Landlord/Tenant Flashcards
What is a term of years leasehold estate?
A term of years lease is an estate that lasts for some fixed period of time or for a period computable by a formula.
Is notice of termiantion required for term of years?
No, because it ends on a stated date.
Is there a limit on length of time for term of years?
At common law, no. Now, states will impose statutes with limits based on what the land is used for.
Does the death of the landlord or tenant have an effect on term of years?
No. If the tenant dies, the heirs will have to pay the rest of the lease.
What is a periodic tenancy?
A lease for a recurring term that continues for succeeding periods until either the landlord or tenant gives notice of termination.
Is a periodic tenancy affected by death of landlord or tenant?
Yes
What are the two classifications for period tenancy?
month-to-month and year-to-year
What is the majority rule for determining the period in a periodic tenancy?
The period is determined based upon the manner in which rent is reserved.
What is the minority rule for determining the period of a periodic tenancy?
The period is determined based upon the manner in which rent is paid.
What does “reserved” mean in terms of determining a periodic tenancy?
Rent is reserved on an annual basis
What does “paid” mean in terms of determining a periodic tenancy?
Rent is paid on a monthly basis.
What is period of a periodic tenancy if the language of the lease is vague?
the default is year-to-year
How do you terminate a month-to-month periodic tenancy?
Requires one month advance notice, with the effective date of the notice being the last day of the term.
If the tenant pays rent on the 30th of each month, and the tenant decides on March 20 to terminate, rent would still be due (effective) on April 30.
How do you terminate a periodic tenancies longer than month-to-month?
Advanced notice equal to the duration of the period, with a maximum of 6 months, with the effective date of the notice being the last day of the term.
If a one-year lease begins Jan. 1, 2020, notice must be given before July 1, 2020 to cancel.
Can notice be given in the middle of a term?
No
What is a tenancy at will?
A tenancy of indefinite duration, i.e., tenancy for no fixed or revolving period that endures so long as the landlord and tenant desire.
Is a tenancy at will affected by the death of the landlord or tenant?
Yes.
How do courts feel about tenancies at will?
They do not like them and will interpret them as any other type of tenancy if given the opportunity
What are the four possible lease provisions for who may terminate?
- Lease is silent on who may terminate
- Lease specifies that either party may terminate
- Lease specifies that only Landlord may terminate (but either can terminate)
- Lease specifies that only Tenant may terminate (creates a determinable life estate)
When does a tenancy at sufferance arise?
Tenancy at sufferance arises when (1) the tenant was in lawful possession, but (2) after the lease terminates, (30 the tenant remains in occupancy of the premises (holds over).
What are the common law options for a landlord when a tenant holds over?
- evict the holdover tenant (plus damages) OR
- Consent to the creation of a new tenancy, either expressly or impliedly by acts (i.e., cashing a check for rent)
What is the modern treatment of holdover tenants?
Varies by state statutes. Some allow double rent. Raise and dismiss if advising a tenant, let them know to check the statute because rent may be double.
What happens if the landlord chooses not to evict a holdover tenant?
The original lease has terminated and a periodic tenancy is created, with the same terms and conditions as the original lease.
What is the statute of frauds for leases?
Commonly, leases for more than one year must be in writing. Varies by jurisdiction.
What does a security deposit do?
Protects the landlord in the event that the tenant damages the premises, defaults in the payment of rent, or otherwise breaches the lease.
How has statutory reform addressed potential abuse of security deposits?
Generally, landlord has to return the security deposit in X number of days, and if not returned, landlord has to provide an itemized list as to why.
What are the three primary legal grounds for claiming that a landlord has discriminated in the selection of tenants?
- Fair Housing Act
- Fourteenth Amendment
- 42 USC 1982
Under the Fair Housing Act, what arethe protected classes?
- Race
- Color
- Religion
- Sex
- Handicap
- Familial Status
- National origin
What is included in the “sex” protected class under the FHA?
sexual orientation and gender identity
What is a handicap for purposes of the FHA?
A physical/mental impairment that substantially limits one or more aspects of someone’s life.
What is typically protected under “familial status” for FHA?
Generally, single moms/parents; marital status is not protected
The FHA prohibits discrimination in what 3 aspects?
