Landlord-Tenant

Question 1

Types of tenancies

Answer 1

4 Types:

1. Tenancy for years
   • Any fixed period of time
   • Created by express agreement
   • Term longer than one year must be in writing to satisfy Statute of Frauds (SoF)
   • Automatically terminates at end of term (no notice needed)
   • May be terminated before the end of the term (e.g., breach of lease covenant gives rise to right to terminate)
2. Periodic tenancy
   • Repetitive, ongoing estate by set periods of time with no predetermined termination date
   • Automatically renews at end of each period unless valid termination notice
   • SoF does not apply
   • Created by express agreement, implication (no mention of duration), or operation of law (holdover tenant)
   • Termination notice—must be given before last period begins; late notice is effective for the next period; generally effective as of the last day of the period
3. Tenancy at will
   • Does not have a specific term; continues until terminated by L or T
   • Created by express agreement or by implication
   • May be terminated by either party at any time, but reasonable demand to vacate usually required; may also be terminated by operation of law
4. Tenancy at sufferance (holdover tenancy)
   • T wrongfully remains in possession after the expiration of a lease
   • T is bound by terms of the lease the existed before expiration, including payment of rent
   • Tenancy lasts until T vacates, L evicts T, or L elects to hold T to periodic tenancy

Question 2

Duties of the Tenant

Answer 2

3 duties:

1. Pay rent—duty to pay unless premises destroyed (lease terminated and tenant excused), or material breach by landlord
2. Avoid waste
   • Affirmative waste—T is prohibited from committing voluntary waste
   • Ameliorative waste—T may make changes to physical condition of property that increase the property value if reasonably necessary for T to use property in reasonable manner, unless L and T agree otherwise
   • Permissive waste—unless relieved by lease, statute, or ordinance, T has a duty to repair the premises to keep it in its pre-rental condition; no duty to repair normal wear and tear (unless L and T agree)
3. Repair—non-residential leases, T may be contractually liable for all damage to property (unless caused by L)

L’s remedies for T’s breach
• Failure to pay rent—L can sue for damages and evict
• Abandonment—L can retake premises if T abandons but duty L must mitigate damages by re-renting premises; T will be liable for any deficiency
• Holdover T—L can accept holdover tenant as periodic tenant or tenant at sufferance or sue after notice to vacate

Question 3

Duties of the Landlord

Answer 3

5 duties:

1. Possession—L must deliver actual physical possession or no obligation for T to pay rent
2. Repair—except for T damages, L must repair for residential but not for commercial leases
3. Warranty of habitability (residential)—premises must be fit for basic human habitation (health/safety), and if breached:
   • T must notify L of defect and give reasonable time to repair, and
   • Then T can refuse to pay rent, make reasonable repairs and deduct cost from future rent, or remain in possession, pay rent, and seek damages
4. Covenant of quiet enjoyment (commercial and residential)
   • T has a right to quiet use and enjoyment of the premises without interference from L
   • L has duty to control other tenants’ nuisance in common areas
   • Eviction: 4 types:
   o Actual—if L excludes T from premises, then lease is terminated and T’s obligation to pay rent ends
   o Partial—T excused from paying rent for L’s partial eviction, but must pay reasonable rental value if partial eviction by third party with superior claim; T not excused from paying rent for partial eviction by adverse possessor/trespasser
   o Constructive—substantial interference caused by L’s actions or failure to act, T must give notice of problem, L fails to respond, and T must vacate premises within reasonable time after L fails to fix problem
   o Retaliatory—L may not evict residential T for reporting housing code violations
5. Security deposit
   • Amount and terms (e.g., more for pet) generally set by state statute
   • Usually retained in an escrow account and must be promptly returned at the end of the lease, absent an explanation for retaining it

Question 4

Tort liabilities

Answer 4

Tenant—duty of care to invitees/licensees/foreseeable trespassers and may be liable for dangerous conditions/activities

Landlord
• CL—liable for injuries in common/public areas, non-common areas under L’s control, or from hidden defect/faulty repair by L or L’s agent
• Modern trend—general duty of reasonable care; liability for defects existing prior to T’s occupancy, failure to make required repairs, and criminal activities of third parties who injure Ts

Question 5

Assignments & subleases

Answer 5

Assignment—complete transfer of T’s remaining lease term
Sublease—any transfer for less than the entire duration of lease

Parties:

1. Assignee tenant: Assignee-T liable to L for rent/covenants running with lease because assignee-T is in privity of estate (P/E) with L. If assignee-T reassigns lease, his P/E with L ends and the subsequent T is now in P/E with L.
2. Sublease tenant (sub-T): Not liable for rent/covenants in lease to L because not in P/E or privity of contract (P/C) with L (still liable to original lessee). If sub-T expressly assumes covenants, then personally liable to L. Sub-T can enforce all covenants made by original lessee in sublease, but not any made by L.
3. Original tenant: Liable for lease covenants unless novation by L because still in P/C with L. P/E with L ends upon assignment but not sublease.

Landlord assignments
o Generally, L may assign lease rights to a third party (e.g., as part of a transfer of ownership) but L remains liable to T for all covenants in the lease
o T must pay rent to assignee-L and obey lease covenants; assignee-L must perform any burden imposed by lease covenant
o Attornment (T’s acknowledgement of a new L)—usually arises automatically upon payment of rent to assignee-L or notice to T but formal acknowledgement of an assignee-L’s ownership may be required in commercial leases

Limitations
• T can still assign/sublet if lease prohibits, but L can terminate for breach and recover damages
• L can only withhold permission to grant assignment or sublease on commercially reasonable grounds