Landlord/ Tenant Law

Question 1

The four leasehold/ nonfreehold estates

Answer 1

1) Tenancy for years, 2) The period tenancy, 3) Tenancy at will, 4) Tenancy at sufferance

Question 2

The period tenancy

Answer 2

i. a lease that continues for successive intervals until landlord or tenant give proper notice to terminate. 3 ways to create
1. The periodic tenancy can be created expressly, for ex. L conveys to T from month to month or yr to yr.

2. The periodic tenancy can also arise by implication, in any one of three ways
   a. Land is leased with no mention of duration, but provision for payment is made at set intervals.
   b. An oral term of years in violation of the SOF creates an implied period tenancy.
   i. Measured by the way rent is tendered. How rent is payed is what the intervals are based on.
3. The holdover: in residential, if L elects to hold over a T who wrongfully stayed on past the concusion of the original lease. Measured by the way rent is now tendered.
   a. Landlord has 2 courses of action for holdover: 1) evict 2) bind to new periodic tenancy
   i. commercial—can be year to year if original was one year or more
   ii. residential—held to month to month.
   b. exceptions: 2) T stays for only a few hours, 2) delay is not the T’s fault (e.g. severe illness) 3) it is a seasonal lease.

How to terminate periodic tenancy

1. Notice, usually written. Bc tenancy doesn’t tell us when it comes to an end.
2. How much notice
   a. Common law—At least equal to one period, unless otherwise agreed.
   b. Exception: For anything year-to year or longer, 6 mos notice is required.
3. Note: by private agreement, parties may lengthen or shorten notice provisions. Freedom of k
4. Note: periodic tenancy must end at the conclusion of a natural lease period.
   a. Ex: L leased Blackacre to T on January 1 for a periodic tenancy of month-to-month. On May 15, T sends written notice of termination. T is bound until: June 30

Question 3

Tenancy at will

Answer 3

i. Tenancy for no fixed duration
ii. Parties must expressly agree, otherwise payment of regular rent will be treated as an implied periodic tenancy by a court.
iii. May be terminated by either party at any time by either party. But reasonable demand to vacate or quit is typically needed.
iv. If the lease gives only the landlord the right to terminate→ similar right for T
v. If lease gives only T right to terminate→ no similar right for L
vi. Usually need notice and reasonbale time to quit to terminate.

Question 4

Tenancy at sufferance

Answer 4

i. Created when T has wrongfully held over past lease expiration. We give wrongdoing T a leasehold estate to permit L to recover rent.
ii. Always short-lived, lasts until either L evicts T or holds T to a new tenancy
iii. Landlord may bind T to new periodic tenancy. Terms and conditions of old tenancy generally apply to new tenancy,, but if L notifies T before termination of increase in rent, T will be held to have acquiesced to the new terms if she does not surrender. Even if T objects to rent, so long as increase is reasonable.

Question 5

T’s duties

Answer 5

T’s liability to 3P in tort law; T’s duty to repair; duty not to use premises for illegal purposes; the law of fixtures; T’s duty to pay rent;

Question 6

T’s liability to 3Ps in tort law

Answer 6

T responsible for keeping premises in good repair. T liable to 3Ps who are injured that T invited even where L promised to make all repairs.
i. T can still seek indemnification from L.

Question 7

T’s duty to repair

Answer 7

2 ways
1) maintianing premises and routine repairs not due to wear and tear AND 2) not to commit waste (VAN)

i. duty to repair when lease is silent
1. Std: T must maintain premises and make routine repairs, other than those due to ordinary wear and tear.
i. routine repair = buying draino.
ii. ordinary wear and tear = yellowing of tiles (not T’s responsibility)
iii. But L usually remains obligated to repair under nonwaivable implied warranty of habitality
b. For nonresidential T→ landlord MAY impose obligation to repair/ be awarded damages for breach.

2. T cannot commit waste. Three species of waste:
   a. voluntary waste: destruction
   i. exception: if premises destroyed without fault. In absence of lease language, neither party has duty to restore, but the tenant DOES have a duty to keep paying rent.
3. At common law, historically, T liable for any loss to the property including loss due to force of nature. T was a sitting duck.
   b. permissive waste: neglect
   c. Ameliorative waste: changes that increase value

