Chapter 10: Landlord-Tenant Relations

Question 1

Quiet Enjoyment: Common Law View: Latent Defect
-Did Lenore breach the common law covenant of quiet enjoyment on the ground that the cat dander was a latent defect when she failed to inform Ted of the cat dander from the prior tenant even though Lenore had no actual knowledge of the cat dander problem?

Answer 1

-Under the common law, a landlord breached the covenant of quiet enjoyment by failing to act when he or she has a duty to act, and this failure interferes with the tenant’s peaceful enjoyment of the premises. The duty to act can be found in the law, as when the landlord fails to disclose a known latent defect.

Question 2

Quiet Enjoyment: Modern View
-Did Lenore breach the modern view of the covenant of quiet enjoyment when she did not eliminate the cat dander problem, which could have been eliminated by spending $10,000?

Answer 2

-Under the modern view of the covenant of quiet enjoyment as articulated by Reste Realty, a landlord cannot substantially interfere with the tenant’s peaceful enjoyment of the premises by any act or omission. The landlord’s omission or failure to act can be a breach of the covenant, regardless of any duty in the lease or law, if the landlord had the power to control the interference.

Question 3

Constructive Eviction
-Assuming that Lenore did breach the covenant of quiet enjoyment (common law or modern view), can Ted avail himself of the remedy of constructive eviction when he moved out 3 ½ months after he moved in?

Answer 3

-A tenant is constructively evicted when he vacates in a timely manner after the landlord has breached the covenant of quiet enjoyment. Whether a vacation of the premises is timely is dependent on the totality of the facts and circumstances

Question 4

Implied Warranty of Habitability
-Did Lenore breach the implied warranty of habitability when she leased the apartment to Ted and the dander prevented Ted from breathing?

Answer 4

-The implied warranty of habitability provide that a landlord will deliver and maintain premises that are safe, clean, and fit for human habitation. In dispute is “clean” or “fit” for human habitation.

Question 5

Frustration of Purpose
-Can Ted avoid further liability under the lease on the theory that the unremitting cat dander problem served to frustrate the purpose of the lease?

Answer 5

-The doctrine of frustration of purpose holds that when the underlying purpose of a contract can no longer be carried out due to unforeseen circumstances, through no fault of the party seeking relief from the contract, the one seeking relief is excused from performing. The element in dispute here is “unforeseen circumstances.”

Question 6

Rent Control: Minimal Scrutiny
-Does the rent control ordinance, which provides that a landlord can get a greater than 10% increase if he or she establishes that the increase is necessary for a compelling interest, survive a minimal scrutiny standard of review?

Answer 6

-To survive a minimal scrutiny standard of review, as the Supreme Court in Pennell v. City of San Jose, the plaintiff landlord must establish that the ordinance is not rationally related to a legitimate government interest. An ordinance is irrational if it is fully arbitrary.

Question 7

Quiet Enjoyment: Common Law View: Latent Defect
-Did Lance breach the common law covenant of quiet enjoyment when his young stepson, Bob, jumped around Lance’s apartment and interfered with Tina’s ability to go to sleep and work at home during the day and Lance did not reveal this to Tina when she leased the apartment?

Answer 7

-Under the common law, a landlord breached the covenant of quiet enjoyment by failing to act when he or she has a duty to act, and this failure interferes with the tenant’s peaceful enjoyment of the premises. The duty to act can be found in the law, as when the landlord fails to disclose a known latent defect

Question 8

Quiet Enjoyment: Modern View
-Did Lance breach the modern view of the covenant of quiet enjoyment when Lance’s 4-year-old stepson made noise and prevented Tina from sleeping and working at home?

Answer 8

-Under the modern view of the covenant of quiet enjoyment as articulated by Rest Realty, a landlord cannot substantially interfere with the tenant’s peaceful enjoyment of the premises by any act or omission. The landlord’s omission or failure to act can be a breach of the covenant, irrespective of any duty in the lease or law, if the landlord had the power to control the interference.

