Landlord-Tenant Law

Question 1

What are the for leasehold (nonfreehold estates)?

Answer 1

1. Tenancy for Years (aka Estate for Years or Term of Years)
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance

Question 2

What is a tenancy for years (aka estate for years or term of years)?

Answer 2

• This is a lease for a fixed period of time; doesn’t mean has to endure quite literally years.
• When you know the termination date from the start, you have a tenancy for years.
• Because the term of years states from the outset when it will terminate no notice is needed to terminate.
• A term of years greater than one year must be in writing to be enforceable because of the Statute of Frauds.

Question 3

What is a periodic tenancy?

Answer 3

• This is a lease which continues for sucessive (continuous) intervals until L or T give notice to terminate.
• The periodic tenancy can be created expressly. For example, L conveys to T from month-to-month or year-to-year, or week-to-week.
• Can also arise by implication.

Question 4

What are the three ways that a periodic tenancy arises by implication?

Answer 4

1. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.
   
   • Ex: T rents an apartment from L, beginning June 1. Nothing is said about duration. T pays rent each
     month. T is an implied month-to-month periodic tenant.
2. An oral term of years in violation of the Statute of Frauds creates an implied periodic tenancy measured by the way rent is tendered.
   
   • Ex: L and T negotiate on the telephone for a commercial lease. They orally agree on a five-year
     lease with rent at $1,000 a month. Not a tenancy for years because violations SoF.
3. The holdover: In a residential lease, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises, measured by the way rent is now tendered.
   
   • T holds over after the expiration of her one-year lease, but sends another month’s rent check to L,
     who cashes it. By cashing it, L creates an implied month-to-month periodic tenancy.

Question 5

How is a periodic tenancy terminated?

Answer 5

Usually written notice must be given. At common law, at least equal to the period itself unless otherwise agreed.

• Thus, in a month-to-month periodic tenancy: one months notice.
• In a week-to-week periodic tenancy: one week notice.

The one exception:

• If the tenancy is from year-to-year or greater: 6 months notice.
  
  • In VA, 3 months notice.

Note 1: By private agreement, the parties may lengthen or shorten these common-law prescribed notice provisions.

Note 2: The periodic tenancy must end at the conclusion of a natural lease period.

Question 6

What is a tenancy at will? Can a tenancy at will be terminated?

Answer 6

• This is a tenancy for no fixed duration. For example, “To T for as long as L or T desires.”
• Must expressly agree. Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court as an implied periodic tenancy.
• The tenancy at will may be terminated by either party at anytime BUT a reasonable demand to vacate is usually needed.

Question 7

What is a tenancy at sufferance? How is a tenancy at sufferance terminated?

Answer 7

It is created when T has wrongfully held over, past the expiration of the lease. We give this wrongdoer a leasehold estate (the tenancy at sufferance), to **permit L to recover rent. **

The tenancy at sufferance lasts only until L either evicts T or elects to hold T to a new tenancy.

Question 8

In regards to T’s duties, what is T’s responsibility/liability to third parties?

Answer 8

T is responsible for keeping the premises in good repair.

T is liable for injuries sustained by third parties T invited, even where L promised to make the repairs.

Question 9

What is T’s duty to repair when the lease is silent?

Answer 9

• The standard: T must maintain the premises and make ordinary repairs.
• T must not commit waste.
  • Volunary waste - overt destruction; T intentionally or negligently damages the leased premises; Exploit minerals on property unless provided that T may do so or land previously used as such.
  • Permisive waste - Neglect; When T fails to make ordinary repairs to keep leased premises in the same condition as at the commensement of lease term; excluding ordinary wear an tear.
  • Ameliorative waste - changes that increase value.

NOTE: Absent a specific covenant in the lease, a T who fails to repair ordinary wear and tear commits no waste. A T has no duty to repair ordinary wear and tear unless covenanted to do so.

Question 10

In regards to T’s duty to repair, what is the law of fixtures? What is considered a fixture?

