Landlord Tenant Law Flashcards
Is a leasehold a contract or property interest?
Both! A leasehold is a contract-property hybrid
Conveyance of property
- Property Interest
- Present possessory non-freehold estate
Contract between LL-T
Bilateral promises & economic relationship
Tenant promises
- Pay rent
- Care for the property (no waste or fixture removed)
LL promises
- Deliver possession
- Quiet enjoyment (LL must not interfere with Tenant’s possession, use & enjoyment)
Types of Tenancies — List all types
- Term of years
- Periodic Tenancy
- Tenancy at will
- Tenancy at sufferance
Types of Tenancies: Term of years
Runs for a specific period of time and automatically ends on a particular expiration date.
Distinguishing feature: fixed beginning and end date
Early termination notice: does not impact end date.
Types of Tenancies: Periodic Tenancy
A basic term (month, year) automaticallly renews infinitely until either party notifies the other of a desire to terminate.
Termination notice:
- CL requires 1 periods notice if less than year. 6 month notice is period is 1+ years.
If it’s a monthly tenancy, need 1 months advance notice — ex: if term starts on 1st of month, a June 10th notice would terminate on July 31st.
- If year to year tenancy: need 6 months notice prior to end of current annual period.
Types of Tenancies: Tenancy at Will
Can be terminated by the LL or Tenant at any time. No fixed term, period, or pattern of rental payments.
Termination Notice:
- Either party may terminate effective immediately without providing advance notice.
Types of Tenancies: Tenancy at Sufferance
Tenant wrongfully remains on the leased property (“hold over tenant”) after the lease has expired.
LL has an election:
1. Consider the tenant as holding under a new tenancy (usually same terms as old one, BUT can fix rent higher with notice).
2. LL may treat hold over tenant as a trespasser and evict.
- if LL treats as trespasser, LL must wait “reasonably time” to bring an ejectment action.
Tenancy Types Practice:
Lease “for one year beginning August 15.”
1. Classify
2. What if tenant moves out in June without notice?
3. What if Tenant moves out in June given 1 month notice?
4. What if Tenant moves out August 14 next year without notice?
Term of years
What if tenant moves out in June without notice?
- We don’t care. Lease ends August 14th next year.
What if Tenant moves out in June given 1 month notice?
- We don’t care. Lease ends August 14th next year.
What if Tenant moves out August 14 next year without notice?
- That’s fine. It automatically terminates the end of that day, so all good. No notice needed.
Tenancy Types Practice:
Lease “from year to year, beginning August 15.”
- Classify
- What if tenant moves out in June without notice?
- What if Tenant moves out in June given 1 month notice?
- What if Tenant moves out August 14 next year without notice?
Periodic (year-year)
What if tenant moves out in June without notice?
- Still on the hook. Need notice to terminate. Automatically renews.
What if Tenant moves out in June given 1 month notice?
- Need to give 6 months notice… so still on the hook for the next year and a half.
What if Tenant moves out August 14 next year without notice?
- Need 6 months notice. Still on the hook automatically renewing.
Types of Tenancy Practice:
Parties orally agree “to a 5 year lease”
Classify
Statute of frauds.
So back to default. If you are paying periodically = periodic tenancy. If not, maybe tenancy at will.
Unlawful detainer
Action LL’s can take to evict hold over tenant. In some state statues unlawful detainer may provide for double or treble damages.
What if termination notice for unlawful detainer is short/wrong?
Ex: Monthly periodic tenancy renews on 1st & termination notice on November 10th states tenancy is terminated on November 30th.
Restatement approach § 1.5
- if the date state in termination is too short or not the end of a period, the notice will be effective to terminate the lease at the earliest possible date after the date stated. (Dec 31st)
MO approach
- Short notice is ineffective and invalid notice.
Lease v. License: basic distinctions
Lease (non-freehold possessory property interest)
- Exclusive control*** (maybe most important)
- Specifically defined area of control
- Broad right to use the space
- Defined time period for term
- Possessor can specifically enforce
- Periodic rental payments
License (contract right to use the property)
- Owner retains access*
- No exclusive/defined zone of control
- Limited to a particular use
- Owner can terminate occupancy and wrongfully ousted licensee can sue for damages.
^^ this one seems like the opposite is true.. check into. A licensee cannot be wrongfully ousted?
