2nd Assessment - Landlord Tenant

Question 1

May a landlord use self-help to evict the tenant, e.g., by changing the lock when the tenant is not there?

Answer 1

Modern Rule = no. LL must use judicial eviction proceedings.

Old Rule / common law = yes if tenant has not right to possession and LL uses peaceable means to evict.

Question 2

duty to mitigate

Answer 2

imposes some duty on the LL to mitigate damages by making reasonable efforts to re-let the apartment.

Question 3

mitigation that tenant is liable for?

Answer 3

reasonable damages / repairs

lost rent for the reasonable period to find a new tenant; or LL cost (advertising, etc) of finding a new tenant .

Question 4

who bears the burden of proof to mitigate?

Answer 4

majority burden on LL - bears to burden of showing that reasonable efforts made

minority burden on Ten to show whats reasonable or not used to mitigate the damages (lost rent, etc)

Question 5

implied warranty of habitability

Answer 5

LL has duty to maintain property in safe and healthy condition throughout lease. unwaivable. if a defect arises, tenant must provide notice to the LL & opportunity to cure.

Question 6

covenant of quiet enjoyment

Answer 6

implied in all lease and can be waived.

Question 7

4 types of leases/tenancies

Answer 7

1) term of years (2) periodic (3) at will (4) at sufferance / holdover tenant

Question 8

term of years lease

Answer 8

entitles the tenants to possession of the property for a fixed / certain period of time. term years leases simply end when the term is up. no notice is required.

Question 9

periodic tenancy

Answer 9

a lease that continues from period-to-period until either the landlord or tenant terminate /renews automatically

Question 10

tenancy at will

Answer 10

leasehold continues indefinitely until one party terminates. either party must have the right to terminate at any time. seldom used today

Question 11

tenancy at sufferance / holdover tenant

Answer 11

not really a lease at all / it’s a tenant who remains on the premises after a lease expires but continues to pay

Question 12

what can a landlord do in a tenancy at sufferance /holdover tenant?

Answer 12

accept and renew the lease ~ or ~ sue for possession (evict)

Question 13

Landlord’s Duties

Answer 13

1. Duty to deliver possession
2. Implied covenant of quiet enjoyment
3. Implied warranty of habitability
4. Retaliatory eviction

Question 14

Landlord’s Duties

Duty to deliver possession

Answer 14

Modern Rule: L put T in physical possession of the premises. If at the start of T’s lease a prior holdover T is still in possession, L has breached and the new T gets damages

Old Rule : L need only provide T with legal possession and not physical possession

Question 15

Landlord’s Duties

Implied covenant of quiet enjoyment

Answer 15

L is not liable for acts of other T’s
BUT
1. L must not permit a nuisance on site
2. L must control common areas

Question 16

Landlord’s Duties

Implied warranty of habitability

Answer 16

Applies only to residential leases (not commercial)
Non-waivable
The premises must be fit for basic human living, meaning bare living requirements must be met. Standard may be supplied by housing code or case law.
Examples - no heat in winter, no plumbing, no running water

Question 17

T’s entitlements when the implied warranty of habitability is breached: MR3

Answer 17

MR3
M: move out and terminate the lease (not required)
R: repair and deduct, only reasonable
R: reduce rent or withhold all rent until the court determines fair rental value; escrow account to show good faith
R: remain in possession, pay rent and affirmatively seek money damages

Question 18

Death of landlord for term of years? On Periodic Tenancy?

Answer 18

No effect on either

Question 19

Statute of frauds for term of years:

Answer 19

Lease term of more than a year has to be in writing

Question 20

What is a lease?

Answer 20

A contract and conveyance of a possessory interest in property for the promise of rent

Question 21

Dormitory agreements create: license or lease ?

Answer 21

Licenses not tenancies

Question 22

what can a landlord do in a tenancy at sufferance /holdover tenant?

Answer 22

accept and renew the lease ~ or ~ sue for possession (evict)

Question 23

covenant of quiet enjoyment

Answer 23

A landlord’s obligation to provide the tenant with reasonable privacy and freedom from any interference with the tenant’s exclusive use and enjoyment of the rented premises.
- implied in all leases and can be waived.