Answer 10

When a tenant removes a fixture, she commits voluntary waste.

A fixture is a once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty.

Common examples: Heating systems, custom storm windows, furnance, certain lighting installations.

T MUST NOT REMOVE, NO MATTER THAT SHE INSTALLED IT.

FIXTURES PASS WITH OWNERSHIP OF THE LAND.

Question 11

How do you tell when a tenant installation qualifies as a fixture?

Answer 11

a. Express agreement controls/ is binding
b. In the absence of agreement, T may remove a chattel that she has installed so long as removal wont cause substantial harm to the premises.
* If removal will cause substantial damage, then in objective judgment T has shown the intent to install a fixture. The fixture stays put or renders T liable for voluntary waste. T’s subject judgment is irrelevant.

Question 12

What is T’s duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease?

Answer 12

At common law, historically:

• T was liable for any loss to the property, including loss due to force of nature; T would be liable for restoration of premises or reconstruction.

Today, the majority view/VA Rule:

• T may end the lease when the premises are destroyed w/o T’s fault.

Question 13

What are L’s options if T breaches his duty to pay rent while T is in possession?

Answer 13

The landlord’s only options are to evict through the courts or continue the relationship and sue for rent.

If the landlord moves to evict, she is nonetheless entitled rent from the tenant until the tenant, who is now a tenant at sufferance, vacates.

LANDLORD MUST NOT ENGAGE IN SELF-HELP, such as changing the locks, forcibly removing T, removing T’s possessions.

Self-help is flatly outlawed, and is punishable civily and criminally.

Question 14

What are L’s options if T breaches his duty to pay rent but T is out of possession? For example, T wrongfully vacates with time left on a term of years lease…

Answer 14

Remember S I R:
i) Surrender:

• L could choose to treat T’s abandonment as an implicit offer of surrender which L accepts.
• What is surrender? T shows by words or actions that she wants to give up the lease.
• If the unexpired term is greater than one year, surrender must be in writing to meet the SoF; doesn’t matter that T did not receive notice, just mail to T’s last known address.

ii) Ignore the abandonment and hold T responsible for unpaid rent, just as if T was still there. This option is available only in a minority of states.
iii) Re-let the premises on the wrongdoer tenant’s behalf, and hold him or her liable for any deficiancy.
* Majority rule: L must at least try to re-let (mitigation of damages).

Question 15

What are the landlord’s duties?

Answer 15

1. Duty to deliver possession
2. The implied covenant of quiet enjoyment
3. The implied warranty of habitability

Question 16

What is the majority rule regarding the landlord’s duty to deliver possession?

Answer 16

The majority rule (also VA rule) requires that L put T in actual physical possesssion of the premises. Thus, if at the start of T’s lease a prior holdover T is still in possession, L has breached and the new T gets damages.

Question 17

What is the implied covenant of quiet enjoyment?

Answer 17

Applies to both residential and commercial leases. T has a right to quiet use and enjoyment of the premises without interference from L. This is an implicit promise that L makes in lease.

Question 18

Under the implied covenant of quiet enjoyment, when does a breach by actual wrongful eviction occur?

Answer 18

This occurs when L wrongfully evicts T or excludes T from the premises.

Question 19

Under the implied covenant of quiet enjoyment, when does a constructive eviction occur?

Answer 19

Remember SING:

(1) Substantial Interference - Due to L’s actions or failures; can be a chronic problem, doesn’t have to be permanent.
(2) Notice - T must tell L of the problem and L must fail to act meaningfully; fairness to L
(3) Goodbye - Get out, T must vacate w/in a reasonable time after L fails to fix the problem.

NOTE: The L is not liable for acts of other co-tenants except (a) L must not commit a nuisance on site, or (b) L must control common areas.

Question 20

What is the implied warranty of habitability?

