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
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)