Question 8

T’s duty to not use premises for illegal purposes

Answer 8

can be evicted

Question 9

The law of fixtures

Answer 9

1. Removing a fixture = commiting voluntary waste
2. A fixture is a once movable chattel, by virtue of its annexation to realty objectively shows intent to permanently improve the realty
3. T MUST NOT REMOVE A FIXTURE, NO MATTER THAT SHE INSTALLED IT
4. FIXTURES PASS WITH OWNERSHIP OF THE LAND
5. How to tell when a tenant installation qualifies as a fixture
   a. Express agreement controls: any agreement on point bw L and T is binding.
   b. If no express agreement: look to factors
   - nature of the article (bricks yes, tables no)
   - damage upon removal
   - is it custom to the house? so much so that it doesnt’ make sense to separate it (keys, custom curtains, storm windows, heating system, lighting installations)

Question 10

T’s duty to pay rent

Answer 10

i. If T breaches and is still in possession of the premises. Landlord can either
1) evict through the courts (still entitled to backpay for rent)
2) continue relationship and sue for rent.
2. LANDLORD MUST NOT: engage in self help such as changing locks, forcibly removing T or T’s possessions. punishable civilly and criminally.

3. Tenant not entitled to stop paying rent if she has a problem with L. If you have a problem with L, take him to court. Only thing at issue will be whether T has right to possession, no counterclaims. .

ii. If T breaches duty to pay rent, but T is out of possession
1. For ex, t wrongfully vacates with time left on a term of years lease. skips out on lease. Remember SIR
a. Surrender—L can treat T’s abandonment as an implicit offer of surrender which L accepts.
ii. If unexpired term is greater than one year, surrender must be in writing. Bc of SOF. can be satisfied by sending certified letter at last known address.
b. Ignore the abandonment and hold T responsible for the unpaid rent just as if T was still there. This option only available in a minority of states.
c. Re-let the premises on the wrong T’s behalf and hold T liable for any deficiency
2. Majority rule :L must at least try to relet. This is a mitigation principle

iii. IF there’s a condemnation of the property—
1. L-T relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease. T is however entitled to share in the condemnation award to the extent that the condemnation affected the T’s rights under the lease.

iii. Rent deposits
1. L cant retain security deposit beyond actual damages. Some states restrict amount by statute/

Question 11

Landlord’s duties

Answer 11

Duty to deliver possession; the implied covenant of quiet enjoyment; implied warranty of habitability; duty not to convict retaliatory eviction; duty not to discriminate

Question 12

Duty to deliver possession

Answer 12

i. Majority rule requires that L deliver both legal and physical possession to the new T. L must put T in possession of the premises.
ii. Thus if prior holdover T is still in possession at start of T’s lease, L has breached and the new T gets damages.
1. Minority of states—L only has to deliver legal possesson. It is up to new T to bring eviction proceedings against the holdover T.

Question 13

Implied covenant of quiet enjoyment

Answer 13

i. Applies to both residential and commercial leases.
1. T has a right to quiet use and enjoyment of the premises without interference from L.

ii. Breach by actual wrongful eviction: When L wrongfully evicts T or excludes T from the premises.
iii. If L evicts only from part of property: T has right to stop paying rent for the entire thing.
1. If a 3p partially evicts: T still liable to L for rent.

iv. Breach by constructive eviction. For ex. every time it rains, Ts apartment floods. She has claim for constructive eviction if three elements are met. SING
1. Substantial Interference: due to L’s actions or failures. can be chronic not necessarily permanent.
a. like every time it rains the apartment floods
2. Notice: T must notify L of the problem and L must fail to correct it
3. Goodbye: T must vacate within a reasonable time after L fails to correct it
a. even if you’re poor

4. Is L liable for acts of other Ts? Generally, no
   a. Exceptions
   i. L must not permit a nuisance on site.
   ii. L must control common areas

IMPLIED COVENANT OF QUIET ENJOYMENT AND IMPLIED WARRANTY OF HABITABILITY COMPARED
-Facts giving rise to either claim can be the same (really shitty conditions in your apartment)
constructive eviction: can only be raised if the LANDLORD breaches. LANDLORD IS DOING SOMETHING TO KICK YOU OUT– so if something breaks, doesn’t mean landlord is trying to kick you out. but if something major breaks, it may breach warranty of habitability

implied warranty of habitability can be raised even if landlord doesn’t breach (for ex. just due to general power outages or something breaking)

• for constructive eviction, you have to notify and then vacate. by contrast warranty of habitability, you can move, repair, reduce rent, and remain.

