Landlord and Tenant Law

Question 1

What are the four types of leasehold estates? Describe them briefly.

Answer 1

1) Tenancy for years: a tenancy with an agreed-upon end date
2) Periodic tenancy: a tenancy for a fixed period that continues for successive periods until notice of termination
3) Tenancy at will: a tenancy that with no fixed period that may be terminated at any time
4) Tenancy at sufferance: tenancy that is created when a tenant wrongfully remains in possession after lease period and lasts until tenant is evicted or new periodic tenancy is created`

Question 2

When is notice to terminate a periodic tenancy required?

Answer 2

Notice must be equal to one period. For year to year leases, 6 months. Unless lease agreement provides otherwise.

Question 3

Does the tenant’s failure to pay rent allow the landlord to terminate the lease? (historical v modern approach)

Answer 3

Historically, no. A landlord cannot terminate a lease, and can only sue for damages. Modern view: yes. Landlord can terminate lease.

Question 4

What is an unlawful detainer action?

Answer 4

An action taken by the landlord to evict a tenant who refuses to pay rent, the alternative option to suing for rent.

Question 5

If the tenant abandons the property, what are the landlords remedies?

Answer 5

1) Landlord can accept surrender and relet the property.
2) Landlord can sue for rent owed, but has the duty to mitigate by reletting. Damages equal difference between rent promised and fair rental value/rent received from reletting.

Question 6

What is the implied covenant of quiet enjoyment?

Answer 6

Every landlord promises to the tenant that neither the landlord nor a paramount title holder will interfere with the tenant’s quiet enjoyment and possession of the premises

Question 7

What is actual eviction? What are the consequences?

Answer 7

Actual eviction occurs when the landlord or a paramount title holder excludes the tenant from the entire premises. The tenant’s duty to pay rent terminates.

Question 8

What is partial eviction?

Answer 8

Partial eviction occurs when the landlord or a paramount title holder excludes the tenant from part of the premises. If the landlord partially evicts the tenant, the tenant’s duty to pay rent terminates. If the paramount title holder partially evicts the tenant, the tenant is bound to pay the portion to the rent corresponding to the part of the premises over which he can access.

Question 9

What is constructive eviction? What must a tenant do to claim it?

Answer 9

Constructive eviction results from a landlord’s breach of duty. The breach must cause substantial interference with the tenant’s quiet enjoyment of property. The tenant must have notified the landlord. If the landlord failed to remedy the breach, the tenant must move out. Only then can a tenant justify not paying rent by arguing constructive eviction. Tenant may also seek damages.

Question 10

True or false: the implied covenant for quiet enjoyment applies only to residential leases.

Answer 10

False. The implied covenant for quiet enjoyment applies to both residential and commercial leases.

Question 11

True or false: the implied covenant of habitability applies to both residential and commercial leases.

Answer 11

False. The implied warranty of habitability applies to residential leases only.

Question 12

What are a tenant’s remedies for a breach of the warranty of habitability?

Answer 12

1) Moveout: tenant may terminate the lease and leave, or
2) Repair: tenant may pay for repairs and offset cost against future rent
3) Rent: tenant may withhold rent or abate rent in view of defects
4) Remain: tenant may stay and sue for damages.

Question 13

If the tenant assigns the lease to an assignee, who can the landlord sue if the assignee does not pay rent?

Answer 13

Both the tenant, under privity of contract, and the assignee, under privity of estate. If the assignee reassigns to another assignee, the first assignee is no longer liable because there is no privity of estate anymore.

Question 14

If the tenant subleases to a sublessee, who can the landlord sue for rent if the sublessee does not pay rent? What else can the landlord due?

Answer 14

The landlord can sue only the tenant. The tenant then has to recover from the sublessee.
The landlord can also terminate the main lease, which also terminates the sublease.

Question 15

Can the sublessee enforce any covenants against the landlord?

Answer 15

No. The sublessee cannot enforce any covenants in the lease agreement, since only the landlord and the tenant (sublettor) or parties to that agreement. The sublessee may be able to enforce the implied warranty of habitability against the landlord.

Question 16

True or false: once a landlord consents to one assignment/sublease, the landlord waives the objection to subsequent transfers

Answer 16

True, unless explicitly provided for otherwise.

Question 17

True or false: if a tenant assigns or sublets in violation of a covenant not to do so, the transfer is void.

Answer 17

False. The transfer is not void. The landlord may terminate the lease or sue for damages though.

Question 18

Generally, a landlord is not under a duty to make the premises safe. What are the exceptions?

Answer 18

1) Landlord knew or should have known of a latent defect.
2) Landlord has a duty to maintain the common areas.
3) Public use - landlord leases premises out for a public use or knows that tenant will do so, AND knows that condition will not be repaired before then
4) Furnished short-term residences: landlord has duty to keep space safe
5) Negligent repairs by landlord, either begun or promised

Question 19

What is a fixture?

Answer 19

A fixture is a chattel that has become so affixed to land that it has become part of the realty.

Question 20

When will a court recognize a fixture?

Answer 20

When the party that made the affixation objectively intended for the item to permanently improve the property. Court may also consider the damage that would result from removing it.