Landlord/ tenant law Flashcards
what are the 4 leasehold or nonfreehold estates
1) tenancy for years (term of years)
2) periodic tenancy
3) tenancy at will
4) tenancy at sufferance
what is tenancy for years (term of years) and how do you know it exists
a lease for a fixed period
- know the termination from start b/c the term of years
is there notice required for termination of tenancy for years or term of years
NO. no notice required to terminate
if a term of lease is greater than 1 year what must happen
MUST BE IN WRITING b/c SOF
what is the periodic tenancy
lease which continues for successive intervals until L or T give proper notice to terminate
can the periodic tenancy created expressly
yes.
ex: L conveys to T for month-month, week-week, or year-year
what are the 3 ways which periodic tenancy can arise by IMPLICATION
1) land is leased with NO MENTION of duration, but provision is made for PAYMENT AT SET INTERVALS
2) an ORAL term of years in violation of SOF creates an implied periodic tenancy
3) HOLDER: in a residential lease, if L elects to hold over a T who has wrongfully stayed on past of the conclusion of the lease
what if an oral term of years lease is in violation of SOF
creates an implied periodic tenancy that is measured by the way rent is tendered
how must you terminate a periodic tenancy
WRITTEN NOTICE usually must be given
how much notice is needed to terminate a periodic tenancy
at least EQUAL to length of a period itself
x/c otherwise agreed.
thus in a month-month periodic tenancy when must notice to terminate be given
1 month
what is the x/c for when notice must be given to periodic tenancy
if tenancy is from year-year or greater, 6 months
in IL how much notice must be given for periodic tenancy to terminate
60 days
when MUST the periodic tenancy end
at the conclusion of a natural lease period
what is a TENANCY AT WILL
tenancy for NO FIXED DURATION
unless the parties otherwise agree to a tenancy at will, the payment of a regular payment will cause the courts to do what
to treat as an implied periodic tenancy
how may the tenancy at will be terminated
by either party at any time BUT reasonably demand to vacate usually needed
how is a TENANCY AT SUFFERANCE created
when T WRONGFULLY HELD OVER past expiration date.
- allowed to give L right to collect rent
how long does the tenancy at sufferance last
only until L either
1) evicts T OR
2) holds T to new tenancy
what are the 3 tenants duties
1) T’s liability to 3rd parties
2) T’s duty to repair
3) T’s duty to pay rent
T’s liability to 3rd party
T is responsible for keeping premises in good repair.
when is T liable to 3rd party injuries
when T invited 3rd party even where L promised to make all repairs
(invitee)
T’s duty to repair when lease is silent
T must maintain the premises and make ROUTINE REPAIRS BUT NOT
x/c: ordinary ware and tare
does T have a duty to make ordinary ware and tare repairs
NO
what are the 3 wastes T must not commit
1) voluntary: willful destruction
2) permissive waste: neglect
3) ameliorative: changes that improve or increase value
how are fixtures tested on the exam
under doctrine of waste
what happens if a T removes a fixture
commits voluntary waste
how to determine a fixture
once movable chattel that, by virtue of its annexation to realty
1) objectively shows intent to permanently improve realty
common examples of fixtures
1) heating systems
2) custom storm windows
3) furnace
4) some lighting installments
can T remove a fixture if she installed it
NO
T MUST NOT remove a fixture, no matter that she installed it
do fixtures pass with the land
yes
in the absence of an agreement how to determine if T may remove a chattel that she has installed (x/c to removal of fixture)
removal does NOT cause SUBSTANTIAL HARM to premises
what if the removing of a fixture will cause a substantial harm to the premises?
then in OBJECTIVE JUDGMENT T has shown
1) intent to install fixture, fixture stays
what was the CL for when T’s duty to repair when T EXPRESSLY COVENATED in the lease to maintain the property in good condition for the duration of the lease
T was liable for ANY lose on premises, including loss due to force of nature
what is the ML for when T’s duty to repair when T EXPRESSLY COVENATED in the lease to maintain the property in good condition for the duration of the lease
T may end the lease when premises are destroyed w/o T fault
If T’s duty to pay rent T breaches this duty and is in possession of the premises what may L do?
