Leases Flashcards
Lease
a transfer in which the owner of real property conveys exclusive possession to a tenant (generally in exchange for rent).
3 Types of Leases
- Term of Years
- Periodic Tenancy
- Tenancy at Will
Term of Years
leasehold measured by any fixed period of time.
- automatically ends when the stated term expires.
- Neither party is required to give the other notice of termination
- death of either contracting party does not affect a term of years lease unless the landlord and tenant have agreed otherwise.
Periodic Tenancy
a lease for some fixed duration that automatically renews for succeeding periods until either the landlord or tenant gives notice of termination.
- No certain end date
Periodic Tenancy Termination
Termination requires one party to give advance notice to the other.
Under the common law, for year-to-year periodic leases (or any periodic lease with a longer initial duration), parties must give notice at least six months before the period ends.
For leases less than a year, the minimum notice equals the length of the lease period.
Additionally, unless the parties arrange to the contrary, the lease must terminate on the final day of a period.
HYPO: T signs month-to-month lease on May 1. On August 20, T gives notice of termination to her landlord. When will the lease end?
T must give landlord a minimum of one month’s notice. = September 19
A periodic tenancy must end on the last day of a period. = September 30 (at midnight)
The death of either the landlord or tenant does not end a periodic tenancy.
Tenancy at Will
no fixed duration and endures so long as both party’s desire.
Tenancy at Will termination
Under the common law, either party could end such a lease at any moment.
Today, most states have enacted statutes that establish minimum notice periods – 30 days is common.
Tenancies at will also terminate if the landlord sells the property, the tenant abandons the unit, or either party dies.
Holdovers
Tenants that refuse to move out at the end of their lease are called “hold-overs.”
Holdovers Options
- treat the holdover as a trespasser, bring an eviction proceeding, and sue for damages.
- tenancy at sufferance
tenancy at sufferance
Renews the holdover’s lease for another term. Creates periodic tenancy.
Majority: Some simply copy over the length of the original lease (with a maximum of one year).
Minority: Others divine the repeating period by looking at how the rent was paid.
2 Rules of Delivering Possession
- English Rule (Majority)
OR
- American Rule (Minority)
English Rule
implies a covenant requiring the lessor to put the lessee in possession
- Must provide tenant with actual possession, if he doesn’t, tenant can break lease.
- Tenant may terminate the lease and sue the landlord for damages.
- The tenant can also choose to withhold payment from the landlord until the tenant is able to take possession.
American Rule
Recognizes the lessee’s legal right to possession, but implies no such duty upon the lessor as against wrongdoers, are irreconcilable
- Landlord only must provide tenant with the right to possession.
- In contrast, under the American rule, the tenant must bring an eviction action directly against the holdover.
Fair Housing Act of 1968
Prohibits discrimination in the renting, selling, advertising, or financing of real estate based on
1. race
2. color
3. national origin
4. religion
5. sex
6. familial status
7. disability.
Exception: They can affirmatively discriminate for handicapped people (first floor rooms, etc.)
“Familial status” means one or more individual (who have not attained the age of 18 years) being domiciled with a parent or another person having legal custody of such individuals.
Mrs. Murphy exemption:
If renting/selling a single-family home or apartment complex with 4 units or less, and LL lives in one unit – may discriminate
Note: this exemption does not apply to the subsection that prohibits discriminatory advertising. Thus, although certain categories of landlords are exempted from the statute’s basic framework, they are still not allowed to post discriminatory advertisements.
HYPO: You show up to rent an apartment from the Abominable Landlord. He looks you up and down and says, “I don’t rent to your kind.” You think he means he doesn’t rent to Irish because he starts burning a 4-leaf clover and throwing potatoes at you. How do we get the Abominable Landlord out of a lawsuit?
Mrs. Murphy exception.
Two FHA Claims can be brought:
- Disparate Treatment Claims
- Disparate impact Claims
Disparate Treatment Claims
Disparate treatment claims target intentional forms of discrimination, including the refusal to rent based on one of the protected categories.
Proving Disparate Treatment
Option 1: A plaintiff can show intent to discriminate with “smoking gun” evidence, such as statements by the landlord that he “would never rent to an Irishman.”
Option 2: Burden-shifting approach that allows plaintiffs to prove intentional discrimination with indirect circumstantial evidence.
The initial burden is on the plaintiff to make a prima facie case of discrimination. In a refusal to rent case, the plaintiff must show that:
(1) she is a member of a class protected by the FHA
(2) that she applied for and was qualified to rent the unit
(3) that she was rejected, and
(4) the unit remained unrented.
Once the plaintiff has established sufficient evidence to state a prima facie case, the burden shifts to the defendant landlord to proffer a legitimate nondiscriminatory reason for the refusal to rent. If the defendant meets this requirement, the burden then shifts back to the tenant to prove that the reason offered is a pretext.
Disparate Impact Claims
allege that some seemingly neutral policy has a disproportionately harmful effect on members of a group protected by the FHA
- rely heavily on statistical evidence and employ a very similar burden-shifting methodology as the disparate treatment claims.
- Using statistics, plaintiffs need to show that a defendant’s policy has caused some disparity.
