Landlord/tenant

Question 1

Types of leasehold/non-freehold estates

Answer 1

1. Tenancy for years
2. Periodic tenancy
3. Tenancy at will
4. Tenancy at sufferance

Question 2

Tenancy for years

Answer 2

A lease for a fixed period of time.

• No notice is needed to terminate (because a term of years states from the outset when it will terminate).
• A term of years greater than 1 year must be in writing to be enforceable (because of the Statute of Frauds).

Question 3

Periodic tenancy

Answer 3

A lease that continues for SUCCESSIVE intervals until L or T gives proper notice to terminate.

Question 4

Periodic tenancy: creation (generally)

Answer 4

1. Express

2. By implication

Question 5

Periodic tenancy: express creation

Answer 5

Periodic tenancy can be created expressly.

E.g., “To T from month to month” (or year to year, week to week, etc.).

Question 6

Periodic tenancy: creation by implication

Answer 6

1. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.
2. An oral term of years in violation of the Statute of Frauds (intervals measured by the way rent is tendered).
3. The holdover.

Question 7

Periodic tenancy: the holdover

Answer 7

In a residential lease, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises, measured by the way rent is now tendered.

E.g., T holds over after the expiration of her 1-year lease, but sends another month’s rent check to L, who cashes it.

Question 8

Periodic tenancy: terminating

Answer 8

Must give notice, usu. in writing.

How much notice:
– At common law, must give notice at least equal to the length of the period itself, unless otherwise stated.
– If the tenancy is year-to-year, must only give 6 month’s notice.
– Parties may lengthen or shorten the common-law notice provisions by private agreement.

• The periodic tenancy must terminate at the end of a natural lease interval.

Question 9

Tenancy at will

Answer 9

A tenancy for no fixed duration.

• Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat this as an implied periodic tenancy.

Question 10

Tenancy at will: terminating

Answer 10

Tenancy at will may be terminated by either party at any time, BUT a reasonable demand to vacate is usu. needed.

Question 11

Tenancy at sufferance

Answer 11

When T has wrongfully held over past the expiration of the lease.

• L can recover rent.

Question 12

Tenancy at sufferance: terminating

Answer 12

Tenancy at sufferance lasts only until:

1. L evicts T, or
2. L decides to hold T to a new tenancy.

Question 13

Tenant’s duties

Answer 13

1. Liability to 3d parties
2. Duty to repair
3. Duty to pay rent

Question 14

T’s liability to 3d parties

Answer 14

(Tort law)

1. T must keep the premises in good repair.
2. T is liable for injuries sustained by 3d parties T invited, even where L promised to make all repairs.

Question 15

T’s duty to repair when lease is silent

Answer 15

1. T must maintain the premises and make ordinary repairs.
2. T must not commit waste.
3. T must not remove a fixture (which is voluntary waste)

Question 16

What is a fixture?

Answer 16

A once-movable chattel that, by virtue of its annexation to realty, OBJECTIVELY shows the intent to permanently improve the realty.

E.g., heating systems, custom storm windows, furnace, certain lighting installations.

• Fixtures pass with ownership of the land.

Question 17

When does a tenant installation qualifies as a fixture?

Answer 17

1. Express agreement controls: any agreement on point is binding.
2. In the absence of agreement, T may remove chattel that she installed so long as removal does not cause substantial harm to the premises.
   – If removal will cause substantial damage, then the installation is objectively intended to stay permanently (subjective intent does not matter).

Question 18

T’s duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease:

Answer 18

1. At common law, historically: T was liable for any loss to the property, including loss due to force of nature.
2. Today, majority view: T may end the lease if the premises are destroyed w/o T’s fault.

Question 19

T’s duty to pay rent: breach + possession

Answer 19

L can only:

1. Evict through the courts, or
2. Continue the relationship and sue for rent due.

• If L moves to evict, L is still entitled to rent from T, who is now a tenant as sufferance, vacates.
• L must not engage in self-help (e.g., changing the locks, forcibly removing T, removing T’s possessions). Self-help is outlawed and punishable civilly and criminally.

Question 20

T’s duty to pay rent: breach + no possession

Answer 20

L may:

1. Surrender: treat T’s abandonment as an implicit offer of surrender (giving up the lease), which L accepts.
   – If the unexpired term is greater than 1 year, surrender must be in writing to satisfy the Statute of Frauds.
2. Ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there. (Available only in minority of states.)
3. Re-let the premises on T’s behalf, and hold T liable for any deficiency. (Majority rule.)
   – T must at least try to re-let the premises (mitigation principle).

