Transfers of Leaseholds & Landlord's Tort Liability Flashcards
(5 cards)
Transfer of Leasehold
- Assignment = Tenant transfers interest in whole
- Sublease = Tenant transfers interest in part
- Prior written approval from Landlord may be required (Consent waives right to object to future transfers, unless reserved)
Assignment
Privity of Estate:
* Landlord & 2nd Tendant = Privity of Estate (Not Privity of Contract)
* Product of possession
* Liable on covenants that run with land (leasehold interest) (ex: promise to pay rent, repair, paint premises, usually any promise contained in the original lease)
* Landlord & 1st Tenant = No longer in privity of estate
Privity of Contract:
* Landlord & 1st Tenant = Privity of Contract
* Landlord & 1st Tenant liable for original lease obligations (if tenant in privity of estate can’t satify obligations, go after 1st Tenant)
Sublease
A sublease arises when the 1st Tenant, the original tenant, transfers less than their entire interest to a 2nd Tenant
* Landlord & sublessee (2nd Tenant) = no privity (estate & contract)
* Landlord & 1st Tenant = remains intact (estate & contract)
Common Law of Caveat Lessee (Landlord’s Tort Liability)
The common law norm is: Let the tenant beware. In tort, a landlord was under no duty to make the premises safe. Five exceptions (CLAPS):
Common Areas:
* A landlord has a duty of reasonable care in maintaining all common areas (for example, hallways, stairwells, elevators).
Latent Defects Rule:
* A landlord must warn a tenant of hidden defects (meaning, a dangerous condition that the tenant couldn’t discover by reasonable inspection) of which the landlord has knowledge or reason to know.
* Otherwise, the landlord will be liable for any injuries resulting from the condition. If the tenant accepts the premises after disclosure, the tenant assumes the risk; the landlord is no longer liable in tort. Note that the landlord’s obligation in tort is a duty to warn, and not a duty to repair.
Assumption of Repairs:
* While in tort a landlord is under no duty to make repairs, once repairs are undertaken, the landlord must complete them with reasonable care.
* If a landlord makes the repairs negligently (or if the repairs give a deceptive appearance of safety), the landlord is liable.
Public Use Rule:
* A landlord who leases public space (for example, a convention hall or a museum), and who should know, because of the significant nature of the defect and the short length of the lease, that a tenant will not repair, is liable for any defects on the premises that cause injury to members of the public. Why? Because T doesn’t have the time or expertise to make substantial repairs.
Short-Term Lease of Furnished Dwelling:
* A landlord who rents a fully furnished premises for a short period (for example, a summer cottage) is under a stricter duty. Such landlords are responsible for any defective condition which proximately injures a tenant (whether or not they knew of the defect). Why? T does not have the time or ability to repair.
Modern Trend - General Duty of Reasonable Care (Landlord’s Tort Liability)
Many courts now hold that a landlord owes a general duty of reasonable care toward residential tenants, and will be held liable for injuries in tort resulting from ordinary negligence if the landlord had notice of a defect and an opportunity to repair it.
Defects Arising After Tenant Takes Possession:
* A landlord generally is held to have notice of defects existing before the tenant took possession but is not liable in tort for defects arising after the tenant takes possession unless the landlord knew or should have known of them.
Legal Duty to Repair:
* If the landlord has a statutory duty to repair (for example, housing codes), the landlord is liable in tort for injuries resulting from the landlord’s failure to repair or negligence in making repairs.
Security:
* Some courts hold landlords liable in tort for tenant injuries inflicted by the criminal conduct of third parties in cases where the landlord failed to comply with housing code provisions dealing with security, maintain ordinary security measures, or provide advertised security measures (for example, surveillance cameras).
