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Property > Landlord Tenant > Flashcards

Landlord Tenant Flashcards

1
Q

Lease Definition

A

Landlord grants exclusive right of possession of real property to tenant for a period of time, with a reversion interest at the end of the term

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2
Q

Right to Possession

A

Leasee must have exclusive right to possession.

maintains the right of exclusion, even against landlord

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3
Q

Lease v. License

A

License - a personal right based on a contract that is revocable by the licensor
- property law eviction process does not apply

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4
Q

Categories of a lease

A

Term of years - set to expire on a specific date

Periodic tenancy - continued for successive periods of equal length unless one of the party informs the other of its intention to terminate

Tenancy at will - no fixed period, lasts until one party cancels

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5
Q

Term of years Lease

A

Does not automatically renew

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6
Q

Periodic Tenancy

A

Automatically renews unless either side gives notice

Notice

Common law - amount of notice required equals the period of tenancy, but never more than 6 months

URLTA -
week to week - 10 days
Month to month or longer - 30 days
Not Waiveable

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7
Q

Tenancy at Will

A

Either side can terminate at any time

Common law - Old Rule

If one side is given right to terminate, then it becomes at will and the other side can terminate as well

New Rule - some jurisdictions allow only parties to contract so only one party can terminate

URLTA - Automatically converted to Periodic tenancy

  • week to week if rent is paid weekly
  • Month to month in all other cases
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8
Q

Tenant at sufferance - election

A

1) treat as trespasser
- No notice to tenant required
- May recover actual damages, including loss of a new tenant

2) Treat as a tenant under new lease
- Some jurisdictions allow landlord to double or triple rent
- terms are same a previous lease
- Most jurisdictions consider holdover tenancy to be periodic
- Some jurisdictions fix the period at the term under the old lease NEVER LONGER THAN 1 YEAR
- Other jurisdictions fix period at rental payment period

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9
Q

Landlord’s Duties

A

Provide:

1) Right to possession
2) Right to Quiet Enjoyment
3) Implied warranty of habitability (Residential)

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10
Q

Right to Possession - American Rule

A

Landlord was required only to deliver right to possession, not to place tenant into physical possession

Rightful tenant only able to get relief from trespasser, not landlord

Rationale:

  • Tenant can negotiate in contract to be placed in possession if concerned
  • English rule forces landlord to be insurer of tenant
  • unfair to hold landlord liable for wrongdoing of a trespasser
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11
Q

Right to Possession - English Rule

A

Landlord must actually place tenant into possession. If not placed into possession, tenant can terminate lease

WEAK MAJORITY of jurisdictions apply this rule
URLTA also applies english rule

Rationale:

  • Landlord knows status of previous tenant better than new tenant
  • Landlord is the only party who can evict the holdover tenant prior to the start of new tenant’s lease
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12
Q

Implied Covenant of quiet enjoyment

A

Tenant has the right to exclude all even the landlord

Common Law -

  • Landlord had no right to enter, even to avoid waste or if illegal activities were occurring
  • Some courts now allow landlord to enter to protect other tenants or to prevent serious damage

Residential and Commercial leases often allow landlord to enter:

1) in the case of an emergency
2) to make repairs to structural and other integral systems
3) to prevent waste

Commercial Landlords-
- often have provisions in leases that allow them to enter close to the end of the term of a lease to show the property to potential new tenants

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13
Q

Independent covenants

A

Each covenant in a lease is independent

If one covenant is breached, others still apply

If landlord breaches quiet right to enjoyment, tenant still must pay rent.

As long as tenant is on property he must pay rent

BASED IN PROPERTY LAW

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14
Q

Damages available for breach of quiet enjoyment

A

Tenant may sue for damages, but cannot withhold rent

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15
Q

Constructive Eviction - Definition

A

Through the actions or inactions of landlord, the premises in untenantable so tenant must vacate premises

Requires permanent interference that is substantial in nature

PRIMARILY USED AS A DEFENSE for failure to pay rent

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16
Q

Constructive eviction - Elements

A

1) Interference is substantial and would cause a reasonable person to be forced to vacate immediately or as soon as possible
2) Tenant must Notify landlord and give him reasonable time to fix problem
3) Must actually vacate
4) Must result from a breach if implied or express promise

Substantial
Interference
Notify
Get out (vacate)

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17
Q

Constructive Eviction - Damages

A

Damages not available for constructive eviction

Defense for failure to pay rent

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18
Q

Implied warranty of habitability v. constructive eviction

A

Constructive eviction may not be option for some residential tenants because many may not be able to scrape together enough for another security deposit without the return of their existing one

Risky - If fails could be on the hook for 2 leases

19
Q

Implied Warranty of habitability

A

Landlord will deliver and maintain, throughout the duration of the lease, premises that are safe, clean, and fit for human habitation

Exists on all residential rental agreements

CANNOT be waived

No need to vacate

cause of action - not defense

20
Q

Implied Warranty of habitability - Damages

A

Compensatory - based on difference between agreed upon / paid rent and the actual value of the habitation

