Landlord and Tenant Flashcards
Tenancy for Years
Measured by a fixed and ascertainable amount of time
Ex. Larry leases Blackacre to Tara for two years
Creating a tenancy for years:
- an agreement by the landlord and the tenant (purpose to demonstrate the intent to create a leasehold)
- if the term is longer than 1 year, the agreement must be signed and in writing because of the SOF
Termination:
- At the end of the term, termination occurs automatically. Notice is NOT requires to terminate unless the lease requires it.
- Before the end of the term, the tenant can terminate by surrendering the lease or the tenant or landlord can commit a material breach of the lease.
Periodic Tenancy
Estate that its repetitive and ongoing for a set period of time (eg, month-to-moth, year-to-year)
Renews automatically eat the end of each period until one party gives proper notice of termination
Creating a Period Tenancy:
- Intent can be express (signed lease) or implied (payment of rent)
Termination:
- Renews automatically until proper notice is given
- Old approach = in a year-to-year lease, must give notice at least 6 months in advance
- New approach = shorter notice requirements, many states have lowered to a month’s notice
- Most jurisdictions require written notice of termination
- Notice its effective on the last day of the period
Ex. Tara is on a month-to-month lease. She gives notice of termination on February 15. Her termination is effective on March 31.
Tenancy at Will
May be terminated by either landlord or tenant at any time, for any reason
Creating a Tenancy at Will:
- can be created by express agreement or by implication
Termination:
- Can be terminated by either party without notice
- If the agreement gives ONLY the landlord the right to terminate at will, the tenant also gets the right to terminate by implication
- If agreement gives ONLY the tenant the right to terminate at will, the landlord is NOT given the right to terminate at will
Tenancy at Sufferance
Created when a tenant holds over after the lease has ended
Temporary tenancy that exists before the landlord either (1) evicts the prior tenant, or (2) re-rents the property to the tenant (creates a new tenancy with the holdover tenant)
Tenant owes landlord reasonable value of her daily use (look to rent from prior lease), as well as reasonably foreseeable special damages
This is created by the actions of the tenant alone
Termination:
- The tenant voluntarily leaves
- The landlord evicts the tenant
- The landlord re-rents to the tenant
Duty to Pay Rent
Duty arises because of the contractual relationship between landlord and tenant
Three Situations Where Duty to Pay Rent is Suspended:
1) premises are destroyed, so long as the tenant didn’t cause the damage
2) the landlord completely or partially evicts the tenant
- complete eviction = removal of tenant from the entire property
- partial eviction = removal of tenant from a portion of the property
3) the landlord materially breaches the lease
Implied Covenant of Quiet Enjoyment
The tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted.
Four Elements of Constructive Eviction:
1) premises where unsuitable for their intended purposes (ie, breach of the covenant of quiet enjoyment)
2) the tenant notifies the landlord of the problem
3) the landlord does not correct the problem, and
4) the tenant vacates the premises after a reasonable amount of time has passed
Implied Warranty of Habitability
The landlord has an obligation to maintain the property such that it is suitable for residential use. We are concerned with conditions that threaten the tenant’s health and safety.
Important Points:
- the tenant cannot waive habitability protection
- the landlord’s failure to comply with applicable housing code constitutes evidence of a breach
- applies to residential properties (does NOT apply to commercial leases!)
IWH and Rent:
- if the premises is not habitable, the tenant may:
1) refuse to pay rent
2) remedy the defect and offset costs against the rent, or
3) defend against eviction
Note: Unlike the implied covenant of quiet enjoyment and constructive eviction, here the tenant does NOT have to move out!
Duty to Avoid Waste
The duty to avoid waste need not be in the lease to still apply.
The tenant has a duty not to commit affirmative (voluntary) waste or permissive (neglectful) waste.
A tenant may make changes to the property that increase the property’s value (ameliorative waste). Landlords usually require permission before a tenant can make the change.
Duty to Repair
In a residential lease, the landlord is presumed to be responsible for repairs. The tenant must notify the landlord of any needed repairs.
BUT the landlord is not responsible to make repairs caused by the tenant’s actions.
In a commercial lease, the landlord can place the duty to repair on the tenant.
Landlord’s Duty to Mitigate Damages
Majority Rule: The landlord must make reasonable efforts to re-rent the property if the tenant abandons the property early or is evicted by the landlord.
- the landlord must treat the leasehold as if it was vacant stock (ie, like any other property they rent)
- if the landlord does not make diligent efforts to mitigate, the tenant is relieved from the obligation to continue paying rent
- if the landlord does seek to mitigate, the landlord is entitled to the difference between the original rent and the rent received from the replacement tenant
- the landlord does NOT have to accept an unacceptable replacement tenant
Minority Rule: The landlord does not have to mitigate damages. The minority rule is more common in cases involving commercial leases.
Holdover Tenant
The landlord can evict a holdover tenant or can continue the relationship with the tenant by treating the tenant as a periodic tenant.
The landlord will continue the relationship by accepting rent. The amount of the rent is the rent amount under the old lease. BUT the landlord can impose a higher rent ion the landlord had informed the tenant of the increase prior to the expiration of the old lease.
Landlord’s Duty to Deliver Possession
Majority Rule: The landlord must deliver actual possession of the leasehold premises. This means physical possession of the property.
Minority Rule: The landlord is only required to deliver legal possession.
Conditions of the Leased Premises
The landlord cannot deny the tenant quiet enjoyment,ent. Quiet enjoyment is violated when the landlord, or someone connected to the landlord, renders the premises unsuitable for the intended purpose.
The landlord must control:
- common areas (lobby, hallway, laundry room)
- nuisance-like behavior of other tenants
The landlord does NOT have to control:
- off-premises actions of third parties that are beyond the landlord’s control (noisy bar across the street)
If a tenant complains about conditions, the landlord cannot retaliate by evicting the tenant!
Tort Liability - Landlord & Tenant
The tenant owes a duty of care; this extends to invitees, licensees, and foreseeable trespassers.
Landlord’s liability at common law:
- responsible in negligence for hidden defects about which the tenant has not been warned
- responsible for faulty repairs completed by the landlord (or the landlord’s agent) negligently
- responsible for negligence that causes injuries in common areas of the property
Landlord’s liability - modern trend:
- landlords have a general duty of reasonable care
Assignment of a Lease
Assignment is a complete transfer of the tenant’s remaining term.
In an assignment, the landlord can collect rent from:
- the tenant (because of privity of contract), or
- the sub-tenant (because of privity of estate)
