Answer 19

A future interest in property that is either given to an unascertained person or subject to a condition precedent that must be met before the interest vests. The remainder is uncertain because it depends on a future event or an unknown beneficiary. Example: “O conveys Blackacre to A for life, then to B if B graduates from law school.” B has a contingent remainder because the interest is dependent on B fulfilling the condition of graduating from law school.

Answer 20

1. There is a stated time period of more than 21 years. 2. There is a condition that is not personal to someone 3. An interest goes to a generation after the next (grandchildren)

Answer 21

Shifting Executory Interest – Divests a grantee’s interest. * Example: “O to A, but if A sells alcohol, then to B.” (B’s interest cuts short A’s estate.)

Answer 22

Remainder follows a naturally ending estate, while executory interests divest (cut short) a prior estate. Remainders are typically vested or contingent, while executory interests always depend on a condition occurring.

Answer 23

**Step One**: State the title as if no R.A.P., and identify any “vulnerable” future interests in grantees (namely, contingent remainders or executory interests) A has a present interest in FS subject to executory limitation B has a future executory interest in fee simple absolute **Step Two:** What must happen to cause the vulnerable interest to vest or terminate? Subject to partial divestment (vulnerable interest) A or her heirs have to stop farming for this to vest or terminate **Step Three:** Circle all “lives in being.” O is alive so consider him A Any already existing heirs B Any already existing heirs **Step Four: ** Will the interest definitely vest or terminate within the lifetimes of everyone circled +21 years? Consider whether someone born after the conveyance could affect whether and when the vulnerable interest vests/terminates. Current generations during conveyance + 21 years long to tie it up for **Step Five** If the interest will definitely vest or terminate within generation + 21 years then it is valid If the interest will NOT vest within that statute of time then the conveyance is VOID Strike it and restate the title

Answer 24

1. Term of years 2. Periodic tenancy 3. Tenency at will 4. Tenancy at sufferance

Answer 25

A term of years lasrs for a specified period of time determined by the parties. Notice is not required Most states do not require a reason for treminating a terms of years Death does not terminate (no cause termination) Examples of when a LL can't evict a tenant: - as a result of retaliation - if a tenant has a legit complaint

Answer 26

Most Common Initial fixed-period then auto-renewal for successive period Death does not terminate CL requires notice to terminate for the length of the period but not to exceed six months Ex: month-to-month lease that renews on the 31st if on jan 12. the tenant gives noties that they will leave the 31st does the tenant owe rent for Feb? If at least the period is required then this notice was not enough and therefore must pay Feb

Answer 27

A tenancy at will is a leasehold that continues indefinitely, but it can be terminated at any time by either the landlord or the tenant without notice, unless otherwise required by statute. The tenancy does not give the landlord the right to terminate at will in a discriminatory or otherwise impermissible manner. Death of either the landlord or the tenant terminates a tenancy at will, and statutory requirements may convert a tenancy at will into a periodic tenancy if notice or other formalities are imposed.

Answer 28

A tenancy at sufferance arises when a tenant who was rightfully in possession wrongfully remains after the lease term has ended. It distinguishes a holdover tenant from a trespasser, as the tenant initially had lawful possession. A tenant at sufferance is entitled to due process protections before removal and may be treated either as a trespasser subject to eviction proceedings or as a new tenant under a renewed lease if the landlord elects to hold them to a new term. Physical self-help eviction is not permitted.

Answer 29

Policy considerations and the justified expectations of the parties Fairness: common law for residential b/c they have less bargaining power and less expertise in contract forming to bargain for appropriate terms in the contract that reflect their justified expectations

Answer 30

Notice is a split opinion

Answer 31

Commercial goal: money there is an investment strategy when they enter their agreement in commercial (the power is slightly more even) Residential: shelter and money the nature of the relationship changes when you need to find habitable shelter

Answer 32

Gives an opportunity to find somewhere else to live Opportunity to mount a defense, consult with an attorney

Answer 33

The LL doesnt want the period between notice and eviction to be too long They want to put someone else in the unit to get money/work from them

Answer 34

Landlords have the right to collect rent, seek conribution for certain repairs and right of entry

Answer 35

Tenants have rights to possess the land, reap profits in some ways to exclude others (including the landlord at some instances) to withhold rent somewhat rights to transferring the property (sub-lease, assignments)

Answer 36

Migrant farmworkers may not be traditional tenants since they don’t pay rent—services are exchanged instead. However, their interest in stable housing (esp. when far from home like PR) suggests a need for some tenant-like protections. NJ is a just cause jurisdiction, so landlords must give a valid reason at a hearing before eviction. The case asks whether these protections extend to nontraditional tenants like farmworkers.

