Landlord & Tenant Flashcards
What is tenancy for years?
Estate measured by fixed & ascertainable amount of time
- Can be any length of time
How is tenancy for years created?
By agreement b/w LL & T
- SOF applies if longer than 1 year - must be in writing
- if Lease subj. to SOF, voidable until:
- T takes poss. AND
- LL accepts rent
- if Lease subj. to SOF, voidable until:
How is tenancy for years terminated?
- At end of term - Auto. at expiration of the term AND
- No notice required
- Right to renew agreement must be explicitly set out in th elease
- Prior to end of term, examples
- T surrenders leasehold,
- breach of lease covenant gives rise to right to term.
What is a periodic tenancy?
- Repetitive, ongoing estate
- measured by a set period of time
- BUT has no predetermined termination date
- Auto. renews at end of each pd. unless valid termination notice
Periodic Tenancy & Statute of Frauds
- SOF doesn’t apply b/c its nature is that it is for a non-fixed term
What are the requirements to terminate a periodice tenancy?
Since it auto. renews, notice is req.
- Notice must be given b/f the beginning of the intended last period
- Late notice - effective for the next period
- Notice of term. is effective as of the last day of the pd.
- e.g. end of month for month to month tenancy that began on the 1st
What is Tenancy at Will?
Leasehold that:
- doesn’t have a specific term AND
- continues until terminated by either LL or T
How is Tenancy at Will Created?
- By express agreement OR
- by implication if pers. is allowed to occupy the premises (such as when Ps are negotiating the lease_
How is Tenancy at Will Terminated?
- By either party without advance notice OR
- T must be given reas. time to vacate prem.
- Most States (by statute) req. party give notice to term.
- By operation of law upon death of either party
- b/c of waste
- assignment by tenant or
- upon transfer or lease of prop. to 3d party by LL
What is the effect If the Tenancy at Will agreement gives only the LL the right to terminate at will? the Tenant?
If LL given right, A reciprocal right of the tenante to terminate at will is implied
BUT if T given right, LL is not given a similar right
What is Tenancy at Sufferance?
A holdover Tenancy - Created by actions of Tenant alone
- Period of time after the expiration of a lease where the T remains on the prem.
- T is bound by the terms of the lease that existed b/f expiration, including payment of rent
What becomes of a holdover tenant?
Depends on LL’s wishes, T becomes a:
- Periodic Tenant, if LL wants the tenant (LL accepts rent fron the holdover tenant) OR
- Tenant at sufferance, if the LL doesn’t want the tenant (LL didn’t accpet rent from the holdover tenant)
If a holdover tenant becomes a periodic tenant, what is the period?
The period for which rent is paid
How is a tenancy at sufferance terminated?
- Tenant vacates the prem
- LL evicts the tenant OR
- LL binds tenant to a new periodic tenancy
What are the duties of the Tenant?
- Duty to pay rent
- Avoid wast
- Repair
What are tenant’s defenses to paying rent?
- Destruction of the Premises AND
- So long as tenant didn’t cause the destruction
- Material breach by the landlord
Affirmative Waste
A tenant is prohibited from committing vol. waste
Amerliorative Waste
- Tenant can make changes to the phys. cond. that increase the prop. value if reas. nec. for T to use the rpop. in a reas. manner
- Unless LL & T agree otherwise
- Restatement (second) of Prop. - LL requires advance permission
Permissive Waste
- T has duty to repair prem. to extent nec. to maintain the prem. in their pre-rental conditon
- Exception - normal wear & tear
Contractual Duty to Repair - Nonresidential Lease
Tenant is liab. for all damage to the prop. unless LL caused the damage
Contractual Duty to Repair - Residential Lease
Generally void, but tenant may be required to notify LL of the need for repairs
What are Landlord’s remedies if Tenant fails to pay rent?
- Sue for both damages & to remove T from the Prop.
- Agreement to pay rent by certain date is material term in the lease
- Thus, late payment is a material breach of the lease so LL can bring action for damages
What are Landlord’s remedies if tenant abandons the property?
If tenant walks out, LL can retake the premises
- LL has Duty to Mitigate Damages by making effort to re-rent the prop.
- Can hold the tenant liable for any deficiency
What are the Rights & Duties of a Landlord?
- Give Possession
- Repair
- Warranty of Habitability
- Covenant of Quiet Enjoyment
- Security Deposit
Landlord Duty - Give Possession
Majority - LL must deliver actual phys. poss.
- If LL fails to deliver, tenant doesn’t have to pay rent
- Minority - Only need to deliver legal poss.
Landlord Duty - Duty to repair
LL has duty to repair under a residential lease
- Exception - Tenant damages
Warranty of Habitability
Implied Warranty in Residential Leases ONLY
- LL must maintain prop. so it is reasonably suited for residential use (Fit forbasic human habitation (health/safety)
- Can’t be waived by T
- Failure to comply with applicable housing codes = breach of war.
What is the effect if Landlord Breaches Warranty of Habitability ?
