Landlord and Tenant Law

Question 1

Leasehold

Answer 1

A leasehold is an estate in land, under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion)

Four leasehold estates:
- tenancy for years
- the periodic tenancy
- the tenancy at will
- the tenancy at sufferance

Question 2

Tenancy for years

Answer 2

Fixed, determined period of time
- any time - one week or 50 years

Just watch for a termination date - when termination date from the start, tenancy for years

Question 3

Termination of a tenancy for years

Answer 3

Ends automatically at its termination date

No notice needed

Question 4

Writing - tenancy for years

Answer 4

Usually created by written leases

A term greater than one year must be in writing to be enforceable - SOF

Question 5

Periodic Tenancy

Answer 5

Continues for successive intervals - month to month, week to week - until either the landlord or the tenant gives proper notice of termination

Continuous until properly terminated

Question 6

Creation of periodic tenancy

Answer 6

Expressly

Implication / Operation of law
- no mention of duration but payment of rent is at set intervals
- oral term of years in violation of SOF creates implied periodic tenancy, measured by the way rent is tendered (first rental payment renders interest implied periodic tenancy)
- residential lease and landlord holds over a tenant who has wrongly stayed, implied periodic tenancy arises measured by the rent

Question 7

Terminating periodic tenancy

Answer 7

Notice, usually written, must be given

Common law- notice equal to the length of the period itself, unless otherwise agreed
- month to month: one month notice
- week to week: one week notice
- year to year or greater: six months at common law, but one month under the rstm (bar examiners preferred approach

Question 8

Tenancy at will

Answer 8

No fixed period of duration and terminable at the will of either the landlord or the tenant
- as long as L or T desires

Question 9

Creating tenancy at will

Answer 9

Generally, express agreement that the lease can be terminated at any time

Unless parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy
- if lease gives only the landlord the right to terminate, will give pl the same right
- but if lease gives only tenant right to terminate, landlord will not also get the right

Question 10

Terminating a tenancy at will

Answer 10

In theory, can be terminated by either party at any time

But most states require notice and a reasonable time to vacate

Operation of law can also terminate - death or commission of waste

Question 11

Tenancy at sufferance

Answer 11

Tenant wrongfully holds over - remain in possession past the expiration of the lease

Gives the wrongdoer a leasehold estate to permit the landlord to recover rent

Question 12

Terminating tenancy at sufferance

Answer 12

Short-lived

Lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy

No notice of termination required

Question 13

Tenant’s duties

Answer 13

A tenant has two primary duties - repair and pay rent

Doctrine of waste

Question 14

Duty to repair

Answer 14

A tenant need only maintain the premises - modestly keep up with the premises

Distinguish between routine repair (tenant) and a repair from ordinary wear and tear (tenant not obliged)

Question 15

Doctrine of waste - tenant

Answer 15

Linked to duty to repair

Cannot damage - commit waste on - the leased premises
- voluntary (affirmative) waste: tenant’s overt conduct damages the premises
- permissive waste: tenant fails to take reasonable steps to protect the premises from damage from the elements
- ameliorative waste: tenant unilaterally alters the leased property and increases the value - liable for the cost of restoration generally

Modern exception to ameliorative - allows tenant to make this change if a long-term tenant and change reflects changes in the neighborhood

Question 16

Lease silent about repair obligations

Answer 16

Lease is silent - maintain premises in reasonably good repair, but not responsible for ordinary wear and tear

But when when a tenant has expressly covenanted in the lease to maintain the property in good condition:
- common law, tenant responsible for any loss to property, including attributable to nature
- but today, majority view is tenant may end the lease when destroyed without tenant’s fault

Question 17

Failed to pay rent and tenant in possession

Answer 17

Landlord can either:

Evict or sue for rent
- if move to evict, under a state’s unlawful detainer statute and are entitled to rent until tenant vacates

Landlord cannot engage in self-help

Question 18

Failed to pay rent but not in possession

Answer 18

Three options for landlord if tenant wrongfully vacates before end of lease:

Surrender: treat abandonment as implicit offer of surrender, accepts and ends lease
- tenant shows by words and conduct that wants to give up lease

Ignore the abandonment: hold tenant responsible for unpaid rent until end
- minority of states

Re-let the premises: on the tenant’s behalf and hold tenant liable for any deficiency

Majority requires the landlord to at least try to re-let - mitigation principle

Question 19

Rent security deposits

Answer 19

Most states restrict the amount of security deposits to one month’s rent, require landlords to pay interest on security deposits, and allow statutory or punitive damages for a landlord’s improper refusal to return a security deposit

Cannot contract around it

Can keep any for damages actually suffered to the premises

Question 20

Duty to deliver possession

Answer 20

Majority - landlord put the tenant in actual physical possession of the premises at beginning of leasehold term

Question 21

Implied covenant of quiet enjoyment

Answer 21

In every residential and commercial lease

Tenant has a right to quiet use and enjoyment of the premises without interference from the landlord or a paramount title holder

Breach by wrongful eviction or constructive eviction

Question 22

Wrongful eviction

Answer 22

Actual eviction: landlord, a paramount title holder, or a hold-over tenant excludes the tenant from the entire leased premises
- terminates the tenant’s obligation to pay rent

Partial eviction: tenant is physically excluded from only part of the leased premises
- partial eviction by the landlord relieves tenant of entire rent obligation for the entire premises, even though the tenant continues possession in the remainder of it

Question 23

Constructive eviction

Answer 23

Landlord’s breach of duty renders the premises unsuitable for occupancy

Need:
- Substantial interference: chronic / permanent problem due to landlord’s actions / failures
- Notice: tenant must notify the landlord of the problem and landlord does not fix
- get out: tenant must vacate within a reasonable time after landlord fails to mediate