Answer 20

• Applies only to residential leases. The implied warranty of habitability is non-waivable (against public policy, so void).
• The premises must be fit for basic human dwelling/habitability. Bare living requirements must be met.
• The appropriate standard may be supplied by housing code or case law.
• The sorts of problems to trigger breach of the implied warranty of habitability include no heat in winter, no plumbing, no running water.

Question 21

What are T’s entitlements when the implied warranty of habitability is breached?

Answer 21

Remember **M R³ **

Move out and end the lease. But T doesn’t have to, if stays then . . .

(1) Repair and deduct costs, allowable by statute in a growing number of jurisdictions. T may make the reasonable repairs and deduct their cost from future rent.
(2) Reduce rent or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent into escrow simply to show her good faith.
(3) Remain in possession, pay rent and affirmatively seek money damages.

Question 22

What is a retaliatory eviction?

Answer 22

If T lawfully reports L for housing code violations, L is barred from penalizing T, by, for example, raising rent or ending the lease or harassing T or taking other reprisals (Whistleblower protections)

Question 23

Breiflly explain difference between an assignment versus the sublease…

Answer 23

In the absence of some prohibition in the lease, a T may freely transfer his or her interest in whole (thereby accomplishing an assignment) or in part (thereby accomplishing a sublease).

Question 24

What is the Rule in Dumpor’s Case?

Answer 24

In the lease, L can prohibit T from assigning or subletting without L’s prior written approval. However, if a landlord consents to one transfer that would otherwise violate a covenant against assignment or sublease, he waives his right to assert that future transfers breach the lease.

Question 25

Under an assignment, are L and T2 in privity of estates? What is privity of estates?

Answer 25

This means L and T2 (tenant after an assignment) are liable to each other for all of the covenants in the original lease that “run with the land.”

Examples: promise to pay rent or to paint or repair

Question 26

Under an assignment, are L and T2 in privity of contract? What is privity of contract?

Answer 26

L and T2 are NOT in privity of contract UNLESS T2 assumed all promises in the original lease.

Question 27

Under an assignment, what is L and T1’s relationship? Are they in privity of estate or privity of contract, or both?

Answer 27

L and T1 are no longer in privity or estate. However, they remain in privity of contract. Thus, L and T1 are secondarily liable to each other.

Question 28

Under a sublease, what is L’s relationship to T1 and T2?

Answer 28

L and sublessee are in neither privity of estate nor privity of contract. They share no nexus. T2 is responsible to T1 and vice versa. T1 is on the hook for waste; original parties fully liable to each other.

Question 29

What is the common law of caveat lessee?

Answer 29

Let T beware. In Tort, L was under no duty to make the premises safe.

Question 30

What are the five most important exceptions to the common law of caveat lessee?

Answer 30

Remember: When T learns of these exceptions to the harsh common law, he or she CLAPS.

a) Common areas: L must maintain all common areas
b) Latent defects rule: L must warn T of hidden defects that L knows about or should know about.
c) Assumption of repairs: A L that makes voluntary repairs must complete them with reasonable care.
d) Public use rule: L who leases public space (such as: a public hall, auditorium, etc.), and who should know, because of the nature of the defect and the length of the lease that T will not repair, is liable for any defects on the premises.
e) Short term lease of furnished dwelling: L is liable for any defect which proximately injures T.

Question 31

Are landlords liable to tenants for latent defects? Are there any exceptions?

Answer 31

General rule is that a landlord is not liable for latent defects unless the landlord either knew or had reason to know of the defects.

Exception: Landlords are liable for latent defects even if they neither knew nor should have known of the defect if the lease is for a short term and the property is furnished.

Question 32

What is a trade fixture? What is the rule regarding trade fixtures?

Answer 32

Trade fixures are equipment installed for the company’s commercial use and the company has no intent for the equipment to stay.

Equipment installed for the purpose of trade by a tenant, even if it would otherwise constitute a fixture, is generally removable if it is not an integral part of the premises and the tenant pays for any damages caused by the removal.

Absent an agreement to the contrary, these annexations are removable because it was not the intention of the tenant to make them a permanent part of the premises.