Question 14

Implied warranty of habitability

Answer 14

i. applies only to residential leasee. Non-waivable in the lease

iii. The standard: the premises must be fit for basic human dwelling.
1. Appropriate standard may be supplied by housing code or case law
2. examples: no heat in winter, no plumbing/ running water

iv. T’s entitlements when implied warranty of habitability is breached: MR^3, move repair, reduce, remain
2. Move out and end the lease. BUT T DOESN’T HAVE TO
a. difference from breach of implied covenant of quiet enjoyment, where T MUST move out.
3. Repair and deduct, T may make reasonable repairs and deduct their cost from future rent.
4. Reduce rent or withhold all rent until the court determines fair rental value in view of defects. T must place withheld rent in escrow to show good faith.
5. Remain and pay rent and affirmatively seek money damages.

IMPLIED COVENANT OF QUIET ENJOYMENT AND IMPLIED WARRANTY OF HABITABILITY COMPARED
-Facts giving rise to either claim can be the same (really shitty conditions in your apartment)
constructive eviction: can only be raised if the LANDLORD breaches. LANDLORD IS DOING SOMETHING TO KICK YOU OUT– so if something breaks, doesn’t mean landlord is trying to kick you out. but if something major breaks, it may breach warranty of habitability

implied warranty of habitability can be raised even if landlord doesn’t breach (for ex. just due to general power outages or something breaking)

• for constructive eviction, you have to notify and then vacate. by contrast warranty of habitability, you can move, repair, reduce rent, and remain.

Question 15

Assignemnts and subleases generally

Answer 15

a. In absence of some prohibition in the lease, a T may freely transfer interest in whole (assignment) or in part (sublease)
b. in the lease, l can prohibit T from assigning or subletting without L’s prior approval.
c. However, once L consents to one transfer by T, L waives the right to object to future transfers by that T unless L reserves the right.

Question 16

Assignment

Answer 16

i. new tenant (T2) and L are in privity of estate. L and T1 are no longer in privity of estate.
ii. Means L and T2 are liable to each other for all of the covenants in the original lease that run with the land.
1. most covenants run w the land. for ex. promise to pay rent or to paint premises or to repair

2. L and T1 are still in privity of k unless T2 assumed all original promises. If so, then T2 is in privity of K
   - this means L and t1 are secondarily liable to each other
3. But if T2 reassigns to someone else, he has no liability for T3. T1 Still has liability for T3 bc L and T1 are still in privity of K1.
   iii. Ex. L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises.
4. L can proceed against T3, T1 (under privity of k, secondary liability), but NOT T2 (because privity of estate ended when T2 assigned to T3, and there’s no privity of k, unless T2 had assumed all original promises from T1).

Question 17

Sublease

Answer 17

i. L and sublesse have neither privity of estate nor privity of k.
ii. Instead, T2 is responsible to T1 and vice-versa.
iii. Relationship b/w L and T2 is without privity and most importantly the relationship b/w L and T1 remains fully intact. and T1 is fully liable for anything T2 does wrong to L.

Question 18

Covenants against assignment or sublease

Answer 18

i. construed against L
ii. If L knows about assignment and doesn’t object, then covenant against assignment is waived.
iii. If T assigns or sublets in violation of a lease provision, the transfer is not void. L, usually may terminate the lease or sue for damages.

Question 19

Landlor tort liability and exceptions

Answer 19

i. Norm: in tort, L was under no duty to make the premises safe. Caveat lessee: tenant beware

Exception: CLAPS
CLAPS
i. Common areas: L must maintain all common areas. halways and stairs for ex.
ii. Latent defects rule: L must warn T of hidden defects that L knows or should know about. duty to warn not repair.
iii. Assumption of repairs: if L voluntarily makes repairs must complete them with reasonable care
iv. Public use rule: L who leases public space (convention hall or museum or theater) and who should know bc of nature of defect and length of the lease that T will not repair, is liable for defects on the premises.
v. Short term lease of furnished dwelling. L is liable for any defects that proximately harm T. T doesn’t have expectation to do any of the repairs
1. even if L neither knew nor should have known of the effect.

Question 20

Landlord duty not to conduct retaliatory eviction

Answer 20

Duty not to convict retaliatory eviction: if T reports L for housing code violations, Lmay not penalize T by for ex. raising rent or ending lease or harassing T, etc.

Question 21

Landlord duty not to discriminate

Answer 21

Duty not to discriminate: against federal fair housing act discrimination. doesn’t apply to religious orgs, private clubs, and owner occupied buildings with under 4 units. When it applies, disabled tenants are allowed to make reasonable modifications at T’s own expense. L must make reasonable accomodations in rules, policies and services to give disabled tenants equal opportunity to use dwelling.
i. for ex. setting aside handicapped parking.