Answer 37

They should imply that a hearing is required before eviction. Even if the legislature hasn’t required it, courts might imply a term based on public policy—especially when self-help evictions (like lockouts) are involved. Benefits of a hearing: * Gives residents time to find new housing * Allows them to mount a defense or consult a lawyer * Prevents violent altercations from self-help evictions Follow-up: Should the implied term be waivable? Arguably no, due to unequal bargaining power and public interest in housing stability.

Answer 38

Notice provides: * Time to relocate, avoid homelessness * Chance to respond legally * Protects due process rights * Prevents confrontations from surprise evictions Even if not a tenant, the worker’s dependence on employer-provided housing justifies procedural protections like notice and a hearing.

Answer 39

The legislature, not the courts, should decide whether migrant workers are protected. * The statute does not include them, and courts should not rewrite legislation. * NJ legislature has addressed migrant workers in other contexts and could have done so here. * Courts must respect the separation of powers and avoid overstepping.

Answer 40

Courts should modernize and interpret the common law when the statute doesn’t cover a situation. * Migrant workers weren’t explicitly included, but that doesn’t mean they’re excluded. * Common law self-help eviction doctrine is outdated and courts are equipped to revise it. * NJ courts are equitable forums and should resolve power-imbalanced disputes. * Judicial updates to CL may reflect legislative intent, not override it. * Courts have a duty to adapt legal rules to reflect contemporary values. * Updating self-help eviction rules aligns with NJ’s just cause framework and concern for housing stability. * * Legislature can’t foresee every scenario * Courts interpret and apply common law in gaps * Legislative silence ≠ legislative exclusion * Courts can reflect underlying legislative values (e.g., concern for migrant workers)

Answer 41

They can make people homeless without warning Can lead to violent altercations Undermines housing stability Violates public policy in a state like NJ that requires just cause for eviction Leg. says here are the procedures so we should enforce them LL can't be the judge of his own rights LL has the option of a restraining order On the flip-side the legal route is slow and expensive

Answer 42

Requiring hearins before evictions could mean fewer migrant workers hired to offset litigation costs, lower wages to offset housing costs which would unintentionally harm the people the law aims to protect people.

Answer 43

* Employers argue that migrant workers voluntarily accept the job and housing conditions. * If the arrangement becomes too burdensome (e.g., requiring hearings before eviction), employers might stop offering housing altogether. * The housing is a benefit tied to employment, not an independent right. * Interfering with that relationship could disincentivize hiring, especially for short-term or seasonal jobs. * In their view, this is about contractual freedom: workers agree to the deal knowing the terms — it’s not the court’s role to rewrite contracts.* If workers don’t like the conditions, they don’t have to accept the job * A bad contract may still be better than no job at all

Answer 44

* Workers can’t meaningfully negotiate terms due to unequal bargaining power * Employers cannot contract away fundamental rights (like housing or safety) * Just like you can’t contract into slavery or waive habitability, you shouldn’t be able to waive eviction protections

Answer 45

* Encourages stability and predictability in housing for vulnerable workers. * Promotes fairer treatment by deterring employers from using housing as leverage or retaliation. * Incentivizes employers to treat housing as part of the employment contract, subject to basic legal protections. * Reduces risk of sudden homelessness that could disrupt work and community welfare. Overall utility: Promotes a more humane and orderly employment-housing relationship, aligned with public policy disfavoring self-help eviction.

Answer 46

* Property owners should be free to set terms of property use, including rent, maintenance responsibilities, and termination procedures. * Allows landlords to tailor leases to specific business models or tenant types (e.g., short-term housing, commercial leases). * Encourages market efficiency by letting supply/demand determine lease terms. * Judicial interference in freely negotiated terms could disincentivize rental investments and reduce housing stock.

