Property 4 - Landlord/Tenant Flashcards Preview

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Flashcards in Property 4 - Landlord/Tenant Deck (40):

Tenancy for Years - Definition

Any tenancy that has a fixed starting date and a fixed ending date.


Tenancy for Years - Creation

Can only be created by an express agreement of the parties. Can be oral if 1 year or less, must be in writing if more.


Tenancy for Years - Term

Is fixed by the agreement.


Tenancy for Years - Termination

Automatically at the agreed upon ending date.


Periodic Tenancy - Defintion

Has a fixed starting date but no fixed ending date. It is self-renewing. E.g. month-to-month tenancy.


Periodic Tenancy - Creation

Can be created by express agreement of the parties but is often created in a 'holdover' situation.


Periodic Tenancy - Term

Indefinite. It will continue to renew until it is properly terminated.


Periodic Tenancy - Termination

Can be terminated by either side giving appropriate notice.


Periodic Tenancy - Appropriate Notice

Most jrdx will take words or conduct showing an attempt to terminate. Notice must equal the length of the period up to a maximum of 6 months. At common law notice had to be given at the start of the period. Modern law notice in the middle of the period is effective, but it doesnt take effect until the start of the next period.


Tenancy at Will - Creation

Can only be created by express agreement of the parties.


Tenancy at Will - Term

As long as the parties both want it to go on.


Tenancy at Will - Termination

(1) By either side indicating they want to terminate the tenancy. Automatic termination.
(2) If either side dies.
(3) If either party attempts to transfer interest under the tenancy.


Holdover Tenant

When a tenancy arrangement comes to an end but the tenant does not leave the property.


Results of a Holdover Tenant

(1) If LL wants tenant to remain - they become a periodic tenant.
(2) IF LL doesn't want tenant - they become a tenant at sufferance aka a trespasser.
If LL accepts rent its viewed as wanting them to stay, if they dont accept rent they don't want them to say.


Holdover Tenant - Periodic Tenancy Term

If the holdover tenant becomes a periodic tenant:
(1) at common law the length of the period was to be the same as the length of the period of the expired lease up to a max of 1 year.
(2) Modern approach is to look to the period for which rent is reserved, usually a month-to-month basis.


Fight Over Rent - Tenancy for Years

Tenant is liable for the full rental obligation in the lease.
(1) At common law the landlord would have to sue for the rent as it accrued.
(2) Modern allows LL to sue for anticipatory repudiation, but we impose an affirmative duty on the LL to mitigate by making reasonable efforts to re-rent the premises. Court will reduce any rent awarded to LL by what LL received through mitigation or what they could have if they bothered to mitigate.


Fight Over Rent - Periodic Tenancy

Rent obligation goest through the notice period.


Fight Over Rent - Tenancy At Will

Is rarely the at issue because the rent is usually paid in services.


Tenancy at Sufferance/Holdover Tenant

(1) If it turns into Periodic Tenancy - Is the same as the rental obligation in the expired tenancy.
(2) If it turns into Tenancy at Sufferance - the reasonable rental value of the property.


Tenant Defense - Landlord Fails to Deliver Possession of the Premises

(1) common law/majority - LL is obligated to deliver possession of the property to tenant and tenant doesn't have to pay rent until they do.
(2) american rule/minority - LL has no obligation to deliver at the start of tenancy, it's up to the tenant to take it.


Tenant Defense - Actual Eviction

Where the tenant has been physically removed from the premises by the LL or someone acting on his behalf.
PARTIAL EVICTION = You're evicted from only part oft he property. With partial actual eviction your excuse from having to pay ANY of the rent.


Tenant Defense - Constructive Eviction

The T's right to quiet enjoyment of the property has been substantially interfered with. T must actually move out within a reasonable time following the substantial interference. If it is an act of a 3rd party causing the interference it is still sufficient as long as the 3rd party is acting with the LL's knowledge. Defense to payment of ANY rent.