The defendant then can escape liability if it can show that its actions are necessary to achieve a valid goal.
When a landlord believes that a tenant has committed a material breach of the lease, how exactly does she go about removing a lessee from the property?
Common-law rule: a landlord may rightfully use self-help to retake leased premises from a tenant in possession without incurring liability for wrongful eviction provided two conditions are met:
(1) The landlord is legally entitled to possession, such as where a tenant holds over after the lease term or where a tenant breaches a lease containing a reentry clause; and
(2) the landlord’s means of reentry are peaceable.
Modern: In most jurisdictions, statutes mandate that landlords pursue relief through the court system and refrain from self-help remedies.
Covenant of Quiet Enjoyment
The basic idea is that the landlord cannot interfere with the tenant’s use of the property.
Common Law: Every lease, whether residential or commercial, contains a covenant of quiet enjoyment.
Rule: “A breach of the covenant of quiet enjoyment occurs when the landlord substantially interferes with the tenant’s use or enjoyment of the premises.”
Covenant of Quiet Enjoyment: Substantial
courts generally consider the purpose the premises are leased for, the foreseeability of the problem, the potential duration, and the degree of harm.
Covenant of Quiet Enjoyment Remedies
(1) the tenant can always choose to stay in the leased property, continue to pay rent, and sue the landlord for damages.
(2) certain violations of the covenant of quiet enjoyment allow the tenant to consider the lease terminated, leave, and stop paying rent.
Partial Eviction
If the landlord denies the tenant access to some portion of the rented space (say, and allotted parking space) that constitutes a breach of the covenant of quiet enjoyment.
Partial Eviction Remedies
terminate the lease and sue for damages.
Actual Eviction
when the tenant is deprived of the occupancy of some part of the demised premises.
Constructive Eviction
things are so bad that even though a tenant has not actually been evicted, they are still forced to leave.
Constructive Eviction Elements
(1) some act or omission by the landlord
Affirmative step can be an act, omissions are only applicable if the LL has a clear duty to do something.
(2) substantially interferes with the tenant’s use and enjoyment of the property
- What counts as substantial interference? – Crack in the window? (No.) Look at the degree of the harm (how bad?), the potential duration of the thing (ex: construction), foreseeability (did you know?), and ask “For what purpose was the unit leased?”
(3) The tenant also needs to notify the landlord about the problem, give the landlord an opportunity to cure the defect, and
(4) then vacate the premise within a reasonable amount of time.
Some jurisdictions let the tenant stay, but they must continue paying rent while suing for damages.
Don’t need to meet each.
The difficulty with traditional constructive eviction doctrine is that it forces the tenant to move out of their unit before they sue.
Implied Warrant of Habitability
Imposes a duty on landlords to provide residential tenants with a clean, safe, and habitable living space.
- Implied warranty of habitability covers all latent and patent defects in the essential facilities of the residential unit.
IWoH - Determining Breach
- See if it’s a major violation of building codes
- Use a reasonable person standard
- Would a reasonable person find it unsuitable for human habitation?
IWoH - Remedies
(1) leave, terminate the contract. Tenant may consider the lease terminated and move out.
(2) stay and sue for damages. Must pay rent while staying and suing for damages.
(3) stay and charge the cost of repair. Tenant may fix the defect and then deduct the cost of repair from the rent.
(4) stay and withhold rent. Tenant can withhold the entire rent for violations of the IWH.
- This gives the landlord strong incentive to respond to valid complaints from tenants and puts the burden on the landlord (rather than the tenant) to initiate a lawsuit when contested issues arise. If the landlord does move to evict the tenant for non-payment, violations of the IWH can serve as a defense.
(5) extreme violations. Tenants have won punitive damages in cases where the landlord committed repeated or gruesome violations of the implied warranty.
IWoH Damages
Majority: damages are the agreed rent minus the fair market share.
Minority: damages are the value of apartment if it’s up to habitability minus the current rental value.
IWoH v. QE
(1) Generally, have to leave in QE, do not under IWH
(2) QE can be waived, IWH cannot
(3) No punitive damages under QE, punitive damages under IWH
(4) Cannot abate rent under QE (unless partial eviction), can under IWH
Retaliatory Evictions
landlord may not punish tenants when they exercise legal rights incidental to their tenancy.
Generally, this means that a landlord cannot raise the rent, reduce services, refuse to renew a lease, or bring an eviction action for the purpose of retaliating against a tenant who has complained about the condition of the unit, filed a lawsuit concerning the fitness of the unit, contacted a local agency, or exercised rights under the implied warranty of habitability.
The landlord can rebut, but the burden is on the landlord to prove it wasn’t done for retaliatory purposes.
Landlord Tort Liability
landlords must:
(1) exercise reasonable care in keeping common areas safe,
(2) use reasonable care when making repairs, and
(3) warn tenants about latent defects – unsafe conditions that would not be obvious upon an inspection.
If a leasehold doesn’t qualify as either a term of years or periodic tenancy
The law crams it into the tenancy at will box – even if that clearly violates the goals of the parties. (90 year old Effel case)
