Landlord Duties Flashcards
Duty to Deliver Possession
The majority rule requires the landlord put the tenant in actual physical possession of the premises at the beginning of the lease term
Therefore, it at the start of the lease, a prior hold over is on the premises, the landlord has breached and the tenant is entitled to damages.
Implied Covenant of Quiet Enjoyment (highly tested)
In every residential and commercial lease, there is an implied covent of quiet enjoyment - the tenant has a right to use the enjoy the premises without interference from the landlord or a paramount title holder.
A landlord breaches this implied covenant by either wrongful or constructive eviction
Wrongful Eviction
Actual Wrongful Eviction - this occurs when the landlord, a paramount title holder, or a hold over tenant excludes the tenant from the entire leases premises. Actual wrongful eviction terminates the tenants obligation to pay rent (to the whole)
Partial Wrongful Eviction - Partial wrongful eviction occurs when the tenant is physically excluded from only part of the leased premises. Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the ENTIRE premises, even though the tenant continues in possession of the remainder.
Constructive Eviction
Constructive eviction occurs when the landlord’s breach of duty renders the premises unsuitable for occupancy.
To have a claim for constructive eviction (SING) the following must be met:
S,I - Substantial Interference - There must be a chronic or permanent problem due to the landlord’s actions or omissions
N - Notice - The tenant must notify the landlord of the problem and the landlord must fail to remedy the issue
G - Goodbye - the tenant must vacate the premises within a reasonable time after the landlord fails to remedy the issue.
A tenant who has been constructively evicted may terminate the lease and may also seek damages
Constructive Eviction and Acts of Third Parties
Generally, a landlord is not liable for the wrongful acts of others.
Two Exceptions:
1) A landlord has a duty to abate a nuisance on site
2) a landlord must control the common areas
GA Commercial Lease Constructive Eviction
In GA, constructive eviction under a commercial lease occurs when:
1) A landlord with a duty to maintain a proper state or repair allows the premises to become unfit for the tenant to conduct business for which it was rented; and
2) the premises cannot be restored with ordinary repairs that do not unreasonably interrupt the tenant’s business
Implied Warranty of Habitability (Highly Tested)
most jurisdictions imply a covenant of habitability into residential leases (not commercial). The implied warranty of habitability is nonwaivable.
The implied warranty of habitability provides that the premises must be fit for basic human habitation. The appropriate standard for habitability is determined on case law and local housing code.
Breach of Implied Warranty of Habitability
If the implied warranty of habitability is breached, the tenant may (MR3):
1) Move out and terminate the lease;
2) Repair and deduct - some statutes allow a tenant to make reasonable repairs and deduct their costs from future rent
3) Reduce rent or withhold all rent until the court determines fair rental value (typically the tenant must place the withheld rent into escrow)
4) Remain in possession, pay full rent, and affirmatively seek money damages
NOTE - unlike constructive eviction, the tenant does not have to vacate premises to be successful
Retaliatory Eviction
A landlord may not terminate a lease or otherwise penalize the tenant in retaliation for the tenant’s exercise of their legal rights.
Many states presume a retaliatory eviction if the landlord acts within 90-180 days after the tenant exercises their rights. To overcome this presumption, the landlord must show a valid, nonretalitory reason for their actions.
GA Specific Landlord Duties
Utilities - It is illegal for a landlord to knowingly and willfully suspend furnishings of utilities to a tenant until after the final disposition or any dispossessory proceeding
Repair - In GA, the landlord must keep the premises in repair. If the landlord fails to make necessary repairs within a reasonable time, the tenant may make the repairs and deduct the costs of the repairs from any rent
Flooding - if a residential property has flooded at least three times in the last five years and damaged the living space, the landlord must (before contracting) notify a prospective tenant in writing of the property’s propensity to flood.
– Failure to supply such notice renders the landlord liable in tort to the tenant and their family for property damage that is proximately caused by flooding during the lease term
Civil Rights Act
The civil rights act bars racial or ethnic discrimination in the sale or rental of all property
Fair Housing Act
the fair housing act protects tenants and potential tenants from discrimination based on race, color, religion, national organ, sex, or disability, as well as familial statute (except in senior hosing)
Exemptions from Fair Housing Act
Except for the advertising requirement, the fair housing act does not apply to
1) owner occupied buildings with four or fewer units in which persons live independently of each other;
2) single family homes sold or rented by an owner who owns no more than three single family homes
Prohibited Actions under FHA
– refuse to negotiate, rent, or sell housing or make available a mortgage loan or the financial assistance (based on the things in the fair housing act)
– providing different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assistance
– falsely representing that a dwelling is not available for inspection, sale, or rent
Advertisements under FHA
It is unlawful to make, print, or publish any notice or advertisement that indicates any preference or limitation based on race, color, religion, sex, disability, familial status, or national origin.
May be violated by the person who makes the advertisement and the person who publishes it