Question 24

Tenant in Possession Breach (3)

Answer 24

15a. Ten Pays & Stays what can LL do? Accept new tenancy or sue for possession
15b. Not Pay & Stay what can LL do? Sue for back rent or sue for possession, (No self help)
15c. Not Pay & move out ?? Accept surrender, re-let on Ten account (recover from Ten if Sub-t breaks sub-lease), Wait & sue at end of lease term/ mitigate damages

Question 25

mitigation that tenant is liable for?

Answer 25

• reasonable damages.
• lost rent for the reasonable period to find a new tenant;
• LL cost (advertising, etc) of finding a new tenant .

Question 26

implied warranty of habitability

Answer 26

LL has duty to maintain property in safe and healthy condition throughout lease. unwaivable. if a defect arises, tenant must provide notice to the LL & opportunity to cure.

Question 27

retaliatory eviction

Answer 27

• exists to protect the right of tenant and to encourage them not to ignore their rights.
• this statute also discourages the landlord from eviction, raising rent or reducing services to a tenant
• if the bad conduct of the landlord occurs within a certain number of days after the tenant has asserted his/her rights, then the landlord has the burden of proving that their actions weren’t retaliatory.
  if the landlord does not prove their actions were innocent then they are liable for damages to the tenant.

Question 28

License v. Lease

Answer 28

• Licensee is different than lease because lessee has right to dominion and control the premises, - licensee merely has permission to use the premises.
  Must distinguish by a variety of factors:
  -Exclusivity (If it is nonexclusive, it is a license).
  -Defined Space
  -Duration of Interest (longer duration = increased likelihood of lease)
  -Fungibility of Property (if it’s a reproducible particular experience more likely to be a license - e.g. seeing a show).
  -Associated Services (more services = more of a license. Hotel guests are not lessees, but licensees).
  -Consideration

Question 29

Federal Fair Housing Act

Answer 29

Prohibits discrimination based on:

Race, Color, National origin, Religion, Sex, Handicap/disability, Familial status

Question 30

FFHA

Familial status:

Answer 30

one or more minors being domiciled with a parent or legal custodian.
These protections apply to any person who i pregnant or in the process of securing legal custody of a minor

Question 31

FFHA

Unlawful to:

Answer 31

Refuse to rent, Discriminate in the terms, conditions, or privileges of rental /
To present to any person that any dwelling is not available for rental when it is /
publish any ad that indicates a preference or limitation on prospective tenants

Question 32

Four types of a breach of CQE / defense to non payment of rent also

Answer 32

Actual eviction , partial actual eviction, constructive eviction, partial constructive eviction

Question 33

Actual eviction:

Answer 33

Interference with physical possession of the premises (i.e. new locks on doors). Tenants obligation to pay rent ceases entirely.

Question 34

Partial actual eviction:

Answer 34

Interference with physical possession of part of the premises // Abate the rent (reduce it) to the fair market value of the property that remains

Question 35

Constructive eviction:

Answer 35

• The landlord:
• substantially interferes
• with the tenant’s quire enjoyment of the premises
• such that the tenant moves out within a reasonable period of time
  Defense of constructive eviction allows tenant to stop rent payments and move out before the end of the lease term // Traditional rule: Tenant can raise a defense of constructive conviction only if he moves out within a reasonable period of time

Question 36

Partial constructive eviction:

Answer 36

Doctrine which allows tenants to show that landlord’s actions substantially deprived the tenant of the use and enjoyment of a portion of the property and thereby use a defense as to allow the tenant to continue living in the remaining part of the premises from which tenant does not claim to have been constructively evicted from.
- Remedy is partial (rather than complete) abatement.

Question 37

IWH Remedies:

Answer 37

No further duty to pay rent under the lease (no future rent is due!) // Rent withholding
A defense to nonpayment of rent and to an action for possession // A rent abatement (reduction in the rent) // Repair and deduct // Affirmative cause of action by the tenant for damages, including compensatory damages and intentional infliction of severe emotional distress // Injunction or specific performance // Punitive damages // Criminal penalties