LandLord/Tenant Flashcards
How to approach land lord tenant problems?
- identify type of tenancy
- Which of the 4 basic disputes is it?
- Has landlord/tenant transferred their interest
Tenancy for Years
- definition
- creation
- term
- termination
- definition: any fixed term tenancy (fixed starting date and ending date)
- creation: express agreement of the landlord + tenant
- term: term fixed
- termination: automatically terminates at ending date
Periodic Years
- definition
- creation (2)
- term
- termination
- definition: a fixed starting date, however, no fixed ending date (automatically renewing)
- creation: express agreement of the parties or implication
- term: indefinite
- termination: upon giving of proper notice (either side)
When can tenancy for years be oral?
Leases under one year can be oral, if longer than a year, has to be in writing
Termination of a periodic tenancy requirements?
Either side gives notice by words or conduct
- Notice must be given equivalent to the period up to a maximum of six months (e.g. if month to month, then one month notice) ≤ 6 months
- When to give
CL: notice had to be given at start of rental period
Majority: notice given in the middle takes effect at the start of the next rental period
Tenancy At-Will
- creation
- termination (3)
- can only be created by express will of the parties
- ways to terminate
a. either landlord or tenant expresses will for lease to terminate (no timing/notice requirement)
b. automatically on death of landlord or the tenant
c. automatically if either party tries to transfer their interest
Tenancy at Sufferance is
A tenant has a tenancy for years, it expires, and the tenant stays adverse to the landlord’s wishes
A holdover situation is where?
A tenant has a tenancy for years, it expires, and the tenant stays
What becomes of a holdover tenant?
- periodic tenant; or, (if landlord wants tenant)
- tenant in sufferance (if landlord does not want tenant)
-depends upon landlord
Crucial fact in looking at a holdover tenant?
does the landlord accept rent from the tenant?
Yes=periodic tenant
No=tenant at sufferance
If a holdover tenant becomes a periodic tenant, the period is
The period for which rent is paid
Common Disputes between landlord and tenant
- fights over rent
- Condition of the Premises and Who has the obligation to maintain
- Fight over possession
- Dispute over improvements
How to analyze fights over rent?
- how much rent is landlord entitled to recieve
How much rent is landlord entitled to receive in
- tenancy for years
- Periodic Tenancy
- Tenancy at will
- Tenant at sufferance
- the entire amount
- landlord is entitled to receive rent through the notice period required to terminate
- Generally, none due
- Depends
a. if becomes periodic tenancy, then periodic rules apply
b. if tenant at sufferance, then liable for the reasonable rental value of the property for time on land
What is anticipatory repudiation in Landlord tenant contracts
If a tenant walks out, the landlord does not have to wait for the rent to accrue, can sue for everything
What is landlord’s duty to mitigate
If they want to sue for breach, they have to take reasonable steps to rent the premises
If not, court will reduce award to tenant by what they feel he could have recieved
Tenant defenses they can raise as to why they should not be obligated to pay that rent.
(6)
- failure to deliver possession
- if the tenant is evicted
- surrender
- destruction of the leased premises
- Offsets
- other contractual defenses
When does a failure to deliver possession of premises occur?
Common law/Majority: landlord’s duty to deliver possession at the start of the lease, then tenant excused from paying until receipt of possession
American Rule: it is the tenant’s obligation to take possession
When does an actual eviction occur?
whenever the tenant has been physically removed from
all (total) or part (partial)*
of the premises by the landlord or someone acting upon behalf of landlord
If a tenant is actually evicted from all or part of the premises, what is their rent obligation?
They have a defense to paying any rent
When does constructive eviction occur?
3
A substantial interference with the tenant’s use and enjoyment of the leased premises
(amounting to being enforced off the property)
+
Caused by the landlord or someone acting on his behalf
+
Tenant MUST move out in a reasonable time
When does constructive eviction occur as the result of actions of the third party?
When the landlord knew or should have known of the actions of the third party
If there is a total constructive eviction, what is the rent obligation?
What if it is partial?
- excused from paying any rent for a total
- rent abatement of the portion evicted from for a partial
Surrendering possession of the land to the landlord will be a defense to rent if?
