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Property > Landlord/Tenant > Flashcards

Landlord/Tenant Flashcards

1
Q

There are only 4 present possessory estates in land. Not including freehold estates, what are they?

A

Leasehold Estate

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2
Q

What is a Term for Years?

A

A lease-hold estate for any fixed period of time. Can be 6 month rental contract. No need for notices to have arrangement end [by tenant or landlord]

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3
Q

Does a Term for Years “term” begin on the first of the month, for notice purposes?

A

No, terms for years can be for any fixed period of time. (Ex: K renting property from Aug 18, 2024 to Dec 11, 2024)

No need for notice, as it will terminate immediately upon the defined end date.

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4
Q

What is a Periodic Tenancy?

A

Month to month lease or year to year lease that rolls over. Automatically rolls over to the next period unless somebody stops it.

To stop it you must give notice. For month-to-month: give 1 month notice [in CA if tenant has been there more than a year, then you have to give 2 months notice to kick them out].
For year to year: give 6 months notice

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5
Q

T/F : You cannot be terminated in the “middle” of a periodic tenancy period

A

No. If you don’t give notice at the start, then it just rolls over to the next period.

In other words, it must end the tenancy on the last day of the period, so that the other party has a full notice period to respond.

Ex: I get told I have to leave, I don’t have 1/2/6 months FROM THAT DAY, I have 1/2/6 months from the start of my next period

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6
Q

What is a Tenancy at Will?

A

Either tenant or landlord can end the tenancy at any time for any non-forbidden reason.

Forbidden reasons: discrimination on race, retaliation from complaints

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7
Q

Tenancy at will is most likely to have arisen out of

A

Operation of law (i.e. invalid lease) BUT payment of rent converts tenancy at will to periodic tenancy

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8
Q

How was tenancy at will changed?

A

The modern rule was Approx. 30 days notice. Now thats gone.

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9
Q

What is a Hold-over tenancy?

A

Tenant is offering to stay by paying rent and landlord is accepting; rolls over to the next time period.

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10
Q

How long is the Periodic tenancy if the holdover tenant keeps paying & LL

A

Mont-to-month leases: another month
Year-to-year lease: probably another 6 months

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11
Q

“Solutions” to Holdover tenancy

A

Termination: Landlord can evict is he does not accept rent

Transformation: In most jx, holding over gives rise to a periodic tenancy “on same terms”

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12
Q

What is an independent covenance?

A

Requires the tenant to pay rent even when landlord doesn’t make repairs. [Traditional View]

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13
Q

What is a dependent convenace?

A

Allows for tenant self help remedy. [Modern Rule]

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14
Q

Do you have to re-rent to someone else?

A

Traditionally no, but following the contract rule the modern trend says you have a duty to mitigate damages.

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15
Q

Implied warranty of merchantability [Don’t really need to know]

A

Analogy to Contract Law

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16
Q

What is the 1968 Civil Rights Act?

A

Landlords can not discriminate against tenants based on a series of factors:
Race,
sex [lesbian women case [SCOTUS]] where landlord knew there was a hostile environment and landlord has to care or do something or they violate Civil Rights act [not every court would agree],
family status, handicap, national origin, religion

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17
Q

What are the exemptions to the 1968 Civil Rights Act?

A

Renting out a single-family house or a single room in a house that you own, but you can’t use brokers or (discriminatory) advertising

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18
Q

What is the 1886 Civil Rights Act? (AKA Fair Housing Act)

A

Concerned about race only, does not contain any exemptions. Not intended to deal with private discrimination

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19
Q

When would we mention Fair Housing Act of 1866 in Issue Spotter?

A

It was a post-Civil War statute concerned about freed slaves But as of ‘68 Supreme Court private discrimination is covered so not relevant for modern . . .

BUT Important bc it contains no exemptions,

Ex: If you’re trying to discriminate based on race for your own single family house, you might be okay under the ‘68 act but you might not be okay under the old statute (1866) as interpreted because there is no exemption!

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20
Q

T/F : After a tenant files an anti-discrimination complaint, the LL can choose to remove said tenant as long as they don’t give discriminatory reasons when they evict them

A

Probably False. They might get away with it, but you cannot retaliate against anyone for filing an anti-discrimination complaint. See Wetzel.

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21
Q

Delivery of Possession: I’m supposed to be able to rent starting on 1/1. I show up and tenant is not leaving, they are supposed to leave because rent is up and they are holding over. Is landlord liable to T2 for not kicking out T1?

A

American Rule: landlord not liable
English rule: Landlord liable

Econ: Should there be a duty?
Landlord is the cheaper cost avoider. T2 has no idea how to kick out T1.