Punitive - Available when landlord is such a willful and wonton or fraudulent nature to make appropriate the application of exemplary damages

Deduct and repair - Can simply pay for repair and deduct the value from rent
- URLTA - limits to only minor repairs that cost less than 1/2 of a month’s rent

21
Q

Implied Warranty of habitability - retaliatory eviction

A

URLTA extends protections against landlords from evicting or raising rent in relation to bringing a suit against the implied warranty of habitation

22
Q

Caveat Leasee

A

Leassee beware - Still used in a minority of districts instead of implied warranty of habitability

23
Q

Tenant’s Duties

A

1) Pay Rent

2) Don’t waste

24
Q

Tenant surrender

A

2 choices

1) Accept surrender - terminate lease
- May collect unpaid rent but not entitled to future rent

2) Reject Surrender -
Most jurisdictions - landlord is required to use reasonable efforts to find tenant to mitigate damages from a breach
Reasonable - must treat the apartment in questions as if it is one of his vacant stock
Burden of proof - JX split but landlord is in better position to prove he used reasonable diligence

Old / Common law approach - Landlord may choose to leave premises vacant and continue to hold tenant liable for remainder of term

25
Q

Summary proceedings

A

State statutes allow landlords to retake possession after giving tenant statutorily prescribed notice, and opportunity to cure

  • Periods usually around 10 days
  • residential and commercial leases

If tenant no pay, tenant is subject to summary proceeding

  • Some statutes allow damages to landlord
  • Some allow only for failure to pay rent, others allow it for non-monetary default
26
Q

Self Help

A

A minority of jurisdictions allow self help to “peaceably” enter the premises of a tenant who no longer has right to possession, so long as he uses the minimal physical force required to obtain possession

Most jurisdictions do not allow self help

URLTA - Bars self help

27
Q

Self Help - Waiver

A

Residential-
States that do not allow self help typically allow residential tenants from waiving the right against self help

Commercial -
Often, commercial tenants can waive self help protections

Some courts hold no self help is allowed in any lease

28
Q

Three types of waste

A

1) Affirmative
2) Permissive
3) Amelioritive

29
Q

Sublease v. Assignment - Common Law

A

Favored in most jurisdictions

Assignment - leasee’s estate is transferred for remainder of term

Sublease - interest is transferred for less than remainder of term. Even by one day

30
Q

Sublease v. Assignment - Modern / minority rule

A

Look to the intentions of the parties alone as a guide. That intention arrived at by the language of the agreement read in the light of the surrounding circumstances

31
Q

Privity

A

Required for one party to recover from another

Legally recognizable connection

need privity of contract OR privity of estate to sue - NOT both

32
Q

Privity of contract

A

Parties no longer have privity of contract when:

1) full performance
2) release
3) Material breach

33
Q

Privity of Estate

A

Transfers with assignment
Does not transfer with sublease

Landlord can NEVER sue subtenant under privity of estate
- But can sue under privity of contract if it exists

34
Q

Relation between subtenant and sublandlord

A

original tenant becomes sub-landlord to new subtenant

All the same duties are present between subtenant and sub-landlord as between landlord and tenant

35
Q

Profits from a sublease

A

Default rule - tenant keeps profits from sublease

Commercial landlords often contract to split profits with tenant

Encourages tenant to take advantage of higher rents but allows landlord to share in some of the profits

36
Q

Right to Transfer - Default Rule

A

Tenant has right to assign or sublease

If landlord wishes to restrict he must expressly limit the tenants ability to transfer in the lease

37
Q

Right to Transfer - Tenant Mix

A

Commercial tenants may wish to restrict tenant’s ability to transfer in order to maintain a desirable tenant mix

38
Q

Silent consent clause - comercial tenants

A

Tenant may not transfer, assign, or sublease without prior written consent of landlord

Tenant can negotiate for language that requires landlord to act reasonably

39
Q

Implied reasonableness - commercial tenants

A

Some courts state that in the absence of specific language to the contrary, the landlord has an implied duty to act reasonably in allowing tenant to transfer

Can only deny request for a commercially viable reason

MODERN TREND

Decision to deny transfer must only relate to the specific property at issue, not landlords overall economic condition

40
Q

Right to transfer - residential tenant

A

only reasonable consideration for a residential tenant is ability to pay rent

41
Q

14th amendment

A

1) all entitled to equal protection under the law
2) relies on state action
- can sue or invalidate any rule created by government entity
3) Not limited to race

42
Q

Civil rights Act of 1866

A

1) Applies to individual behavior (not relevant to state action)
2) limited to discrimination based on race
- Not nation of origin or ethnicity

43
Q

Fair Housing Act

A

No state action is required

Only covers forms of discrimination covered in act

Cannot: refuse to sell or rent, provide less favorable terms, indicate preference in advertisement, misrepresent that availability for sale, or induce another to sell property due to the entry of a protected class into the neighborhood

44
Q

Fair Housing Act - 7 Protected classes

A 
Protected classes:
Race
Religion
Color
Sex
Familial status
Handicap
Nation of origin

Property (5 decks)

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