BAR FLASHCARDS - P5 Landlord's Duties

Question 1

LANDLORD’S DUTIES - DUTY TO DELIVER POSSESSION

Answer 1

Duty to deliver Possession: Duty to place T in Actual, physical possession.
The majority rule requires that the landlord put the tenant in actual physical possession of the premises at the beginning of the lease-hold term.
Thus, if at the start of the tenant’s lease, a prior holdover tenant is still in possession, what’s the result? LL has breached, and T is entitled to damages.

Question 2

IMPLIED COVENANT OF QUIET ENJOYMENT

Answer 2

T has rigth to quiet use & enjoyment without interference from L. (Residential AND commercial lease).

This exceedingly important promise arises by implication in every residential and commercial lease. It provides that a tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder (for example, a prior mortgagee who forecloses).

Question 3

How might a landlord breach this IMPLIED COVENANT OF QUIET ENJOYMENT?

Answer 3

By WRONGFUL EVICTION or CONSTRUCTIVE EVICTION.
Breach by wrongful eviction: Exclusion from WHOLE OR PART of the premises.
Breach by constructive eviction: L renders premises unsuitable for occupancy.

(“its WRONG to ENJOY QUIET CONSTRUCTION”)

Question 4

Breach by Wrongful Eviction - When does this occur?

Answer 4

Breach by wrongful eviction: Exclusion from whole or part of premises.
a. Actual Eviction: Actual eviction occurs when the landlord, a paramount title holder, or a hold-over tenant excludes the tenant from the entire leased premises. Actual eviction terminates the tenant’s obligation to pay rent.

b. Partial Eviction: Partial actual eviction occurs when the tenant is physically excluded from only part of the leased premises.

Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder. Operates the same way as actual eviction in terms of result.

Partial eviction by a paramount title holder results in an apportionment of rent; i.e., the tenant is liable for the reasonable rental value of the portion that he continues to possess.
A paramount title holder’s taking possession of an unused barn constitutes partial actual eviction. Thus, rent will be apportioned.

Question 5

Breach by Constructive Eviction - When does this occur?

Elements for claim for constructive eviction:

Answer 5

Constructive eviction occurs when the landlord’s breach of duty renders the premises unsuitable for occupancy.
How might this occur? Suppose, for example, that every time it rains, Dido’s apartment floods. She has a claim for constructive eviction
if three elements are met.
To recall the elements of constructive eviction, remember S I N G:
• Substantial Interference:
• Notice:
• Goodbye:

A tenant who has been constructively evicted may terminate the lease and may also seek damages.

(SING in CONSTRUCTION)

Question 6

Elemetns of constructive eviction - S I N G:

Answer 6

S I N G:
• SI = Substantial Interference: A chronic/permanent problem due to LL’s actions or failures.
• N = Notice: T must notify LL of the problem, LL must fail to fix it.
• G = Goodbye/Get out: T must vacate the premises within a reasonable time after LL fails to remediate. This can impose a hardship, but it is mandatory that they vacate.

Question 7

Breach by Constructive Eviction - Acts of Other Tenants

Answer 7

Is the landlord liable to a tenant for the wrongful acts of other tenants? As a general rule, no.
But there are two exceptions in which case a landlord will be liable:
• A landlord has a duty to abate a nuisance on site. Prevent and stop any nuisance activity on site.
• A landlord must control common areas.

Question 8

THE IMPLIED WARRANTY OF HABITABILITY

Answer 8

Meaning: Premises must be fit for basic human habitation.
- Standard: Case law and housing code.
- Residential ONLY! Most jurisdictions imply a covenant of habitability into residential leases. This important promise applies only to residential leases and not to commercial leases.
- This warranty is nonwaivable.

Question 9

implied warranty of habitability does not apply to ____ tenants—only to ___ tenants.

Answer 9

implied warranty of habitability does not apply to commercial tenants—only to residential tenants.

Question 10

implied warranty of habitability only applies to ___ tenants.

Answer 10

Implied warranty of habitability does not apply to commercial tenants—only to residential tenants.

Question 11

implied warranty of habitability - BIG EXAMPLES of it being breached.

Answer 11

No heat in winter, no working plumbing, no running water

Question 12

Implied warranty of habitability:
Rule:
Standard:

Answer 12

The implied warranty of habitability provides that the premises must be fit for basic human habitation.
In other words, bare living requirements must be met.

How is the appropriate standard for habitability discerned? Case law and housing code.

What sorts of problems trigger breach of the implied warranty of habitability? No heat in winter, no working plumbing, no running water

Question 13

Implied warranty of habitability: T’s entitlements when warranty is BREACHED

Answer 13

If the implied warranty of habitability is breached, you can remember the tenant’s options as M R 3: Move, Repair, Reduce, Remain:
• Move out and terminate the lease (but T does NOT have to!)
• Repair and deduct (allowable by statute in a growing number of jurisdictions; a tenant may make the reasonable repairs and de- duct their cost from future rent)
• Reduce rent or withhold all rent until the court determines fair rental value (typically, the tenant must place withheld rent into an escrow account to show their good faith)
• Remain in possession, pay full rent, and affirmatively seek money damages

Question 14

M R 3:

Answer 14

M R 3: Move, Repair, Reduce, Remain:
• Move out and terminate the lease (but T does NOT have to!)
• Repair and deduct (allowable by statute in a growing number of jurisdictions; a tenant may make the reasonable repairs and deduct their cost from future rent)
• Reduce rent or withhold all rent until the court determines fair rental value (typically, the tenant must place withheld rent into an escrow account to show their good faith)
• Remain in possession, pay full rent, and affirmatively seek money damages

Question 15

difference between the covenant of quiet enjoyment, and the implied warranty of habitability

Answer 15

difference between the covenant of quiet enjoyment (where to plead constructive eviction successfully the tenant must vacate), and the implied warranty of habitability, where the tenant could vacate but is not required to.
- Covenant of Quiet enjoyment: T MUST vacate.
- Warranty of habitability: T may, but does NOT have to, vacate.
Also, Warranty of Habitability only applies to residential. Quit enjoyment applies to both.

