Leases Flashcards
Implied Covenant of Quiet Enjoyment
In all leases, the landlord implicitly promises that:
(1) L has title and right to lease premises
(2) The premises will be free of prior tenants (check jx)
(3) L will not deprive the tenant of premises during lease; and
(4) L will not unreasonably interfere with tenant possession (ex: extensive, loud renovations late at night)
Note –> breaching the covenant is a cause of action
Constructive Eviction
CE occurs when (adopted by NC):
(1) The landlord substantially interferes with the tenant’s use and enjoyment of the premises (Covenant of Quiet Enjoyment) by their actions or failure to act to resolve a problem (also actions of 3rd parties L is responsible for);
(2) The tenant gives the landlord notice of the problem and the landlord fails to respond and resolve the problem; and
(3) The tenant vacates the premises in a reasonable amount of time after the landlord fails to resolve the problem.
Note –> this is an affirmative defense, not a cause of action
This is equivalent to an actual eviction
Landlord must not retaliate against tenant for:
-Requesting repairs;
-Complaining to public officials about L’s violations of health or safety laws; or
-Exercising T rights
Examples of retaliation: increasing rent, decreasing services, harassment
Actual Eviction
AE: T is deprived of occupancy of some material part of premises
Tenants rights if AE occurs:
-T is excused from paying rent until poss is fully restored
-T may also be able to terminate lease and possibly seek damages
Ex: L occupies part of the premises; L changes locks; L tells T to stop using areas “most vulnerable to water”
Implied Warranty of Habitability (IWH)
for any residential dwelling, premises must be safe, clean, and fit for human habitation (L must upkeep during lease). This includes:
-Compliance w/ building/housing codes
-Maintain facilities (electric, AC, etc.)
-Keep common areas safe
Note –> IWH cannot be waived
Largely contractual, so T can avail herself to contractual remedies (rescission, damages, etc.)
Remedies for tenant following a breach of IWH
(1) remain in possession and bring an action for damages for breach of the warranty (as in Hilder);
(2) rescind the lease, thereby permitting the tenant to vacate the premises with no further obligation to pay rent;
(3) remain in possession and withhold all or part of the rent (most jurisdictions allow the tenant to withhold all of the rent, even for a partial breach of the warranty; some require the tenant to deposit withheld rent in a separate escrow account until the dispute is finally resolved) (this is not allowed in NC);
(4) repair the defects and deduct the costs of the repairs from rent payments; and
(5) basic contract remedies (e.g., damages, rescission, reformation)
Term of years
E.g., “from January 1, 2022 to January, 2023”
Notice is given in lease
Expiration is automatic when the term ends
Can be a lease less than 1 yr
Periodic
E.g., “month-to-month” or “year-to-year”
Expiration is not automatic –> Can be terminated by landlord or tenant
When period ends, lease is automatically renewed unless a party gives notice
Notice under CL
-At least one period (e.g., one month in month-to-month) before termination; and
-Tenancy would only terminate at end of a period (30th day of month in month-to-month)
-If the lease was year-to-year, 6-month notice was sufficient
Notice under NC statute
-Year-to-year: notice at least 1 month before end of the current period;
-Month-to-month: notice of at least 7 days before end of the current period;
-Week-to-week: notice of at least 2 days before end of the current period.
Tenancy at will
E.g., “as long as L or T desires” (no certain or maximum duration)
No notice under CL, but most cts require “reasonable notice”
Terminated at will by either party
Will terminate if one party dies
Not transferable
TaW may be implied if L accepts payment of tenant w/o reservation of rights (even tho L denies extension of lease) thereby waiving L’s right to eviction
Cts don’t like TaW because of potential risk of unfairness (lack of notice) → they’ll likely construe it as a month-to-month periodic lease
E.g., telling your friend to live in your garage for $1k/mo w/o mention of type of lease
Tenancy at sufferance
Previous estate has terminated, but tenant remains on premises (holdover tenant)
What happens if a lease fails the Statute of Frauds?
It becomes a tenancy at will
Protected classes under FHA
Fucking Ridiculous Reasons Cats Never Sleep Healthily
-Familial status (e.g., family w/ children under 18)
-Race
-Religion
-Color
-National origin
-Sex (extends to orientation & identity)
-Handicap (physical and mental disability)
Note: marriage discrimination doesn’t fall under familial status disc
Doesn’t apply to: commercial real estate, same-sex dorms, religious institutions, etc.
FHA (Rule Statement)
Under the Federal Housing Act, landlords cannot discriminate, make preferences, or make limits against tenants regarding residential dwellings based on race, color, religion, national origin, sex, handicap, or familial status.
To prove an FHA violation, tenant need not prove discriminatory intent, but must rove either (1) disparate treatment or (2) disparate impact.
-Disparate treatment: Intentionally treat members of protected class differently w effect of denying particular ppl housing opportunities
Ct use 3 part approach:
(1) P establishes a prima facie case of discrimination; (2) the burden then shifts to D to prove a legitimate, non-discriminatory reason for the conduct; and (3) if D satisfies the burden under step 2, then the P must show that D’s reason is merely pretextual
-Disparate impact: Disproportionate and exclusionary effect on members of protected class; Impact is not justified by any legitimate business or gov’l purpose
Examples:
Requiring apt resident applicants to have full-time employment (cts found to affect racial minorities)
Rejecting tenants w/ criminal convictions (targeted restrictions are prob okay, like sex offenders)
Zoning restrictions on low-income housing
Assignment v. sublease
Assignment –> Landlord and new tenant are in privity of estate and are therefore directly liable to each other. Landlord and old tenant remain in privity of contract and therefore old tenant remains secondarily liable.
Sublease –> Sublessee is not directly liable to landlord. Instead, sublessee is responsible to original tenant.
Formalistic (majority test): assignment arises when the lessee transfers his entire interest under the lease when he transfers the right to possession for the duration of the term. If anything less than his entire interest is transferred, a sublease results.
Intention of parties (minority test): cts go by actual words used and infer the meaning from that (a/k/a look at intent)
When a lease has restrictions on assignment
Provisions of a lease forbidding the tenants to assign or sublet are considered restraints on alienation, and are therefore strictly construed.
But provisions of a lease subjecting assign or sublet to lessor’s consent are generally valid.
Most cts require REASONABLE reason for L to withhold consent.
