Landlord Tenant Flashcards
Tenancy for years
Tenancy for years refers to a lease for a fixed period of time. It refers to any fixed time period such as one day, two months, one year, five years, etc.
a. SOF writing required for terms greater than one year.
b. Automatic termination: No notice is required to terminate because a term of years automatically terminates on the end date of the time period.
Periodic tenancy
Automatically continues from one period to the next, unless one of the parties terminates the lease by giving notice of termination (e.g., leases running month- to- month, year- to- year, etc.).
a. Can be created by implication if the lease includes a start date, but there is no stated end date.
b. Written notice is required to terminate a periodic tenancy since the tenancy is automatically renewed in the absence of notice of termination. At common law, notice must be in accordance with the length of the time period, except that if the lease is one year or longer, only six months’ notice is required.
c. A holdover tenant is one whose lease has terminated, but who remains in the premises and tenders rent, which the landlord accepts. A holdover tenant is considered to have a periodic tenancy with the time period for the tenancy being the time period of the previously expired lease.
Tenancy at will
Tenancy at will is a tenancy for no fixed period of time, which can be terminated at any time.
a. Can be created by implication where the tenant takes possession with permission, but there is no specified start date or time period identified for paying rent.
b. Can be terminated at any time by either party.
Tenancy at sufferance
Tenancy at sufferance is created when a tenant wrongfully holds over past the expiration of a valid lease.
Landlord election: When a tenant holds over, the landlord has the option to evict the tenant or hold him over to another term as a tenant with a periodic tenancy.
Common areas of dispute in landlord and tenant
Common areas of dispute in landlord and tenant
- Duty to pay rent
- Possession of the premises
- Condition of rental premises
Duty to pay rent
The tenant has the duty to pay rent in the amount agreed to. A tenant may have the following defenses available for the nonpayment of rent:
a. Failure to deliver possession of the premises.
b. Breach of the covenant of quiet enjoyment.
c. Constructive eviction.
d. Destruction of the premises through no fault of the landlord, or the tenant. At common law the tenant had to continue paying rent, but modernly many states allow the tenant to terminate the lease.
e. Potential contract defenses , such as frustration of purpose.
f. Surrender of the premises by the tenant, which the landlord accepts.
g. Re- letting of the property after an abandonment done on behalf of the tenant. If the new tenant’s rent is less, the old tenant will owe the difference, so long as he was properly notified.
Possession of the premises
a. Holdover tenant
1. At common law, a landlord could use reasonable force to remove holdover tenant and reclaim the property.
2. Modernly, a landlord must not engage in self- help, such as manually removing the tenant.
b. Eviction: A landlord may typically terminate a lease for a material breach. A landlord must evict through the courts or continue the rental relationship, give notice, and sue for damages.
c. Abandonment: If a tenant abandons the premises the landlord at his option may:
1. Accept the surrender and terminate the lease; or
2. Re- let on behalf of the tenant (tenant must be notified ); or
3. Leave the premises vacant and sue for rent as it becomes due.
a. Traditionally, there was no duty to mitigate.
b. Modernly , there is a duty to mitigate imposed by many courts on the landlord.
Condition of rental premises
a. Common law: Tenant takes premises “as is” and landlord has no duty to repair or duty to make the premises fit or habitable.
b. Modern view: The landlord must maintain all common areas, fix latent defects of which the landlord has knowledge, and, if the landlord chooses to make repairs, he must do so nonnegligently.
Constructive eviction-Condition of rental premises
Constructive eviction is treated as an eviction.
a. Applies to residential and commercial leases.
b. Requires that
i. The premises are virtually uninhabitable for their intended use because of a substantial interference with the property use and enjoyment;
ii. Notice is given to the landlord by the tenant;
iii. The landlord fails to meaningfully respond ; and this
iv. Causes the tenant to actually move out within a reasonable time.
Actual partial eviction -Condition of rental premises
a. Landlord makes it physically impossible for the tenant to occupy some portion of the premises.
b. Tenant may withhold the entire rent and does not have to move out.
Implied covenant of quiet enjoyment-Condition of rental premises
Implied in every lease. The landlord warrants that he, or anyone acting for him will not interfere with tenant’s use and enjoyment of the premises. (May include acts or other tenants, but won’t include the acts of strangers.)
Implied warranty of habitability-Condition of rental premises
Implied warranty of habitability applies to residential leases only and requires that the premises must be fit for human habitation. Where the premises are not habitable, the tenant has the option to:
a. Terminate the lease and move out ; or
b. Make repairs and deduct the cost from the rent; or
c. Pay reduced rent , remain on the premises, and sue for damages.
Retaliatory eviction-Condition of rental premises
Retaliatory eviction is barred. A tenant may not be evicted, have a periodic lease terminated, or have a tenancy for years not renewed because the tenant has asserted that the premises are not habitable.
Tort liability of landlord and tenant-Condition of rental premises
Tort liability of landlord and tenant
a. Landlord must
i. Maintain all common areas ,
ii. Fix any latent defects of which the landlord has knowledge, and
iii. Any repairs assumed must be made nonnegligently.
iv. There is a duty to inspect for defects if the premises are held open to the public .
b. Tenant is treated like an owner for purposes of tort liability to third parties who come on the property.
Doctrine of waste
A tenant (applies to a life tenant under a life estate or a regular rental tenant) must prevent waste and cannot damage leased premises without effecting repair. There are three types of waste:
- Voluntary waste
- Permissive waste
- Ameliorative waste