ONLY options are
1) evict through the courts OR
2) continue relationship and sue for rent due
if the L moves to evict T for failure to pay rent is she nonetheless entitle rent from T
yes. allowed rent from T until the T who is not tenant at sufferance vacates
what MUST the land lord NOT DO in eviction
ENGAGE IN SELF HELP
what are examples of landlord self help in eviction cases
changing locks, forcefully removing T, remove T’s things
what happens if L self helps for eviction
punishable both by civil and criminal
what are L’s options when T breaches duty to pay but is NO longer in possession (SIR)
SIR
1) surrender
2) ignore
3) re-let premises
what is surrender
when T shows she wants to give up lease
what can L do if T surrenders
L could treat abandonment as implict offer of surrender which L accepts
what if an unexpired lease is greater than 1 year, how must T surrender
must surrender in WRITING
what if L IGNORES abandonment
can hold T responsible for unpaid rent, just as if T was still there
- Minority view
what is the Re-Let requirement for when T wrongfully vacates with time left
re-let the premises on the wrongdoer t’s behalf and hold him or her liable for any defenancy
what s the majority rule for re-let by L
L must at least TRY to re-let
-this is a mitigation principal
in IL does L need to at least TRY to re-let
yes
what are the 5 landlord duties to T
1) duty to deliver possession
2) implied convenant of quiet enjoyment
3) implied warranty of habitability
4) retaliatory eviction
5 )discrimination
what is the majority rule for L’s duty to deliver possession
requires that L deliver BOTH
1) legal and
2) physical possession to new T
what if L cannot give both legal and physical possession for new T in majority rule
if start at new T a lease of a prior holdover T is still in possession, L has breached and
1) T gets damages
what is the minority rule for L to deliver possession
L need only to deliver
1) LEGAL possession and NOT physical possession of new T
what if holdover T is in physical possession in minority rule what can new T do
up to new T to bring eviction proceedings against the holdover T
does IL follow the minority or majority rule for L duty to deliver possession
MINORITY
- only need legal possession not physical possession
- T must evict old T
does implied covenant of quiet enjoyment apply to both residential and commerical property
YES
what is L’s implied covenant of quiet enjoyment
T has a right to quiet use and enjoyment of premises w/o interference from L
what is the breach by actual wrongful conviction
occurs when L wrongfully evicts T or excludes T from premises
what 3 elements must be met for CONSTRUCTIVE discharge (SING)
1) substantial interference: due to L’s actions or failures
2) Notice: T must tell L of problem and L must fail to fix it
3) Goodbye: must actually vacate in reasonable time, after L fails to fix
does T need to actually vacate in constructive discharge
YES
generally are landlords liable for other tenants
NO
what are the x/c that when L is liable for other T’s (2)
1) L must not permit nusiance on site
2) l must CONTROL COMMON AREAS (hallways, stairways)
what does L’s implied warranty of habitability ONLY apply to
only RESIDENTIAL leases
can T waive the implied warranty of habitability in residential lease
NO. waiver is null and void
what is the std for implied warranty of habitability
premises must be fit for BASIC HUMAN DWELLING
- not high std
what are some examples that show breach of implied warranty of habitability
1) no heat in winter
2) no plumbing
3) no running water
what if L breaches duty of implied warranty of habitability (MR3)
1) MOVE out and end lease
2) REPAIR and deduct. (t may make reasonable repairs and deduct from rent)
3) REDUCE: (hold out on rent until court decides, usually hold in escrow)
4) REMAIN: and pay rent and seek money damages
can L reatilatory evict if T lawfully reports L for housing code violations
NO L is bared from penalizing T by for example
1) raising rent
2) or ending lease or
3) harassing t
what does discrimination in housing mean for L
1) L must allow disabled T’s to make REASONABLE MODIFICATIONS to existing premises a T’s own dime
2) L must make REASONABLE ACCOMMODATIONS in policies and services to give disabled T’s an equal opportunity to use the dwelling
can T freely transfer his interest in whole or in part
YES absence some agreement
what is it called when T transfers his lease in whole
assignment
what is it called when T transfer his lease in part
sublease
in the lease can L prohibit T from assigning or subletting w/o L’s prior written notice
YES
what happens if L agrees to 1 transfer by T for assignment or subletting
L waives the right to object to future transfers by that T, unless L reserves the right
are L and T2 in privity of K for assignment
NO
are L and T2 in privity of estate for assignment
yes. property based connection
- L and T 2 are liable to each other for all covenants in the original lease that “run with the land”
ex: promise to pay rent, repair
are L and T 1 still in privity of estate if assignment
NO
- however they remain in privity of K
since L and T1 are in privity of K for an assignment what does that mean
T1 and L are REMAIN SECONDARY liable to each other
what is difference b/w sublease and assignment
sublease: less than everything T has left
assignment: give up everything T has
are L and subleasee in either privity of K or privity of estate with each other
NO
- Instead T 1 and T2 are responsible vice-versa
what is L’s tort liability (CL: caveat lessee)
under CL tort, L was under NO DUTY to make premises safe
5 x/c for L is not liable in tort to make premises safe (CLAP)
1) COMMON AREAS: L must control common areas
2) LATENT DEFECTS: must WARN t of hidden defects L knows or should know.
