BAR FLASHCARDS - P4 Tenant's Duties
TENANT’S DUTIES
A tenant has two primary duties: (1) to repair, and (2) to pay rent
TENANT’S DUTY TO REPAIR - Tenant’s Duty to Repair When Lease Is Silent.
Also, waste?
a. Obligation to Maintain Premises - make routine repairs: A tenant need only maintain the premises in reasonably good repair. What does that mean? T must make ordinary routine repairs, NOT from wear and tear. Thus, it’s important to distinguish between a routine repair (which a tenant is obliged to make) and a repair occasioned by ordinary wear and tear (which a tenant is not obliged to make).
When a lease is silent about a tenant’s repair obligations, the tenant must maintain the premises in reasonably good repair but isn’t responsible for ordinary wear and tear.
b. Tenant Must Not Commit Waste: A tenant’s duty to repair is linked to the doctrine of waste. A tenant cannot damage (meaning, commit waste on) the leased premises. There are 3 types of waste:
- Voluntary (affirmative) waste: It results when the tenant’s overt conduct damages the premises.
- Permissive waste: It occurs when the tenant fails to take reasonable steps to protect the premises from damage from the elements. Remember, the tenant is liable for maintaining the premises, excluding ordinary wear and tear. If the duty to maintain the premises is shifted to the landlord (by lease or statute), the tenant has a duty to report deficiencies promptly.
- Ameliorative waste: It occurs when the tenant unilaterally alters the leased property, thereby increasing its value. Generally, the tenant is liable for the cost of restoration.
–Exception: There is a modern exception to this rule, however, which permits a tenant to make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood.
When a lease is silent about a tenant’s repair obligations, the tenant must ___ but isn’t responsible for ___.
When a lease is silent about a tenant’s repair obligations, the tenant must maintain the premises in reasonably good repair but isn’t responsible for ordinary wear and tear.
TENANT’S DUTY TO REPAIR - Tenant’s Duty to Repair When Express Covenant in Lease
a. Destruction of Premises:
b. Residential vs. Nonresidential Contexts:
What about when a tenant has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease?
a. Destruction of Premises:
-At common law, historically, a tenant was responsible for any loss to the property, including loss attributable to force of nature, such as hurricanes, earthquakes, or lightning strikes.
-Today: However, today, the majority view is: T may end the lease when the premises are destroyed without T’s fault.
b. Residential vs. Nonresidential Contexts: If a residential tenant covenants to repair, the landlord usually remains obligated to repair (except for damages caused by the tenant) under the nonwaivable “implied warranty of habitability” (see 5.3, infra). However, a nonresidential tenant’s covenant to repair is enforceable, and a landlord may be awarded damages for breach based on the property’s condition when the lease termi- nates compared with its condition when the lease commenced. In the absence of a specific reference to ordinary wear and tear, a covenant to repair usually includes such repairs. However, repair covenants frequently exclude ordinary wear and tear.
TENANT’S DUTY TO PAY RENT: Tenant Breaches and Is in Possession of Premises
If T breaches and remains on premises:
- Evict
- Continue relationship and sue for rent
- No self-help
a. Evict or Sue for Rent: If a tenant is on the premises and fails to pay rent, the landlord can evict through the courts or continue the relationship and sue for rent due. If the landlord moves to evict (which they do under a state’s unlawful detainer statute), are they nonetheless entitled to rent? YES.
b. Landlord Must Not Engage in Self-Help: It’s important to remember that the landlord must not engage in self-help, such as changing the locks, forcibly removing the tenant, or removing any of the tenant’s possessions. Self-help is flatly outlawed and is punishable civilly and criminally.
TENANT’S DUTY TO PAY RENT: Tenant Breaches but Is Out of Possession
If T breaches and is OUT of POSSESSION: (a tenant wrongfully vacates with time left on a term of years lease.)
S - Surrender: End lease. The landlord could choose to treat the tenant’s aban- donment as an implicit offer of surrender, which the landlord accepts, thereby ending the lease.
I - Ignore: Do nothing (hold T liable for rent). Ignore the abandonment (meaning, do nothing) and hold the tenant responsible for the unpaid rent until the natural end of the lease, just as if the tenant were still there. This option is available only in a minority of states.
R - Relet: New lease (hold T Liable for deficiency. Re-let the premises on the wrongdoer-tenant’s behalf, and hold the wrongdoer-tenant liable for any deficiency.
Under the majority rule, the landlord must at least try to re-let. Why? To mitigate.
Rent Deposits
Most states restrict the amount of security deposits to one month’s rent, require landlords to pay interest on security deposits, and allow statutory or punitive damages for a landlord’s improper refusal to return a security deposit.
Clauses in leases that attempt to avoid these state laws are void.
The landlord is permitted to retain a security deposit for damages actually suffered to the premises.
CONDEMNATION OF LEASEHOLDS
If the entire leasehold is taken by eminent domain, the tenant’s liability for rent is extinguished because both the leasehold and reversion have merged in the condemnor and there is no longer a leasehold estate. The lessee is entitled to compensation.
However, if the taking is temporary or partial, the tenant is not discharged from the rent obligation, but is entitled to compensation (that is, a share of the condemnation award) for the taking.
TENANT’S DUTY TO NOT USE PREMISES FOR ILLEGAL PURPOSE
If the tenant uses the premises for an illegal purpose, the landlord may terminate the lease or obtain damages and injunctive relief.
