Habitability Flashcards
Delivering Possession - Majority Approach
English rule: most states follow this. Requires LL to deliver actual possession of the premises to the T in addition to the legal right to possession when the lease term begins. AKA LL has a duty to evict tenant.
Delivering Possession - Minority Approach
American rule - LL is merely obligated to deliver the legal right to possession to the tenant when the lease term begins.
Implied Covenant of Quiet Enjoyment
*Applies to both commercial and residential leases. In every state, there is a promise by the LL, that the LL will not wrongfully interfere with T’s possession of the property, including no wrongful or constructive eviction.
Breach can occur in 3 ways:
Actual: Excludes T from entire premises; terminates T’s obligation to pay rent.
Partial: L excludes T from part of the premises, terminates T’s obligation to pay rent.
Constructive: L’s wrongful conduct has effectively forced/evicted T to vacate the premises. Both procedural and substantive elements must be met.
Procedural Requirements of ICQE
- T must notify LL of the problem
- L must have reasonable time to fix.
- T must vacate within a reasonable amount of time after giving LL reasonable time to have fixed. If they don’t leave, they waive this right.
Substantive requirements of ICQE
(1) wrongful conduct through act or omission
- Acts: blocking access, nuissance, harassing T’s customers
- Omission: L breaches duty in lease or statutory duty
*make sure to identify duty if we talk about omission
(2) by the landlord
exception: by 3rd party if L has control over 3rd party
(3) that substantially interferes with T’s use and enjoyment
The conduct must amount to such a major interference that a reasonable person would conclude a renter dwelling is uninhabitable.
ICQE Reqs
(1) wrongful conduct through act or omission, (2) by the LL, (3) that substantially interferes with T’s use and enjoyment
Remedy
T’s obligations are dependent. The moment a T moves out, they no longer have to pat rent.
Implied Warranty of Habitability
LL have a general duty to provide “bare living requirements” and that the premises are fit for human occupation.
- IWH doesn’t require LL to maintain perfect conditions at all times & L must have a reasonable time to fix defects.
- Substantial compliance with building and housing codes provides evidence of habitable premises
- But showing a code violation is not required to show a breach by L.
Procedural Requirements of IWH
(1) notify L about the problem
(2) provide L with reasonable time to fix the problem
Remedies available to T if LL breached IWH, T can…
MRRR
- Move out and sue for damages
- Repair and deduct cost of repairs
- Remain in possession and withhold rent
- Remain in possession, continue paying rent and sue for damages
Fair rental value as warranted minus fair rental value unrepaired
How much rent/price would be if everything was perfect - what it’s actually worth after everything happens.
Contract rent - fair rental value unrepaired
Agreed upon rent in K = current unrepaired condition (less than FMV)
% diminution based on degree of reduction of T’s use and enjoyment of premises reduced by uninhabitable conditions and time
What % would you assign with the use of property (how much % is still left to use after broken window that allows water to come in i.e. 90%) Rent is 1k, it would drop to $100 a month for rent if we say it’s a 90% value.
LL Liability for PI Claims
At common law, LL generally had no liability for PI claims to a T except when a duty of care existed. Under modern approach, residential LL are evaluated under the same “reasonable care standard” used in negligence.
A duty exists:
(1) concealed latent defects
(2) duty to maintain common areas
(3) non-negligent repairs
(4) duty to repair when K says so
(5) property used by the public.
Sublease
When a T transfers their right to possession for only part of the remaining term to a 3rd party.
- LL and sublessee are not in privity of K or estate.
Assignment
When a T transfers their right to possession for the entire remaining term to a third party.
- In an assignment, LL and assignee are in privity of estate but not privity of K.
FHA of 1968
Bars discrimination based on race, ethnicity, religion, national origin, sex, familial status, or disability in the sale or rental of a dwelling.
- Bars publishing any advertisements that indicates a preference on prospective tenants or buyers.
FHA exceptions
(1) owner occupied apartments with no more than 4 units
(2) single family residences rented or sold without a real estate broker or sales person
- Does not bar discrimination based on sexual orientation or marital status
- to shared living units like roommate situations
Civil Rights Act of 1866
Prohibits discrimination based on race in the leasing or sale of any type of property; however, it does not cover advertising.