- Fee payments or free use at discretion of owner.
How did the court in Drost v. Hookey determine whether gf was a licensee or tenant?
Applies the rule “tenant at will is granted exclusive possession of a designated space, while a licensee receives only unexclusive “use and occupancy of a premise.” Gf did not have “exclusive dominion or control.”
Why the distinction between tenant and licensee matters
• Property
◦ Tenant can specifically enforce rights of occupancy (and they are transferrable)
◦ Licensee’s occupancy rights can be revoked by the owner and are non-transferrable.
• Tort
◦ Owner owes licensees a higher duty of care than tenants with respect to conditions inside the property.
• Statute
◦ Residential tenant protections have been created by statute in every state
Fair Housing Act
§ 3604 meat of the text
Unlawful to discriminate on basis of
Race, Color, Religion, Sex, Familial Status (children), National Origin
With
(a) Availability
(b) Terms & Conditions
(c) Advertising
(d) Lying about availability
(e) Blockbusting
(f) Adds disability as protected class (except for advertising)
Fair Housing Act Exemptions — § 3603(b)
- Single-family house for sale by owner (not really your business to sell homes (<4 homes)
- Owner-occupied buildings with no more than 4 units where the owner lives in one.
- “Members only” dwellings owned by private clubs or organizations (very limited)
Exemption from exemptions § 3604(c)
- Marketing/advertising must not be discriminatory even if you fit in a 3603b exception.
- Policy = if you’re advertising it can have the effect of being systematic exclusion.
No liability for rejecting those convicted of manufacture and/or distribution of illegal drugs
(note: this doesn’t cover convictions for possession alone)
Disability Rights Under FHA
People with a disability cannot be denied a place to live based on the disability
AND a LL must make “reasonable accommodations” for a tenant’s disability §3604(f)(3)(A)
1. To premises . . . If modifications may be necessary for full enjoyment
- LL does not have to pay costs (T does) to modify
- LL need not allow structural modifications
- T must agree to put it back when leaves (if LL wants)
- Escrow account protection for LL ??? Idk what this means
2. AND to rules, policies, or services when may be necessary to afford equal opportunity to use and enjoy dwelling
Intentional Discrimination Claims (under FHA) — Burden Shifting
Prima Facie Case
1. Member of protected class (& LL knew)
2. Denied housing/violated rights under FHA
3. Causal Connection
Rebuttal
- D has to show legitimate, non-discriminatory reason for alleged illegal behavior
P can still succeed after successful rebuttal by
- P show the legitimate reason offered by D was not the true reason for the tenant’s rejection, but was “pretextual”
Disparate Treatment v. Disparate Impact
Treatment = MOTIVE
- Housing practices MOTIVATED by discrimination are illegal
Impact = OUTCOME
- Housing practices RESULTING in discriminatory effects are illegal.
Disparate Impact Claim (under FHA)
Prima Facie
- Statistically disparate impact of a policy PLUS robust causal link between policy and disparate impact.
Rebuttal
- There is a legitimate, non-discriminatory reason for policy creating the disparate impact.
Plaintiff can overcome rebuttal
- If they can show the legitimate policy goal can be achieved in a less discriminatory manner (and thus the policies “create artificial, arbitrary, and unnecessary barriers”)
SCOTUS in ICP changed disparate impact from housing practices “resulting in” to housing practices “that cause” discriminatory effects.
Alto Dissent = no one wants to live in a rats nest (every decision can be construed to have a disparate impact)
Discriminatory Housing Advertising (HUD)
To determine whether a written or oral advertising statement indicates impermissible discrimination, the federal courts apply an objective ordinary reader or listener standard.
- “the statute is violated if an ad for housing suggests to an ordinary reader that a particular protected group is preferred or dispreferred for the housing in question.”
NO SHOWING OF INTENT NEEDED
Landlord’s duty to deliver possession to tenant
Majority Rule (aka English Rule)
- LL has to deliver vacant possession
Minority Rule (aka American Rule)
- LL has to grant tenant the legal right to possess
Once tenant is in possession, T has the rights and obligations related to exclusion, so this only determines who must kick a squatter BEFORE T has possession.
