8) LLT Flashcards
Retaliatory eviction: elements and burden shifting
1) T does protected activity 2) LL tries to evict T 3) w/in the statutory time (6mo) THEN presumption that eviction retaliatory burden shifts to LL to demonstrate legit reason for eviction if LL can, then burden shifts back to T to show AD of retaliatory eviction by preponderance of the evidence
Slavin v. Rent Control Board of Brookline
F: rent control board won’t issue eviction approval to Ll bc said implied duty of reasonableness H: no requirement in residential leaes that LL-approves-subletter clause requires LL to be reasonable: ok arbitrarily evict
for CE or QE must move out w/in…
a reasonable period of time
implied warranty of habit: W
–def: fit for human habitation and meet bare living requirements REGARDLESS OF HOUSING CODE. objective test (reasonable person would find premises uninhabitable)
F: D refuses to allow subletting of his airport hangar to Ps for no reason H: no-sublet clause in commercial lease unenforceable if unreasonable. Commerically reasonable: financial responsibility of proposed assignee, suitability of use for particular property, legality of proposed use, need for alteration of hte premises, nature of occupancy. NOT commerically reasonable: personal taste, convenience, sensibility, trying to get better rent
Kendall v. Ernest Pestana Inc
retalitory eviction “evict”
can sometimes include not renewing m2m lease (see RObinson). Usu dn include nonrenewal of term of years
constructive eviction – “LL’s wrongful conduct” (and an alternative)
has to be BY LL or w/in his control. alternate remedy if not –> nuisance (vs 3rd parties)
LL’s duty to mitigate BOP
on LL (most states)
F: 1,500 housing code violations, D’s defense to P’s UD H: implied warranty will reduce amt of rent due where violations existed during the period rent claimed and wht portion of rent? (noting changes from agrarian society and PP concerns)
Javins v. First Ntl Realty Corp
implied terms of lease (exs)
not waiveable 1) good faith and fair dealing 2) quiet enjoyment 3) implied warranty habit
LL accepts T’s surrender:
LL can sue immediately LL can sue for nl damages BUT NOT FUTURE RENT
F: LL trying to evict Ts who formed tenants assn and one of them hit lL H: have met BOP for retaliatory eviction but not the one who hit bc LL had nonretaliatory reason
Hillview Associates v. Bloomquist
leases control, except when (3)
1) some terms that you can’t k-around 1b) ex you usu can’t k around LL’s duty to mitigate damages 2) some states – consumer protection statutes
constructive eviction: T remedies
–move out before end of lease term
assignment vs subletting
assignment: transfer ALL of T’s property rights vs subletting some
Times LL CANT end the lease (4)
1) discrimination 2) rent control OR other good cause provision 3) Sec 8 4) special laws re condo conversion
tenancy at will (3)
no notice to end from either party but basically dn exist in jurisdictions that have min notice requiremt bc then it’s a periodic T death of LLT DOES terminate
tenancy at sufferance
holdover T: rightfully in possession but wrongfully stays (contrast trespassing)
constructive eviction vs IWH
usually CE in commercial,for habit problems vs IWH in residential
IWH
exception
defects must be so substantial that a reasonable person would find the premises uninhabitable. De minimis violations will not suffice.
Imperial Colliery Co v. Fout
F: T has $1/yr lease in coal house, labor strike evicted H: no reatliatory eviction bc right was incidental to tenancy (it has to be a tenancy related right!)
IWH: exception
de minimus –eg it might technically be a legal code violation, but no heat in summer in LA or mailbox
Kendall v. Ernest Pestana Inc
F: D refuses to allow subletting of his airport hangar to Ps for no reason H: no-sublet clause in commercial lease unenforceable if unreasonable. Commerically reasonable: financial responsibility of proposed assignee, suitability of use for particular property, legality of proposed use, need for alteration of hte premises, nature of occupancy. NOT commerically reasonable: personal taste, convenience, sensibility, trying to get better rent
damages LL can ALWAYS sue for
–back rent –advertising/search costs of finding new T
retaliatory eviction: statutory timeframe W
6 mo
wait and sue for rent at end of lease term
now not really allowed bc must mitigate damages damages: all rent owed until end of term
periodic tenancy (3)
eg m2m –automatic renewal –usu must give notice of length of 1 period (sometimes statutory min 1 mo etc) –deat of LL/T dn terminate
covenant of good faith and fair dealing – exs (3)
1) T can’t commit waste on property 2) T has right to exclude ppl 3) LL must surrender property when it’s time for lease to start
LL’s duty to reasonably mitigate damages
–attempt to rent the new unit –doesn’t mean you have to rent it first if other identical units are vacant –key: identical
implied warranty of habit? minority
would require reference to housing code (tho it always helps)
implied warranty of habit: commercial?
