5. Landlord / Tenant Law

Question 1

The Four Leasehold or Nonfreehold Estates:

Answer 1

1. The Tenancy for Years
2. The Periodic Tenancy
3. The Tenancy at Will
4. The Tenancy at Sufferance

Question 2

The Tenancy for Years
(also known as the Estate for Years or the Term
of Years)

Answer 2

A lease for a fixed period of time, where you know the termination date from the start.

Question 3

Special requirement for a term of years greater than one year:

Answer 3

It must be in writing to satisfy the statute of frauds

Question 4

The Periodic Tenancy:

Answer 4

This is a lease which continues for successive intervals until L or T give proper notice to terminate.

Question 5

How can the periodic tendency be created?

Answer 5

Either:

1. Expressly

or

2. by implication

Question 6

How can a periodic tendency be created by implication?

Answer 6

1. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.
2. An oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered.
3. The Holdover: In a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease an implied periodic tenancy arises, measured by how rent is now tendered.

Question 7

How to terminate a periodic tenancy:

Answer 7

Usually written notice must be given

Question 8

How much notice must a landlord give to terminate a periodic tendency?

Answer 8

At common law, at least equal to the length of the period itself, unless otherwise agreed.

Question 9

The one exception for when a periodic tendency can be terminated with less notice than the length of the period:

Answer 9

If the tenancy is from year-to-year or greater, only 6 months is required.

Question 10

The Tenancy at Will:

Answer 10

This is a tenancy for no fixed duration.

Question 11

Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court:

Answer 11

to treat it as an implied periodic tenancy

Question 12

How can a tenancy at will be terminated?

Answer 12

by either party at any time, however a reasonable demand to vacate is usually needed (In NY this is 30 days)

Question 13

The tenancy at Sufferance:

Answer 13

It is created when T has wrongfully held over,
past the expiration of the lease. We give this wrongdoer a leasehold estate (the tenancy at sufferance), to permit L to recover rent.

Question 14

How long does a tenancy at sufferance last for?

Answer 14

The tenancy at sufferance lasts only until L either evicts T, or elects to hold T to a new tenancy.

Question 15

Tenant’s Duties:

Answer 15

1) T’s liability to third parties;
2) T’s duty to repair;
3) T’s duty to pay rent.

Question 16

T’s liability to third parties:

Answer 16

T is responsible for keeping the premises in reasonably good repair.

Question 17

Who is liable for injuries sustained by third parties?

Answer 17

T is liable for injuries sustained by third parties T invited, even where L promised to make the repairs

Question 18

T’s duty to repair:

Answer 18

Maintenance - T must maintain the premises and make routine repairs, other than those attributable to ordinary wear and tear

Question 19

The three species of waste:

Answer 19

1. Voluntary waste
2. Permissive waste
3. Ameliorative waste

Question 20

When a tenant removes a fixture:

Answer 20

she commits voluntary waste

Question 21

How to tell when a tenant installation qualifies as a fixture:

Answer 21

1. Express agreement controls
2. In the absence of agreement, T may remove a chattel that she has installed so long as removal does not cause substantial harm to the premises.

Question 22

T’s duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the
lease:

Answer 22

T may end the lease if the premises are destroyed without T’s fault

Question 23

What ifT breaches his duty to pay rent and is in possession of the premises

Answer 23

The landlord’s only options are to evict through the courts or continue the relationship and sue for rent due.

If the landlord moves to evict, she is nonetheless entitled rent from the tenant from the tenant until the tenant, who is now a tenant at sufferance, vacates.

Question 24

What happens if the landlord engages in self help in removing the tenant?

Answer 24

Self-help is flatly outlawed, and is punishable civilly and criminally.

In New York, self-help is flatly prohibited and entitles tenant to treble damages.

Question 25

What options does a L have if T wrongfully vacates with time left on a term of years lease?

Answer 25

1. L could choose to treat T’s abandonment as an implicit offer of surrender which L accepts.
2. Ignore the abandonment and hold T responsible for the unpaid rent, just as if T was still there.
   (This option is available only in a minority of states.)
3. Re-let the premises on the wrongdoer tenant’s behalf, and hold him or her liable for any deficiency.

Question 26

L’s duty to deliver possession:

Answer 26

The majority rule requires that L put T in physical possession of the premises of the premises. Thus, 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.

Question 27

The implied covenant of quiet enjoyment:

Answer 27

T has a right to quiet use and enjoyment of the premises, without interference from L.

Question 28

The elements of constructive eviction:

Answer 28

Remember SING:

1. Substantial Interference: due to L’s actions or failures (permanent or chronic problem)
2. Notice: T must notify L of the problem, and L must fail to act meaningfully
3. Goodbye: T must vacate within a reasonable time after L fails to fix the problem

Question 29

What does the implied warranty of habitability apply to?

Answer 29

Only residential leases.

Question 30

The implied warranty of habitability:

Answer 30

The presmises must be fit for basic human dwelling

Question 31

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

Answer 31

Remember M R 3:

M: Move out and end the lease

R: Repair and deduct, allowable by statute in a growing number of jurisdictions. T may make the reasonable repairs and deduct their cost from future rent.

R: Reduce rent or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent into escrow to show her good faith.

R: Remain in possession

Question 32

Retaliatory eviction:

Answer 32

If T lawfully reports L for housing code violations, L is barred from penalizing T

Question 33

NY’s law on when T may assign or sublease:

Answer 33

In New York, unless the lease provides otherwise, a residential T may not assign without L’s written consent. L can unreasonably withhold consent to assign, and T’s sole remedy is to seek release from the lease.
By contrast, in New York, a T in a residential building having four or more units has the right to sublease subject to L’s written consent. Consent to sublease cannot be unreasonably withheld. Unreasonably withheld consent is deemed consent.

Question 34

When does a L have tort liability?

Answer 34

Remember CLAPS

Common areas: Even in tort, L must maintain all common areas. (hallways, stairwells)

Latent defects rule: L must warn T of hidden defects that L knows about, or should know about.

Assumption of repairs: A L who voluntarily makes repairs negligently is liable.

Public use rule: L who leases public space (such as: a convention hall or museum), and who should know, because of the nature of the defect and the length of the lease, that
T will not repair is liable for any defects on the premises.

Short term lease of furnished dwelling: L is liable for any defects on site