- surrendered
+ - landlord accepts possession back (≠ trying to re-rent/mitigate damages)
If so, then do not have to pay rent
Destruction of the premises is a defense to payment of rent if?
Common law?
Majority?
Exception?
Common law: destruction only releases if the tenant leases a portion of a structure (if leases all, then not a defense)
Majority: if a tenant leases land and the structure is destroyed, then it is a defense
-unless tenant is responsible to the destruction (negligently or intentionally)
Offsets to the payment of rent occur when?
- tenant must give landlord notice of problem
- Landlord must have reasonable time to address the problem, then, if no action
- Tenant can remedy the situation and offset cost against rent due
A duty is violated
-Warranty of habitability
A warranty of habitability is?
to claim breach?
implied in residential leases
Requires the landlord to maintain the premises in a habitable condition
- tenant must give landlord notice of problem
- Landlord must have reasonable time to address the problem, then, if no action
- Tenant can remedy the situation and offset cost against rent
discharge arguments to payment of rent
3
- impossibility
- frustration of purpose
- impracticability
Landlord’s Obligations to maintain premises
common law v. majority
Common Law: no obligation absent express promise in a lease
Majority: implied warranty of habitability + other statutory obligations
Tenant’s Obligations to maintain premises?
No obligation to maintain the premises
but must avoid committing waste
If tenant is suing landlord for failure to maintain premises, then what type of action
If as a defense to landlord’s request for rents
contract action
Offeset to rent
Who is liable in tort to a licensee, invitee in a landlord tenant situation?
Generally, the tenant as the possessor of the land
When is a landlord liable in tort?
2
- common passageways
- if landlord leases premises knowing of a defect that is not readily apparent, then liable until tenant can inspect and remedy condition
What is tenant’s duty to avoid waste?
Cannot commit voluntary, permissive, or ameliorative waste.
In a tenant/landlord relationship, who has possession of the property
If a lease is entered into and the landlord has leased property to the tenant, then the tenant is the one who has the possessory right to the property.
Landlord can only retake the property prior to expiration of tenancy if:
there is a material breach of the lease
If a landlord is allowed to retake the property, what is allowed
Common law v. majority
Common law: could use reasonable force
Majority: must go to legal process
Will courts uphold a retaliatory eviction?
No, any attempt to raise rents or evict out of a tenants exercise of rights will be voided
Dispute over Improvements in tenant/landlord relationship? What can be removed?
Anything that the tenant affixes to the land can be removed at the expiration of the lease, so long as the property is left in substantially the same condition as when the tenant arrives
If the fixture be removed and the premises left in substantially the same condition as when the tenant arrived?
(a) If so, when must it be removed
(b) unless
before the expiration of the lease
-the tenant has no reason to know when the lease is going to end (tenancy of will) –> given reasonable time
When can structural changes be removed?
Presumption is that they cannot be removed because they change the nature of the structure
If an adverse possessor puts improvements on the land and is evicted before taking possession, what happens to the improvements?
The true owner can take the improvements
What happens when Landlord transfer’s interest?
Who is rent due to?
Whoever is the landlord of record on the day that rent is due is entitled to that money
What happens when a tenant transfer’s their interest?
- When is the transferee an Assignee
- When is the transferee a Sublessee
Assignee = gets all of tenant’s remaining interest
Sublessee = tenant only transfers a portion of their interest to the transferee
In order for the original landlord to enforce rents/rent contract against a new tenant
we must meet the requirements for a covenant running with the land:
Assignee meets the test, sublessee does not
Who can landlord evict: assignee v. sublessee?
Who can landlord sue for rent: assignee v. sublessee?
Both
Only assignee can be sued
If a tenant assigns their interest, who can landlord sue for rent?
Assignee or tenant
How can an assignee get off the hook for paying rent? How can an original tenant?
Assignee if they reassign
Tenant cannot without a novation
Transfer of interest in a lease is generally
freely transferable
A landlord may write a prohibition on transfer into a lease but will be
Narrowly construed
- To prohibit both an assignment and a sublease, must state both
- If consent is involved: then landlord must act reasonably (if consent is not involved, landlord can act however)
What is the rule in dumper’s case?
- applies to prohibition on assignments only
- If the prohibition is waived once by the landlord, then it is deemed waived for the duration of the lease unless the landlord reaffirms.