Answer 47

Tenants may prefer the flexibility to negotiate lease terms that suit their needs (e.g., early termination clauses, shared maintenance). Some tenants are sophisticated parties (e.g., commercial tenants) and don’t need paternalistic oversight. Freedom of contract preserves autonomy and encourages mutual accountability.

Answer 48

* Many tenants, especially in residential contexts, face asymmetric power dynamics: * Lack of alternatives * Urgency of housing need * Limited legal knowledge * Landlords often present non-negotiable leases (contracts of adhesion), leaving tenants with a “take it or leave it” choice. * Unequal bargaining power can result in unfair terms, like excessive late fees, repair waivers, or arbitrary eviction clauses. * Courts and legislatures may need to intervene to prevent exploitation and ensure basic fairness.

Answer 49

* Not all landlords are large corporations; many are individuals or small businesses with limited resources. * The assumption of superior bargaining power isn’t always accurate—some tenants may be more legally or financially savvy. * Overregulation based on assumed power imbalance could discourage leasing and increase compliance costs.

Answer 50

* Minimum standards (e.g., habitability, notice before eviction, right to quiet enjoyment) protect basic living conditions. * Prevent landlords from contracting around public policy (e.g., waiving habitability or eviction notice). * Promotes health, safety, and housing stability, especially for vulnerable populations. * Ensures housing fulfills its role as a public necessity, not just a private contract.

Answer 51

The new owner receives what the LL was able to sell/give which was the LL's reversion subject to the tenant's leasehold.

Answer 52

No, because the tenant's leasehold interest survives the transfer. The new LL could terminate a m-to-m lease but if the tenant has six months left on a one-year lease the new owner is obligated to honor the tenant's remaining possessory right

Answer 53

Which was made first the lease of the mortgage? If the LL leased first, the lease takes priority and vice versa. so if the mortgage was first and the LL's title endds through foreclosure, so does the tenants lease

Answer 54

Since you can only convey what you own and the landlord did not own the right to lease the property after her death, the tenants lease ends. Leases survive conveyance not death

Answer 55

An assignment conveys all the tenant's remaining property interests without retaining any future rights to enter the property

Answer 56

the tenant conveys their property interests but retains some future interest or the right to control the property in the future. NOTE: a sublease may also exist of the tenant retains a right of entry that can be exercised if the subtenant violates one or more terms of the sublease agreement.

Answer 57

They are allowed to include a "no subletting" or "no assignment" clause This is to uphold the LL's right of security (choose who lives in your space) Tenant's freedom to exit becomes limited

Answer 58

Assignment: directly liable to the landlord for the covenants made by the original tenant to the landlord. It also makes the landlord liable to the assignee for breach of the landlord's covenants Sublease: LL has no right to sue the subtenant to enforce any of the covenants in the original lease, if the relief is damages, unlesss the ST EXPRESSLY PROMISES to pay the rent. LL sues OG T and the OG T has the right to sue the ST for the damages

Answer 59

Privity of Contract: Liable based on contents of the contract Privity of Estate: shared insterests, conveyance in an interest in property, the only promises that flow upon a transfer, only the ones that run with the land

Answer 60

Court adopted the minority view (now majority): A landlord may not unreasonably or arbitrarily withhold consent to a commercial lease assignment. - Restrictions on alienation are disfavored. - If the lease requires landlord’s consent to assign, consent cannot be withheld without a commercially reasonable reason. - Presumption: Assignment is allowed unless the lease clearly prohibits it. Case facts: – City leased to Perlitch – Perlitch subleased to Bixler – Bixler wanted to assign to Kendall (financially stronger) – Perlitch assigned interest to Pestana, who refused consent, would only consent for more money - Court sided with Kendall: Landlord’s refusal must be commercially reasonable to protect tenant alienability and fair dealing. - Right to exclude v. Right of freedom - security from harm v. alienability

Answer 61

Financial Responsibility of the proposed assignee, suitability of the use for the particular property, legality if the proposed use, need for alteration of the premises and nature of the occupancy (office, factory, clinic)

Answer 62

1. Freedom of ownership and control over one's property 2. The lessee could have bargained for the addition of a reasonableness clause but didn't, the law should not rewrite the parties contracts for them. 3. stare decisis 4. Any increase in market value of real property during the term of a lease properly belongs to the lessor, not the lessee.

