Landlord-Tenant Flashcards
Tenancy for Years - Defined
fixed term with start and end date. Creation - express agreement. may be oral if > one year. < one year SoF requires a writing. Term - Fixed by agreement Terminates Automatically at end of agreement.
Types of Tenancies - List
Tenancy for years
Periodic Tenancy
Tenancy at Will
Tenancy at Sufferance
Periodic Tenancy - Defined
fixed start date - no fixed end date.
Automatically renews.
Creation - Express or implied.
Implied agreement arises from holdover
Term - continues until PROPERLY terminated
Termination - appropriate notice must be given.
words or conduct demonstrate intent to terminate by either party
Timing of Notice for Periodic Tenancy
Notice must equivalent of period to max of 6 months.
At common law, notice in the middle of period is ineffective.
Must be at start of period.
Majority view - Notice in the middle of period is valid
not effective until next period.
Tenancy at Will
Usually only created by express agreement
Terminable at the will, death, or attempt to transfer interest.
Holdover situation is created by
tenancy for years expires - does not leave.
becomes periodic tenant or tenant at sufferance
intent of the landlord determinative.
if landlord accepts rent - periodic tenant.
period is the period for which rent is reserved
Analysis of L-T Dispute
Identify type of tenancy
Which of the 4 basic disputes involved
Has the L or T transferred interest in the property
Analysis of Attributes of Tenancy Type
Creation - how was it created
What is the term?
Has it been terminated?
4 Basic L-T disputes
- Rent
- Condition of the premises.
- Possession
- Improvements - who gets to keep improvments
Statute of Frauds and Leases
Leases for more than one year must be in writing.
Dispute over Rent Analysis
Determine How much rent the landlord can sue for.
What are the defenses available to the tenant
How much rent is the Tenant liable for in a Tenancy for Years
Tenant liable for all rent mentioned in agreement.
At common law, L can sue only for rent accrued.
Modern law allows anticipatory repudiation making entire amount due. Landlord has duty to mitigate
Landlords duty to Mitigate
Landlord obliged to re-rent property.
Failure results in reduced damages
by what landlord could have received if reasonable steps taken.
Rent Liability for the Periodic Tenant
liable for rent through period.
Liability for rent for tenancy at sufferance vs holdover from periodic tenancy.
holdover from periodic tenancy - obligation is same as prior period.
A holdover T@S is trespasser
liable for reasonable rental value of the property,
increase = damages
Defenses available to the Tenant - List
- Failure to Deliver Possession
- Eviction
- Surrender
- Destruction of the premises
- Offsets
- Other Contract Defenses - Discharge arguments
Impossibility, Frustration, Impracticability
defense - Failure to deliver possession - CL and American Rule
CL: Failure excuses T from having to pay rent for premises.
American Rule (minority)
no duty to deliver possession of premises at start of a lease.
T’s obligation to take possession
T is liable for rent from beginning of period.
Eviction - Types
Actual -
T removed from all or part of premises
released from paying any rent.
Constructive -
Substantial interference with use and enjoyment by landlord
T must move out in reasonable period of constructive eviction.
Constructive Eviction and 3rd parties
If constructive eviction is result of 3rd party
L must have knowledge actions would substantially interfere
with use and enjoyment of premises.
if so, T can move out and have defense to payment of rent
defense
Total Constructive Eviction vs Partial CE
and T’s liability for rent
Where there has been TCE, T is relieved from paying all rent.
Partial CE = rent abatement
attributable to portion of premises T is constructively evicted from
Surrender of Possession - defense
if Landlord accepts surrender - no further rent is owed.
if L takes possession for purpose of re-renting the property to mitigate damages,
NOT acceptance of surrender and T remains liable for rent.
Destruction of the Premises defenses
destruction of premises relieves liability for rent unless
T is responsible for destruction - negligently or intentionally.
Offset defense - Covenant of Habitability
L must maintain premises in habitable condition.
Applies to all residential leases and commercial leases (minority).
T notifies L of problem
provides reasonable period to remedy problem.
L fails to remedy
T may remedy situation and offset cost against rent due.
Other Contract based Defenses for T’s non-payment of rent
Discharge Arguments:
Impossibility, Frustration, Impracticability
Violation of quiet use and enjoyment of the property.
