Landlord and Tenant Leaseholds

Question 1

Forms of Leasehold Estates

Answer 1

1) Tenancy for Years

2) Periodic Tenancy

3) Tenancy at Will

4) Tenancy at Sufferance

Question 2

Tenancy for Years

Answer 2

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)

Question 3

How is a Tenancy for Years created?

Answer 3

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)

Question 4

How is a Tenancy for Years terminated?

Answer 4

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.

Question 5

Periodic Tenancy

Answer 5

Leasehold estate that repeats and renew automatically (EX: Month to Month)

Question 6

How is a Periodic Tenancy created?

Answer 6

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.

Question 7

How is a Periodic Tenancy terminated?

Answer 7

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.

Question 8

Tenancy at Will

Answer 8

A leasehold estate where there is no specific durational length or term attached. Rather, it goes on however the landlord or tenant desires.

Question 9

How is a Tenancy at Will created?

Answer 9

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

Question 10

How is a Tenancy at Will terminated?

Answer 10

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!

Question 11

Tenancy at Sufferance

Answer 11

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)

Question 12

What are the options for a holdover tenant and a landlord?

Answer 12

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.

Question 13

Tenant’s Duty to Pay Rent

Answer 13

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

Question 14

Tenant’s Duty to Avoid Waste

Answer 14

Not permitted to commit an affirmative or permissive waste. Affirmative can be OK, but usually need landlords permission.

Question 15

Tenant’s Tort Liability

Answer 15

A tenant has a duty of care to all invitees, licensees, or foreseeable trespassers.

Question 16

Landlords remedies to Tenant’s breach

Answer 16

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)

Question 17

Landlord Duties: Implied Covenant of Quiet Enjoyment

Answer 17

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.

Question 18

What is the doctrine of constructive eviction, and what must a tenant demonstrate to escape rent?

Answer 18

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

Question 19

Landlord Duties: Implied Warranty of Habitability

Answer 19

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.

Question 20

What must a tenant show to escape rent under IWH?

Answer 20

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

Question 21

Landlord’s Duty to Repair

Answer 21

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).

Question 22

Landlord’s Duty to Mitigate

Answer 22

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.

Question 23

Landlord’s Duty to Deliver Possession

Answer 23

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.

Question 24

Landlord’s Duty to Control Premises

Answer 24

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.

Question 25

Landlord Tort Liability

Answer 25

COMMON LAW: For invitees, licenses, and foreseeable trespassers, landlord is responsible for:

1) Negligence with latent defects that landlord is aware of

2) Faulty repairs by a landlord or landlord’s agent

3) Negligence with injuries that occur in common areas

MODERN: Just a reasonable duty of care to all.

Question 26

Assignments and Subleases

Answer 26

Unless there is prohibited language describing otherwise, a lease can be freely subletted or assigned.

Assignment: Complete transfer of tenant’s remaining lease term and interest

Sublease: Partial transfer of tenant’s leaseterm and interest; will ultimately be returned to the tenant.

Question 27

Rent with Assignments and Subleasing

Answer 27

Assignment: A landlord may charge either the tenant (through privity of contract) or subtenant (through privity of estate

Sublease: A landlord may only charge a tenant; a subtenant only has obligations to the tenant.

Question 28

Restrictions on Assignments and Subleasing

Answer 28

If the lease is silent, a tenant may sublet or assign freely.

If prohibited, typically need landlords consent. Majority rule says the landlord needs a commercially reasonable reason; minority rule says landlord can deny with discretion.

If a landlord restricts transfer yet accepts rent from subtenant, they have consented and waived the prohibition.

Question 29

Can a landlord assign their interest to a new landlord?

Answer 29

Yes; a tenant does not need to be notified.

However, a new landlord cannot raise the rent of an existing tenant without that tenant’s permission.