Answer 63

1. necessity of permitting reasonable alineation of commercial space has become paramount in our increasingly urban society. 2. policy of K, fairness, neither party shall do anything which will have the effect of destroying or injuring the right of the other party (good faith and commercial reasonableness) 3. You cannot contract around good faith and fair dealing 4. Must respect risk allocation, it would be unfair to the tenant if we allowed the LL to get more than it bargained for in the original contract

Answer 64

The context differs because there is no economic incentive to withhold consent in a residential lease because the landlord has such limited ocntrol over the rent that can be changed. This would flood the courts with questions about whether the LL's withholding of consent was reasonable. They said let the Leg. decide further than this.

Answer 65

Consent to assign/sublease involves whether the tenant can transfer their interest to someone else. Duty to mitigate damages arises after breach or abandonment, requiring the landlord to make reasonable efforts to re-let the premises and reduce losses. The former is about tenant autonomy, the latter about landlord responsibility after tenant departure.

Answer 66

Generally, no—a tenant must perform unless the landlord breaches. Exceptions: – Constructive eviction – Frustration of purpose – Impossibility of performance In rare cases, statutory protections or contractual clauses may allow early termination.

Answer 67

Only if the lease expressly provides a renewal right. If so, the landlord must act in good faith and comply with any notice or procedural terms. Absent a clause, no duty to renew—landlord can refuse without cause. Commercial reasonableness may still be relevant depending on context (e.g., discriminatory refusals may be challenged).

Answer 68

If the LL accepts a rent check for one month rent then a new month-to-month established Or Can treat the tenant as a tenant as a tenant at sufferance and sue for possession

Answer 69

Lack of tenant representation Most LL have counsel while a majority of tenants do not there is no right to council in civil cases meaning a lot of tenants lose because they are outmatched

Answer 70

1. Accept the tenant's surrender. LL agrees that the T will not be legally obligated to pay the future rent because the LL accepted possesion of the property. Can still pay for back rent owed before abandonment OR sue immediately for damages (Agreed upon rental price minus the fair market price) 2. Refuse to accept the surrender and re-let the apartment on the tenants account. When a new T is found the LL may sue the former tenant for the difference between the old rent and new rent 3. Wait for the term to end then sue (almost all states reject this option and requires the aggrieved party to mitigate damages)

Answer 71

Issue: Whether a landlord seeking damages from a defaulting tenant must first take reasonable efforts to mitigate damages by attempting to re-let the unit that the tenant wrongfully vacated. Holding: Yes. The landlord has an affirmative duty to mitigate by making reasonable efforts to re-rent the premises. Significance: Rejects the old “property rule” in favor of a contract-based approach—treats leases more like contracts with reciprocal obligations. The landlord can’t just let the unit sit empty and collect full rent.

Answer 72

Modern View of Leases: Shift from treating leases as property interests to treating them like contracts with mutual obligations. Fairness: It’s unfair for a landlord to sit on a vacant unit and recover full rent from the tenant. Avoiding Economic Waste: Encourages landlords to put unused property back into productive use. Efficiency: Promotes active re-letting, benefiting both the landlord (rental income) and the public (housing availability). Consistency with Contract Law: Aligns landlord-tenant law with the general duty to mitigate damages found in contracts.

Answer 73

Notify the landlord in writing as early as possible—give clear notice of intent to vacate and the planned move-out date. Help the landlord re-let—offer to assist in finding a new tenant, allow showings, and keep the unit in good condition. Understand you may still owe rent—you’re responsible for rent until the lease ends or a new tenant is found, minus any rent the landlord collects from the new tenant. Document everything—communication, move-out condition, and any offers to help re-let. Check the lease for early termination clauses—some leases include options or fees for breaking early. Be proactive—courts favor tenants who act reasonably and in good faith.

Answer 74

Financial cushion: Provides immediate funds to cover unpaid rent, damage beyond normal wear and tear, or cleaning costs after the tenant vacates. Incentive for care: Encourages tenants to maintain the property and comply with lease terms to recover the deposit. Reduces litigation: Offers a practical solution for minor disputes without needing to sue the tenant. Mitigates loss during vacancy: If a tenant leaves without notice, the deposit can help offset the time it takes to re-let.

