Landlord and Tenant Flashcards
Assignment
An assignment assigns the entire leasehold estate—it is a complete transfer of the remaining term.
Assignment Liability
However, both the assignee and assignor remain liable on the covenant to pay rent, because the assignor is in privity of contract with the landlord, and the assignee is in privity of estate, unless the landlord and new tenant execute an assumption of the lease.
Sublease
If the tenant retains any part of the remaining term, he has made a sublease, and not an assignment. A sublease is different from an assignment, and a bar on one is not a bar on the other.
Sublease Liability
While, as noted, an assignee is in privity of estate with the landlord, and both are thus liable to each other on all covenants that run with the land, this is not the case with a sublessee.
Most Common Type of Tenancy
Usually a tenancy for years (particular amount of time)
Rent
The landlord has the right to receive rent for the term. Notice is required to terminate a lease (often 30 days before termination, but longer if a term for years).
Landlord’s Covenants
(1) landlord’s duty to deliver possession (including timely possession),
(2) the landlord’s covenant of quiet enjoyment and non-disturbance (which goes to the use and enjoyment of the premises), and
(3) the landlord’s implied warranty of habitability (that the property is reasonably suitable for human residence, and which generally extends to residential but not commercial property).
Tenant’s Covenants
(1) the tenant’s covenant to pay rent (the breach of which gives rise to the right to terminate the lease and to evict),
(2) the tenant’s covenant to repair damage they cause, and
(3) the tenant’s covenant not to commit waste. Only discuss the implied covenants if they are implicated.
Whether a Covenant Runs with the Land
In a lease, covenants run with the land—they are binding on successor landlords and tenants, if there is intent (the lease applies to “successors and assigns”), and the covenant touches and concerns the land—it affects the value of the lease to either party in some way.
Effect of Breaching a Covenant
With the exception of the covenant to pay rent, covenants in a lease are independent of each other, so that if a covenant other than the covenant to pay rent is breached, the breaching party may owe damages, but the non-breaching party is not excused from performance.
If Breach of Lease Results in Termination
On a breach of lease that results in lease termination, a tenant is liable for the rent for the remainder of the term, less reasonable rent that a landlord could have obtained.