Tenant Defense - Partial Constructive Eviction

Abatement of rent. T's rental obligation is reduce by a % equal to the % of the land from which he's been constructively evicted.


Tenant Defense - Surrender

The T surrenders the premises to the LL and the LL has to accept possession of the premises back from the tenant. BUT because LL has an affirmative duty to mitigate if you leave and send the LL the keys and he takes them and starts fixing the place up he can say that was part of attempted mitigation. For surrender to work he has to like take them and start renting the place out to his sister rent-free.


Tenant Defense - Destruction

(1) Common law - if you leased land with a building and the building destroyed you still had to pay rent because you were really leasing the land. Unless it was an apartment type deal where you only leased part of the building.
(2) Modern - if there's a destruction of the leasehold you don't have to pay rent. Exception: if the T intentionally or negligently causes the destruction.


Tenant Defense - Offset Defense/Warranty of Habitability

Requires LL to maintain the premises in a habitable condition. If some problem develops, the T must give LL notice and allow a reasonable period of time to fix. If LL doesn't act, T can do whatever is necessary to fix and can offset the cost from the rent due. T doesn't have to move out.


Tenant Defense - Contractual Discharge Argument

Lease can be discharged by impossibility, impracticability, or frustration of purpose. Or violation of quiet use and enjoyment of the property.


Warranty of Habitability - Landlord Obligations

(1) Common law - none.
(2) Modern - implied promise to keep the premises in a habitable condition.


Warranty of Habitability - Tenant Obligations

(1) Common law - none.
(2) Modern - duty to avoid waste. The market value/neighborhood change exception does not apply here for ameliorative waste.


Landlord/Tenant Tort Liability

Whoever is in possession of the premises is liable for tort stuff on the premises, so usually the tenant. However, if LL knows a dangerous condition that is not readily apparent to the T, the LL retains liability for a reasonable period of time to allow the T to inspect te premises, discover the problem, and take corrective action.


Fight Over Possession

LL can only retake property if the T has committed a material breach of the lease. At common law LL could use reasonable force to retake property. At modern law LL is never allowed to use force, must go through the legal process.


Retaliatory Eviction

Courts will not uphold a retaliatory eviction. An attempt to evict or a substantial increase in rent shortly after the T has made a lawful exercise of rights against the LL is presumed to be a retaliatory eviction.


Improvements - Common Law

If T made an improvement affixed to the land, T couldn't take it with them unless it was a "trade fixture" which could be removed so long as it didn't cause substantial damage to the land by removing it.


Improvements - Modern Law

T can remove fixture if it can be removed and the premises will be left in substantially the same condition as when the T arrived. T must remove before expiration of tenancy unless it's an at-will tenancy where T had no way of knowing when the termination of the tenancy would occur. Presumption that structural changes cannot be removed.


Transfer of Interest - Landlord

Rent is due when rent is due. Whoever is the LL of record on teh day the rent is due gets to keep the rent.



There must be a transfer of ALL of the time remaining on the lease.



Transfer of only a portion of the time remaining on the lease.


Transfer of Interest - Covenant to Pay Rent

(1) Can always be enforced by LL against original T because they have a contractual privity.
(2) LL can enforce rent against assignees because they are in vertical privity of estate, for the time the assignee is supposed to owe rent.
(3) LL can't enforce rent against sublessee, but they can still evict them.
Original T and subsequent T's are jointly and severably liable for rent.


Transfer of Interest - Tenant

Is generally freely transferable but a landlord can write in a prohibition as long as:
(1) It's narrowly construed.
(2) To prohibit both assignment and subleasing LL must specifically mention both.
(3) If the LL's consent is involved, LL is required to act reasonably and in good faith in deciding whether to grant consent.
(4) Dumper's case, if LL says no assignments but allows one, the prohibition is deemed waived for the duration of the lease unless LL expressly states otherwise.


Landlord/Tenant 3 Step Approach

1. Identify the type of tenancy involved--creation, term, and termination.
2. Which of the 4 basic disputes might be involved?
3. Has the landlord or tenant transferred their interest in the property?