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?
aka Estate for Years or Term of Years
Tenancy for years = a lease for a FIXED PD of time (i.e. 2 days, 2 months, 50 yrs)
aka Estate for Years or Term of Years
TYPE? see above
NOTICE? NO, notice not rqrd for termination b/c agreement states at outset when lease expires
WRITING? YES, IF term = +1 yr (366 days) must be in writing (SOF)
HINT: IF PROVIDED the exact TERMINATION DATE then it is a tenancy for years
PERIODIC TENANCY
What is the periodic tenancy?
NOTE: NY Distinction
Periodic Tenancy = A lease that continues for successive intervals until L or T gives proper notice of termination
Express creation: L conveys to T: “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 so will be a periodic tenancy w/interval is based on intervals when rent is tendered
- If L elects to holdover residential lessee who stayed on past conclusion of the original lease, periodic tenancy based on interval of payment
**NY DISTINCTION: the L who elects to holdover a tenant creates an implied MONTH-TO-MONTH periodic tenancy (not based on interval of pmt), UNLESS otherwise agreed
Notice? Yes, notice, usually written MUST be given and MUST be at least equal to the length of the period itself, unless otherwise agreed
EXCEPTION: Only 6 MONTH notice rqrd for year-to-year or longer periods.
TERMINATING PERIODIC TENANCY
How is aperiodic 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 – FREEDOM OF CONTRACT
TENANCY Must end at the end of NATURAL LEASE PERIOD (e.g. ends on 1st, termination on 1st)
TENANCY AT WILL
What is a tenancy at will?
NOTE: NY Distinction
A tenancy at will = a tenancy for NO FIXED duration
Must be expressly agreed-to: if not, court will treat as implied periodic tenancy w/ period determined by rent payment periods
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 L must give a MINIMUM of 30 days written notice of termination
TENANCY AT SUFFERANCE
What is a tenancy at sufferance?
Tenancy at sufferance = a tenancy created when T has WRONGFULLY held over past the expiration of the lease
It is created so L can proceed to recover rent from T who wrongfully holds over past expiration
This tenancy last ONLY UNTIL L either evicts T or elects to hold T to a new tenancy
See Hold-Over Doctrine
HOLD-OVER DOCTRINE
What is theHold-Over Doctrine?
NOTE: NY Distinction
If a T CONTINUES to possess property after his lease is up, the L 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 that)
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: L’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 henotifies L of intention to VACATE premises, but fails to leave, the L MAY CHARGE 2X the rent
TENANT DUTIES
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
T’s DUTY to INVITEES
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
AND
2) T is liable for injuries sustained by 3d parties T INVITED, even where L promised to make all repairs NOTE: T may be able to seek indemnification from L
T’s DUTY TO PAY RENT
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, L… (i) may EVICT T thru cts (still entitled to unpaid rent from T while on premises);OR
(ii) may continue the relationship and SUE for rent; BUT
(iii) 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: L who engages in self-help is liable for treble damages
2) If T doesn’t pay rent BUT T is off premises,
L may “S-I-R”…
(S) SURRENDER: L could choose to treat T’s abandonment as an implicit offer and acceptance of surrender
NOTE: if unexpired term is > 1 yr, acknowledgment of surrender must be in writingsigned by L (SOF)
(I) IGNORE: L could ignore the abandonment and hold T responsible for the unpaid rent (minority rule)
(R) RE-LET: the L can re-let the premises and hold T responsible for the shortfall
Majority rule: L must at least TRY to re-let (mitigation)
**NY DISTINCTION: does NOT require a L to mitigate damages by re-letting
T’s DUTY TO REPAIR
What is a tenant’s duty to repair?
NOTE: NY Distinction
T’s duty to REPAIR…
1)…when the lease is SILENT
STANDARD: T must maintain (but nothing more) the premises ANDmake ordinary repairs
WASTE: T must NOT commit waste:
i) voluntary - willful destruction,
ii) permissive - neglect,
iii) ameloriative - “increase” value but made w/o permission
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 if premise destroyed through no fault of his own, UNLESS he made express agmt to restore property when destroyed
LANDLORD’S DUTIES
What are the 4duties of a landlord?
1) Duty to deliver possession
2) The implied cov’t of quiet enjoyment
3) The implied warranty of habitability
4) Duty NOT to commit retaliatory eviction
LANDLORD DUTY TO DELIVER POSSESION
What is the landlord’s duty to deliver possession?
1) The majority (English!) rule = L must put T in PHYSICAL possession of the premises
…SO, when lease starts, if someone is STILL IN THE APT, L has breached lease and new T gets damages
2) The minority (American) rule = L need only give T LEGAL possession (i.e. a signed lease)
IMPLIED COVENANT OF QUIET ENJOYMENT
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 L
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”) (DIDO COMPLAINING OF RAIN)
(SI) SUBSTANTIAL INTERFERENCE due to LL’s actions or
failures (a chronic problem suffices)
(N) NOTICE was given by T to LL of the problem
(G) GOODBYE: the T must VACATE the premises w/in a
reasonable time after L fails to remedy
Note: L 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
IMPLIED WARRANTY OF HABITABILITY
What is the landlord’s implied warranty of habitability?
THE STANDARD: 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
BREACH TRIGGERED BY: no heat in winter; no running water; OR no plumbing
When warranty is BREACHED, T can "MR3".... (M) MOVE (R) REPAIR (R) REDUCE (R) REMAIN
(M) MOVE out/end lease (BUT T doesn’t have to; cf. constructive eviction)
(R) REPAIR and deduct (allowable by statute in a number of jx): T may make REASONABLE repairs and deduct their costs from future rent
(R) REDUCE rent AND/OR withhold all rent until a ct determines fair rental value (T must place withed rent in escrow account)
(R) Remain in possession, pay rent AND affirmatively seek money damages
