Landlord:Tenant Law

Question 1

What are 4 types of leaseholds/non-freehold estates?

Answer 1

1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance

Question 2

What is the tenancy for years?

Answer 2

Lease for a FIXED PD of time (i.e. 2 DAYS – 50 yrs) (Estate for Years or Term of Years)

NO notice requirement for termination b/c agreement states at outset when lease expires

If term = +1 yr (366 days) must be in writing (SOF)

Question 3

What is the periodic tenancy?

NOTE: NY Distinction

Answer 3

Lease that continues for successive intervals until LL or T gives proper notice of termination

Express creation: “month-to-month”; “yr-to-yr”; “week-to-week”

Implied creation: 3 ways to create implied periodic tenancy:

(a) Land is leased w/ no mention of duration, but rent pd at set intervals
(b) Oral lease for +366 days (violates the SOF); interval is based on intervals when rent is tendered
(c) If LL elects to holdover residential lessee who stayed on past conclusion of the original lease, periodic tenancy based on interval of payment

NY DISTINCTION: the LL who elects to holdover a tenant creates an implied MONTH-TO-MONTH periodic tenancy, UNLESS otherwise agreed

Question 4

How is aperiodic tenancy terminated?

Answer 4

Termination by giving notice at least duration = to period (weekly lease needs 1 week notice, EXCEPT 1 yr, which needs only 6 months)

By private agreements, parties may LENGTHEN or SHORTEN the common law pds

Must end at the end of natural lease period (e.g. ends on 1st, termination on 1st)

Question 5

What is a tenancy at will?

NOTE: NY Distinction

Answer 5

A tenancy for NO FIXED duration

Must be expressly agreed-to: if not, court will treat as implied periodic tenancy

Tenancy may be terminated by EITHER PARTY at ANY TIME (but a reasonable demand to vacate is usually needed)

NY DISTINCTION: in NY the terminating LL must give a MINIMUM of 30 days written notice of termination

Question 6

What is a tenancy at sufferance?

Answer 6

Is created when T has WRONGFULLY held over past the expiration of the lease

Created so LL can recover rent from T who wrongfully holds over past expiration

This tenancy last ONLY UNTIL LL either evicts T or elects to hold T to a new tenancy See Hold-Over Doctrine

Question 7

What is theHold-Over Doctrine?

NOTE: NY Distinction

Answer 7

If a T CONTINUES to possess property after his lease is up, the LL can:

(i) evict T; OR
(ii) hold T to NEW TENANCY

Commercial T = May be held to a yr-to-yr (if the lease was for ≥ 1yr) OR mo-to-mo (if the lease was for < 1yr)

Residential T = can ONLY be held to mo-to-mo (REGARDLESS of lease term)

If there is NOTICE of rent increase BEFORE lease expires, then new tenancy will be at increased rent

NY DISTINCTION: The LL’s acceptance of rent subsequent to the expiration of the term will create an IMPLIED month-to-month periodic tenancy (unless otherwise agreed)

If a T who holds a lease of INDEFINITE duration, and henotifies LL of intention to VACATE premises, but fails to leave, the LL MAY CHARGE 2X the rent

Question 8

What are a tenant’s 3 duties?

Answer 8

1) T’s liability to 3d PARTY INVITEES
2) T’s duty to REPAIR
3) T’s duty to PAY RENT

Question 9

What are T’s duty to 3d party invitees?

Answer 9

T’s liability to 3d PARTIES (tort law)

1) T is responsible for keeping the premises in good repair
2) T is liable for injuries sustained by 3d parties T INVITED, even where LL promised to make all repairs

NOTE: T may be able to seek indemnification from LL

Question 10

What is a tenant’s duty to pay rent? NOTE: NY Distinction

Answer 10

1) If T doesn’t pay rent AND remains on premises, LL…

(i) may EVICT T thru cts (still entitled to unpaid rent from T while on premises)
(ii) may continue the relationship and SUE for rent
(iii) may NOT engage in SELF-HELP (e.g. changing locks, forcible removal, removing T’s possessions); LL would be liable civilly and criminally

NY DISTINCTION: LL who engages in self-help is liable for treble damages

2) If T doesn’t pay rent BUT T is off premises, LL may “S-I-R”…

SURRENDER: LL could choose to treat T’s abandonment as an implicit offer and acceptance of surrender [NOTE: if unexpired term is > 1 yr, must be in writingsigned by LL (SOF)]

IGNORE: LL could ignore the abandonment and hold T responsible for the unpaid rent (minority rule)

RE-LET: the LL can re-let the premises and hold T responsible for the shortfall

Majority rule: LL must at least TRY to re-let (mitigation)

NY DISTINCTION: does NOT require a LL to mitigate damages by re-letting

Question 11

What is a tenant’s duty to repair?

NOTE: NY Distinction

Answer 11

1) Lease is SILENT?
T must maintain (but nothing more) the premises ANDmake ordinary repairs

T must NOT commit waste (voluntary, permissive, ameliorative)

2) EXPRESS COV’T to maintain property?