(Note: Wonnell also mentioned the K efficiency term “low-cost risk bearer” in regards to this exchange –> english law has an edge economically)

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22
Q

[CHECK THIS]: Delivery of Possession Rule?

[CHECK IN OH - I DON’T HAVE DAMAGES NOTES]
LL Responsibility : Delivery of Possession

A

Landlord has duty to convey good title to the tenant
Breach of contract by landlord

Do you have a duty to incur cost of physical removal?
US: No UK: Yes (and Restatement Approach)

American Rule: A tenant may sue to recover possession and damages from the person wrongfully in possession.

English Rule: Tenant can terminate the lease and sue the landlord for damages, or, if the third party is in possession of only part of the premises, to take possession of the remainder with a proportionate abatement in rent and damages.

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23
Q

LL Responsibility : Under Delivery of Possession, tenant has the right to

A

possession (once the lease commences, no sooner)

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24
Q

LL Responsibility : Delivery of Possession (Restatement /English Rule)

A

LL must put the tenant in actual possession

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25
Q

Landlord Rents to T1 and T1 transfers to T2. Can L sue T2 for non-payment of rent or other lease violations?
What are the two ways in which T2 can be liable to L?

A

Privity of Estate or Privity of Contract. Must determine whether the transfer was a sublease or an assignment.

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26
Q

How do we determine if something is Privity of Estate?

A

If there was an assignment to T2. An assignment is when T1 transfers everything that you still have to T2. We can also find this from explicit language in the contract. Sublease means no privity of estate.

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27
Q

How do we determine if something is Privity of Contract?

A

Did T2 assume the lease? Assumption is usually expressed? If yes then there is privity of contract. If no [simply promising they would pay rent only] then no privity of contract.

28
Q

How do we distinguish Assignment vs. Sublease

A

CL: Assignment arises when a lessee transfers his right to possession for the entire term of the lease.

Modern [Minority]: Intention of the parties governs, although actual words used are often persuasive in the final determination.

29
Q

Kait’s: Assignment v Sublease for dummies

A

What seems to be the most important thing is: “Is T1 transferring everything that they still have to T2?”

Yes: Assignment (Coach –> Winston)
No: Sublease

30
Q

What if the contract prohibits assignment or subleasing without the landlord’s consent? Does L have carte blanche ability to refuse assignment or sublease or must there be good reasons?

A

Kendall Case, codified by statute: Yes good faith is required.

Good reason = T2 is insolvent, or is reckless and has a bad reputation.

Can’t refuse just because the market price has changed.

Statutory in CA but limited to Commercial Real Estate.

31
Q

Cal. Civil Code §1995.260

A

Kendall case statute, limited to Commercial Real Estate.

32
Q

Is T1 going to be liable to L for T2 Violations?

A

T1 almost always remains liable

Exception: Novation, which is an agreement by L that T1 will not be liable and that T2 will be substituted in. (1) Requires express statement by the landlord that they will not hold T1 liable.
(2) Under the Restatement (2nd) a lessor must have a commercially reasonable reason for withholding consent

T1 typically liable: like having a cold and giving to someone else, you still have the cold.

33
Q

What is the California Rule on Rent Control?

A

CA has a state-wide rent control. Maximum rent increase of the lesser of 10% or 5% plus CPI.

If inflation is 4% then it would be 4+5 = 9%.

Some localities have their own too, LA + SF.

34
Q

What is the Economics/Policy behind Rent Control?

A

Rent Control leads to a shortage of the product. Small at first, bigger later. Elasticities of supply and demand are greater over long periods.

Less incentive for landlords to maintain the property. Surplus of tenants, tenants hold on to the property too long. Now people have longer commutes.

35
Q

What is Wonnell’s solution to rent control?

A

Rent subsidies are better as solution. But in the short term is bad, better long term solution.

Initial effect: jack up rent bc you have an inelastic supply over a short run.

Long term: Creates incentive to build more apartments.

Political attraction to Rent Control because politicians care about the short run.

36
Q

If the Tenant breaches a contract by not paying rent, can the landlord exercise self-help (change the locks and bring someone to kick the tenant out?) Case?

A

Berg v. Wiley says no, you must resort to judicial remedies.

Not in CA. Some states will allow if there is no breach of the peace.

IN CA judicial procedures are supposed to be quick.

Procedure: 3 day notice to quit or pay rent, other person replies, set trial date, sheriff can remove the person in 40 days. More civilized.

37
Q

If Tenant pulls out, does L have to offer to somebody else or can they let it sit idle and collect rent for that period of time? Is there a duty to mitigate?

A

Traditional: No duty to mitigate for anyone.
Modern Trend: Yes, CA Yes. Some states no.

