Landlord Tenant Issues Flashcards
A Lease
Mix of contract and property law. Allows for use of property per term agreements.
The Four Tenancies
- Tenancy of Years
- Periodic Tenancy
- Tenancy at Will
- Tenancy at Sufferance
Tenancy for Years
It is measured by a fixed and ascertainable amount of time.
How to Create?
- Agreement between landlord and tenant with intent to create a leasehold.
- Must be longer than a year lease
- Must be signed and in writing (or run afoul of Statute of Frauds)
How to Terminate?
- Automatically at the expiration of the contracted lease
- No notice is required for termination
- Tenant can surrender the lease prior to the natural termination
- Terminates if landlord or tenant materially breaches the lease
Periodic Tenancy
An estate that is repetitive and ongoing got a set period of time (month-to-month, year-to-year)
It renews automatically at the end of each period until one party gives notice of termination
Creation?
- Can either be an express agreement or an implied agreement (payment of rent)
Termination?
- Old approach required 6 month notice
- New approach has lowered to a month’s notice
- Notice must be given before the start of what will be the last term (term - month)
Tenancy at Will
This may be terminated by either landlord or tenant at any time for any reason.
Creation?
Either an express or implied agreement
Termination?
Either party can terminate without notice.
- If only the landlord has right to terminate at will, then tenant will have right to terminate by implication
- If tenant only has right to terminate at will, landlord does not have right to terminate at will
- If landlord dies, then lease is terminated
Tenancy at Sufferance
Created when a tenant holds over after the lease has ended.
Landlord can either Evict or Re-Rent lease. Or can resolve if tenant leaves.
Tenant’s Duty to Pay Rent
Duty arises out of the contractual relationship between landlord and tenant
Three Exceptions:
- The premises are destroyed at no fault of the tenant
- Landlord materially breaches the lease
- The landlord completely or partially evicts tenant
Implied Covenant of Quiet Enjoyment
Rule: A tenant may withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for the intended purposes so that the tenant is constructively evicted.
Applies to both residential and commercial properties.
Constructive Eviction
Four Elements:
- Premises were unusable for the intended purpose
- The tenant notified landlord of the problem
- The landlord did not correct the problem
- The tenant vacates the premises after giving landlord a reasonable amount of time to cure problem
Implied Warranty of Habitability
Rule: The landlord has an obligation to maintain the property so that it is suitable for residential use. Particularly as it applies to health and safety issues.
Important Notes
- This cannot be waived by the tenant
- Landlord’s failure to comply with applicable housing codes constitutes a breach of this warranty
- Applies to only residential properties
Breach of Implied Warranty of Habitability and Duty to Pay Rent
If premises are not habitable so that there is a breach in the warranty, tenant may:
- Refuse to pay rent
- Remedy the defect and offset the costs against upcoming rent OR
- Use the breach as a defense against eviction
Tenant Duty to Avoid Waste
Generally, tenants have a duty not to commit voluntary waste or allow for permissive waste
Landlord Duty to Repair
In a residential lease, it is presumed that the duty to repair belongs to the landlord.
The tenant must alert landlord that repair is needed.
Landlord Duty to Mitigate Damages
Occurs if tenant abandons property or is evicted.
Majority Rule: Landlord must take reasonable efforts to re-rent the property
Minority Rule: No duty to mitigate damages. Particularly with commercial leases.
Landlord Duty to Deliver Possession
Majority Rule: Landlord must deliver actual possession of the leasehold premises.
Minority Rule: Must handover legal possession of premises.
