Landlord-Tenant Flashcards
Tenancies for Years
- Continues for a fixed period of time
- Usually written leases (under SOF for Ks more than 1 year)
- Terminates automatically at its end date
- Ls often reserve right of entry (allows L to terminate if T breaches any of lease’s covenants)
- Failure to pay rent: many statutes permit L to terminate lease, even in absence of reserved right of entry
- Surrender: tenancy may terminate if T surrenders and L accepts; MUST have same formalities required for creation of lease
Periodic Tenancies
- Continues for successive periods until terminated by proper notice by either party
- Creation: (1) express agreement; (2) implication; (3) operation of law (e.g., T remains in possession after the lease expires, and L treats it as a periodic tenancy; or lease is invalid but T goes into possession)
- Termination: automatically renewed until proper notice of termination is given; usually must be full period in advance and timed to terminate the lease at the end of a period; for year-to-year, 6 months’ notice is required
TX = by statute required notice to end any periodic tenancy is 30 days and notice does NOT have to be given so that it will end on a period ending date; statute allows for proration of rent
Tenancies At Will
- Terminable at the will of either the L or the T
- Creation: must be created by express agreement that lease can be terminated at any time
- Absent agreement, periodic rent payments will cause a court to treat it as a periodic tenancy!!
- If only L has right to terminate, similar right will be implied in favor of the T
- If only T has right to terminate, similar right will NOT be implied in favor of L
- Termination: in most states notice and a reasonable time to quit are required to terminate a tenancy at will
TX = no notice to terminate is required! BUT 3 days’ notice to evict T!
Tenancies at Sufferance and Holdover Doctrine
- Not a tenancy at all! Holdover T!
- Action of landlord:
(1) hold T as trespasser and sue to evict and recover damages; or
(2) impose new periodic tenancy: for residential property, ALWAYS month-to-month; for commercial, prior lease year or more = new year-to-year, but prior lease for less than a year = measured by rent period
Exceptions: here T holds over for a reasonable time (only a few hours), or where delay is not T’s fault (illness, injury), or seasonal lease
Leases
- At CL, covenants in lease were independent
- Today, doctrines of actual and constructive eviction and the implied warranty of habitability are exceptions to this rule
- In nearly all states, L may terminate lease for the nonpayment of rent
- Modern courts are likely to construe other covenants as dependent and excuse 1 party’s performance if other party’s breach relates to a material part of the lease
Tenant Duties: Duty to Repair (Doctrine of Waste)
- If lease is silent on duties, T must (1) pay rent and (2) not commit waste (same as discussed w/ life Ts: voluntary waste, permissive waste, ameliorative waste)
- If premises are destroyed at no fault of L or T, neither has duty to restore but T has a duty to continue paying rent… but most state statutes give T option to terminate
- If a RESIDENTIAL T covenants to repair, the L usually remains obligated to repair (except for damages caused by T) under the non-waivable “implied warranty of habitability”… BUT NONRESIDENTIAL T’s covenant to repair is enforceable and L may be awarded damages for breach
- In the absence of a specific reference to ordinary wear and tear, a covenant to repair usually INCLUDES such repairs… but repair covenants frequently exclude ordinary wear and tear
Tenant Duties: Duty Not to Use Premises for Illegal Purpose
- If T uses premises for illegal purpose, L may terminate or obtain damages and injunctive relief
- Occasional unlawful conduct by the T does NOT breach this duty
Tenant Duties: Duty to Pay Rent
- At CL, rent was due at end of leasehold term; failure to pay rent was C/A for damages only NOT for eviction!
- Today, if T fails to pay rent, L can sue BOTH for damages and to evict T
- If T unjustifiably abandons the leasehold, L has 2 choices: (1) treat abandonment as offer of surrender and accept the offer by retaking the premises, thus ending T’s liability as of that date; or (2) relet the premises on T’s account and hold T liable for any deficiency (mitigation of damages)
Landlord Duties: Duty to Deliver Possession of Premises
- L must give T actual possession of the premises when the lease begins
- L is in breach if he has not evicted a holdover T by the beginning of the lease term (if he has a new T)
Landlord Duties: Condition of the Premises
Implied Warranty of Habitability (Residential property), Implied Warranty of Suitability (Commercial property), and Implied Covenant of Quiet Enjoyment (All!)
