Landlord/Tenant

Question 1

Tenants do not own the property but instead have a …

Answer 1

temporary possessory interest in the property

Question 2

What are the four types of tenancies?

Answer 2

Tenancy for a term; Periodic tenancy; Tenancy at will; Tenancy at sufferance

Question 3

Tenancy at sufferance:
List the benefits

Answer 3

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

Question 4

Tenancy at will:
List the benefits

Answer 4

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

Question 5

Periodic Tenancy:
List the benefits

Answer 5

tenant pays periodic rent but there is no specific termination date

Both parties: most flexible option

Question 6

Tenancy for a term:
List the benefits

Answer 6

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)

Question 7

What are some characteristics of agrarian tenancies?

Answer 7

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

Question 8

What is a burdened rental? A severely burdened rental?

Answer 8

Burdened rental: rent is over 30% of household income

Severely burdened rental: greater than 50% of household income

Question 9

In commercial leases, a landlord has a duty to disclose known latent defects. (T/F)

Answer 9

False

Question 10

Anderson Drive-In Theatre v. Kirkpatrick holding? rationale?

Answer 10

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.

Question 11

Define sublease and assignment. What is the difference between the two?

Answer 11

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

Question 12

Should landlords be able to control subleases/assignments?

Answer 12

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.

Question 13

Kendall v. Ernest Pestana holding? relevance?

Answer 13

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.

Question 14

Describe surrender and acceptance and what a landlord can do when a tenant surrenders a property?

Answer 14

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.

Question 15

What was the old rule regarding a landlord’s duty to mitigate? What is the new rule? What factors explain the shift in thinking?

Answer 15

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

Question 16

What is the rationale behind some jurisdictions that do not require landlords to mitigate losses for commercial leases?

Answer 16

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.

Question 17

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?

Answer 17

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

Question 18

Discuss how tenancies have changed throughout history and how the concept of property and power has formed a negative connotation around tenancy.

Answer 18

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.

Question 19

What is the implied warranty of habitability and what is its significance?

Answer 19

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.

Question 20

Javins v. First Nat’l Realty Corp. holding? relevance?

Answer 20

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.

Question 21

What happens if the implied warranty of habitability is breached?

Answer 21

If there is a breach it would conceivably remove the tenants obligation to pay rent.

Question 22

What does it mean for a tenant when the implied warranty of habitability is considered a baseline guarantee?

Answer 22

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.

Question 23

What are the different remedies available for a tenant if the landlord breaches the implied warranty of habitability?

Answer 23

(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

Question 24

What could someone use to determine what is considered habitable in their area?

Answer 24

Housing Codes (Local ordinances).

Question 25

Most states have adopted the implied warranty of habitability. (T/F)

Answer 25

True. Every state except Arkansas has adopted the IWH.

Question 26

Can the implied warranty of habitability be fully waived? Why or why not?

Answer 26

No, the IWH cannot be fully waived as that type of agreement would go against public policy and thus be unenforceable.

Question 27

When can the IWH be partially waived?

Answer 27

The IWH can be partially waived regarding specific defects. For example, the landlord can rent a property with a toilet that does not work. The tenant is aware of the defect, and still chooses to sign a lease with the landlord.

Question 28

Going to court is always the best way to resolve a dispute amongst landlords and tenants. (T/F)

Answer 28

False. Legislation may be a better way to address social issues that arise from landlord tenant law. Also, see Merrill v Jansma.

Question 29

Describe public policy, policy, politics and housing codes and explain their relationship to one another, if any.

Answer 29

Public Policy: dealing with a grander public goal/assumption. Example: helping children thrive.

Policy: reasoned social justice geared toward public good – a means to an end argument. Example: texting while driving is a bad idea; means is we should ban texting and driving, end is road safety

Politics: favoring and representing one group or set of interests over another group/set of interests

Housing Codes: legislative by products born from policy and politics that come from local legislatures and are ordinances not statutes.

Question 30

What is the public policy and policy arguments regarding retaliatory eviction? (Think: The courts thought process in Edwards v. Habib)

Answer 30

Public Policy: Goal to have safe and decent housing.

Policy: Housing codes and enforcement of them would allow us to get to the grand goal of safe housing, therefore landlords should not be able to evict a tenant who is attempting to enforce repair of a property.

Question 31

What is a possible argument on behalf of landlords to allow retaliatory eviction?

Answer 31

Landlord has title and owns the property, if they don’t want someone living in their property then they should be able to do what they want. Extremely litigious tenants may make frivolous complaints.

Note: These are just possible arguments a landlord could make. Many states and legislatures follow the Edwards position in that allowing retaliatory evictions would undermine public policy and frustrate the goal of providing decent housing.

Question 32

The cases we’ve read made it seem that the law has attempted to even out the power imbalance between landlords and tenants. Do you agree? Is there any area where the landlords have the upper hand?

Answer 32

Our ideas: Probably not, landlords can still find other ways to evict tenant that sidestep retaliatory evictions. Landlords are active in the legislature; landlords have pushed through pro landlord laws. While the IWH exists, there are other things that have the eviction process speedier, and fees have been limited regarding what can be charged for violation of housing codes. Also, 1/5 of republican legislator own or manage rental properties.