Landlord Tenant Flashcards
Types of Leases
The statute of frauds requires that a lease over a one year must be in writing. Primarily there are four types of leases 1) tenancy for years 2) a period tenancy 3) a tenancy at will AND 4) a tenancy at sufferance or holdover tenancy.
Types of Leases - Tenancy for Years
A tenancy for years, also referred to as a fixed-term tenancy, lasts for a definite period. Any fixed term will suffice e.g. one month, two years, three weeks. It is for a fixed period of time and automatically expires when the agreed period ends. No notice is required to terminate a tenancy for years for the simple reason that the parties’ agreement has already established the relevant time period. If the tenant holds over, she becomes a holdover tenant.
Types of Leases - Tenancy at Sufferance (Holdover Tenant)
A tenant who remains in possession of the premises after the lease ends is considered a holdover tenant. When the tenant fails to vacate after the lease ends, the landlord may evict the trespassing tenant and sue for past rent or bind the tenant to a new periodic tenancy. Accepting rent from the holdover tenant is likely to create a new periodic tenancy.
Types of Leases - Periodic Tenancy
A periodic tenancy is tenancy of equal periods of time (month to month) which automatically continues until one of the parties gives notice of termination. To terminate a periodic tenancy, either party may give written notice to the other. Generally, notice must be given equal to the period of the tenancy, e.g. 30-day notice is required to terminate a month-to-month lease.
1) Furthermore, when a landlord accepts rent payments from a holdover tenant, a new periodic tenancy arises. The period is equal to the intervals for which rent is paid.
Types of Leases - Tenancy at Will
A tenancy at will has no fixed duration and ends when one party informs the other of his desire to quit the premises.
Assignment v. Sublease
When a tenant transfer his right of possession for the entire remaining term of the lease, the transfer is an assignment. In contrast, a sublease arises when the tenants transfer anything less than the entire remaining term under the lease.
1) An assignee who acquires the original tenant’s entire estate comes into privity of estate with the landlord and is primarily liable as to all promises in the lease. The original tenant, however, is still liable to the landlord because the original tenant signed the lease (the contract) and remains secondarily liable under privity of contract.
2) A subtenant is not in either privity of estate or privity of contract with the landlord. The subtenant has no direct relationship with the landlord. Because privity is lacking, the subtenant is not liable to the landlord for failure to pay rent or to perform any covenants in the lease.
3) In short, the landlord will never prevail on a claim against a sublessee. The landlord’s only remedy would be against the original tenant.
Prohibition Against Assignment or Sublease
Generally, a tenant may freely transfer his interest UNLESS expressly prohibited under the lease. Such restrictions are strictly construed against the landlord. Thus, a prohibition against assignment will allow the tenant to sublease the premises and a prohibition against subleasing will be construed to allow the tenant to assign his interest in the property.
Prohibition Against Assignment or Sublease - Landlord’s Consent
When a clause in the lease states that the landlord’s consent is required for the tenant to transfer his interest, the landlord may withhold consent without having to give a reason. Thus, the landlord has the power to approve or deny any transfer for any reason accept race or sex. This rule has the most effect in small owner-occupied buildings because the relationship is seen as more personal. In comparison, commercial leases are generally governed by a reasonableness standard.
Landlord Remedies (Duty to Mitigate)
At common law, when a tenant abandoned the premises, the landlord was free to 1) leave the premises vacant and sue the tenant for rent 2) mitigate damages by reletting to a new tenant OR 3) simply terminate the lease
1) In most jurisdictions today, the landlord is required to either terminate the lease or make reasonable efforts to mitigate the damages by attempting to lease the premises to a new tent. If the landlord fails to mitigate his damages, his recovery will be reduced by the amount he could have obtained through mitigation.
Eviction by Self-Help is Not Allowed
A landlord is not allowed to use self-help to evict a tenant. The rationale for this rule is based upon a policy to avoid breaches of the peace. Thus, the landlord may only use the legal process to evict a tenant e.g. summary eviction proceeding or file an unlawful detainer.
Ejectment
A landowner may bring an ejectment action to recover possession from a tenant in wrongful possession of the leased premises. Because ejectment is a frustratingly slow remedy, it has largely been replaced by the expedited summary eviction proceeding.
Constructive Eviction
A constructive eviction when the landlord’s wrongful conduct substantially interferes with the tenant’s use and enjoyment of the leased premises. The interference must be of such severity that the premises become uninhabitable as a residence or un-usable for the tenant’s business.
1) A tenant who has been constructively evicted may vacate the premises, terminate the lease, and avoid liability for future rent.
2) However, in order to use this remedy 1) the interference must be substantial 2) the tenant must provide the landlord with notice of the defective condition 3) allows a reasonable time for the landlord to fix the problem AND 4) if the landlord fails to respond, the tenant must vacate the premises with a reasonable time.
3) Because the implied warranty of habitability offers broader protection for residential tenants, constructive eviction has title application in residential landlord-tenant disputes. The doctrine is now most commonly utilized in disputes involving commercial leases.
Implied Warranty of Habitability
In every residential lease, there is an implied warranty that the landlord will maintain the premises in a habitable condition. Habitability is customarily measured by the standards set in local housing codes. Violations are serious enough when they pose a threat to the health or safety of the tenant. Common examples include broken windows, leaky roofs, no plumbing, hot water, or heat, and rodent infestation.
1) In order for the tenant to claim a breach of the implied warranty of habitability, the tenant must provide the landlord with notice of the defect and allow a reasonable time to repair.
2) If the landlord breaches the implied warranty of habitability, the tenant may 1) withhold rent 2) make reasonable repairs and offset the cost against future rent 2) sue for damages OR 4) move out and terminate the lease.
Nuisance
A private nuisance is a substantial and unreasonable interference with the use and enjoyment of one’s land. A nuisance is substantial if a person of normal sensibilities would be affected by the harm and considers it strongly offensive or seriously annoying. A slight inconvenience or a claim by a person with hypersensitivies does not rise to the level of a nuisance.
1) It is unreasonable if the gravity of the harm to the P outweighs the utility of the D’s conduct.
2) Courts may consider many factors to determine if an activity or condition is unreasonable include: 1) the character of the neighborhood such as whether the activity is customary in the area 2) the magnitude, frequency, or duration of the harm 3) priority in time 4) whether the D is in compliance with zoning AND 5) the utility of the D’s activity – whether it is important to the community. No single factor is necessarily controlling.
Trade Fixtures
A fixture is an item of personal property that has been so affixed to the land that it becomes part of the realty. Generally, any chattel permanently attached to the premises by a residential tenant was considered a fixture, and thus property of the landlord. Hence, it would be removed by the tenant.
1) Whether an item becomes a fixture turns upon the intention of the parties i.e. the tenant must intend for it to become a permanent part of the premises.
2) However, courts are very liberal in allowing a tenant to remove a trade fixture. A trade fixture is an item used by the tenant in his trade or business, and may almost always be removed by the tenant. Of course, if the tenant causes any damages to the property, he must repair it or pay the cost of restoration.
