Landlord | Tenant Flashcards
Tenant’s Defenses
1) LL failures to Deliver Possession
(American - Tenant has to take possession)
(CL: Majority: LL’s obligation to deliver possession at start of Tenancy, tenant is excused until delivery.)
2) Eviction: Actual, Constructive, Partial
3) Surrender: not the actual surrender but the LL’s acceptance of the surrender
4) Destruction
5) Warranty of Habitability (offset)
6) Other contractual defense: impossibility, impracticability, frustration.
Types of Eviction
Actual: LL or someone acting on behalf of LL physically removes Tenant from the property.
Partial: LL or someone acting on behalf of LL has physically removed Tenant from part of the property. Tenant is still excused from paying any rent.
Constructive: LL has allowed the condition of premises to deteriorate to the point that the use of the Tenant’s property is being interfered with. Tenant must move out within a reasonable time after the substantial interference.
A partial constructive eviction is only a rent abatement.
Can an action of a third party constitute constructive eviction?
Yes
Surrender
LL must accept the surrender in order to use it as a Defense to paying rent. (unlikely to see due to duty to mitigate and mitigating is not an acceptance to surrender)
Destruction
At CL: generally did not discharge Tenant’s obligation to pay rent (Exception: If tenant leased only a portion)
Modern: Destruction of a structure is a defense to pay rent (Exception: If Tenant intentionally or negligently created destruction of property, not a defense)
Common passageways doctrine
LL is responsible for
When is the only time the LL is able to retake possession from the tenant?
If the tenant commits a material breach
CL repossession:
LL could take
Modern: No self-help
1) LL must give notice
2) hearing
3) Court will evict, not LL
(court will not uphold what they see as a retaliatory eviction)
What is a trade fixture?
item used in the course of the tenant’s trade or business
CL: trade fixture could be removed unless removal
anything except a trade fixture became party of the land a trade fixture could be removed unless removal would cause substantial damage to property
Modern: fixtures
If the fixture can be removed unless without effecting the premises, the tenant is entitled to remove the fixture ( no distinction b/w trade fixtures)
