Landlord Tenant Relations Flashcards
Privity of contract
If the parties are in PoC the tenant is liable for the promises contained in the lease agreement
Privity of estate
If the parties are in privity of estate the tenant is liable for rent & also damages resulting from breaches of certain kinds of promises that are said to “touch and concern” the rented premises
Assignment
- When T1 transfers his entire leasehold interest to T2
- T2 is now in privity of estate with the L
- Not in privity of contract unless T2 has expressly assumed the performance of all promises contained in the original lease
- L and T1 are no longer in privity of estate but remain in privity of contract - meaning T1 will be secondarily liable to L
Sublease
- When T1 transfers anything less than his entire leasehold interest to T2
- Relationship between L & T1 remains fully intact there is no privity of estate nor contract between L & T2
- L could only sue T1 for breach of contract
Evictions - T is still in possession of the premise and not paying rent:
1) Eviction or
2) Continue the Relationship
Evictions - T is not in possession and failing to pay rent (S.I.R)
1) Treat as Surrender
- L could choose to treat Ts vacating the premises as an implicit offer of surrender which L accepts
- Extinguishes T’s liability for future rent but not for past rent owed
- If unexpired term is in excess of one year, any acceptance of surrender must be in writing to satisfy the SoF
2) Ignore the abandonment
i. Continue to hold the tenant responsible for unpaid rent, just as if the tenant were still there
ii. This option is available only in a minority of states / In most of these, the landlord must now attempt to mitigate damages
3) Re-Let the premises
i. Re-let the premises on the wrongdoer tenants behalf and hold tenant liable for any deficiency
ii. Majority of states req that L at least try to re-let the premises on the breaching Ts behalf
iii. L doesn’t have to succeed in finding a substitute but must demonstrate a reasonable, good faith effort to do so
iv. T must bear the cost of any reasonable expenses incurred by L trying to re-let
Duties of the tenant
a. Pay rent
b. Not commit waste
i. Voluntary/affirmative waste
1) Actual overt conduct that creates a decrease in value
ii. Permissive waste
1) Land falls into disrepair or the tenant fails to reasonably protect the premises
2) Standard = tenant maintain the premises in reasonably good repair
iii. Ameliorative waste
Repairs that increase the value of the property
Covenant of quiet enjoyment
- Implied landlord duty in both residential and commercial leases : some jurisdictions allow this to be waived in commercial leases but not in residential
- Rule = tenant has a right to quiet use and enjoyment of the entire leased premises without interference from the landlord
Two ways to breach the Implied Covenant of Quiet Enjoyment:
1) Actual eviction
- Landlord physically removes or keeps T from possession of the whole or any part of the premise
2) Constructive Eviction
- Condition of the premises along with L’s failure to act within a reasonable time makes it seem as though T has been evicted
Elements:
a) Substantial interference - chronic or recurrent problem that is fundamentally incompatible with the tenant’s use & enjoyment of leased premises
b) Notice - tenant must give landlord notice and L must fail to act meaningfully within a reasonable time after receiving that notice
c) Goodbye or get out - to claim constructive eviction successfully tenant must vacate the premises within a reasonable time after the landlord fails to correct the problem
Illegal lease
Def = Illegal contract made in violation of statutory prohibitions
- It does not apply if code violations develop after the making of the lease
- It does not apply to minor technical violations or if the landlord had neither actual nor constructive notice of the violations
- Tenant under an illegal lease is treated as a tenant at sufferance and is responsible for reasonable rental value of the premises, given their condition
- In most jurisdictions this doctrine is a dead letter and has been replaced by the implied warranty of habitability
Implied Warranty of Habitability
- Applies to residential leases & cannot be waived by any written or oral provision in lease
- Standard
a. Premise must be fit for human habitation
b. Safe, clean and fit for human habitation - Covers both latent and patent defects in the essential facilities of the residential unit
- T must notify L and give L a reasonable time to correct the condition
Four options when the Implied Warranty of Habitability is breached and L does not cure the breach within a reasonable time -
a. Move out
- Tenant can move out and terminate the lease
b. Repair and deduct
- Many states have statutes that allow tenant to make the repairs themselves and deduct cost from future rent
c. Reduce rent
- Tenant may reduce rent to an amount equal to the fair rental value of the premises in view of their defects or withhold all rent until the court determines fair rental value
- Typically must place withheld rent into an escrow account to show good faith
d. Remain
- May remain in possession and affirmatively sue landlord for damages
Retaliatory eviction
Def = Residential landlord must refrain from committing acts tantamount to retaliatory eviction
- If a tenant lawfully reports housing code violations or asserts other tenant’s rights for a statutorily defined period (typically 90-180 days) the landlord cannot:
- Raise the rent
- End the lease or
- Harass tenant or make other reprisals
*If the landlord does any of these things there is a presumption it was retaliatory purpose & court will invalidate the actions and/or penalize
- Doesn’t apply to commercial leases
