Landlord Tenant

Question 1

What is a tenancy for years?

Answer 1

Any fixed term tenancy. A tenancy with a fixed starting date and ending date. The tenancy terminates automatically at ending date.

Question 2

What is a periodic tenancy?

Answer 2

A tenancy with a fixed starting date, however, there is no fixed ending date.

Question 3

When can tenancy for years be oral?

Answer 3

Leases under one year can be oral, if longer than a year, the lease has to be in writing.

Question 4

What are the requirements to terminate a periodic tenancy?

Answer 4

To terminate, either side must give notice by words or conduct. Notice must be given equivalent to the period up to a maximum of six months

Example: If the lease runs month to month, then one month’s notice is required.

Question 5

What is tenancy at will?

Answer 5

A tenancy can only be created by express will of the parties. Either the landlord or tenant can will for lease to terminate with no timing/notice requirement.

Question 6

What is tenancy at sufferance?

Answer 6

When a tenant has a tenancy for years, it expires, and the tenant stays adverse to the landlord’s wishes.

Question 7

Who is a holdover tenant?

Answer 7

A tenant has a tenancy for years, it expires, and the tenant stays.

Question 8

What becomes of a holdover tenant?

Answer 8

Depending upon the landlord’s wishes, the tenant becomes a:

1. Periodic tenant, if the landlord wants the tenant

Or

2. Tenant in sufferance, if the landlord does not want the tenant.

Question 9

What is the key fact in determining the status of a holdover tenant?

Answer 9

Did the landlord accepts rent from the holdover tenant?

Yes: periodic tenant

No: tenant at sufferance

Question 10

If a holdover tenant becomes a periodic tenant, what is the period?

Answer 10

The period for which rent is paid

Question 11

How much rent is landlord entitled to receive in a:

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

Answer 11

Years: The entire amount

Periodic: The landlord is entitled to receive rent through the notice period required to terminate

At Will: None until it is due

Sufferance: The reasonable rental value of the property for the time on the land in sufferance

Question 12

What is anticipatory repudiation in landlord-tenant contracts?

Answer 12

If a tenant walks out, the landlord does not have to wait for the rent to accrue, they can sue for the full value of the contract.

Question 13

What is a landlord’s duty to mitigate damages?

Answer 13

If a landlord wants to sue for breach, they have to take reasonable steps to rent the premises. If not, a court will reduce the award by what they feel he could have received if he tried to rent the premises.

More Info: Landlord’s Duty to Mitigate

Question 14

What are a tenant’s defenses to paying rent?

Answer 14

1. Failure to deliver possession
2. The tenant is evicted
3. Tenant surrendered possession
4. Destruction of the leased premises
5. Offsets
6. All contract formation defenses

Question 15

When does a failure to deliver possession of premises occur?

Answer 15

Majority: it is the landlord’s duty to deliver possession at the start of the lease. If the landlord does not, then the tenant is excused from paying until receipt of possession.

American Rule: it is the tenant’s obligation to take possession.

Question 16

When does an actual eviction occur?

Answer 16

Whenever the tenant is physically removed from all (total) or part (partial) of the premises by the landlord.

Question 17

If a tenant is actually evicted from all or part of the premises, what is their rent obligation?

Answer 17

They have a defense to paying any rent from the time of eviction.

Question 18

What are the elements of a constructive eviction?

Answer 18

1. There is a substantial interference with the tenant’s use and enjoyment of the leased premises
2. Caused by the landlord or someone acting on his behalf
3. Tenant must move out in a reasonable time.
   * More Info:* Elements of Constructive Eviction

Question 19

When does constructive eviction occur as the result of actions of the third party?

Answer 19

When the landlord knew or should have known of the actions of the third party.

Question 20

If there is a total constructive eviction, what is the rent obligation?

What if it is partial?

Answer 20

Total: No rent obligation

Partial: Rent is abated proportionate to the space the tenant was evicted from

Question 21

When will surrendering possession of land to a landlord be a defense to rent?

