Leases

Question 1

Fair Housing Act of 1968

Answer 1

(1) Discrimination prohibition on: Race, Color, Religion, Sex,
Familial status (residing with minors over which one has
custody), National origin, Handicap

(3) Exemptions
(a) Single-family home (but heavily restricted)
(b) Owner-occupied apartment bldg. with up to 4 units
(but no advertising prohibition)
(c) Still can’t discriminate in the advertising

Question 2

Civil Rights Act of 1866

Answer 2

Discrimination prohibited for Race on ALL PROPERTY; while FHA is just for “dwelling”

Question 3

Neithamer v. Brenneman Property Services, Inc. -
Plaintiff establishes a prima facie case of discrimination by showing that: (4 Elements)

Answer 3

(a) he is a member of a protected class
and defendants knew or suspected that he was;

(b) he applied for and was qualified to rent the property;

(c) defendants rejected his application; and

(d) the property remained available thereafter.

DEFs must provide reasonable excuse, Ps must show this is a mere pretext.

Question 4

Fair Housing Council of San Fernando Valley v. Roommate.com

Answer 4

The Fair Housing Act does not apply to the selection of
roommates, but does for advertising purposes.

Question 5

Term of Years Tenancy

Answer 5

Tenancy of fixed duration agreed to in advance.
“To T for 10 years”

Question 6

Periodic Tenancy

Answer 6

Tenancy for set period that is automatically renewed unless one party gives notice.
“To T month-month starting on date”

Question 7

Tenancy at Will

Answer 7

Tenancy that lasts as long as both parties desire.
“For as long as we desire”

Indefinite duration, terminable at will by either party.
If lease only allows Lessor to terminate, courts give that power to the tenant too. Same for vice-versa.

[Arises when no definite term stated, failure to execute valid K, void lease, hold-over pending negotiation for new lease]

Lease ends on death of of either party.

Question 8

Tenancy at Sufferance

Answer 8

Tenancy created when a person who once rightfully had possession but such right has ended.

EX: T remains in possession after a ToY tenancy expires

Question 9

Statute of Frauds and Leases

Answer 9

(1) If lease of real property for more than one year, then
cannot be enforced unless in writing

(2) Requirements of SOF – Writing must specify:
(a) Parties
(b) Property
(c) Duration
(d) Rent
(e) Signed by party against whom enforcement is
sought

Question 10

Neithamer v. Brenneman Property Services Ing. “Person perceived to have AIDS can’t rent”

Answer 10

A handicap is (1) an actual substantial impairment, (2) a record of having such impairment, (3) being thought to have such an impairment

Question 11

Effel v. Rosberg “Tenancy for life but terminable at will of lessee?”

Answer 11

1. The rule continues to be that a lease for an indefinite and
   uncertain length of time is an estate at will.
2. If a lease can be terminated at the will of the lessee, it may also be terminated at the will of the lessor.

Question 12

[Keydata Corp. v. United States] “Keydata fails to move out in time for NASA” Citation

Answer 12

There is breach if another is improperly in possession of the leased property on the date the tenant is entitled to possession and the landlord does not act promptly to remove and does not in fact remove him within a reasonable period of time.

For such breach, the tenant may (1) terminate the lease.

Question 13

[Fidelity Mutual Ins. Co. v. Kaminsky] “Abortion protestors disrupt aborter, landlord does nothing to stop them.”

Answer 13

Both action and lack of action can constitute “conduct” by the landlord which amounts to a constructive eviction. Actions of a third party can count if the landlord effectively permits their actions.

Question 14

Constructive eviction 3 Elements

Answer 14

Defense against backrent only.

Covenant of quiet enjoyment
-Warranty that tenant’s possession will not be disturbed by landlord or 3rd party with superior right of possession
Constructive eviction - ensure no acts or omission that render premises

Majority elements
1. Wrongful act or omission 2. By the landlord 3. Substantial interference

Can’t sit on a claim of constructive eviction forever, if not done in reasonable time, it is waived. Must vacate premises in reasonable time. JMB Properties

Question 15

Fidelity Mutual Life Insurance Co. v. Kaminsky -

Answer 15

When a landlord fails to act, after a tenant has made repeated requests to protect his or her right of quiet enjoyment of the land, may constitute constructive eviction.

