Landlord/Tenant Flashcards
Tenants do not own the property but instead have a …
temporary possessory interest in the property
What are the four types of tenancies?
Tenancy for a term; Periodic tenancy; Tenancy at will; Tenancy at sufferance
Tenancy at sufferance:
List the benefits
tenant remains on property past the end of lease or without consent of landlord
Tenant: does not pay rent and it not bound by a lease
Landlord: can terminate the tenancy at anytime
Tenancy at will:
List the benefits
This type of tenancy has no fixed end date and can be terminated by either the landlord or tenant at any time with proper notice. It’s usually less formal, with more flexibility, but also less stability for the tenant, as they can be asked to leave with relatively short notice.
Tenant: does not pay rent and is not bound by a lease
Landlord: can terminate the tenancy at any time
Periodic Tenancy:
List the benefits
tenant pays periodic rent but there is no specific termination date
Both parties: most flexible option
Tenancy for a term:
List the benefits
tenant possesses property for a fixed period of time, usually provided in the terms of the lease
Tenant: only required to pay x amount of rent for x amount of time, not required to leave until lease ends; provides some amount of stability
Landlord: fixed payment and guaranteed tenant (for certain period of time)
What are some characteristics of agrarian tenancies?
Tenants lived and worked on landed estates, these properties were also known as freeholds.
Owners of the freeholds were usually gentry/ higher class citizens
Renters were known as free holdesr – they couldn’t vote or take public office
What is a burdened rental? A severely burdened rental?
Burdened rental: rent is over 30% of household income
Severely burdened rental: greater than 50% of household income
In commercial leases, a landlord has a duty to disclose known latent defects. (T/F)
False
Anderson Drive-In Theatre v. Kirkpatrick holding? rationale?
The court held that the landlord did not have a duty to disclose known latent defects of the land even though it was found that the land was not suitable for a drive-in movie theatre. As such, the tenant could not back out of the lease.
Decision could be in part because lessee should have had money to inspect the premises to discover defects because it was a commercial lease as compared to a residential lease. It is unclear whether the holding would have changed in a residential property, although a tenant could make an argument that unlike commercial properties, tenants do not have a duty to inspect the premises and landlords should inform tenants of latent defects.
Furthermore, in the Anderson case, it did not appear that any fraud was at play. Landlords cannot get away with fraud and hide latent defects so tenants cannot discover them. For example, it would be impermissible if a landlord tried to cover up mold in a building with a certain color paint and proceeds to tell the tenant that there is no mold.
Define sublease and assignment. What is the difference between the two?
Sublease: arrangement in which the tenant leases from the sublessor, tenant retains privity with the sublessor, not the landlord
Assignment: arrangement in which the tenant transfers the leasehold to someone else (the assignee), tenant retains privity with the landlord
Should landlords be able to control subleases/assignments?
Because there is not a direct relationship it can be difficult to assure a tenant’s financial ability to pay rent so a landlord wants to know that whomever they rent to has the ability to pay.
Conversely, it is important to keep property in circulation and the system in general does not want places to go unused. Tenant only has a temporary possessory interest in the property so they should not be tied down to a rental.
Kendall v. Ernest Pestana holding? relevance?
finding that a landlord cannot refuse a transfer arbitrarily and must have a good faith reasonable objection to sublessee/assignee.
NB: this case is limited to commercial leases, but some states are trending towards allowing residential landlords to refuse transfers.
Describe surrender and acceptance and what a landlord can do when a tenant surrenders a property?
Surrender: tenant leaves the property without notice or before the lease term ends.
Full legal surrender of a property cannot occur without the landlord’s acceptance. Acceptance is not unilateral and can inferred through acts or omissions that would indicate acceptance short of a formal written agreement.
Tenant cannot go to LL and say “I surrender my lease” and be free of any obligation to pay your rent.
A landlord may wish to protect themselves from this scenario by having a tenant sign a surrender agreement. However, surrender agreements are more commonly found in commercial properties. Thus, a residential landlord can use the security deposit to mitigate losses.
What was the old rule regarding a landlord’s duty to mitigate? What is the new rule? What factors explain the shift in thinking?
Old rule: landlord has no duty to mitigate its losses
New rule: Landlord must take positive steps reasonably calculated to effect a reletting
Standard of objective commercial reasonableness
Rationales:
Shift away from farmland based rental market
Recognition of contractual law concepts around mitigation
What is the rationale behind some jurisdictions that do not require landlords to mitigate losses for commercial leases?
Some jurisdictions (PA and NY) do not require mitigation in commercial leases like residential lease. The rationale behind not having a duty to mitigate in commercial leases are more specialized and it is harder to find a new tenant like agrarian tenancies.
Describe constructive evictions. What was the old rule? What is the new rule and what are its benefits? Does the new rule do enough to protect tenants?
Constructive eviction occurs when a landlord breaches a covenant within the lease; thus, relieving the tenant of any obligation to pay rent
Old rule: lease provisions independent from one another; breach of one provisions does not invalidate the remaining provisions
New rule: lease provisions are mutually dependent; breach of one provision relieves the tenant of the obligation to pay rent
Benefits of new rule:
Equalizes the landlord/tenant relationship
Tenants often unable to perform maintenance on their own
Allows tenants to terminate lease without consequences
Is it enough?
Tenant has to find a new place to live
Shortage of affordable rental housing makes it difficult to relocate
Discuss how tenancies have changed throughout history and how the concept of property and power has formed a negative connotation around tenancy.
Landlord tenant law traces back to the agrarian tenancies on landed estates to the more modern urban tenancy. Consistent throughout history has been the view that tenants are of a lower socioeconomic class than landlords. During the Revolutionary Era, property owners were considered “freeholds” and the foundation of America. The “freeholds” (i.e., white males) were the only people with rights and power because they owned land. The modern urban tenancy emerged once the Industrial Revolution took hold. European Immigrants and African Americans moved to urban cities in search of work and housing. Today, over one-third of Americans rent and are at the mercy of landlords. Millions of American renters pay more than 30% of their total income on housing, which makes the “American Dream” of homeownership unattainable for many renters. As such, tenants will continue to be labeled secondary citizens unless they can attain the status of a homeowner.
What is the implied warranty of habitability and what is its significance?
The implied warranty of habitability is an obligation by the landlord to keep the premises he/ she rents in a habitable condition. According to Professor Papke, this concept is the single most important change in modern landlord tenant law.
Javins v. First Nat’l Realty Corp. holding? relevance?
finding that it was time to move past the way of thinking of leases as relatives of deeds but instead to think of residential leases as contracts.
What happens if the implied warranty of habitability is breached?
If there is a breach it would conceivably remove the tenants obligation to pay rent.
What does it mean for a tenant when the implied warranty of habitability is considered a baseline guarantee?
It means that unlike constructive eviction, there is no need to point to a breach of covenant in the lease for the basis of your action. In fact, there is no need to point to the lease at all, it is an implied basic guarantee found in all leases.
What are the different remedies available for a tenant if the landlord breaches the implied warranty of habitability?
(1) You get back what you paid in rent and incidental damages. (2) Tenant can stay in the property and rent payments are withheld. (3) If it can be fixed, tenant can make repairs themselves and charge landlord for labor. (4) If it can be fixed, tenant can subtract what was expended to make repairs from the rent.
NB: Remedies vary state by state and you always need to look at state statutes to see how implied warranty of habitability is defined and what remedies that state allows
What could someone use to determine what is considered habitable in their area?
Housing Codes (Local ordinances).
