Landlord Tenant Relationship Flashcards
Landlord Tenant Relationship
LL conveys right to occupy to a tenant for a certain period of time
LL: leasor
Tenant: leasee
What does the LL retain?
Reversion
Why was land leased at CL?
leased land in order to farm
Chattel Real
lease; piece of personal property; has stick of possession
Types of Tenancies (4)
1) Tenancy for Term
2) Periodic Tenancy
3) Tenancy at Will
4) Tenancy at Sufferance
Tenancy for Term
Term for Years
Automatically ends once time lapses; LL’s reversion kicks in once term ends
ex: 12 month lease
Periodic Tenancy
Fixed term which renews automatically unless tenant or LL terminates
ex: month-to-month lease
Tenancy at Will
No definite term
Continuous until either party terminates
Not automatically renewed
Tenant must be asked to leave
Tenancy at Sufferance
“Hold over” tenant
Tenancy ends but the tenant has yet to leave
Statute of Frauds 1677
[CL, ML, & TX]
CL: lease req’d to be in writing if longer than 3 years
ML: all leases req’d to be in writing
TX: all leases longer than one year must be in writing
Access to Rental Market
[CL & ML]
CL: landlord could exclude anyone for any reason or no reason at all
ML: restricted by federal, state, and local laws
CL Innkeeper Rule
Cannot discriminate or refuse to rent
ML: access to rental market modeled after this rule
Federal Fair Housing Act
Cannot discriminate based on:
Age ,Color, Race, Religion, Sex/Gender, Family Status, National Origin, or Handicap
General Principle of Federal Fair Housing Act
Cannot discriminate based on something a person cannot change (something they are born with)
What things are not considered a “protected class” by the Federal Fair Housing Act?
Age, Non-service pets, Personal Appearance, Income, # of occupants, Smoking/Drinking, Drug Manufacturing
Ordinary Reader Test
Would an ordinary reader feel discriminated against?
Discrimination does not have to be intentional so long as an ordinary reader feels discriminated against
Tenant’s Right to Possession
Lease transfers a present possessory estate to tenant
LL has right to protect his reversion from waste
What happens when new tenant shows up, but the previous tenant has yet to move out?
(3)
1) American Rule
2) English Rule
3) Lease Terms
Obtaining Possession:
American Rule
Up to the tenant to remove unauthorized person
*Minority approach
LL duty: only to deliver legal possession
Obtaining Possession:
English Rule
LL responsible for removing unauthorized persons
*Majority approach
LL duty: to deliver actual, physical possession and legal possession
Obtaining Possession:
Lease Terms
Study lease; sometimes expressly stated in the lease who is responsible for removing unauthorized persons
State law may require residential LLs to place tenants in actual possession regardless of lease terms
Which rule does TX follow in regards to obtaining possession?
English Rule
LL’s responsible for removing unauthorized persons
What if possession is disrupted by 3rd party after tenant has possession?
(General Rule)
Tenant is responsible for removing intruders/unwanted guests
The Holdover Tenant
Tenant who remains after lease has expired
LL’s options in dealing with Holdover Tenant
2
1) Evict
2) Periodic Tenant (create another term of tenancy)
When the LL treats holdover tenant as periodic tenant, he must look at _______ before creating a new term of tenancy.
The duration of overstayed welcome
CL Condition of Premises
Lease was a conveyance
- LL responsible for the condition of the premises
- Tenant had DUTY to protect LL’s reversion and not commit waste
- Value of lease was the use of the land (farming), not the buildings on the land
CL LL’s Duties regarding the Condition of the Premises
2
Not to misrepresent condition
Reveal known, undiscoverable, hidden defects
Condition of Premises:
CL Independent Covenants
Tenant could not withhold rent b/c conditions were not met
No tender allowed
Condition of Premises:
ML
Implied Warranty of Habitability
Implied Warranty of Habitability
Property will be ready for tenant to take actual and legal possession
- Primarily for residential tenancies
- By court judgment
- By legislation
Which approach does TX follow for Condition of Premises?
ML / Implied Warranty of Habitability
- property fit for living at beginning and during the lease
Became Duty to Remedy/Repair
Duty to Remedy / Repair
Diligent effort to repair or remedy a condition if NOTICE is given by the tenant and NOT delinquent in rent pmt
- condition must materially affect the physical health or safety of an ordinary tenant
T/F
Implied Warranty of Habitability is still good law in TX.
True, but only for commercial leases
Residential leases: Duty to Remedy/Repair
Eminent Domain:
What if the gov’t takes property a tenant is renting?
Depends on what the gov’t takes
- Only LL’s reversion
- Only part of the property
- Takes it all
Eminent Domain:
Gov’t takes only the Reversion
Tenant’s rent now goes to the gov’t
- Gov’t becomes new LL
Eminent Domain:
Gov’t only takes part of the property
Tenant only pays rent for the parts still rented to him
Eminent Domain:
Gov’t takes it all
Tenant does NOT pay rent
- if lease’s rent is lower than market value, then the lease has value and gov’t must pay compensation in order to take it
Possible Tenant’s Remedies
4
1) Withhold rent
2) Repair and deduct cost from rent
3) Sue for damages
4) Treat as constructive eviction and move out
Tenant’s Remedies:
Withhold Rent
Violations must be so serious as to affect health and safety of tenant
- still must pay rent but pay to the registry of the court (not the LL)
Tenant’s Remedies:
Repair & Deduct Cost from Rent
Only if LL does not repair in a timely manner or LL tells tenant to do so
Tenant’s Remedies:
Treat as constructive eviction and move out
LL breaches duties enough for termination of lease and tenant can move out
Typically, whose fault is it? LL or Tenant?