Question 16

[JMB Properties Urban Co. v. Paolucci] “Speaker store next to jewelry store”

Answer 16

Majority Rule: Constructive eviction cannot exist where the tenant does not surrender the property.

Question 17

license: Definition

Answer 17

A personal privilege to use the land of another for some specific purpose

Dorm rooms are in some places licenses and in some leases.

In cohabitation, the other person is a licensee if they do not have exclusive dominion and control over a particular part of the property

Question 18

Constructive Eviction Wrongful Act (4 types)

Answer 18

(1) blocking access to the tenant’s premises;
(2) creating a nuisance that affects the tenant;
(3) harassing the tenant’s customers; and
(4) repeatedly trespassing on the tenant’s premises.

Question 19

Wrongful Omission (5 types)

Answer 19

(1) fails to perform an obligation in the lease,
(2) fails to adequately maintain and control the common area,
(3) breaches a statutory duty owed to the tenant,
(4) fails to perform promised repairs, or
(5) allows nuisance-like behavior.

Question 20

[In Re Clark] “Horrendous maintenance of apartments”

Answer 20

Constructive eviction: Wrongful conduct by the landlord that substantially interfered with the tenant’s beneficial use and enjoyment of leased property allowed tenant to end the lease.

Question 21

Implied warranty of habitability

Answer 21

(1) Change from common law “caveat emptor”
(a) Warranty that premises are in “habitable” condition
for duration of tenancy
(b) No need to abandon premises in order to assert
remedy
(c) Duty to pay rent is dependent on IWH

(2) Standard
(a) The property must meet “bare living requirements”
and be “fit for human occupation.”
(b) “Substantial compliance with building and housing
code standards” may be enough. But a code
violation is not necessary to establish a breach if
the defect impacts “health or safety.”
(c) “Minor deficiencies” do not breach the warranty.

(3) Procedure
(a) Give notice to the landlord.
(b) Wait a reasonable time for the landlord to fix the
problem.

(4) Remedies “Wade v. Jobe”
(a) Withhold rent
(b) Repair and deduct
(c) Sue for damages
(d) Terminate the lease and vacate the premises,
avoiding liability for future rent

Question 22

Wade v. Jobe “No hot water, sewage and water accumulated in basement, landlord repeatedly failed to fix.”

Answer 22

What remedy does renter have for breach of IWH?
1. Withhold rent and wait 2. Repair yourself and deduct from rent 3. Sue for damages

Question 23

Privity of Contract vs Privity of Estate Chart (When there is an assignee)

Answer 23

POC
Owner <———-> Tenant
\ |
POE \ | POC
\ |
\ Assignee

At first, Owner and Tenant have both privity of contract and estate. When assigning to an assignee, the Tenant still has privity of contract, but now assignee has only privity of estate because there is no contractual relationship between him and owner. Therefore assignee gets all duties that “run with the land” but no duties that are purely contractual.

If there is a sublease and not an assignment, then POC/POE is between owner/tenant and between tenant/sublessee., but no connection between owner/sublessee

Question 24

Why does it matter if it is a sublease or an assignment?
1. Categorization

Answer 24

-Subleases v. Assignment - usually permissible for TOY and periodic tenancy, but not tenancy at will or tenancy at sufferance
-Intent test v. objective test (Ernst v. Conditt)
-Assignment - lessee transfers entirety of lease interest
-Sublease - less than entire interest, retains reversion

Question 25

Why does it matter if it is a sublease or an assignment?
2. Can the landlord block the transfer?

Answer 25

-Residential - no duty to act reasonably in granting consent for either sublease or assignment
-Commercial - cannot unreasonably withhold consent

Question 26

Why does it matter if it is a sublease or an assignment?
3. Legal Consequences

Answer 26

3. Legal consequences
   Who is obliged to pay rent and perform other duties?
   -Privity of contract - creates legal relationship in contract

-Privity of estate - creates legal relationship in property/conveyance including covenants that may apply
-Lease covenants “run with the land” if they relate to use or occupancy, e.g.
-Duty to repair
-Pay rent
-Provide heat
-Use of premises for specified purposes
-Covenants that are NOT deemed to run with land include for example attorney fee provisions.