Question 9

Constructive Eviction
-Assuming that Lance did breach the covenant of quiet enjoyment, can Tina avail herself of the remedy of constructive eviction when she moved out six months after the breach?

Answer 9

-A tenant is constructively evicted when he vacates in a timely manner after the landlord has breached the covenant of quiet enjoyment. Whether a vacation of the premises is timely is dependent on the totality of the facts and circumstances.

Question 10

Implied Warranty of Habitability

-Did Lance breach the implied warranty of habitability?

Answer 10

-The implied warranty of habitability provides that a landlord must deliver and maintain throughout the tenancy premises that are safe, clean, and fit for human habitation

Question 11

Implied Warranty of Habitability: Premises

-Can the premises be deemed to be used for residential purposes when Tina used the premises to work at home?

Answer 11

-The implied warranty of habitability typically applies only to residential units, not commercial ones

Question 12

Implied Warranty of Habitability: Fitness for Human Habitation
-Did Lance breach the implied warranty of habitability when Tina’s sleep was disturbed by Lance’s four-year old step son?

Answer 12

-The implied warranty of habitability requires that the premises be fit for human habitation

Question 13

Frustration of Purpose
-Was the purpose of the lease frustrated when Tina could not sleep when she wanted to and could not work during the day because of Bob’s noise?

Answer 13

-The doctrine of frustration of purpose holds that when the underlying purpose of a contract can no longer be carried out due to unforeseen circumstances, through no fault of the party seeking relief from the contract, the one seeking relief is excused from performing. The element in dispute is “unforeseen circumstances.”

Question 14

Private Nuisance
-Did Lance improperly fail to abate a private nuisance when Bob made noise in Lance’s apartment, which interfered with Tina’s sleep and work schedule?

Answer 14

-A private nuisance is a substantial non-trespassory invasion of another’s interest in the private use and enjoyment of land. Nuisance can be unintentional or intentional. For intentional nuisance, as here when Lance has notice of the noise, the plaintiff must establish that the defendant’s action was unreasonable

Question 15

Unreasonable: Restatement View

-Was Bob’s noise unreasonable under the Restatement of Torts, considering that Bob is a child?

Answer 15

-The Restatement view of unreasonableness requires a balancing of the harm of the defendant’s actions with the utility of his conduct.

Question 16

Unreasonable: Jost view

-Was Bob’s noise unreasonable under the Jost view?

Answer 16

-The view in other jurisdictions, exemplified in the Jost case, is that unreasonableness is simply a bright-line or threshold of sorts and no balancing is required.

Question 17

Covenant of Quiet Enjoyment: Common Law: Latent Defect
-Did Lenore breach the common law covenant of quiet enjoyment by not telling Tom about the latent defects of the window problem and her father selling drugs next door?

Answer 17

-Under the common law, a landlord breaches the covenant of quiet enjoyment by failing to act when he or she has a duty to act, and this failure interferes with the tenant’s peaceful enjoyment of the premises. The duty to act can be found in the law, as when the landlord fails to disclose a known latent defect

Question 18

Covenant of Quiet Enjoyment: Modern View
-Did Lenore breach the covenant of quiet enjoyment under the modern view of the doctrine when she leased the property to Tom with only one window and she knew of her father’s drug dealing activities in the house next door, a house she also owned?

Answer 18

-Under the modern view of the covenant of quiet enjoyment as articulated by Reste Realty, a landlord can not substantially interfere with the tenant’s peaceful enjoyment of the premises by any act or omission. The landlord’s omission or failure to act can be a breach of the covenant, regardless of any duty in the lease or law, if the landlord had the power to control the interference.

Question 19

Constructive Eviction
-Assuming that there was a breach of the covenant of quiet enjoyment (common law or modern view), was Tom constructively evicted when he left the house for a year after the problems first materialized?

