Landlord (L) and Tenant (T) Flashcards
What is a tenancy for years, what are its requirements?
What additional requirement does a tenancy for years have to meet if it’s longer than one year?
It’s a tenancy with the following requirements:
-> any fixed period of time
-> automatically terminates at end of term (no notice needed)
-> may be terminated before the end of the term (e.g. breach of lease covenant gives rise to right to terminate)
-> created by express agreement
if the term is longer than one year, statute of frauds applies: written lease signed by party to be charged must identify parties, premises, lease duration, and rent to be paid
What is a periodic tenancy, what are its requirements?
Does the SoF apply, if so when?
A periodic tenancy has the following requirements:
-> Repetitive, ongoing estate by set period of time, but with no predetermined termination date
-> Term may be fixed by the parties or by their actions
AND
-> Automatically renews at end of each period unless valid termination notice given by one of the parties.
SoF doesn’t apply unless initial term exceeds one year.
Created by express agreement, implication (no mention of duration), or operation of law (holdover tenant).
What does the termination notice under a periodic tenancy require?
What happens if the termination notice is late?
When is notice of termination effective?
Is oral notice sufficient?
Must generally be given before last period begins,
-> BUT for a year-to-year periodic tenancy, notice must be given at least 6 months (rather than one year) in advance
Late notice is effective for the next period, so the periodic tenancy ends at the end of the next period.
Generally effective as of the last day of the period.
Oral notice is sufficient under common law, but most states now require some writing
What is a tenancy at will, what are its requirements?
How is a period tenancy and a tenancy at will different?
Who can terminate a tenancy at will terminated?
Is notice required of termination?
A tenancy at will has the following requirements:
-> does not have a specific term, continues as long as L and T want
-> created by express agreement or by implication
It’s different to a periodic tenancy as there a periodic tenancy is linked to periods that automatically renew, but here we aren’t dealing with periods of tenancy that automatically renew.
May be terminated by either party.
At common law, no notice required,
-> BUT L must give T reasonable time to vacate.
Most states now require notice; may also be terminated by operation of law.
What is a tenancy at sufferance (holdover tenancy)?
How long does a tenancy at sufferance last?
A tenancy at sufferance has the following requirements:
-> T wrongfully remains in possession after expiration of a lease
-> T is bound by terms of the lease that existed before expiration, including payment of rent
Tenancy at sufferance lasts until
-> T vacates,
-> L evicts T,
OR
-> L elects to hold T to periodic tenancy
What are the duties of the tenant?
Is affirmative waste allowed?
Is ameliorative waste allowed?
Is permissive waste allowed?
Pay rent
-> UNLESS premises destroyed (lease terminated and tenant excused), or material breach by landlord.
Avoid waste:
-> affirmative waste - T is prohibited from committing voluntary waste
-> ameliorative waste - T may make changes to physical condition of property that increase the property value IF reasonable necessary for T to use property in reasonable manner, unless L and T agree otherwise
-> permissive waste - unless relieved by lease, statute, or ordinance, T has a duty to repair the premises to keep it in its pre-rental condition; no duty to repair normal wear and tear (unless L and T agree otherwise)
What are L’s remedies for T’s breach by failing to pay rent?
Can L collect future rent?
What are L’s remedies for T’s breach by paying rent late?
What are L’s remedies for T’s breach by abandonment of rent?
What are L’s remedies for T’s breach by becoming a holdover T?
Failure to pay rent - (majority) L can sue for damages AND evict AND terminate lease (could not evict or terminate lease at CL)
Future rent - no anticipatory repudiation (AR) in most states so can’t collect future rent, ONLY can collect rent as they become due.
Some states where AR applies,
-> damages limited to difference between future rent under lease and either (i) reasonable rental value or (ii) actual rent collected from re-letting
Late rent - L entitled to damages;
-> whether L can sue to remove depends on if breach is material or L waived right to evict by accepting late rent
Abandonment - treated as offer to surrender rights under the lease
–> L accepts surrender - lease terminates and T’s liability for future rent ends
–> L rejects surrender - T remains liable for rent, but under majority rule, L has duty to mitigate damages
Holdover T - L can
-> accept holdover tenant as periodic tenant or tenant at sufferance
OR
-> sue after notice to vacate
What are the duties of the landlord (L) to T?
Are there any duties that don’t apply to commercial leases?
Possession - L must deliver actual physical possession or no obligation for T to pay rent.
Repair - except for T damages, L must repair for residential
-> BUT not for commercial leases.
What is the warranty of habitability?
What happens if the warranty is breached?
Warranty of habitability (residential) applied between L and T
-> premises must be fit for basic human habitation (health/safety).
If breach between L and T relationship:
-> T must notify L of defect and give reasonable time to repair,
AND
-> then T can refuse to pay rent, make reasonable repairs and deduct cost from future rent, or remain in possession, pay rent, and seek damages
What is the covenant of quiet enjoyment? What is L’s duty under this covenant?
Covenant of quiet enjoyment (commercial and residential)
- T has a right to quiet use and enjoyment of the premises without interference from L
- L has duty to control other tenants’ nuisance in common areas
- Breach may amount to eviction
What are the types of eviction?
Actual eviction - if L excludes T from premises, then lease is terminated and T’s obligation to pay rent ends
Partial eviction - T is prohibited from using or possessing a portion of the premises
-> T excused from paying rent for L’s partial eviction of T,
-> BUT T must pay reasonable rental value IF partial eviction is by third party with superior claim
-> T not excused from paying rent for partial eviction by adverse possessor/trespasser
Constructive eviction - substantial interference caused by L’s actions or failure to act,
-> T must give notice of problem,
-> if L fails to respond or L fails to fix problem within reasonable time, T must vacate premises
Is retaliatory eviction allowed?
Retaliatory eviction - L may not evict a residential T for complaining about housing code violations or refusing to pay rent when L breaches the warranty of habitability (defense not available to T in unjustifiable arrears)
What are the rules regarding security deposits?
Amount and terms (e.g. more for pet) generally set by state statute.
Usually retained in an escrow account and must be promptly returned at the end of the lease, absent an explanation for retaining ti.
What are the tort liabilities for tenants?
A duty to care to
-> invitees/licensees/foreseeable trespassers
AND
-> may be liable for dangerous conditions/activities.
What are the tort liabilities for landlords?
CL - liable for injuries
-> in common/public areas,
-> in non-common areas under L’s control,
OR
-> from hidden defect/faulty repair by L or L’s agent
Modern trend - general duty of reasonable care; liability for
-> defects existing prior to T’s occupancy,
-> failure to make required repairs,
AND
-> criminal activities of third parties who injure Ts