At common law historically: T was liable for any loss to the property INCLUDING loss due to force of nature

Today’s majority view: T is off the hook for natural disasters (gives T the option to END lease)

NY DISTINCTION: T is off hook UNLESS he made express agmt to restore property when destroyed

Question 12

What are the 4duties of a landlord?

Answer 12

1) Duty to deliver possession
2) The implied cov’t of quiet enjoyment
3) The implied warranty of habitability
4) Duty NOT to commit retaliatory eviction

Question 13

What is the landlord’s duty to deliver possession?

Answer 13

1) The majority (English!) rule = LL must put T in PHYSICAL possession of the premises When lease starts, if someone is STILL IN THE APT, LL has breached lease and new T gets damages 2) The minority (American) rule = LL need only give T LEGAL possession (i.e. a signed lease)

Question 14

What is the landlord’s implied cov’t of quiet enjoyment?

Answer 14

T has a right to the quiet use/enjoyment of the premises w/o INTERFERENCE from LL Applies to BOTH residential AND commercial leases

Can be breached by a wrongful eviction

Can be breached by constructive eviction (elements = “S-I-N-G”)

(i) Substantial Interference due to LL’s actions or failures (a chronic problem suffices(
(ii) Notice was given by T to LL of the problem
(iii) Goodbye: the T must VACATE the premises w/in a reasonable time after LL fails to remedy LL is NOT liable for the acts of OTHER tenants

EXCEPTION 1: LL must not permit a nuisance on site

EXCEPTION 2: L must cntl all COMMON areas

Question 15

What is the landlord’s implied warranty of habitability?

Answer 15

Std: Premises fit for BASIC human dwelling (based on housing code/case law)

Applies ONLY TO residential leases

This warranty is NON-WAIVABLE

E.g., no heat in winter; no running water; OR no plumbing

Remedy (if BREACHED: = “MR3”

(i) Move out/end lease (BUT T doesn’t have to; Cf. constructive eviction)
(ii) Repair and deduct (allowable by statute in a number of jx): T may make REASONABLE repairs and deduct their costs from future rent
(iii) Reduce rent AND/OR withhold all rent until a ct determines fair rental value (T must place withheld rent in escrow account)
(iv) Remain in possession, pay rent AND affirmatively seek money damages

Question 16

What is the landlord PROHIBITED from doing if a T report a housing code violation?

Answer 16

If T lawfully reports LL for housing code violation, LL is BARRED from penalizing T by, for example…

(i) raising rent
(ii) ending the lease
(iii) harassing T
(iv) taking any other reprisals

Question 17

What are the 2 ways a tenant can transfer an interest in her lease?

NOTE: NY Distincton

Answer 17

1) Assignment: T may freely transfer interest in whole

NOTE: Assignor should be able to re-enter

E.g. T1 has 10 months remaining on a 2-yr term of years.

T1 transfers all 10 months to T2.

Once assigned, LL and assignee are in privity of estate (each is liable to the other for the cov’ts in the original lease); BUT they are not in privity of K unless assignee assumed all promises in the orig lease

If lease is assigned AGAIN, the original assignee loses privity of estate and the NEW assignee is now in privity of estate w/ the LL

LL and assignor remain secondarily liable to each other (as there is privity of K)

NY DISTINCTION: default rule is no assignment (unless you get written consent from LL)

2) Sublease: T may freely transfer interest in part The LL and the sublessee are NEITHER privity of estate OR privity of K (the relationship b/t LL and subleasor remains fully in tact); BUT sublessee and sublessor are liable to each other NY DISTINCTION: default rule T in building w/ 4 or MORE units has right to sublease subject to LL consent, which CANNOT be unreasonably withheld NOTE: LL may expressly prohibit transfer in lease; BUT once LL consents to 1 interest transfer by particular T, LL CANNOT object to further transfers

Question 18

What is the standard for landlord tort liability and the 5 key exceptions?

Answer 18

Caveat lessee; in tort, LL has NO duty to make the premises safe

5 EXCEPTIONS (“C-L-A-P-S”)

1) Common areas: LL must maintain all common areas in tort (e.g. hallways and stairways)
2) Latent defect rule: LL must WARN T of hidden defects that LL knows abt OR should know abt

JUST the duty to warn, NOT to repair

3) Assumption of repairs: LL who VOLUNTARILY makes repairs, must complete w/ reasonable care
4) Public use rule: LL who leases public space (e.g. a convention hall) AND who should know, b/c of the nature of the defect (large) and the length of the lease (short term), that T will not repair is liable for any defects on the premises
5) Short term lease of furnished dwelling: LL is liable for any defects on site

Question 19

When must a T pay partial rent?

Answer 19

Partial actual eviction

This occurs when T is excluded from only part of the leased premises.

Partial eviction by L relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder of the premises.

Partial eviction by a paramount title holder results in an apportionment of rent; i.e., the tenant is liable for the reasonable rental value of the portion that he continues to possess.

Question 20

What is a leasehold?

Answer 20

A nonfreehold estates. It gives possession of land for a limited time.

T = present possessory interest
L =  future interest