Landlord/ Tenant

Question 1

When is lease created?

Answer 1

when a lessor conveys a present possessory

Question 2

What are the 4 types of tenancy?

Answer 2

(1) tenancy for a term (2) periodic tenancy (3) Tenancy at will (4) tenancy at sufferance.

Question 3

What is a tenancy at sufferance?

Answer 3

The hold over tenant.

Question 4

In Texas, when must a lease be in writing?

Answer 4

When the lease is over one year, must be in writing and signed by the party to be bound.

Question 5

At common law, could the landlord exclude anyone from access to rental market?

Answer 5

Yes, could exclude anyone for any or no reason.

Question 6

What is the access to rental market like in modern law?

Answer 6

Restricted by fed, state, and local law.

Question 7

Federal fair housing Act protects whom?

Answer 7

Race, color, religion, sex, family value, national origin, handicap

Question 8

What is the rental advertisement test:

Answer 8

If an ordinary reader would look to the ad and think there may be discriminatory effect, then this will be considered discrimination.

Question 9

What is the covenant of quiet enjoyment in landlord/tenant?

Answer 9

When the tenancy begins the landlord transfers a present possessory interest to the tenant by which the tenant obtains possessory rights superior to all others (including the landlord)

Question 10

Two Exceptions to covenant of quiet enjoyment?

Answer 10

Landlord can enter the premises for repairs, emergencies, and inspections; and the landlord has right to protect the landlords reversion from waste.

Question 11

What are the two theories for landlord/ tenant when there is a 3rd party hold over?

Answer 11

1. English rule (Texas and majority of the US): landlord has implied duty to place tenant in the legal and actual possession of the premises on the date specified by the lease.
2. American rule (minority): The landlord has a duty to place the tenant in legal possession only, and the tenant is responsible for ousting the 3rd party.

Question 12

What is the English (Texas and majority rule) when there is a 3rd party holdover?

Answer 12

English rule (Texas and majority of the US): landlord has implied duty to place tenant in the legal and actual possession of the premises on the date specified by the lease.

Question 13

What is the American rule (minority) when there is a 3rd party hold over?

Answer 13

American rule (minority): The landlord has a duty to place the tenant in legal possession only, and the tenant is responsible for ousting the 3rd party.

Question 14

What happens if possession is disrupted by 3rd party after tenant is in possession?

Answer 14

Tenant is responsible for evicting any 3rd party that interferes with right of possession.

Question 15

What is a hold over tenant?

Answer 15

Tenancy at sufferance: A “hold over tenant remains on the property even though the lease has terminated.

Question 16

What are the landlords options when their is a holdover tenant?

Answer 16

a. Former tenant is now a trespasser, so landlord may evict them.
b. Treat him as a periodic tenant and renew the lease for the original period (up to 1 year)

Question 17

Excpetion to holdover tenant rule?

Answer 17

The Hirschfield Rule:
a. When the tenant makes a good faith reasonable effort to vacate the premises, he cannot be considered a hold over tenant so as to allow the landlord to treat him as a periodic tenant, which would make the tenant liable for another term up to a year.

Question 18

Who is responsible for conditions on the premises at common law?

Answer 18

Landlord was generally not responsible for the condition of the premises.

Question 19

Landlords duties for habitability at common law?

Answer 19

Reveal known, undiscoverable, hidden facts. Couldn’t misrepresent the condition of the premises.

Question 20

What is the tenants duty at common law?

Answer 20

1. Protect the landlord’s reversion by committing no waste.

Question 21

What is the modern law rule on habitability?

Answer 21

Implies a warranty of habitability. mplies a warranty that residential leases are habitable (thereby imposing a duty on the landlord to ensure that they are).
b. Habitability generally refers only to the safety of the physical premises.

Question 22

What are the rules of habitability in Texas?

Answer 22

a. The landlords Statutory duty to repair (1979): created a limited duty for the landlord to make certain repairs to problems that are disruptive to the premises.

Question 23

When the landlord breaches, tenant may? 4 things

Answer 23

a. (1) withhold rent – but some states require you to pay the entire rent into the registry of the court
b. (2) repair and deduct – fix damages yourself, then deduct the cost of repair from your rent
c. (3) sue for damages
d. (4) treat as constructive eviction and move out.

Question 24

Two ways to determine rent?

Answer 24

1. Agreement between landlord and tenant (free market)

2. Limited by governemt (rent control)

Question 25

What is the difference between common law and modern law when a tenants use is illegal?

Answer 25

1. Common law: did not cause forfeiture | 2. Modern law: usually cause forfeiture

Question 26

When is a landlord responsible for injuries to person on property? 6 ways

Answer 26

1. Failure to disclose known latent defects (this is constructive fraud) 2. Leased for admission of the public 3. Short term lease of furnished dwellings 4. Breach of express covenants to repair 5. Negligence in making repairs 6. Injury to common area under landlords control

Question 27

Landlords duty to protect tenant from third parties? Traditional rule vs. modern rule?

Answer 27

1. Traditional rule = no duty 2. Modern rule = negligent based theory a. Did the landlord known the security system didn’t work or that doors didn’t lock b. Foreseeability for the type of incident involved.

Question 28

If tenant breaches, landlord may? 5 things

Answer 28

1. Terminate lease 2. Sue 3. Retain part or all security deposit 4. Evict (most extreme, landlord may no longer use force) 5. Use landlords lien on contents a. Governed by states now

Question 29

What is retaliatory eviction? What is statute of limitations?

Answer 29

1. Defense of Retaliatory eviction: a tenant can raise this defense where he has been evicted in retaliation for some lawful conduct on the part of the tenant. The retaliatory intent on the part of the landlord is presumed extinct after 6 months. a. Is a defense in Texas.

Question 30

Can the landlord transfer the property?

Answer 30

landlord may transfer the reversion – sell the property

Question 31

May landlord limit tenants ability to transfer the lease?

Answer 31

a. Commonly restricted by lease; courts normally uphold restriction by strictly construed; growing trend to prevent landlord from withholding consent in an unreasonable manner – also to require landlords express consent even if lease is silent.

Question 32

What is the rule in Texas on if a tenant may transfer lease?

Answer 32

1. Tenant may not rent the leasehold to any other person without prior consent of the landlord.

Question 33

What are the two types of transfers?

Answer 33

1. Assignment: a. Tenant transfers entire interest to assignee (substitution analogy) b. Assignee is now tenant of landlord under original terms of lease unless landlord executes a release. 2. Sublease: a. Tenant transfers less than the entire interest to subtenant (subinfeudation analogy) b. Subtenants are to tenant, not landlord c. Landlords duties are to tenant, not subtenant.