- Refusal to sell or rent
- Discrimination in the terms, conditions, or privileges of the sale or rental
- In advertisements
What are the exemptions under the FHA?
- Religious organizations and private clubs
- Single family homes sold or rents by owner if more than 3 homes are not owned at one time
- Rooms or units in dwellings containing living quarters occupied or intended to be occupied by not more than 4 families living independently if owner also resides there
What do the FHA exemptions not apply to?
Advertisements
What are the elements of a retaliation claim under the FHA?
To prove retaliation under the FHA, a plaintiff must show that (1) she was engaged in a protected activity; (2) she suffered an adverse action; and (3) there was a causal connection between the two.
What are the elements of a hostile housing environment claim under the FHA?
To prove a hostile housing environment claim, the plaintiff must show that (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with the terms, conditions, or privileges of her residency, or in the provision of services or facilities; and (3) that there is a basis for imputing liability.
When is harassment severe or pervasive for a hostile housing claim?
Harassment is severe or pervasice if it objectively interferes with the enjoyment of the preimises or inhibits the privileges of rental.
What circumstances are considered in determining whether harassment was severe or pervasive for a hostile housing claim?
Frequency, severity, and whether it is physically theratening or humiliating as opposed to merely offensive.
When are small incidents able to satisfy severe and pervasive element of hostile housing claim?
Isolated minor affronts are not enough, but a small number of servere incidents or a relentles pattern of lesser incidents may be.
When are post-acquisitiong claims of discrimination permitted?
- when discriminatory conduct constructively evicts a tenant
- when occupancy is governed by dsicriminatory terms
Does a plaintiff have to show discriminatory motive for an FHA claim?
No. Proving disparate treatment or disparate impact is enough.
What does a disparate treatment claim allege?
That the defendant had a discriminatory intention or motive.
What does a disparate impact claim allege?
That the defendant’s practices have a disproportionate and negative effect on members of a protected class that are not justified by a legitimate rationale.
How does the Fourteenth Amendment protect against discrimination?
Prohibits discrimination by state action, such as a state supreme court enforcing a racially restrictive covenant.
What does 42 USC 1982 state?
All citizens of the US shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
In what way is section 1982 narrower than the FHA?
It reaches only racial discrimination and does not address discrimination in the provision of services and facilities and does not prohibit discriminatory advertising
In what was is section 1982 broader than the FHA?
It does not have exemptions and is not limited to dwellings like FHA.
Can state and local legislatures narrow the rights and remedies under federal law?
No but they can expand them
What is the majority rule for delivery of possession?
That the landlord has a duty to provide possession on the first day of tenancy.
What is the minority rule for delivery of possession?
That the landlord must merely provide legal right to possession on the first day.
What are the three forms of leases dealing with the tenant’s right to convey the lease interest?
- Freely assignable: no express provision limiting assignment
- Requirement for consent by landlord
- Requirement for consent by landlord, but that consent may not be unreasonably withheld
What are the four steps of analysis for a landlord/tenant problem?
- Is it a sublease or assignment?
- Who can L sue?
- Under what theory?
- Why?
How is a sublease created?
Tenant grants interest less than his own (not for whole term)
In a sublease, what kind of privity does L have with T?
Privity of contract and privity of estate
In a sublease, what kind of privity does L have with T1 (or any other subsequent T)?
None
How is an assignment created?
Tenant conveys the whole term, leaving no interest or reversinary interest in the grantor or assignor.
In an assignment, what kind of privity does L have with T?
Privity of contract
In an assignment, who does L have privity of estate with?
Whoever is in physical possession
What is privity of contract? When does it end?
Privvity of contract is based upon the lease agreement. It ends only when the lease term ends or when there is a novation (release of liability).
What kind of covenant runs with the land?
One that touches and concerns the land
For landlord/tenant problems, what are four examples of covenants that touch and concern the land?
- To pay money relating to the property
- Affects physical aspects of the property
- Affects the duration of the lease
- Involves services and utilities
What is an example of a covenant that does not touch and concern the land?
a racially restrictive covenant
What does the third party beneficiary rule do?
