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

Tenancy for years = a lease for a FIXED PD of time (i.e. 2 DAYS – 50 yrs) aka 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

A 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 i) Land is leased w/ no mention of duration, but rent pd at set intervals ii) Oral terms of years in violation of the SOF creates an implied periodic tenancy measured by the way rent is tendered; iii) 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

Notice (usually written) must be given. The notice must be at least equal to the length of the period itself unless otherwise agreed EXCEPT year-to-year lease, which needs only 6 months
*parties may, by private agreements LENGTHEN or SHORTEN the common law pds *Must end at the conclusion of a 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

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 parties?

Answer 9

T’s liability to 3d PARTIES (tort law) 1)T is responsible for keeping the premises in reasonable repair 2) T is liable for injuries sustained by 3d parties, even where LL promised to make all repairs NOTE: T may be able to seek indemnification from LL

Question 10

What happens if a tenant fails to pay rent? NOTE: NY Distinction

Answer 10

T’s duty to pay RENT 1) If T doesn’t pay rent AND remains on premises, LL’s ONLY options are to EVICT T thru cts (still entitled to unpaid rent from T while on premises) or continue the relationship and SUE for rent. LL CANNOT 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

T’s duty to REPAIR when the lease is SILENT: T must maintain the premises ANDmake routine repairs other than those duty to ordinary wear and tear. T must NOT commit waste (voluntary (overt destruction), permissive (neglect), ameliorative (changes that increase the value).
2)…when the lease has 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. If the premises are destroyed through no fault of the tenant, the T may quit the premises and surrender possession without any further duty to pay rent.

Question 12

What are the 4duties of a landlord?

Answer 12

1) Duty to deliver posession 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”) SUBSTANTIAL INTERFERENCE due to LL’s actions or failures (a chronic problem suffices) NOTICE was given by T to LL of the problem and the LL failed to act meaningfully r4 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

The std: the premises must be fit for BASIC human dwelling (based on housing code/case law). E.g., no heat in winter; no running water; OR no plumbing. Applies ONLY TO residential leases. This warranty is NON-WAIVABLE When warranty is BREACHED, T can “MR3”…. MOVE out/end lease (BUT T doesn’t have to) REPAIR and deduct (allowable by statute in a number of jx): T may make reasonable repairs and deduct their costs from future rent REDUCE rent or withhold all rent until a ct determines fair rental value (T must place witheld rent in escrow account) REMAIN in possession, pay rent AND affrimatively 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 raising rent, ending the lease, harassing T, or 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. LL can prohibit T from assigning/subletting w/out prior approval BUT once LL consents to 1 transfer by T, LL waives the right to object to further transfers by that T (unless LL reserves that right).

Once assigned, LL and T2 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 T2 explicitly assumed all promises in the orig lease. If the lease is assigned AGAIN, T2 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). LL can unreasonably withhold consent to assign, and T’s sole remedy is to seek release from the lease. By contrast, a T in a residential bldg w/ 4 or more units has the right to sublease subject to LL’s written consent. Consent to sublease CANNOT be unreasonably withheld (if it is, it will be deemed consent).

2) Sublease: 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

Question 18

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

Answer 18

Rule = 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

What is the law of fixtures?

Answer 19

When a T removes a fixture she commits voluntary waste (even if she installed it). Fixtures pass w/ ownership of the land.

Fixture = a once moveable chattel that, by virtue its annexation to real property, objectively shows intent to improve the realty e.g. heating systems, custom storm windows, furnace, certain lights

Fixture status determined by (1) express agreement (agmt that says no fixture cntrls); 2) In the absence of an agmt, T may remove chattel that she has installed so long as removal does not cause substantial harm to the premises. If removal will cause substantial damage than objectively T has shown intent to install a fixture; OR (3) if it’s a COMMERCIAL piece of property, a commercial T prior to expiration of a lease is entitled to remove all trade fixtures (i.e.Trade Fixtures Doctrine)