Remedies available for LL failure to deliver possession
Termination of Leasehold (& lease obligation)
Contract damages
- Loss benefit of the bargain (additional costs of substitute premises for lease term)
- PLUS forseeable lossess (Hadley v. Baxendale)
- PLUS reasonably certain lost profits
Covenant of Quiet Enjoyment
IMPLIED AND UNWAIVABLE
LL promise that LL will not interfered with Tenant’s possession & enjoyment of the premises.
A breach may give rise to constructive eviction.
3rd party violation of covenant of quiet enjoyment
3rd parties interference does not breach this covenant — Paradine v. Jane
Only a promise of the LL’s actions.
ACTUAL Eviction
Landlord wrongfully ousts tenant from physical possession.
- If LL dispossesses T, T no longer has duty to pay rent (can also sue for breach of K)
- But if T vacates without having been dispossessed, T STILL has duty to pay rent.
CONSTRUCTIVE eviction
(breach of covenant of quiet enjoyment)
Elements at CL:
- LL (or controlled person) directly or indirectly causes substantive, chronic interference with T’s use & enjoyment AND
- T notifies LL who fails to cure within a reasonable time, AND
- THEN T vacates the premises.
Landlord’s responsibility for bothersome conduct of others: 3rd party constructive eviction?
- Landlord must not permit a nuisance on the premises &
- LL must control/police common areas.
Possible bases for LL tort liability based on poor premises quality
- Fraudulent Misrep. about the leased premises
- Failing to disclose known latent defects in premises or common areas.
- Failure to maintain common areas under LL control.
- Negligently repairing defects or not repairing as promised.
These are basis’ to bring constructive eviction claim
What is the implied warranty of habitability?
LL promises that premises are fit for human habitation at the commencement of the lease, and will remain so throughout the term of the lease; all residential rentals include an implied warranty of habitability, which cannot be waived or disclaimed.
How do courts determine if there is a breach of the implied warranty of habitability?
5 different standards courts use:
1. Are there multiple housing code violations?
2. Has the housing code NOT been substantially complied with?
3. Is there a “substantial defect” in the premises?
4. Would the defect “render the premies is uninhabitable in the eyes of a reasonable person?”
5. Are the premises “habitable” under the statutory definition?
What should a tenant do if there is a problem impacting habitability of premises?
T should:
1. NOTICE LL.
2. Give LL reasonable opportunity to cure
If no cure… T’s remedies:
- terminate lease (basically constructive eviction)
- sue for damages
- reduce rent (raise IWH counterclaim in eviction suit and have dams offset owed rent)
- repare and deduct (maybe)
- punitive (maybe)
- specific performance (in unique situations)
- complain to government agency
Policy issues with IWH
- freedom of contract issues (can’t K around it)
- making low-income housing too expensive
- uneven application and enforcement
Retaliatory Eviction
Building Monitoring
New rule: you can’t evict if tenant reported you or used another tenant remedy.
Retaliatory Eviction: when can LL terminate then?
After repairs have been made. . . but courts “should be generous in allowing the tenant sufficient time, without the pressure normally exerted in a holdover eviction proceeding, to find other suitable housing.”
Not super helpful on an exact cutoff
Affirmative waste v. permissive waste
Affirmative = tenant caused the damage (always an exception of IWH)
Permissive = tenant affirmative duty to protect from further damage if exposed to the elements though no fault of the tenant.
Common law default regarding waste for commercial tenants
Commercial tenant = absent express agreement re: repairs, tenant only has a duty to not commit/permit waste.
- this allows the leased premises to deteriorate through ordinary wear and tear.
Not an attractive option. Well drafted commercial leases should always have an express repair provision.
Must a tenant do major repairs when the repair clause is unclear?
Brown v. Green factor test (adopted by MO)
1. Cost to repair v. rent
2. Term of lease
3. Benefit to LL v. to T
4. Whether repair is structural
5. Extent to which repair will interfered with T’s use
6. Foreseeability of repair
Practice tips re: repair/maintenance clause
Always include one and address everything.
What qualifies as “maintenance”?
Who has to rebuild?
May either party terminate with causalty or is T still on hook?
