Landlord and Tenant Flashcards
A lease creates both a _______ and _______
contract and property interest
The four types of estates that can govern landlord-tenant relationships are…?
- Tenancy for Years
- Periodic Tenancy
- Tenancy at Will
- Tenancy and Sufferance
How is each created?
How is each terminated?
Define a Tenancy for Years
Measured by a fixed amount of time and ascertainable
DOES NOT NEED TO BE FOR MULTIPLE YEARS (can be for a day)
What is required to create a Tenancy for years?
Agreement by landlord and tenant = demonstrate intent
What is required to create a Tenancy for years?
Agreement by landlord and tenant = demonstrate intent
True or false: a tenancy for years longer than one year must be signed and in writing
True, because of Statute of Frauds
How is a Tenancy for Years terminated?
+ Automatically at the end of the term. Notice not required unless the lease requires it.
+ Tenant surrenders lease
+ One party commits a material breach of the lease
Define a periodic tenancy
Estate that is repetitive and ongoing for a set time. Renews automatically until a party gives proper notice
How is a periodic tenancy created?
Parties must have intent.
Can be express or implied
How do you end a periodic tenancy?
Renews until notice given.
Old way: year-year = six months notice
New way: one months notice
Proper notice to end a periodic tenancy includes a writing when? And when is it effective?
Before the start of what will be the last term, effective on the last day of the period
Ex: O leased Blackacre to A on a month to month basis. A gives notice of termination on February 15. When is the termination effective? March 31
Define Tenancy at will
May be terminated by either landlord or tenant at any time, for any reason
How is a tenancy created?
By express agreement or implication
When is a Tenancy at Will terminated?
At any time. Generally courts use a reasonable standard and power between landlord/tenant.
True or false: Death of a landlord or tenant terminates a tenancy at will.
True. BUT no other types of tenancies would terminate at death. Proper notice is still req’d.
Define tenancy at sufferance
Tenant holds over after lease has ended
Exists before the landlord either evicts the prior tenant or re-rents to the holdover tenant
What is the difference between tenancy at will and tenancy at sufferance?
Creation.
At will= by agreement b/t parties
Sufferance = actions of tenant
What are the ways a tenancy in sufferance can be terminated?
Tenant voluntarily leaves
Landlord evicts
landlord re-rents
The three situations when a tenant’s duty to pay rent are as follows:
- Premises are destroyed
- Landlord complete or partially evicts tenant
- Landlord materially breachese the lease
True or false: regardless of who destroyed the property, a tenant is relieved from payment of rent on a lease
False. If the tenant caused the damage, they are still responsible for the rent and likely additional damages due to breach of contract
Pursuant to the implied covenant of quiet enjoyment, a tenant can withhold rent when…?
The landlord takes actions that make the premises
+ wholly or substantially
+ unsuitable for their intended purpose
+ tenant is constructively evicted
The four elements of constructive eviction are…?
- Premises were unsuitable for intended purposes
- Tenant notifies landlord
- Landlord doesn’t correct
- Tenant vacates after a reasonable period
True or false: Tenants can waive the implied warranty of habitability
False. Landlords have an obligation to maintain the property such that it is suitable for residential use.
Main concern: health and safety of tenants
True or false: Implied warranty of habitability applies to both commercial and residential properties
False. Residential properties only. Usually multi-family buildings.
Under the implied warranty of habitability, if the premises are not habitable, a tenant may do what?
+ refuse to pay rent
+ remedy the defect and offset the costs against rent
+ defend against eviction
Note that this is a proactive and defensive argument
What is the primary difference between implied warranty of habitability and quiet enjoyment and constructive eviction
IWH does not require the tenant to leave the premises
True or false: the duty to avoid waste is implied, even if not in the lease
True. It’s a background rule.
In a residential lease, the ______ is presumed responsible repairs.
Landlord. Tenants must notify the landlord of any needed repairs.
May a landlord put a provision in a residential lease prohibiting the tenant from making improvements to the property?
Yes.
In a commercial lease, may a landlord place the duty to repair on the tenant?
Yes because these tenants are often more sophisticated.
What is the majority rule re: Landlord’s duty to mitigate damages due to eviction or abandonment of the property
Reasonable efforts to re-rent the property, including treat the leasehold like a vacant stock (advertise, allow for viewings)
Under the majority rule: If a landlord does not make diligent efforts to mitigate damages due to tenant abandonment or his own breach, what might the tenant be allowed to do in response?
Relief from obligation to continue to pay rent
Under the majority rule, if a landlord does mitigate, what is the calculation of damages?
Original rent - rent received from replacement tenant
True or false: under the majority rule, if the original tenant finds a new tenant, the landlord must accept the replacement
False. The landlord does not have to accept an unacceptable replacement tenant.
What is the minority rule for landlord mitigation of damages?
Landlord does not have to mitigate. Relates more to commercial leases.
In what circumstances may a landlord impose a higher rent on a holdover tenant?
The landlord can impose a higher rent if the landlord had informed the tenant of the increase prior to the expiration of the old lease.
What is the difference between actual and legal possession?
Actual possession == physical possession
Legal possession == better right over anyone else
True or false: A landlord may never deny the tenant quiet enjoyment
True. Quiet enjoyment is violated when the landlord or someone connected to the landlord renders the premises unsuitable for intended purposes.
True or false: Landlord must control third party actions that are beyond the landlord’s control
False.
Tenants owe a duty of _____, which extends to invitees, licensees, and foreseeable trespassers
Duty of Care
Under the common law (older rule), what duty does a landlord have towards invitees, licensees, and foreseeable trespassers?
- Hidden defects about which the tenant has not been warned
- Faulty repairs completed by the landlord negligently
- Negligence that causes injuries in common areas
What is the modern trend (newer rule) for landlord duties to invitees, licensees, and foreseeable trespassers?
General duty of reasonable care (more broad/encompassing)
Explain the difference between assignment and sublease
Assignment: complete transfer of tenant’s remaining term
Sublease: transfer for less than entire duration of lease
True or false: in a lease transfer, if the tenant retains a reversionary interest in the leasehold, this is a complete transfer
False. A reversionary interest in the leasehold is a sublease (less than whole)
In an assignment, a landlord can collect rent from?
- The tenant because of privity of contract; OR
- The subsequent tenant because of privity of estate
(cannot go after both in a breach – pick one)
In a sublease, a landlord can collect rent from:
The tenant only because of privity of contract and estate
(the subsequent tenant who has less than the whole lease only has rent obligations to the tenant)
If a lease requires the landlord’s permission to transfer, but is silent as to the applicable standard, what two standards are utilized?
- Majority rule: landlord may deny for a commercially reasonable reason
- Minority: landlord may deny at their discretion
True or false: a landlord must acquire the tenant’s permission before transferring her interest.
False. Landlord does not need tenant’s permission. New landlord bound by terms of existing lease.