Answer 75

1. “As is” lease – Breach of the covenant of quiet enjoyment (CQE) only occurs upon actual eviction. 2. Constructive eviction – CQE can be breached if the tenant is forced to leave due to uninhabitable conditions and stops paying rent. 3. To prove constructive eviction, the landlord must engage in wrongful conduct that substantially interferes with the tenant’s use. 4. Wrongful conduct includes action or failure to act in accordance with a duty from the lease, statute, or common law (can be waived). 5. Some courts hold that CQE creates an independent duty to provide and maintain premises suitable for their leased purpose. 6. The Implied Warranty of Habitability (IWH) provides similar protections, but: * It cannot be waived, * It applies primarily to residential leases, and * It offers broader remedies than CQE.

Answer 76

The covenant of quiet enjoyment is an implied promise in every lease that the tenant will have the right to possess and use the premises without substantial interference from the landlord or someone acting under the landlord’s authority. A breach occurs when the landlord’s wrongful conduct substantially interferes with the tenant’s beneficial use or enjoyment of the premises, and may give rise to a claim for constructive eviction if the tenant vacates the property within a reasonable time.

Answer 77

A partial actual eviction is when the LL bars the T from only part of the leased property. It constitutes a breach of the lease and provides the tenant with ample justification to move out before the end of the lease term; the tenant will not be liable for the rent after moving out. Remedy is to stop paying rent or abate rent

Answer 78

1. Freedom of contract – Imposing a duty undermines the autonomy of the landlord-tenant bargain. If parties didn’t agree to this duty, courts shouldn’t impose it. 2. Undue burden on landlords – Landlords just went through the trouble of vetting and securing a tenant; requiring them to re-market the unit shifts the burden unfairly. 3. Asymmetric valuation – Landlords may value not having this duty more than tenants value the protection it provides; forcing mitigation could disrupt that balance. 4. Fairness and fault – Landlords are not at fault; the tenant is the one who breached. It’s arguably unfair to shift the obligation to find a new tenant onto a non-breaching party. 5. Vacant stock dilemma – If the landlord has two vacant units (2 and 3), and is already getting rent from 2 (via the breaching tenant), there’s no incentive to prioritize re-letting 2. * Imposing a duty to mitigate would force the landlord to show both units, like a loss volume seller in contract law, treating rental units as interchangeable goods. * But landlords argue they shouldn’t be forced to change their business model or leasing strategy because a tenant left early.

Answer 79

1. Individual units are not fungible – Unlike widgets or commercial goods, rental units are unique (size, layout, view, natural light). Prospective tenants may prefer one unit over another. 2. Residential leases involve a significant power imbalance – Tenants often lack the resources and knowledge to re-rent or find subtenants, while landlords are in a better position to market and fill units efficiently. 3. Presumption that land is unique – Courts have long recognized that land has unique attributes, so each leasehold interest is not interchangeable. 4. Mitigation aligns with contract principles – Like in Sommer v. Kridel, leases are increasingly viewed as contracts, and general contract law requires mitigation of damages. 5. Vacant stock not equivalent to lost volume – A landlord isn’t guaranteed to fill both units. Just because unit 3 is shown and rented doesn’t mean unit 2 would’ve remained vacant otherwise. 6. Burden should fall on the party in the best position to reduce harm – Since the landlord controls the unit and has access to marketing tools, they are in a better position to mitigate loss. 7. Tenant still pays the difference – Imposing a duty to mitigate doesn’t relieve the tenant of responsibility; they’re liable for the rent gap if the unit re-lets at a lower rate or after a delay.

Answer 80

Minjak recognized the doctrine of partial constructive eviction, holding that a tenant may withhold a portion of rent if the landlord’s wrongful conduct substantially interferes with the use of part of the premises, even if the tenant continues to occupy the remaining space. * Traditional rule required full vacatur to claim constructive eviction. * Minjak rule allows tenants to remain in partial possession and still get a rent abatement proportional to the unusable space. * The case expands tenant protections by recognizing the practical burdens of full vacatur. Policy: Promotes equitable outcomes by acknowledging that tenants shouldn’t pay full rent for space they cannot use due to the landlord’s misconduct.

Answer 81

A landlord’s failure is wrongful only if they had a duty to act—found in: 1. The lease 2. Statutes (e.g., housing codes) 3. Common law No duty = no breach. A breach of these duties typically supports a claim for damages, not rent abatement or withholding, unless the wrongful conduct is substantial (e.g., constructive eviction or breach of warranty). 3000 B.C.

