Landlord and Tenant Leaseholds Flashcards
Forms of Leasehold Estates
1) Tenancy for Years
2) Periodic Tenancy
3) Tenancy at Will
4) Tenancy at Sufferance
Tenancy for Years
Leasehold estate is measured by a fixed or ascertainable amount of time. Can last as long as the lease term. (EX: Lease for 1 year)
How is a Tenancy for Years created?
Must show evidence of an intent to lease between landlord and tenant. If the term is over a year, then it must conform with the Statute of Frauds (Writing, Essential Terms, signed by asserted party)
How is a Tenancy for Years terminated?
The lease will end once the lease term ends. Typically no notice is required, unless parties agree.
Termination can occur prior to the lease terms conclusion if the tenant surrenders or either the tenant or landlord breach.
Does not survive past either party’s death.
Periodic Tenancy
Leasehold estate that repeats and renew automatically (EX: Month to Month)
How is a Periodic Tenancy created?
1) Expressly through a signed lease. If over a year, must meet SOF requirements.
2) Implicitly of a tenant pays rent and the landlord accepts the payments.
How is a Periodic Tenancy terminated?
Written notice (or oral under common law) must be given before the start of the last term.
If the leasehold was a year to year, have to provide six months advance.
Does not survive past either party’s death.
Tenancy at Will
A leasehold estate where there is no specific durational length or term attached. Rather, it goes on however the landlord or tenant desires.
How is a Tenancy at Will created?
1) Expressly in writing (SOF if over a year)
2) Implicitly if landlord permits tenant to stay until an unknown; acceptance of rent counts as acceptance from the landlord
How is a Tenancy at Will terminated?
Usually terminating party must provide 30 days notice, or a reasonable amount of time.
Landlord Exclusive Right: If only the landlord can terminate, the right is also provided to the tenant.
Tenant Exclusive Right: If only the tenant can terminate, the right is NOT provided to the landlord.
CAN survive either party’s death!
Tenancy at Sufferance
Occurs when a tenant stays in the estate after the lease has ended. In doing so, they become a “holdover tenant.”
Usually occurs after a reasonable amount of time a passed since the lease has ended (staying for a few hours does not count)
What are the options for a holdover tenant and a landlord?
1) Tenant may voluntarily leave
2) Landlord may evict through judicial proceedings (self-help generally banned)
3) Landlord may re-rent the property to the tenant, either by express agreement or accepting rent; typically through a periodic tenancy.
Tenant’s Duty to Pay Rent
If there is a valid leasehold, the tenant is required to timely and fully pay rent to the landlord.
EXCEPTIONS:
1) The premises are destroyed (not by tenant)
2) The landlord completely or partially evicts the tenant
3) The landlord breaches (i.e. breach of implied warranty)
4) Tenant successfully abandons following landlords acceptance
Tenant’s Duty to Avoid Waste
Not permitted to commit an affirmative or permissive waste. Affirmative can be OK, but usually need landlords permission.
Tenant’s Tort Liability
A tenant has a duty of care to all invitees, licensees, or foreseeable trespassers.
Landlords remedies to Tenant’s breach
1) Suing for past rent due if tenant was in possession yet evicted
2) Refusing tenant’s abandonment and requiring rental payments
3) If holdover tenant, may evict or resume a new periodic tenancy.
CANNOT sue for future rent due re: anticipatory breach!
NOTE: A landlords damages may be limited if they neglect their duty to mitigate (majority rule)
Landlord Duties: Implied Covenant of Quiet Enjoyment
A landlord has an implied duty not to interfere with a tenant’s possession of the premises. An substantial interference by the landlord (or other tenants reasonably within his control) constitutes as a constructive eviction.
What is the doctrine of constructive eviction, and what must a tenant demonstrate to escape rent?
Under the doctrine of constructive eviction, if the landlord breaches a duty to the tenant, such as failing to make a repair, that substantially interferes with the tenant’s use and enjoyment of the leasehold (e.g., fails to provide heat or water), then the tenant’s obligation to pay rent is excused only if the tenant gives notice and adequate time to permit the landlord to fulfill his duty and vacates the property within a reasonable amount of time.
1) Notice
2) Reasonably opportunity to fix
3) Vacates the property within reasonable amount of time
Landlord Duties: Implied Warranty of Habitability
Landlord has a duty to ensure that a residence is reasonable suited for residential use. A condition that substantially threatens a tenant’s health or safety violates this warrant.
Evidence of a breach in housing codes does not make this a breach pre se, but can be used as evidence.
A tenant DOES NOT need to vacate to pursue remedies.
What must a tenant show to escape rent under IWH?
1) Notice to landlord
2) Landlord fails to fix in reasonable time
At that point, tenant may either:
1) Refuse to pay rent
2) Remedy defect and offset costs from from rent
3) Defend against eviction
Landlord’s Duty to Repair
The landlord has the duty to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant.
Commercial Leases: Landlord delegate this duty onto the tenant(s).
Landlord’s Duty to Mitigate
MAJORITY: A landlord must mitigate damages by making a reasonable effort to re-rent the premises. The landlord who re-rents the premises on the tenant’s behalf may hold the tenant liable for the difference between the OG rent and the replacement rent.
MINORITY: Landlord has no mitigation duty.
Landlord’s Duty to Deliver Possession
MAJORITY: Landlord is required to provide physical and legal possession of the leasehold premises.
MINORITY: Landlord is only required to provide legal possession of the leasehold premises.
Landlord’s Duty to Control Premises
A landlord has a duty to control the common areas of the premises (lobby, stair, etc) and any nuisances by other tenants.
A landlord does not have a duty to control off-premise third party actions.