Sommer v. Kridel says duty to mitigate damages by making reasonable efforts to re-let the vacated premises when a tenant defaults on a lease.

38
Q

What happens if the landlord fails to mitigate?

A

Some states: Landlord can now sue for contract price minus Fair Market Value

Other states: Landlord gets 0. Can’t get lost rent if you don’t try to mitigate. Motivates you to mitigate.

39
Q

Who has the burden of proof to show mitigation.

A

Majority of States including CA: Tenants have the burden of proof to show the landlord could have mitigated.

Other states: Landlord has the burden of proof. Riverview Realty Co. v. Perosio.

40
Q

Case we read where LL has no responsibility to minimize damages

A

Sommer v Kridel

41
Q

Who should have the burden of proof from a policy perspective?

A

Factors to consider:

(1) Presumption in favor of what is usually true: Usually the case that it is easy to mitigate then we should prove that.

(2) Regret matrix idea: Allocate burden of proof based on our different degrees of regret for errors in different directions: Convicting innocent person creates more guilt than freeing guilty so prosecution has the higher burden.

(3) Put the burden on the party with access to evidence.

42
Q

Do you have to wait for every month to go by and wait for suing for non-payment of rent or can you sue for rent before it is due?

A

In California, Anticipatory repudiation for clear repudiation by the tenant is allowed if the tenant makes it clear in words or deeds that they will not pay in the future.

43
Q

Kait : LL Thought Process in Suing for Future Rent

A

You’re behind on rent, you didn’t pay this month –> I can sue you for that month’s rent.

But what I would like to do is to say you’re kind of in breach of the whole lease and I want to be able to sue you for the whole thing.

Especially if you sort of tell me you’re not gonna pay anymore or you walk away or something like that.

44
Q

Kait TLDR : Can a LL sue for rent not yet due

A

One way or another, the LL are usually allowed to sue for those future rents.

45
Q

Kait’s Anticipatory Repudiation / Clear Repudiation ALTERNATIVE card (what other states have, but we also have too for whatever reason)

A

acceleration clauses that have the same effect.

Sometimes a lease will say if you are in default on your rent The landlord has the right to accelerate a rent due in the future, make it due right now.
And then if you don’t pay it now, technically you’re actually in breach now (as opposed to just we think you probably will breach later)

46
Q

[QUESTION FOR OFFICE HOURS] Do lease acceleration clauses conflict with LL duty to mitigate?

A

Wonnell: Good question? Can you demand this rent if the person could have mitigated. There could be a tension between the two. LOL.

47
Q

[QUESTION FOR OFFICE HOURS] Why aren’t lease acceleration clauses void as being considered either an agreement for liquidated damages (when the damages are readily ascertainable) or a penalty?

A
48
Q

What is an action the landlord can take if tenant is in default on their rent?

A

Landlord can have the right to exercise acceleration clauses which would accelerate the rent due in the future and make it due now. Landlords are allowed to sue for those future rents where acceleration clauses are valid.

49
Q

Can the tenant surrender?

A

Yes, tenant can offer to surrender the premises and if L accepts then the lease is over.

L can’t sue for future rents.

[K: I have Acceptance of Surrender for both of these: ]
Surrender could be express

Surrender could be implied

50
Q

What if the tenant walks away and the landlord re rents to someone else?

[Tenant Surrender + LL Duty to Mitigate fufillment = ]

A

Has the tenant implicitly offered to surrender and the L has implicitly accepted that offer by re renting the premises to someone else, the landlord would be barred from suing someone elses.

Landlord should say “Only re renting to mitigate damages” and avoid the inference of implied acceptance of surrender

Some courts accept this idea.

Some courts will consider it an implied acceptance of an offer to surrender.

Landlord should write a letter to tenant saying Im going to rerent these premises in order to mitigate your damages, but I am not treating this as a surrender and I intend to hold you for the different in value.

Difficult to say implied acceptance of implied offer to surrender.

51
Q

Who qualifies as a Lost Volume LL ?

A

A LL who (1) has a lot of rental units (big apartment buildings etc.)

When,
(2) If T1 had not left, the LL could have accepted/fulfilled T2’s offer to rent with plenty of additional vacancies (rather than T1s unit)

52
Q

What is the concept of the Lost Volume Landlord?

A

It’s an argument against the duty to mitigate.

O of big apartment complex always has a bunch of vacancies.

L wants to say no I could have rented to both, not a mitigation to rent to someone new.

Lost volume and should be allowed to sue for the full loss suffered. No deduction for mitigation.

Court in our case rejected saying land is unique. Sommer v. Kridel (holding that even where the breach occurs in a multi-dwelling building, each apartment may have unique qualities which make it attractive to certain individuals.)