Question 16

Covenant of Quiet enjoyment: Does T vacate have to VACATE?

Answer 16

YES!
Covenant of Quiet enjoyment: T MUST vacate.

Question 17

Covenant of Quiet enjoyment: SING

Answer 17

Substantial interference
Notice
Goodbye

Question 18

Warranty of habitability: Does T vacate have to VACATE?

Answer 18

NO!
Warranty of habitability: T may, but does NOT have to, vacate.

Question 19

Warranty of habitability: MR3

Answer 19

Move out
Repair
Reduce or withhold
Remain

Question 20

RETALIATORY EVICTION

Retaliatory motive presumed when?

Answer 20

LL CANNOT terminate/penalize T in retaliation for T’s exercise of legal rights.

In many states, a landlord may not terminate a lease or otherwise penalize a tenant in retaliation for the tenant’s exercise of their legal rights.

So, for example, if a tenant lawfully reports a landlord for housing code violations, the landlord is barred from penalizing the tenant by raising rent, ending the lease, harassing the tenant, or taking any other reprisals.
Many statutes presume a retaliatory motive if the landlord acts within, for example, 90 to 180 days after the tenant exercises their rights.

To overcome the presumption, the landlord must show a valid, nonretaliatory reason for their actions.

Question 21

ANTI-DISCRIMINATION LEGISLATION

Answer 21

Civil Rights Act: The Civil Rights Act bars racial or ethnic discrimination in the sale or rental of all property.
Fair Housing Act: The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing).

Question 22

ANTI-DISCRIMINATION LEGISLATION - Fair Housing Act:

a. Exceptions:

b. Prohibited actions:

c. Advertisements?

d. Accomodations?

Answer 22

Fair Housing Act: The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing).

a. Exemptions: Except as relates to advertising, the Fair Housing Act does not apply to:
(1) owner-occupied buildings with four or fewer units in which persons live independently of each other; and
(2) single-family homes sold or rented by an owner who owns no more than THREE single-family homes.

b. Prohibited Actions: Under the FHA, it is unlawful to take certain actions because of a person’s race, color, religion, sex, disability, familial status, or national origin, including:
1) Refusing to negotiate, rent, or sell housing or make avail- able a mortgage loan or other financial assistance;
2) Providing different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assis- tance; and
3) Falsely representing that a dwelling is not available for inspection, sale, or rental.

c. Discriminatory Advertisements Also Prohibited: It is also unlawful under the Fair Housing Act to make, print, or publish any notice or advertisement that indicates any preference or limitation based on race, color, religion, sex, disability, familial status, or national origin. This provision may be violated by the person who makes a discriminatory advertisement (such as a landlord) as well as by the newspaper or other publisher that prints it. The exemptions stated above do not apply in relation to advertising.

d. Reasonable Accommodations: When the Fair Housing Act applies, landlords must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities at the tenants’ own expense. Landlords must also make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use a dwelling.

Question 23

Fair Housing Act: The Fair Housing Act protects tenants and potential tenants from discrimination based on ___, ___, ___, ___, ___, or ___, as well as ___ (except in ___ ___).

Answer 23

Fair Housing Act: The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing).

Question 24

Fair Housing Act: EXEMPTIONS from FHA

Answer 24

a. Exemptions: Except as relates to advertising, the Fair Housing Act does not apply to:
(1) owner-occupied buildings with four or fewer units in which persons live independently of each other; and
(2) single-family homes sold or rented by an owner who owns no more than THREE single-family homes.
b. Prohibited Actions: Under the FHA, it is unlawful to take certain actions because of a person’s race, color, religion, sex, disability, familial status, or national origin, including:
1) Refusing to negotiate, rent, or sell housing or make avail- able a mortgage loan or other financial assistance;
2) Providing different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assis- tance; and
3) Falsely representing that a dwelling is not available for inspection, sale, or rental.

Question 25

Fair Housing Act: PROHIBITED ACTIONS

Answer 25

b. Prohibited Actions: Under the FHA, it is unlawful to take certain actions because of a person’s race, color, religion, sex, disability, familial status, or national origin, including:
1) Refusing to negotiate, rent, or sell housing or make available a mortgage loan or other financial assistance;
2) Providing different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assis- tance; and
3) Falsely representing that a dwelling is not available for inspection, sale, or rental.

Question 26

Fair Housing Act: Reasonable Accomodations

Answer 26

Reasonable Accommodations for tenants with disabilities (T makes them with T’s own expense, but LL must permit it. LL must also make RA in rules, policies, and services to give them equal opportunity to use dwelling).

Reasonable Accommodations: When the Fair Housing Act applies, landlords must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities at the tenants’ own expense.

Landlords must also make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use a dwelling.