Answer 21

When the landlord accepts possession back

≠ trying to re-rent/mitigate damages

Question 22

When is the destruction of the premises a defense to the payment of rent?

Answer 22

Common law: Destruction only releases the tenant if the tenant leases a portion of a structure.

Majority: If a tenant leases land and the structure is destroyed, then it is a defense unless the tenant is responsible for the destruction (negligently or intentionally).

Question 23

What is a warranty of habitability?

Answer 23

Requires the landlord to maintain the premises in a habitable condition.

1. The tenant must give the landlord notice of problem
2. The landlord must address the problem in a reasonable time
3. If there is no landlord action, then the tenant can remedy the situation and offset cost against rent.
   * More Info:* Warranty of Habitability

Question 24

What are the discharge arguments to the payment of rent?

Answer 24

1. Impossibility
2. Frustration of purpose

And

3. Impracticability

Question 25

What are a landlord’s obligations to maintain premises?

Answer 25

Common Law: No obligation absent an express promise in a lease.

Majority: Implied warranty of habitability and state statutory obligations

Question 26

What are a tenant’s obligations to maintain premises?

Answer 26

No obligation to maintain the premises but they must avoid committing waste.

Question 27

Who is liable in tort to a licensee or invitee in a leased premises?

Answer 27

Generally, the tenant has liability as the possessor of the land. The landlord has liability in common areas or areas held out to the public.

Question 28

What is tenant’s duty to avoid waste?

Answer 28

A tenant cannot commit voluntary, permissive, or ameliorative waste.

Question 29

In a tenant-landlord relationship, who has possession of the property?

Answer 29

The tenant

Question 30

When can a landlord retake the property prior to the expiration of tenancy?

Answer 30

Only if there is a material breach of the lease

Question 31

If a landlord is allowed to retake the property, how can the landlord retake the property?

Answer 31

Common law: Can use reasonable force

Majority: Must go to legal process of eviction

Question 32

Will courts uphold a retaliatory eviction?

Answer 32

No, any attempt to raise rents or evict due to a tenant’s exercising their rights will be voided.

Question 33

What improvements can a tenant remove from the property?

Answer 33

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.

Question 34

When must tenant fixtures be removed from a property?

Answer 34

Before the expiration of the lease; however, if the tenant has no reason to know when the lease is going to end, then they must be given reasonable time to remove the fixtures.

Question 35

When can structural improvements be removed​ from a leased property?

Answer 35

The presumption is that they cannot be removed because they change the nature of the structure.

Question 36

If an adverse possessor puts improvements on the land and is evicted before taking possession, what happens to the improvements?

Answer 36

The true owner can take the improvements.

Question 37

What happens when a tenant transfers their interest:

1. When the transferee is an assignee?
2. When the transferee is a sublessee?

Answer 37

Assignee: Gets all of the tenant’s remaining interest

Sublessee: Tenant only transfers a portion of their interest to the transferee

More Info: Assignee v. Sublessee

Question 38

What must occur for the original landlord to enforce rent against a transferee?

Answer 38

The transferee must be an assignee.

Question 39

Who can landlord evict: assignee v. sublessee?

Who can landlord sue for rent: assignee v. sublessee?

Answer 39

Both can be evicted, but only the assignee can be sued.

Question 40

If a tenant assigns their interest, who can landlord sue for rent?

Answer 40

The assignee or tenant.

Question 41

How can an assignee remove the liability to pay rent?

How can an original tenant remove the liability to pay rent?

Answer 41

Assignee can remove the obligation to pay rent if they reassign their possession.

A tenant cannot remove the obligation without a novation with the original landlord releasing the tenant.

Question 42

How can a landlord write a prohibition on transfer into a lease?

Answer 42

1. In order to prohibit both an assignment and a sublease, the contract must state both.
2. If landlord’s consent is necessitated, then the landlord must act reasonably.

Question 43

What is the rule in dumpor’s case?

Answer 43

If a prohibition on assignment is waived once by the landlord, then it is deemed waived for the duration of the lease unless the landlord reaffirms.

More Info: Dumpor’s Case Rule