Question 27

Ernst v. Conditt “MARIO KART GOES BANKRUPT”

Answer 27

Whether it is an assignment or sublease must be answered by an inquiry into intent.

Subjective test: Intent of the parties to the transaction.

Objective test: Lessee in contract gives away less than his total lease, nature of the transaction.

Holding: Because the sale was of the whole business, it is inconsistent with the intent to sublease, therefore it was an assignment.

(1) Agreement provides that transferor never receives
possession in future: assignment.

(2) Agreement provides that transferor automatically receives possession in future for any length of time, however short:
sublease.

(3) Agreement gives transferor a contingent right of reentry,
which she may or may not choose to exercise: an
assignment in most states, but a sublease in some
(including Tennessee).

Question 28

Kendall v. Ernest Pestana, Inc.

Answer 28

Lessor must have a commercially reasonable objection to the assignment, even with a provision in the lease stating consent can be withheld for any reason.

Question 29

Leases: Abandonment 3 elements

Answer 29

An abandonment of the leased property by the tenant occurs when he
1. vacates the leased property
2. without justification and without any present intention of returning and
3. he defaults in the payment of the rent.

Question 30

Landlord’s three traditional options when tenant abandons the premises

Answer 30

W.T.M.
(1) Wait: leave the premises vacant until the end of lease term, then sue the tenant for all rent.

(2) Terminate the lease: treat the abandonment as an implied offer of surrender and terminate the lease, eliminating the tenant’s liability for future rent.

(3) Mitigate damages: attempt to relet the premises to another tenant, retain those rents, and sue the tenant after the lease terms ends for any balance due.

Question 31

Sommer v. Kridel - Duty to Mitigate

Answer 31

A landlord has a duty to mitigate damages by
attempting to re-let an apartment vacated by a tenant at fair
market value.

Question 32

Duty to Mitigate

Answer 32

(1) “The duty to mitigate consists of making reasonable efforts to re-let the apartment. [Landlord] must treat the
apartment as if it was one of his vacant stock.”

(2) Burden on landlord to show reasonable efforts
(a) Factors include “whether the landlord, either
personally or through an agency, offered or showed
the apartment to any prospective tenants, or
advertised it in local newspapers”

(b) Rebuttal possible by showing that “he proffered
suitable tenants who were rejected.”

Question 33

Elk Creek Management Co. v. Gilbert - Retaliation

Answer 33

(1) Retaliation not permitted for engaging in “protected activity”
(a) Causal relationship

(2) Mixed motivation - protected activity vs. unprotected
rationale
(a) if “two causes concur, but either operating alone
would have been sufficient to cause the result, a
tenant may prevail by proving that the tenant’s
protected activity was a ‘material and substantial
factor’ in the landlord’s decision.”
(b) No need to show that protected activity was the
“sole” or “dominant” reason for the landlord
decision

(3) No need for hostility or malice

Question 34

Berg v. Wiley - The only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered, but who claims possession and rights adverse to those claimed by landlord, is by…

Answer 34

resort to judicial process.

Question 35

Termination of Lease
(1) Abandonment – Landlord 3 options

Answer 35

(a) Treat as tenant’s abandonment (tenant’s offer of
surrender)
(b) Mitigate; Lease premises to another on tenant’s behalf, with
short-fall recovery from tenant
(c) Stand-by and do nothing – disfavored in modern
view because of common requirement that landlord
mitigate damages

Question 36

Termination of Lease
(2) Hold-over tenant – election of 2 remedies

Answer 36

(a) Treat tenant as trespasser and seek recovery of
premises
(b) Impose new tenancy on holdover tenant (dating
back to prior lease termination, usually a periodic

Tenancy for period of time of accepted rent
(Crechale & Polles)
(i) [other jurisdictions - equivalent to original
term (up to one year)]
(ii) Acceptance of rent implies new tenancy

Question 37

Self Help

Answer 37

Landlord evicting tenant outside of the judicial process.

No self help anymore in the modern rule in most jurisdictions, recourse is done through the judicial process.