Answer 19

-A tenant is constructively evicted when he vacates in a timely manner after the landlord has breached the covenant of quiet enjoyment. Whether a vacation of the premises is timely is dependent on the totality of the facts and circumstances.

Question 20

Illegal Lease
-Can Tom avoid liability under the lease on the ground that the lease was illegal because one bedroom had only one window and not the two required by the code?

Answer 20

-A lease that is made in violation of housing code laws is an illegal lease and confers no benefits upon the landlord. The violations must be substantial in nature

Question 21

Frustration of Purpose
-Was the purpose of the lease frustrated when Tom could not sleep when she wanted to because of the fear of Frank’s activities and the master has only one window and not two?

Answer 21

-The doctrine of frustration of purpose holds that when the underlying purpose of a contract can no longer be carried out due to unforeseen circumstances, through no fault of the party seeking relief from the contract, the one seeking relief is excused from performing. The element in dispute is “unforeseen circumstances”.

Question 22

Implied Warranty of Habitability

-Did Lenore breach the implied warranty of habitability?

Answer 22

-The Implied warranty of habitability is implied in every residential lease in most jurisdictions.

Question 23

Habitability: Fitness
-Can the premises be deemed habitable (or fit) because there is only one window and not two in the master bedroom and when Tom cannot sleep because of the drug dealing by Frank?

Answer 23

-The implied warranty of habitability provides that a landlord must deliver and maintain throughout the tenancy premises that are safe, clean, and fit for human habitation.

Question 24

Habitability: Premises
-Assuming that Tom’s house is not habitable, should the doctrine apply when it is one of two single family homes owned by Lenore?

Answer 24

-The implied warranty of habitability typically does not apply to single family homes.

Question 25

Common Law Covenant of Quiet Enjoyment

-Did Lance breach the covenant of quiet enjoyment when he mowed the lawn on Saturdays and disturbed Tina’s sleep?

Answer 25

-The common law covenant of quiet enjoyment, implied in every lease, states that the landlord shall not, by any act, interfere with the tenant’s peaceful enjoyment of the premises.

Question 26

Constructive Eviction
-Assuming that there had been a breach of the covenant of quiet enjoyment, was Tina constructively evicted when she left 3 months after the problem first materialized and not sooner because of her work schedule?

Answer 26

-A tenant is constructively evicted when she vacates in a timely manner after the landlord has breached the covenant of quiet enjoyment. Whether a vacation of the premises is timely is dependent on the totality of the facts and circumstances.

Question 27

Implied Warranty of Habitability

-Did Lance breach the implied warranty of habitability?

Answer 27

-Implied in every residential lease in most jurisdictions is the implied warranty of habitability

Question 28

Habitability (Fitness)

-Can the premises be deemed habitable (or fit) because Lance’s mowing disturbed Tina’s sleep?

Answer 28

-The implied warranty of habitability provides that a landlord must deliver and maintain throughout the tenancy premises that are safe, clean, and fit for human habitation.

Question 29

Premises
-Assuming that Lance’s duplex is not habitable, should the doctrine apply when it was a single family house that was converted into a duplex?

Answer 29

-The implied warranty of habitability typically does not apply to single-family homes.

Question 30

Frustration of Purpose
-Was the purpose of the lease frustrated when Tina could not sleep when she wanted to because Lance had no other time to mow the lawn when he had to take care of his sick mother?

Answer 30

-The doctrine of frustration of purpose holds that when the underlying purpose of a contract can no longer be carried out due to unforeseen circumstances, through no fault of the party seeking relief from the contract, the one seeking relief is excused from performing. The element in dispute is “underlying purpose of a contract”.

Question 31

Illegal lease
-Can Tina avoid liability under the lease on the ground that the lease was illegal because Lance accidentally failed to fill out some paper work required by local code?

Answer 31

-A lease that is made in violation of housing code laws is an illegal lease and confers no benefits upon the landlord. The violation must be substantial in nature.

