Landlord and Tenant Flashcards
What is a leasehold?
The temporary right to property granted by a lease
Four types of leasehold estates
1) Terms of years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance
Terms of years
- Has fixed starting and ending date
- Ends automatically and no notice is required
Periodic tenancy
- Has indefinite duration and continues for succeeding periods until LL or T gives notice of termination
- Notice must be given to the equal length of the period, with max of 6 months
(i. e. if year to year - just need 6 month notice; if month to month - 1 month notice) - Tenancy comes to an end at the end of the period (i.e. ends Dec. 31 even if notice was given Nov. 15)
- “Good notice” is described on the lease or has to be obvious to a reasonable person
- If bad notice, either:
- Void (no notice)
- Good notice for next period
Tenancy at will
- Has indefinite duration until either LL or T (1) gives notice, (2) dies, or (3) conveys prop to someone else
- Typically 30 days notice is required
Tenancy at sufferance
- Created when there’s a “holdover tenant” (tenant who stays past end of lease)
- LL can treat T as
(1) a trespasser - and evict
(2) a tenant for a new term - and create new tenancy w/ same terms as old tenancy
Lease requirements
According to Statute of Frauds (SOF), leases MUST be:
1) In writing:
- If more than 1 year must be in writing.
- If <1 year, some oral leases are enforceable
2) Signed by person who is enforced by lease
3) Elements
- Property requirements: leasing language, LL’s signature
- Contract requirements: K terms, consideration, LL and T’s signature
- Basic leasehold duties
Tenant selection and anti-discrimination statutes
- Fair Housing Act
Prohibits discrimination in the sale, rental, and financing of housing based on race, religion, national origin.
Later added: gender, disabled persons, civil rights workers, and families with children. - Civil Rights Act: same ^
- Now can only judge on the grounds directly related to T’s ability to complete the lease.
Critical distinctions:
- Who can’t discriminate: state/private party
- Against whom: person/citizen
- On what basis: race/sex/religion/national origin
- Regarding what property: resident/commercial
- In which activities: sale, rental, advertising
Subleasing
Occurs when T transfers to a 3rd party less than he/she has and keeps a reversion
Relationship: LL –> T –> Subleasee
LL –> T : privity of contract + privity of estate
T –> Subleasee : privity of contract + privity of estate
LL –> Subleasee: no legal relationship
*A sublease doesn’t create legal relationship b/t 3rd party and the LL, thus, 3rd party can’t be held liable. However, T can be held liable to LL
Key terms:
- Privity of estate: successive/concurrent interest in same property
- Privity of contract: relationship b/t parties b/c of a contract (can sue each other)
Assignment
Occurs when T transfer to 3rd party all he/she has and does not keep a reversion
Relationship: LL –> T –> Assignee
LL –> T : privity of contract
LL –> Assignee : privity of estate
T –> Assignee : privity of contract
*Privity of estate exists b/t 3rd party and LL, thus 3rd party can be held liable. T still maintains privity of contact and can also be held liable to LL.
Overall transferability
Common law of property - judicial doctrine
(a) Promote free alienation of estates
- If lease silent: free alienation by LL and T
- If lease restricts alienation: read narrowly
(i. e. restriction on sublease doesn’t restrict assignment)
(b) Respect party autonomy
- If parties generally agree to restrict - will generally be allowed
- Exceptions for unconscious-ability, overreaching, unequal bargaining power
Tenant duties
Tenant has the duty to:
1) Pay rent
* If fail, LL can sue for: rent, damages, specific performance, eviction, distress for rent (very old doctrine), or leasehold remedies
2) Maintain premises (avoid waste), BUT has no duty to repair or notify LL of repairs (but a commercial tenant is)
* If fail, LL can sue for: damages, specific performance (make person do what K says), eviction, or leasehold remedies
3) Not abandon property
*If abandon, LL can sue for: rent, damages, leasehold remedies
AND LL has three options:
(1) Do nothing until end of the term - BUT this option not allowed in majority b/c LL must mitigate damages
(2) Terminate the tenancy and re-lease to new tenant
(3) Re-lease the premises on tenant’s behalf
[Note: LL must mitigate damages]
Types of eviction: self-help
- Choice of law:
- Common law: reasonably necessary force
- New: peaceable
- Newest: no self-help (have to go to court)
Types of leasehold remedies: security deposit, late charges, rent acceleration
Landlord duties
LL has duty to/of:
1) Deliver possession
- American rule: just legal possession (minority view)
- English rule: both legal possession and physical possession
* If fail, T can withhold rent
2) Covenant of quiet enjoyment:
For BOTH commercial and residential tenants
Ensure that tenant will not be disturbed in possession and enjoyment of the property + LL will not withhold something essential to the lease
- Constructive eviction: if premises is so unsatisfactory that T is prevented from using it
- Actual eviction: T is deprived of occupancy of some part of the premises
- If CoQE breach, T can vacate premises and w/hold rent OR stay and sue for damages
3) Implied Warrant of Habitability (IWH)
ONLY for residential tenants
Ensure the premises are habitable and will remain so throughout duration of the lease
*If not, T can w/hold rent, rent abatement, stay and sue for damages
4) Disclose latent defects
* If not, T can w/hold rent
5) Maintain common areas + repair
* If not, T can w/hold rent
6) Abate immoral conduct/nuisances
* If not, T can w/hold rent
7) Mitigate damages *when abandonment
LL has to try to find new tenant to mitigate damages
(Has to use “reasonable effort” to find new tenant for same/less rent than the tenant; OG tenant then pays the difference)
*If not, T can get credit of rent $ from new tenant