If the premises are not habitable, tenant may choose to:
- Refuse to Pay rent
- Remedy the defect and offset coast against the rent OR
- Defend against eviction
Before T can w/hold rent or remedy defect, she must notify LL of prob. & give him reas. opp. to correct it
Covenant of Quiet Enjoyment
Implied cov. in Residental & Commercial Leases
- T has right to quiet use & enjoyment of the prom. w/out interf. from LL
- Breached when LL, someone claiming through the LL, or someone w/ superior title disrupts the poss. of the tenant
- LL has duty to control other tenants nuisance in common areas
Effect of Breach of Covenant of Quiet Enjoyment
Any actions by LL that breach the covenant amount to an actual or constructive eviction
What is an actual Eviction ?
LL removes the T from the prem., then the total eviction term. the lease and ends the tenant’s oblig. to pay rent
What is a partial eviction?
If T is prevented from poss. or using portion of the leased prem., then T can seek relief
- Type of relief granted depends on who prevented the possession
- LL or 3d party
Partial Eviction - LL prevented possession
T is completely excused from paying rent for the entire premises
Partial Eviction - 3d party prevented possession
T must pay the reas. rental value of the prom. occupied if eviction is by 3d party with superior claim to the prop.
- T not excused from paying rent if 3d party adverse poss. or trespasser partially evicts the tenant
What is constructive eviction?
- LL subst. interferes with the tenant’s use & enjoyment of the leased prem.
- Caused by the landlord’s actions or failure to act
- Tenant must give notice to L of the problem
- L fails to respond
- T must vacate the prop. w/in reas. amount of time
Retaliatory Eviction
LL can’t evict a residential tenant for failure to pay rent as retaliation for the tenant’s reporting a housing code violation to the approp. authorities
Security Deposits
LL can require a security deposit from a T as a guarantee of the T’s fulfillment of the tenant’s lease obligations
Amount of security deposit
- 1/2 states - Max amount is set by state statute
- Ranges from 1-2 months rent
- Some states allow additional amount for pets
- LL required to keep sec. dep. in escrow account & in some states, interest earned on account belongs to the tenant
Use of the Security Deposit
- LL must promptly return sec. dep. at the end of the lease OR
- Notify T of the amount retained by the L & reason for doing so
Who is liable in tort to a licensee or invitee in a leased premises?
Tenant
- has liab. as the possessor of the land
Landlord - Resp. for injuries occuring:
- In common areas AND
- areas held out to the public OR
- Non-common area under LL control OR
- injuries occuring as a result of a hidden defect or faulty repair completed by the LL or his agent
If Landlord is allowed to retake the property, how can the landlord retake the prop?
Common Law - Can use reasonable force
Majority - Must go to legal process of eviction
What is an assignment ?
Complete Transfer of T’s remaining lease term
- Assignee gets ALL of tenant’s remaining interest
What is a sublease ?
Any transfer for less than the entire duration of the lease
- Transers a protion of their interest ot the transferee
Assignee’s Rights and Liabilities
- Assignee is In Privity of estate with LL
- Liab. to LL for the rent & any other covenants in the lease that run with the lease
Sublessee’s Rights & Liabilities
- Sublesee NOT in privity of estate or K with the LL
- Not liab. to LL for rent or any other covenants in the lease
- Liable to the Lessee
- Can enforce any covenants made by original lessee but NOT any made by LL
What happens if the sublessee expressly assumes a covenant?
- Sublessee becomes personally liab. to the LL
Original Tenant’s Rights & Liabilities
- Privity of estate held by original tenant terminates when there is a successful assignment but NOT successful sublease
- Remains in privity of K with the LL so orig. tenant liab. for all cov. in the lease
- Exception - Novation - Agreement by LL to release original tenant from liability
Landlord Assignments
LL can assign lease rights to a 3d party (as part of transfer of ownership)
- LL remains liable to T for all covenants in the lease
- T pays rent to assignee L
- Assignee L must perf. any burden imposed by lease cov.
Attornment
T acknowledgment of a New LL
- Arises auto. upon payment of rent to assignee LL OR
- Notice to T in writing
Limitations on Assignment & Subletting - Lease Prohibits it
T can still assign/sublet BUT L can terminate lease for breach and recover damages
Limitations on Assignment & Subletting - Need Landlord’s permission
If lease prevents assignment or subletting without permission of the LL and lease is silent as to std. for exercising that permission
- Modern Trend - LL can withold permission only on commercially reas. grounds
- Traditional Rule - LL can withhold permission at his discretion
Waiver of Assignment or Sublease
A/S can be waived if LL knows of either the assignment or sublease & doesn’t object
- If LL consents to assignment or waives right she can object to subsequent assignment (BUT can object to subsequent sublease)
If tenant assigns their interest, who can landlord sue for rent?
Assignee or tenant
How can an assignee remove liability to pay rent?
Reassign their possession
How can an original tenant remove their liability to pay rent?
Tenant can’t remove the obligation w/out a novation with the original LL releasing the tenant
If landlord assigns his interest, who does the tenant pay rent to?
The original LL until the tenant receives actual notice of the change