3) ASSUMPTION OF REPAIRS: L who voluntary makes repairs must complete them with reasonable care
4) PUBLIC USE:
5) SHORT TERM LEASE OF FURNISHED DWELLING: L is liable for any defect which is on site
what is public use x/c for when L is not liable for torts to make premises safe
L who leases public space and who know, because of
1) NATURE OF DEFECT and
2) LENGTH OF REPAIR that T will not repair is liable for any defects on premises
- short lease
what are some examples of public use leases
convention halls, museums
when must a tenant remove annexed chattels during the lease
before the termination of the tenancy or they become the property of the landlord.
what are the 2 types of fixtures problems
1) residential
2) commercial
what is the residential rule for fixtures
court look at
1) nature of chattel (what is it?)
2) INTENT of person who connected the land
3) how much damage to real property would be caused by removing it
what is the rule for fixtures for commercial purposes
trade fixtures: Tenant can remove all trade fixtures PRIOR to lease expiring
rules for assignment of lease of assignor
T transfers possession of premises for remaining balance
- when T transfers, STILL ON HOOK.
- T ALWAYS ON HOOK for every subsequent assignee b/c privitiy of K
what is the rules for assignment of lease of assignee
also held to rent b/c jointly and severally liable and b/c privity of estate.
- BUT if they assign to another then they ARE NOT LIABLE if new assignee fails to pay, b/c they are not longer in privitiy of estate
when will a hold over tenant be applied the increase in rent
if a new lease terms AND Landlord informs the T of rent increase PRIOR to the lease expiring, than the tenant is held to be liable for the new rent
the rules for hold overs of lease for commercial and residential
1) commercial: year-to-year if thats what the previous lease was
2) residential: just month-to-month if that was the former lease b/w the T and L
If there is a provision declaring there is no transfer of lease and there is a transfer in violation of a lease provision prohibiting is the transfer void?
NO
- it would not make the transfer void or ineffective. The transfer itself is valid, but the landlord may usually terminate the lease under either terms or statute
if a landlord grants consent to one transfer does the landlord waive other transfers
YES unless the landlord expressly reserves the right
in IL what is a commercial lease duty for repair
NO DUTY TO REPAIR for commercial lease
does quiet enjoyment apply to every lease
YES. both residential and commercial
what does quiet enjoyment mean for leases
essentially T will nt be interfered with by L
how is quiet enjoyment breached by L in lease
1) actual wrongful eviction
2) CONSTRICTIVE EVICTION
(a) substantial interference
(b) notice to land lord
(c) t vacates in reasonable time after L fails to fix problem
When can a landlord increase rent for a hold over tenant
when the L told the tenant BEFORE the previous lease expired! must be before the previous lease expired, other wise the old rent applies
What happens when a tenant transfers (assigns or subleases) in violation of a prohibition in the lease against transfers?
Generally, if a tenant transfers (assigns or subleases) in violation of a prohibition in the lease against transfers, the transfer IS NOT VOID. However the landlord may usually terminate the lease under the lease terms or statute
What is a time frame for a periodic tendency for a commercial lease held over
Unless a residential lease is involved, a year to year tenancy results from holding over if it original lease term was for a year or more.
If a landlord notifies a tenant before termination that occupancy after the termination date will be at an increased rent what happens?
the tenant will be held to have acquiesced to the new terms if they do not surrender. THIS IS SO EVEN IF THE TENANT OBJECTS TO THE INCREASED RENT, so long as the rent is reasonable
At CL does a landlord have a duty to repair or maintain the premises?
NO, the duty must be provided for in the lease or required by statute or be implied by warranty of habitability
What does warranty of habitability only apply to
only implied in residential tenancies.
What happens if a surrender is not found?
T remains liable for the difference between the promised rent and the fair rental value of the property