Answer 82

* Constructive eviction requires: – Wrongful conduct by the landlord – Substantial interference – The tenant must vacate * Implied Warranty of Habitability (IWH): – No need to vacate – Requires material breach of housing conditions – Allows rent abatement, damages, or repair-and-deduct remedies – Is non-waivable and applies to residential leases

Answer 83

1. Stay and sue for damages 2. Stay, withhold rent 3. Repair and deduct cost from rent Unlike constructive eviction, IWH lets tenants remain in possession while pursuing remedies. Courts presume habitability is a dependent covenant—what the tenant pays is tied to what the landlord provides.

Answer 84

* Tight housing markets left tenants without realistic alternatives * Constructive eviction was too risky—if a court disagreed, tenants could be liable for full rent * Tenants lack bargaining power and access to information * Ensures basic safety, health, and dignity * Landlords are in the best position to repair and maintain units

Answer 85

No. IWH is a mandatory, non-waivable term in residential leases. Against waivability: – Protects vulnerable tenants from exploitative housing – Tenants often lack real alternatives – Public health externalities (e.g., slums, increased societal costs) For waivability: – Allows tenants to choose lower rent in exchange for fewer protections – But courts say no one truly chooses uninhabitable housing if real choice exists

Answer 86

1. Notice to the landlord 2. Reasonable opportunity to repair If conditions persist, a material breach is found. Courts often look at violations of: – Local housing codes – Health and safety standards – Persistent, serious issues (e.g., no heat, water leaks, pests)

Answer 87

Adopted in a few jurisdictions, it implies that leased premises are suitable for their intended commercial use. – Similar to IWH, but tailored to commercial tenants – Constructive eviction still plays a more significant role in commercial contexts – Less commonly recognized, but still evolving

Answer 88

Waste is conduct by the tenant (or life tenant) that harms the future interest holder’s rights. Three types: 1. Affirmative waste – acts that damage the property 2. Permissive waste – neglect or failure to maintain 3. Ameliorative waste – unauthorized improvements Tenant’s duty not to commit waste mirrors the landlord’s duty under IWH to maintain the property in habitable condition.

Answer 89

* Governed by the law of fixtures * Improvements may be removed only if: – They don’t cause permanent damage – They were not intended to be permanent * Disputes often turn on intent, method of attachment, and custom

Answer 90

Rule: they held that residential leases include an Implied Warranty of Habitability, requiring the landlord to maintain the premises in compliance with housing code standards throughout the lease term. * Facts: Tenants in a large apartment complex withheld rent due to numerous housing code violations (e.g., broken plumbing, rodents). * Holding: The court recognized that modern leases are more like contracts than conveyances of land, and tenants should be entitled to a livable home. * Impact: Tenants can use breach of the warranty as a defense to nonpayment of rent, without having to vacate. Policy: Shifts landlord-tenant law toward consumer protection, emphasizing that safe, sanitary housing is a fundamental right—not just a private bargain.

Answer 91

It takes away the landlord form a relatively speedy trial for eviction of tenants who were violating the terms of the lease

Answer 92

No unless they state so explicitly.

Answer 93

1. Rescission or the right to move out before the end of the lease term 2. Rent withholding 3. Rent abatement 4. Repair and deduct 5. Injunctive relief or SP 6. Administrative remedies 7. Criminal Penalties 8. Compensatory damages

Answer 94

* Human dignity and fairness – Safe, habitable housing is a basic human need, not a luxury. * Preventing exploitation – Tenants should not be forced to accept uninhabitable conditions due to poverty or lack of alternatives. * Unequal bargaining power – Tenants often lack knowledge or leverage to negotiate fair terms. * Moral obligation – It is unjust to profit from unsafe, degrading living environments.

Answer 95

* Landlord efficiency – Landlords are in the best position to repair and maintain the property at scale and with expertise. * Reduces externalities – Prevents slum conditions that impose costs on society (e.g., healthcare, code enforcement, homelessness). * Market regulation – Without minimum standards, a “race to the bottom” could emerge, lowering housing quality across the board. * Long-term societal cost savings – Investing in habitability reduces downstream costs to public systems and improves community welfare.