Can terminate the lease and seek damages

Question 24

Landlord liability for acts of other tenants

Answer 24

Generally, landlord not liable to a tenant for the wrongful acts of other tenants

But a landlord
- has a duty to abate a nuisance on site
- must control common areas

Question 25

Implied warranty of habitability

Answer 25

Most jurisdictions apply this only to residential leases

Non waivable

Premises must be fit for basic human habitation - bare living requirements must be met
- case law and local housing code
- no heat in winter, no working plumbing, no running water

Question 26

Breach of implied warranty of habitability

Answer 26

Tenant has three options:
- move out and terminate the lease,
- repair and deduct: reasonable repairs and deduct their cost from future rent
- reduce rent or withhold all rent until court determines fair rental value (must place withheld rent into an escrow account to show good faith)
- remain in possession, pay full rent, and seek money damages

Question 27

Retaliatory eviction

Answer 27

L may not terminate a lease or otherwise penalize T in retaliation for T’s exercise of legal rights

Many statutes presume a retaliatory motive if L acts within a certain time frame (90 to 180 days) after the T exercises
- valid, non retaliatory reason to overcome presumption

Question 28

Civil rights act

Answer 28

bars racial or ethnic discrimination in the sale or rental of all property

Question 29

Fair housing act

Answer 29

Protects tenants and potential tenants from discrimination based on race, color, religion, national origin, see, or disability, as well as familial status

Exemptions - does not apply to
- owner owns building with four or less units of individual people, and
- single-family homes sold or rented by an owner who owns 3 or less single-family homes

Question 30

Prohibited actions under the fair housing act

Answer 30

Unlawful to, because of race, color, religion, sex, disability, familial status, or national origin
- refuse to negotiate, rent, sell housing or make available a mortgage loan or other financial assistance
- provide different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assistance, and
- falsely represent that a dwelling is not available for inspection, sale, or rental

Question 31

Fair housing act and reasonable accommodations

Answer 31

When the fair housing act applies, landlords must allow tenants with disabilities to make reasonable modifications to existing premises to accommodate their disabilities
- at the tenants’ own expense

L must also make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use a dwelling

Question 32

Assignment

Answer 32

Absence of a prohibition, tenant may freely transfer their interest in whole - transfer of the entire remaining term of a lease

Stands in shoes of the original tenant in a direct relationship with the landlord

Question 33

Sublease

Answer 33

Absence of prohibition, tenant may freely transfer their interest in part - tenant has retained some part of the remaining term
- other than a right to reenter upon breach

Purposes of bar exam, will be considered a sublease only when reserves time for herself

Question 34

L approving sublease or assignment

Answer 34

A L can prohibit a tenant from assigning or subletting without the L’s prior written approval

Once consents to transfer by one tenant, waives the right to object to future transfers unless the L expressly reserves the right

Question 35

Relationships in an assignment

Answer 35

Assignee stands in the shoes of the original tenant
- assignee and landlord are in privity of estate so each are liable to the other on all covenants that run with the land
- the original tenant is no longer in privity of estate with the landlord because privity if estate is a product of possession

The original tenant and landlord are in privity of contract because their lease k remains in effect and enforceable
- original tenant is liable on the original contractual obligations and is backup if sublessee breaches

If second tenant then assigns, the T3 now in privity of estate and second tenant is not in relationship with L

Question 36

Covenants that run with the land

Answer 36

Runs with the land if the original parties to the lease so intend and if the covenant touches and concerns the land

Question 37

Legal relationships of a sublease

Answer 37

A sublessee is the tenant of the original lessee and usually pays rent to original lessee who then pays the landlord

Landlord and sublessee are in neither privity of estate nor contract
- T2 is responsible to T1 and vice versa
- sublessee is not personally liable to the landlord for rent or performance unless sublessee expressly assumes the covenants

Question 38

Caveat Lessee

Answer 38

Common law tort - whenever tenant personally injured as a result of a defect, no liability because landlord in tort is under no duty to make the premises safe

Five exceptions
- common areas: reasonable care
- latent defects
- assumption of repairs
- public use rule
- short-term lease of furnished dwelling

Modern trend

Question 39

Caveat Lessee - latent defects

Answer 39

Exception to Caveat Lessee

A landlord must warn a tenant of hidden defects - dangerous condition that the tenant could not discover by reasonable inspection) of which the landlord has knowledge or reason to know

Otherwise, landlord will be liable for any injuries resulting from the condition

Assumes risk if accepts the premises after disclosure

Duty to warn, not duty to repair

Question 40

Caveat Lessee - assumption of repairs

Answer 40

While in tort, a landlord is under no duty to make repairs

But once repairs are undertaken, the landlord must complete them with reasonable care
- if makes repairs negligently, liable

Question 41

Caveat Lessee - public use rule

Answer 41

L who leases public space and who should know, because of the significant nature of the defect and the short length of the lease, that a tenant will not repair, is liable for any defects on the premises that cause injury to members of the public

Question 42

Caveat Lessee - short term lease of furnished dwelling

Answer 42

Landlord who rents fully furnished premises for short period is under a stricter duty than public use

Responsible for any defective condition which proximately injures a tenant whether or not they knew of the defect

Question 43

Modern trend to caveat lessee

Answer 43

Many courts now hold that a landlord owes a general duty of reasonable care toward residential tenants

And will be held liable for injuries in tort resulting from ordinary negligence if the landlord had notice of a defect and an opportunity to repair it