Tenant
Determination of Rent
2
Free Market: agreement between LL and tenant
Rent Control: limited by the gov’t
Use of Premises
3
1) Silent lease
2) Lease indicates use
3) Lease restricts use
Use of Premises:
Silent Lease
Any legal use is permitted
Use of Premises:
Lease Indicates use
Precatory, suggestive
- only limitation if residential lease
Use of Premises:
Lease Restricts Use
Only the allowed use permitted
If expressly restricted, then restriction is effective
Effect of Tenant’s Illegal Activities at CL
Unless expressed in a lease provision, the tenant does NOT forfeit the lease
Effect of Tenant’s Illegal Activities at ML
Tenant forfeits lease (typically expressed in the lease)
Waste
Tenant has DUTY not to commit either voluntary or involuntary waste
What can LL get as remedy for waste? Why?
Injunction
Damages
Eviction
LL has RIGHT to protect his reversion
Waste and Implied Warranty of Habitability
LL has to take care of the waste if involuntary
Fixture
Tenant may remove and take
- No Substantial damage once removed
- Tenant must repair or pay for the damage of removal
Improvement
Stays with the Property (not removable)
ex: fence, wall
know difference from fixture
Injuries to Persons on the Property
CL
LL not responsible
Exceptions to CL rule of Injuries to Persons on the Property
7
1) Fail to disclose known, hidden defects (fraud)
2) Leased to public admission
3) ST lease of furnished dwelling
4) Breach of express covenant to repair
5) Negligence in repairs
6) Injury occurred in common area under LL’s control
7) Breach of statutory duty to repair
Injuries to Persons on the Property
ML
Movement to adopt tort-based rule of Reasonable Care and Foreseeability
Injuries to Persons on the Property:
LL’s duty to protect from 3rd parties
CL: no duty to protect from another’s criminal act
ML: was LL negligent? did LL take reasonable steps to avoid harm from 3rd party?
Injuries to Persons on the Property: TX
NO legal duty to protect from criminal acts of another. However, if foreseeable as a result of negligence, then LL can be liable
Injuries to Persons on the Property: TX Foreseeability
Requires only GENERAL DANGER be foreseeable, NOT the SPECIFIC SEQUENCE of events that will occur
Injuries to Persons on the Property: TX S. Ct. Evidence Factors of LL liability
(5)
1) Proximity
2) Recency
3) Frequency
4) Similarity
5) Publicity
LL’s Remedies for Tenant’s Bad Behavior
5
1) Terminate lease
2) Sue for damages
3) Retain part/all of security deposit
4) Evict
5) Lien on contents of property
Eviction before 1381
Force allowed so long as no serious injury or death resulted
- LL could forcibly remove tenants
1381 Statute of Forcible Entry
Self-help eviction allowed but req’d to be PEACEFUL
Forcible entry NOT allowed
- LL may not use force
- Police may use force
Eviction ML
Heavily regulated by the state
Some states prevent LL from denying services to non-paying tenants
Forcible detainer prohibited, even if peaceful
Example of Forcible Detainer
Ex: change the locks on the apartment
ML TX for nonpaying Tenants
If tenant pays utilities, LL may not cut off for failure to pay rent
If LL pays utilities, LL may cut off for failure to pay rent
Retaliatory Eviction
LL takes eviction actions to “get even” with tenant who asserts his rights
- Prohibited in TX
- Defense for tenants
TX statute regarding Retaliatory Eviction
Prohibited
- After 6 months of the date complaint is filed, the retaliatory motive is deemed to end
Transfers by LL
LL may transfer the reversion
CL: attornment
ML: no attornment; LL does not have to seek tenant’s consent to convey
Attornment
LL required to seek tenant’s consent before transfer
CL concept
Abolished in England 1705
Transfers by Tenant
LL may limit
- Commonly restricted by lease
- Courts typically uphold restriction but strictly construe it
Trend: prevent LL from withholding consent in unreasonable manner (not TX)
Trend: req LL’s consent even if K is silent
Transfers by Tenant (TX)
Tenant may not rent to any other person without LL’s consent
Enacted 1983 & NEVER amended
- part of TX Const.
Types of Transfers at CL
2
Assignment
Sublease
Assignment
Tenant transfers ENTIRE interest to assignee
- Substitution analogy; assignee steps into shoes of of tenant
Assignee = tenant of LL now; they owe duties to one another
But, tenant still liable to LL under original terms of lease unless LL executes release, not mere consent
Who does the Assignee pay?
LL directly
Sublease
Tenant transfers LESS THAN the entire interest to subtenant
- Subinfeudation analogy
Subtenants duties = to the tenant, not LL
LL duties = to tenant, not subtenant
Who does the subtenant pay rent to?
Tenant, who then pays LL (could continue on forever)
Transfers at ML
Treat all lease transfers as ASSIGNMENTS