Landlord Tenant Property Cost Allocation Types
- Gross = fixed amount (rent)
- Single net = fixed + taxes
- Double net = fixed + taxes + insurance
- Triple net = fixed + taxes + insurance + maintance
- Percentage = fixed + perfect age of property’s profits
Assignment v. Sublease
Assignment = transfer of ENTIRE leasehold (geographic and temporal)
Sublease = anything short of an assignment
Assignment privities
1 Privity of Contract = stays between LL and original T1. Another PK due to assignment exists between T1 and T2.
2 Privity of Estate = exists between LL and T2 (new)
What happens to privities if LL grants a novation?
Voids original K between LL and T1.
So no more PK with T1.
Sublease privities
Privity of contract = between LL and T1. New Privity of K between T1 and T2.
- If assumption = then LL and T2 in privity of K.
- If novation = T1 off the hook
Privity of estate = between LL and T1 only.
How do privities effect ability to collect rent? Waste? etc.
Privity of estate carries with it all of the common law property law rights and duties inherent in the legal relationship of landlord and tenant.
- Covenants that run with land
- Covenant to pay rent; covenant to keep leased premises in good condition
Privity of contract carries lease duties
What if the lease is silent re: transferability?
Tenant is free to assign/sublease
What if lease prohibits tenant transfer?
LL is allowed to prohibit transfer, but we will strictly construe the language (if it says no assignment, we allow sublease and vice versa)
What if lease permits transferability “with consent?”
Commercial lease = cannot be unreasonably withheld (bc duty of good faith & fair dealing)
Residential = left more to LL’s discretion (subject to other laws like FHA)
What is lease says that LL has “sole discretion” to withhold consent to transfer?
Restatement = enforce it as written.
- The good faith/reasonableness term is only implied where there’s no explicit right to be unreasonable.
Lease Termination: Surrender
LL and T AGREE to terminate a lease before the expiration of its term.
In writing (SOF)
Lease Termination: Options if tenant abandons property before lease ends
Small problem first: did tenant intend to return? if not, abandonment has occurred.
Options:
1. Accept the implied offer to surrender by tenant by taking back the premises “for LL’s own account.” T’s obligations terminated.
- This acceptance is technically a violation of the statute of frauds, but courts will excuse it.
- Do nothing, refusing to accept surrender offer. T still liable for rent.
- LL may have duty to make reasonable efforts to mitigate though (Austin Hill)
— Unless Commercial lease and they have contracted around mitigation. - Mitigate by entering and relent premises to another tenant “for the tenant’s account.” New T’s rent offsets and reduces amount owed by abandoning T.
- LL needs to make really clear that his actions are NOT accepting surrender. (don’t modify premises, avoid leasing for a longer term than under T’s original lease, if possible give abandoning T notice LL is mitigating T’s dams by attempting to relet & is not terminating.
Lease Termination: Who has the burden to prove failure to mitigate?
Tenant has the burden (breaching party) to prove LL did not make “reasonable efforts” to relet.
Proving a negative is hard.
Lease Termination: Does LL have to relet abandoned unit if there are other vacant units?
Courts generally require LL to include the abandoned unit in the LL’s mix of vacant stock and to make reasonable efforts to relet the abandoned unit, but do not require the LL to give priority to resetting the abandoned unit.
Lawful Eviction: Self Help Eviction
If tenant breaches a lease covenant (such as rent), LL does not automatically have right to enter and retake possession. For there to be lawful self help eviction:
1. The lease must expressly authorize LL to retake possession under certain circumstances
2. LL’s method of executing self-help eviction must be peaceful
IF NOT BOTH of these methods, LL is liable for wrongful (probably constructive) eviction.
Trend = due to high probability of conflict in a self help scenario, courts have increasingly rejecting the self help method and required LL to use judicial process to evict a breaching tenant.
Lawful Eviction: Judicial Eviction
Relies on local statutes for process and procedure.
Can the Implied Warranty of Habitability be lost for a residential tenant due to either assumption of risk (it was disclosed to them) or an express waiver in the lease? Residential tenant.
NO. THE IMPLIED WARRANTY OF HABITABILITY MAY NEVER BE WAIVED OR K’d AROUND
After an assignment, who is liable to LL for unpaid rent?
T1 = liable under privity of K
T2 = also liable under privity of estate
LL cannot double recover though
Who is liable to LL for unpaid rent if there has been a sublease?
T1 = on theory of privity of K (or estate)
T2 is NOT liable bc no vertical privity exists in a sublease.