If in a third party beneficiary jurisdiction, it allows L to sue T1 under privity of contract where T1 has expressly assumed the covenants of the lease.
What is the majority rule regarding a landlord’s consent to assigning/subleasing?
Where a lease provides for assignment only with L’s consent, it can be unreasonably withheld for any reason.
What is the minority rule regarding a landlord’s consent to assigning/subleasing?
Where a lease provides for assignment only with L’s consent, and for a commercial lease, it can only be wittheld for a commercially reasonably objection.
What are the five factors for “commercially reasonable” regarding a landlord’s consent?
- Financial responsibility of the proposed assignee
- Suitability of the use for the particular property
- Legality of the proposed use
- Need for alteration of the premises
- Nature of the occupancy (i.e., office, factory, clinic, ect.)
What is commercial reasonability not intended to protect regarding landlord’s consent?
It is not intended for the economic protection of another lease.
In any jurisdiction, if the lease says consent sohuld not be unreasonably withheld . . .
then it should not be
The only lawful means to dispossess a tenant who has not abandoned or voluntarily surrendered is . . .
to resort to judicial process.
What is abandonment?
Occurs where tenant vacates without justification and without and present intent of returning and defaults on payment of rent.
What is surrender?
Occurs where tenant offers to end the tenancy, which then terminates the lease if landlord accepts. This extinguishes T’s obligation for future rent (but not for accrued and unpaid rent, or for past breaches of other covenants)
At common law, when was self help allowed?
(1) if it is peaceable and (2) L has a legal right to do it
Who prefers ejectment?
Tenant because it takes longer
Who prefers forcible entry/detainer (aka summary proceedings)?
Landlord beecause they are quicker
What are a landlord’s mitigation obligations?
L has a duty to mitigate damages where he seeks to recover rent from a defaulting tenant. The burden of proof is on L to show a reasonable effort was made to re-let the premises.
When is there a breach of quiet enjoyment/constructive eviction?
If the actions or inactions attributable to L result in a breach of the lease causing the condition of the premises to be substantially unsuitable for purposes of the lease, or to be a serious interference with the beneficial enjoyment of the premises.
What must T do to claim breach of quiet enjoyment/constructive eviction?
To claim breach of the covenant of quiet enjoyment and that they were constructively evicted, T would have to: give notice of the breach, give a reasonable opportunity to cure, and leave within a reasonable time after it became apparent that landlord was not going to cure.
When is illegal lease defense available?
To claim illegal lease, there must be housing code violations affecting health and safety in existence at the beginning of the lease that L knew about or was put on notice about.
What type of lease does the illegal lease defense apply to?
only to residential
What is the implied warranty of habitability?
L has an implied duty to maintain and repair the premises.
What kind of lease does implied warranty of habitability apply to?
residential only
Is T barred from an implied warranty of habitability claim if they knew of the issue?
No
What can T do if L breaches implied warranty of habitability?
T can stay on the premises AND not pay rent
What caution should T heed if staying on premises and withholding rent after L breaches IWH?
The court may determine that there was only an abatement of rent based upon the extent of breach or may determine no breach at all. In either case, T is going to owe back rent.
Is notice required for IWH?
Not if caused by affirmative actions of L or L has actual knowledge of breach of warranty. Otherwise T must give notice of the breach to L, and allow a reasonable opportunity to cure.
What is the standard for determining breach of IWH?
Habitability in the eyes of a reasonable person. Safe and healthy housing is the obejctive. Housing code violations are compelling but not conclusive.
What is retaliatory eviction?
Rebuttable presumption exists that retaliatory purpose is present where : seeks to terminate tenancy, increase rent, or decrease services within some given period of time after a good faith complaint or other action by T based on the condition of the premises.
Is retaliatory eviction okay?
No, forbidden in most jurisdictions.
When does retaliatory eviction apply?
Usually in residential leases, not commercial
What is the window of time for retaliatory eviction?
Anywhere between 1 day to 180 days. Not precluded outside this window, just not a presumption anymore.
At common law, when was L liable under tort theory for tenant’s injuries?
- public use exception
- latent defect exception
- common area exception
What are the landlord’s rights and remedies based on tenant’s duties?
Waste (permissive and affirmative) and fixtures (removal without permission)