53
Q

Condition of the Premises. What is the Duty of Quiet Enjoyment/Constructive Eviction Doctrine?

A

Case - VILLAGE COMMONS: a lease that promised landlord repairs, no repairs made the premises unusable. Tenant moves out and doesn’t pay more rent.

Court says that is fine. L made promise, promise was sufficiently broken as to make the premises unusable or to defy them of quiet enjoyment.

Bad enough to constitute eviction and constructively evicted from the rest of the property because it was so crummy.

54
Q

Kait : QE / CE for dummies

A

TLDR: You have a promise + it’s broken + it leads to a violation of quiet enjoyment + you leave = you can say you were constructively evicted.

This makes the promises dependent.
The LL’s breach of their promise, even though that might not have been the ancient CL rule, relieves your duty as a tenant to remain in the premises and stay and pay rent

APPLIES TO BOTH COMMERCIAL AND PRIVATE [ADD OH NOTES]

55
Q

Is quiet enjoyment a tenant right independent of contract?

A

Open question. Cases divide on this.

“the covenant of quiet enjoyment is taken to create, of itself, a duty upon the part of landlords to provide suitable premises. See, e.g., Reste Realty Corp. v. Cooper,” [More CASE EX needed, just what I had in my notes]

56
Q

Policy / Econ Arguments against Quiet Enjoyment

A

A tenant will have to pay additional rent to cover the cost of making the premises better
Decentives LL to make investments
May eliminate an option to rent, sort of bad premises, for low rent.

57
Q

Can you stay and sue for quiet enjoyment?

A

[Open Question]. No, have to leave, but risky to leave because you don’t know what the court will find.

Some courts say you don’t have to leave. Notes in the book say there are some cases where you can stay

Notes: See Echo Consulting Services, Inc. v. North Conway Bank, 669 A.2d 227 (N.H. 1995) (if breach is not so substantial as to work a constructive eviction, tenant may stay in possession and sue for compensatory damages); Stevan v. Brown, 458 A.2d 466 (Md. App. 1983) (same).

58
Q

Prosecutors Office Case

Village Commons, LLC v. Marion County Prosecutor’s Office

A

Lease promised LL repairs –> no repairs made the premises unusable; Tenant moves out & doesn’t pay more rent

Court says that’s fine : The promise was sufficiently broken as to make the premises unusable or to defy the Tenant of quiet enjoyment. + bad enough to constitute an eviction.

(You were evicted from part of the premises because they told you not to use the bathroom anymore

But you were also constructively evicted from the rest of the property because it was so crummy.)

Therefore you are justified in leaving and not paying rent.

If an act or omission by the landlord materially deprives the lessee from the beneficial use or enjoyment of the leased property, the lessee may abandon the property and avoid any further obligations under the lease.

59
Q

Wonnel Personal Gripes w/ Landlord/ Tenant Relations as Conveyance “OR” Contract

A

This is sort of a pseudo theory because we know it’s really both

When you’re a landlord & you’re renting premises you are
(1) Conveying a leasehold estate to the tenant
(2) Entering into a K with the tenant (mutual agreement)

60
Q

Courts take the position that the movement from property → K has

A

justified pro-tenant reforms

61
Q

When does Implied Warranty of Habitability work? Case?

A

Hilder v. St. Peter Case.
Implied warranty of habitability only applied to residential premises. If you’re complaining about commercial premise you need to look at these documents.

62
Q

What case also talks about Implied Warranty of Habitability? What is the rule?

A

Vermont Case.

IF you have premises that are uninhabitable, the tenant can refuse to pay rent and stay in the premises, though the court may order some rent.

Court could decide the premises are bad, but if you’re going to stay there you owe something.

63
Q

Implied Warranty of Habitability PT. 2. What is the duty of tenant? What happens if Landlord is refusing to fix?

A

Duty to notify the landlord and give them a chance to fix it.

If landlord is willful and wanton in refusing to fix it then you can get punitive damages as well as compensatory. For violating implied warranty of habitability.

64
Q

What creates a prima facie case of premises being uninhabitable?

A

Violation of building codes.

65
Q

Is the Implied Warranty of Habitability a good rule?

A

It’s not free because the tenant has to pay additional rent to cover the cost of landlord making the premise better in theory.

Eliminates the opportunity to rent bad premises for low rent.

66
Q

Is the landlord liable for people getting hurt on the premises?

A

Common Law: No duty, but exceptions are:
1. Common areas
2. Ng. Repairs
3. Premises open to the public
4. Others (Wonnell said insignificant, just know that there are others)

CA says YES
Do what a reasonable landlord would do to avoid injuries.

67
Q

Can tenant be liable for a tort?

A

Waste: Diminishing long-term value of property through structural changes.

Property (10 decks)

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