Landlord:Tenant Law Flashcards
What are 4 types of leaseholds/non-freehold estates?
1) Tenancy for years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance
What is the tenancy for years?
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)
What is the periodic tenancy?
NOTE: NY Distinction
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
- Land is leased w/ no mention of duration, but rent pd at set intervals
- Oral lease for +366 days (violates the SOF); interval is based on intervals when rent is tendered
- 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
How is a** **periodic tenancy terminated?
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)
What is a tenancy at will?
NOTE: NY Distinction
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
What is a tenancy at sufferance?
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
What is the Hold-Over Doctrine?
NOTE: NY Distinction
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 he** notifies LL of intention to VACATE premises**, but fails to leave, the LL MAY CHARGE 2X the rent
What are a tenant’s 3 duties?
1) T’s liability to 3d PARTY INVITEES
2) T’s duty to REPAIR
3) T’s duty to PAY RENT
What are T’s duty to 3d party invitees?
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
What is a tenant’s duty to pay rent?
NOTE: NY Distinction
T’s duty to pay RENT
1) If T doesn’t pay rent AND remains on premises, LL…
* may EVICT T thru cts (still entitled to unpaid rent from T while on premises)
* may continue the relationship and SUE for rent
- 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 writing signed 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
What is a tenant’s duty to repair?
NOTE: NY Distinction
T’s duty to REPAIR…
1) …when the lease is SILENT
* T must maintain (but nothing more) the premises AND make ordinary repairs
* T must NOT commit waste (voluntary, permissive, ameliorative)
-
Fixtures: a T may NOT remove a fixture (voluntary waste)
- Fixture = moveable chattel, by virtue of annexation to real property, objectively shows intent to improve (heating systems, custom storm windows, furnace, certain lights)
- Fixture status determined by (1) express agreement (agmt that says no fixture); (2) whether removal cause substantial harm (if so, yes); 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)
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
What are the 4 duties of a landlord?
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
What is the landlord’s duty to deliver possession?
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)
What is the landlord’s implied cov’t of quiet enjoyment?
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
- 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
What is the landlord’s implied warranty of habitability?
The std: the premises must be 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
When warranty is BREACHED, T can “MR<strong>3</strong>“….
- Move out/end lease (BUT T doesn’t have to; Cf. constructive eviction)
- 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 AND/OR withold 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