no (cf Minjak: mixed use space)
subletting: what does it mean to transfer only “some” of T’s possessory rights? (2)
– eg less time than T’s full lease or T has some right of reersion/reentry
time T can end lease early
DV (some states)
Remedy options for Ts (implied warranty habit) (8)
1) recission (move out before end of lease) 2) stay but: withhold rent, 3) abate rent (% or FMV as is) 4) repair and deduct 5) affirmative suit (injunction?) 6) admin remedies 7) crim penalties 8) compensatory damages (even if dn rise to level of IWH) (painting/broken window)
F: rent control board won’t issue eviction approval to Ll bc said implied duty of reasonableness H: no requirement in residential leaes that LL-approves-subletter clause requires LL to be reasonable: ok arbitrarily evict
Slavin v. Rent Control Board of Brookline
LLT: commercial vs. residential
residential: courts more likely to use CL rules (vs lease) bc commercial is arms-length, sophisticated parties, etc
things T has to do for CE (3)
1) reasonble notice 2) reasonable time to cure 3) vacate w/i reasonable time MUST MOVE OUT IN W
term of years (3)
specified period of time –ends automatically at end of term –> no obligation to renew or automatic renewal –BUT: converts automatically to m2m if Ll keeps accepting rent –death of either party DN TERMIANTE LEASE
Reasonableness re who to approve as subletter: minority rule
there is a reasonablness requirement esp for commerical…residential more intimiate/less economic
assignment (2)
transfer ALL of T’s property rights new T directly responsible to LL for all obligations under original lease, and LL to T both can sue each other)
Sommer v. Kridel
F: T has 2 year lease w LL but breaks it immediately dn get married, LL refuses to rent to new person and sues T for all back rent H: LL must mitigate damages
“so substantially interferes w T’s use and enjoyment”
so serious that a reaosnable person would find it uninhabitable/unfit for commercial business
exception: situation where LL can sue Subtenant
ST expressly promises T that ST will pay rent to LL. Here, LL can sue ST as 3rd party beneficiary (LL is 3PBbc he was intended benefitiary of sub-T’s promise to T)
LL accepts surrender vs not, one effect:
if T leaves, new T comes/goes and still old T’s term, LL can’t go after old T the second time if accepted surrender of lease
F: T has 2 year lease w LL but breaks it immediately dn get married, LL refuses to rent to new person and sues T for all back rent H: LL must mitigate damages
Sommer v. Kridel
Robinson v. Diamond (NR)
F: bad habit, LL tries to end m2m, T says rtln (complain conditions), Ll wants to take it off market H: to show not retaliatory… –mere desire to take unit off market NOT legit business reason –can’t partially go out of business…would be ok IF he went out of business entirely Dissent: LL is not a public utility and now no one will want to be a LL
Implied Warranty Habit: what does T have to do?
provide specific notice give reaosnble time to cure (dnh move out)
Re-let on T’s account
LL waits to sue until after finding new T can sue for difference nl damages AND difference btwn old and new rent AND lost rent in meantime
leases: SOF?
yes if more than 1 yr no if m2m, even if extends beyond a year (bc term directly discussed in k is 1 mo)
Hillview Associates v. Bloomquist
F: LL trying to evict Ts who formed tenants assn and one of them hit lL H: have met BOP for retaliatory eviction but not the one who hit bc LL had nonretaliatory reason
despite duty to mitigate, LL can still recover: (3 + an exception)
costs of finding new T rent while vacant difference btwn rental price and new rent if lower (but can’t rent to your sister for $5)
factors that tend to show legit reason for Ll to evict (from Hillview) (7)
1) reasonable exercise of business judgment 2) can’t afford to repair 3) LL wants to evict everyone to sell entire property (ambiguity re “entire AND rejected as reason by Robinson) 4) wants to put entire property to different use 5) unaware of T’s protected activities 6) didn’t act at first opportunity after learning of conduct 7) conduct not discriminatory
constructive eviction: eleemtns (3)
1) LL’s wrongful conduct 2) so substantially intefereres w T’s use and enjoymen that 3) T is forced to move out
Minjak v. Randolph
F: nonpayment UD, D of constructive eviction breach habit. residential/music, leaks, construction dangerous stairs, bricks on head H: constructive eviction ok where they didn’t move out bc they had to stop using music studio part, LL was extreme and dn repsond to complaints (minority rule)
elements of quiet enjoyment:
existence of a condition that substantialyl inferfered w T’s use and enjoyment,
notice given +
LL reasonable time to cure +
ten T move out ((basically, needs to lead to CE))
implied warranty of habit: tell me something I don’t already know (2)
usu have to pay rent into an escrow acct old CL view: caveat lessee (agrarian society)
cov of quiet enjoyment, rship w IWH
1) quiet enjoyment serves as a commercial version of IWH 2) quiet enjoyment can also be used in residential habit. issues when they aren’t quite extreme enough for IWH (ex if not completely unfit for living)
IWH: basic idea
you can stay, sometimes w/o paying rent, when conditions are bad
LL’s options when T breaches lease by stopping rent and moving out (3)
1) accept T’s surrender 2) relet on T’s account 3) wait and sue for rent at end of lease term
F: nonpayment UD, D of constructive eviction breach habit. residential/music, leaks, construction dangerous stairs, bricks on head H: constructive eviction ok where they didn’t move out bc they had to stop using music studio part, LL was extreme and dn repsond to complaints (minority rule)
Minjak v. Randolph
LL dnh duty to mitigate if
commercial!
Javins v. First Ntl Realty Corp
F: 1,500 housing code violations, D’s defense to P’s UD H: implied warranty will reduce amt of rent due where violations existed during the period rent claimed and wht portion of rent? (noting changes from agrarian society and PP concerns)
Reasonableness re. who to approve as a subletter: majority rule
*W! LL can arbitrarily refuse to allow proposed assigneed no matter how unreasonable
F: bad habit, LL tries to end m2m, T says rtln (complain conditions), Ll wants to take it off market H: to show not retaliatory… –mere desire to take unit off market NOT legit business reason –can’t partially go out of business…would be ok IF he went out of business entirely Dissent: LL is not a public utility and now no one will want to be a LL
Robinson v. Diamond (NR)
types of leasehold estates
1) term of years 2) periodic tenancy 3) tenancy at will 4) tenancy at sufferance
subletting (2)
transfer only some of T’s possessory rights LL can’t sue subtentant