Implied Warranty of Habitability:
- L must deliver residential premises in a habitable condition; if breached, T can (1) move out and terminate the lease, or (2) stay and sue for damages
- TX = NO CL IWH; there is statutory requirement that Ls repair conditions that materially affect the physical health or safety of an ordinary T; almost impossible to waive! T must (1) notify L of condition and (2) not have unpaid rent balance
- TX = COMMERCIAL leases have implied warranty of suitability covering latent defects in the essential facilities of the leased property, may be waived by parties’ agreement
Implied Covenant of Quiet Enjoyment: every lease implies neither L nor TP with paramount title will interfere with the T’s quit enjoyment and possession
- Breached by
(1) actual eviction (T is excluded from entire premises and not obligated to pay rent);
(2) partial eviction (does not terminate lease, T can stay and NOT pay rent) but if by someone other than L with title, T’s rent is apportioned; or
(3) constructive eviction ((i) by L or his agents; (ii) causes substantial interference with quit enjoyment; and (iii) T must vacate w/in reasonable time or else lose the right) - T can terminate the lease and seek damages
Assignment
Assignment: T makes a complete transfer of the entire remaining term
By T:
- L’s consent may be required by lease
- Assignee and L are in POE
- Assignee and L are NOT in POC
- Original T and L remain in POC
- Assignee liable to L on all covenants that run with the land
- Original T remains liable for rent and ALL other covenants in the lease
By L:
- T’s consent not required
- Assignee and T are in POE
- Assignee and T are NOT in POC
- Original L and T remain in POC
- Assignee liable to T on all covenants that run with land
- Original L remains liable on ALL covenants in the lease
TX = NO RIGHT TO ASSIGN OR SUBLET UNLESS L GIVES PERMISSION
Sublease
Sublease: T transfers a portion of the lease period, retaining some for herself
By T:
- L’s consent may be required by lease
- Sublessee and L are NOT in POE
- Original T remains in POE with L
- Sublessee and L are not in POC
- Original T and L remain in POC
- Sublessee is NOT personally liable on any covenants in the original lease (no POE or POC) and CANNOT enforce the L’s covenants
- Original T remains liable for rent and ALL other covenants in the leases and CAN enforce the L’s covenants
TX = NO RIGHT TO ASSIGN OR SUBLET UNLESS L GIVES PERMISSION
Landlord’s Tort Liability
NO CL duty to make premises safe… but 6 exceptions:
(1) Concealed dangerous condition (latent defect): L knows or should know of dangerous condition Tz could not discover by reasonable inspection = L MUST DISCLOSE it (not repair) otherwise liable for resulting injuries unless T accepts premises and assumes risk
(2) Common areas: L has duty of reasonable car ein maintaining common areas (hallways, elevators, courtyards, etc.)
(3) Public use: L is liable for injuries to member of public if, at time of lease, he (i) knows of dangerous condition; (ii) has reason to believe T may admit public before repair; and (iii) fails to repair
(4) Furnished short-term residence: L is liable for injuries resulting from ANY defect, whether he knew or not
(5) Negligent Repairs by L: liable if injury results or from deceptive appearance of safety
(6) L contracts to repair: liable for injuries resulting from failure to repair
MODERN TREND: general duty of reasonable care and liability for injuries resulting from ordinary negligence if L had notice of defect and opportunity to repair it
Fixtures
- A chattel affixed to land that ceased to be personal property; passes with ownership of the land (CANNOT be removed by either seller or a T)
- Key = intent (in installation)
- 4 factors:
(1) degree of attachment
(2) general custom with this item
(3) degree of harm to the premises on removal (if T can remove item without substantial damage to the premises, then courts allow inference there was no intent item be a fixture)
(4) trade fixtures (chattels used in trade/business are NOT fixtures, i.e., meat company’s freezer or special night club lighting) - Washers and dryers are NEVER fixtures
- Timing: T must remove BEFORE end of lease; seller must remove BEFORE closing, or else the fixture stays!
- Constructive annexation: so uniquely adapted to real estate it makes no sense to separate it (e.g., keys to doors, custom curtain rods) may be considered fixture even if not physically annexed to property
- TP Liens: i.e., L affixes chattel and seller retains security interest in the chattel (fixture), and then L mortgages the land… general rule is first to record his interest wins; but under UCC a seller wins if the “fixture filing” is recorded within 20 days after chattel is affixed to land
Condemnation of Leasehold
Partial Taking/Condemnation
- T MUST continue to pay rent, but gets cash paid out of the condemnation award in proportion to property taken
Full condemnation
- Extinguishes the lease
- T is excused from paying rent
- T shares in condemnation award only to the extent the fair rental value of the lease exceeds the rent due under the lease (T was paying $1k/mo. for property with FRV of $3k/mo. = T gets $2k for every month left on lease