Question 21

L’s duties

Answer 21

1. Duty to deliver possession
2. Implied covenant of quiet enjoyment
3. Implied warranty of habitability
4. No retaliatory eviction

Question 22

L’s duties: duty to deliver prossession

Answer 22

The majority rule (the English rule) requires that L put T in actual physical possession of the premises.

• Thus, if at the start of T’s lease a prior holdover T is still in possession, L has breached and the new T gets damages.

Question 23

L’s duties: implied covenant of quiet enjoyment

Answer 23

T has a right to quiet use and enjoyment of the premises w/o interference from L

• Applies to both residential and commercial leases.

Question 24

Implied covenant of quiet enjoyment: ways to breach

Answer 24

1. By actual wrongful eviction (when L wrongfully evicts T or excludes T from the premises).
2. By constructive eviction.

Question 25

Implied covenant of quiet enjoyment: breach by constructive eviction

Answer 25

Elements of constructive eviction: 1. Substantial interference due to L's actions or failures (could be permanent or chronic problem). 2. Notice: T must give L notice of the problem and L must fail to act meaningfully. 3. Get out: T must vacate w/in a reasonable time after L fails to fix the problem.

Question 26

Implied covenant of quiet enjoyment: is L liable for acts of other Ts?

Answer 26

Generally, no. EXCEPT: 1. L must not permit a nuisance on site. 2. L must control common areas.

Question 27

L's duties: Implied warranty of habitability

Answer 27

The premises must be fit for basic human habitation. * Applies only to residential leases. * Not a high standard—basic living requirements must be met. * Appropriate standard may be supplied by local housing code or case law. * Common problems: no heat in winter, no plumbing, no running water.

Question 28

Implied warranty of habitability: T's entitlements if L breaches

Answer 28

T may: 1. Move out and end the lease (but T does not have to, unlike constructive eviction). 2. Repair and deduct: T may make reasonable repairs and deduct the cost from future rent. (Allowable by statute in a growing # of jurisdictions.) 3. Reduce rent or withhold all rent until the court determines fair rental value. Typically T must place withheld rent in escrow to show good faith. 4. Remain in possession, pay rent, and affirmatively seek money damages.

Question 29

L's duties: no retaliatory eviction

Answer 29

If T lawfully reports L for housing code violations, L is barred from penalizing T. E.g., raising rent, ending the lease, harassing T, or taking other reprisals.

Question 30

Assignments and subleases (generally)

Answer 30

1. In the absence of some prohibition in the lease, T may freely transfer her interest in whole (assignment) or in part (sublease). 2. In the lease, L can prohibit T from assigning or subletting w/o L's prior written approval. 3. Once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L reserves the right.

Question 31

Assignment

Answer 31

T transfers her interest in whole. E.g., T1 transfers the remaining 10 months of her lease to T2. > L and T2 are in privity of estate (and not in privity of contract unless T2 assumed all promises in the original lease). > L and T1 are in privity of contract.

Question 32

Assignment: liabilities

Answer 32

L—T2: privity of estate. L and T2 are liable to each other for all of the covenants in the original lease that run with the land. * E.g., promise to pay rent, to paint the premises, to repair. L—T1: privity of contract. L and T1 are secondarily liable to each other (e.g., if T2 is bankrupt or unavailable).

Question 33

Sublease

Answer 33

T transfers her interest in part. * L and sublessee are in neither privity of estate nor privity of contract. So, the relationship between L and T1 remains fully intact. * But T1 and sublessee are liable to each other.

Question 34

L's tort liability

Answer 34

Common law of caveat lessee: let tenant beware! L is under no duty in tort to make the premises safe. EXCEPT: 1. Common areas. 2. Latent defects. 3. Assumption of repairs. 4. Public use. 5. Short term lease of furnished dwelling.

Question 35

L's tort liability: common areas

Answer 35

L must maintain all common areas (e.g., hallways and stairwells).

Question 36

L's tort liability: latent defects rule

Answer 36

L must WARN T of hidden defects that L knows or should know about. * Duty to warn, not to repair.

Question 37

L's tort liability: assumption of repairs

Answer 37

If L voluntarily makes repairs, L must complete them with reasonable care.

Question 38

L's tort liability: public use rule

Answer 38

1. L who leases a public space (e.g., convention hall or museum) 2. and should know that T will not repair 3. because of the nature of the defect (more than de minimis problem) and the length of the lease (usu. short time) 4. is liable for any defects on the premises.

Question 39

L's tort liability: short term lease of furnished dwelling

Answer 39

L is liable for any defective condition on site if it's a short-term lease (e.g., 1 week) of a furnished dwelling.