Question 32

Private Nuisance (Unintentional)
-Did Lance create a private unintentional nuisance when he moved the lawn on Saturday mornings and interfered with Tina’s sleep?

Answer 32

-Unintentional nuisance is a substantial non-trespassory invasion that is negligent, reckless, or ultra-hazardous. The element here is negligent, that is, unreasonable conduct.

Question 33

Mitigation

-Must Lance mitigate his loss before filing suit?

Answer 33

-In some jurisdictions, Lance must mitigate his loss, that is, discount his damages by the amount of money that he could have secured had he attempted to find another tenant.

Question 34

Violation of FHA: Handicap
-Did Abel violate the FHA prohibition against discriminating those with a handicap when he placed an advertisement stating, “Registered Sex Offenders Need Not Apply”, and Charlie’s psychiatrist testified Charlie had a mental disorder?

Answer 34

-The FHA prohibits discrimination, among other protected classes, against handicapped individuals. A handicap may be mental in nature.

Question 35

Delivery of Possession
-Did Ed deliver possession to George when George never moved in because of a sewer line backup, exacerbated by George’s acute sense of smell?

Answer 35

-Landlords must deliver possession to their tenants. In jurisdictions that follow the so-called English rule, landlords must deliver actual possession, meaning that the premises are open to the tenant.

Question 36

Quiet Enjoyment
-Did Ed breach the covenant of quiet enjoyment when the city sewer line backed up and filled the air with a harmless and slight odor that would dissipate but which George, who has an acute sense of small, cannot tolerate?

Answer 36

-Under the most modern understanding of the covenant of quiet enjoyment, a landlord breaches the covenant whenever the landlord’s failure to act substantially interferes with the tenant’s peaceful enjoyment of the premises, irrespective of any underlying duty found in the lease or law. Under this approach, for the landlord to be liable for not acting, the landlord apparently must at lease have the power to control the problem

Question 37

Constructive Eviction
-Assuming that Ed breached the covenant of quiet enjoyment, was George constructively evicted when he never took physical possession of the apartment and informed the landlord that he was not moving in?

Answer 37

-A tenant is constructively evicted when he vacates in a timely manner after a breach of the covenant of quiet enjoyment. The element in dispute is “vacates” and implies that the tenant at some point has taken possession.

Question 38

Implied Warranty of Habitability
-Did Ed breach the implied warranty of habitability when the apartment had a slight odor from a sewer backup caused by the city’s line and when George the tenant had an acute sense of smell?

Answer 38

-The implied warranty of habitability states that in every residential lease, the landlord will deliver and maintain throughout the tenancy premises that are clean, safe, and fit for human habitation. The element in dispute is “fit for human habitation.” The element in dispute is “fit for human habitation.”

Question 39

Periodic Tenancy or Tenancy at Will
-When Baker and XYZ entered into a lease “for not less than a year,” and when the rent was “payable January 1 of each year,” was a year-to-year period tenancy created, or was a tenancy at will created?

Answer 39

-A year-to-year periodic tenancy is for a fixed duration of a year and which renews automatically, while a tenancy at will continues indefinitely until terminated by the landlord or tenant. When it is not clear what type of tenancy was created, we look to the words of the lease and extrinsic evidence to resolve the ambiguity. Six months notice must be given to terminate a year-to-year periodic tenancy at common law, whereas no notice is required under the common law and thirty days notice under modern legislation to terminate a tenancy at will.

Question 40

Assignment v. Sublease
When Ted transferred the balance of his term to Ulysses, but reserved a right to re-enter and retake possession in the event that Ulysses did not pay the rent, did Ted and Ulysses create an assignment or a sublease?

Answer 40

In an assignment, nothing remains in the transferor, thus vertical privity is
established between the tenant and the sub-tenant. In a sublease, something remains in
the transferor, thus precluding a finding of vertical privity. In such case, in an
assignment, the sub-tenant is primarily liable to the landlord for rent due but in a sublease
the main tenant remains primarily liable.