Lesson 3 - Leases/Rentals

Question 1

Name the 4 different types of Tennancy

Answer 1

1. Term of Years, 2. Periodic Tenancy, 3. Tenancy at Will, 4. Holdover Tenancy/Tennancy at suffrage

Question 2

What is a Term of Years?

Answer 2

an estate that lasts for some fixed period. (The term must be for a fixed period, but it can be terminable earlier upon the happening of some event.)

Notice needed to end the estate? Because the term of years is fixed – no notice of termination of the leasehold is needed to end the estate.

Note: Despite the name, the period can be for one day, two months, or 3000 years.

At common law, there was no limit on the length of years permitted, but some States statutes limit the duration.

Question 3

What is a periodic tenancy?

Answer 3

is a lease for a fixed period that continues for succeeding periods until either the landlord or the tenant gives notice of termination. (E.g. month-to-month leases, year-to-year leases, etc.)
Notice is needed to end the estate. If notice is NOT given, the period is automatically extended for another period.
How much notice? At common law, 6 months’ notice is required to terminate a year-to-year lease.
For periods shorter than a year, common law required notice to terminate equal to the length of the period, but not to exceed 6 months.

Notice terminates the tenancy at the end of the period – not in the middle.

Question 4

When do periodic tenancies terminate?

Answer 4

At the end of the present period/term. Not at the giving of notice

Question 5

What is a tenancy at suffrage?

Answer 5

arises when a tenant remains in possession (holds over) after the termination of the tenancy

Question 6

What 2 options does a landowner have when they have a holdover tennant?

Answer 6

Eviction (plus any damages)
Consent to the creation of a new tenancy – this consent can be either express or implied.

Question 7

What type of new tenancy is created if someone holds over and the landlord impliedly consents? What is the majority view and what is the minority view?

Answer 7

Majority: Holdovers create a new periodic tenancy equal to the length of the original term (or calculated based on the way rent was specified in the lease – i.e. annual rent or monthly)
Minority: holdovers create a term of years (for a fixed term not to exceed one year, but it can be less than a year based on the length of the original lease)

Question 8

What is a tenancy at will?

Answer 8

a tenancy of no fixed period that goes as long as both landlord and tenant desire it.

Question 9

Under what conditions will a tenancy at will terminate?

Answer 9

1. When a party dies. 2. When one party terminates it

Question 10

How much notice is required for the termination of a tenancy at will?

Answer 10

At common law none, but most jurisdictions require at least 30 days

Question 11

Must a lease be in writing?

Answer 11

Not if for less than a year, but in practise, leases should be in writing

Question 12

What counts a discrimination under the Fair Housing Act?

Answer 12

When a protected class of person (ex gender, ethnicity) is treated differently BECAUSE OF their membership in a protected class in the process of buying/renting a home

Question 13

Under the Fear Housing Act, a landlord cannot

Answer 13

“steer” applicants to other housing, claim that a unit is not available when it is, ask about nationality, use different screening methods for applicants

Question 14

What I the definition of “disability” under the FHA?

Answer 14

Anything that impends a person to care for themselves (included alcoholism and addiction)

Question 15

John has bipolar disorder and previously punched in a hole in the wall of his room during an episode of mania. His landlord moves to evict him. Is this legal under the FHA?

Answer 15

Probably yes. While mental illness is a protected disability, the possibility for John to damage people or property puts the protection of others above John’s mental condition

Question 16

Andrew needs a wheelchair and therefore a ramp up to the front door. Under the FHA, what are the obligations of Andrew and the LL? Assume a boiler plate renter’s agreement.

Answer 16

Andrew must pay by the ramp itself, and the LL is obligated to provide access to the proeprty for the installation of the ramp.

Question 17

In Tennant LL relations, when does retaliation occur?

Answer 17

an applicant or resident has stood up for his or her fair housing rights
someone helps another person stand up for their fair housing rights
someone is a witness in a fair housing investigation.

Question 18

What is a sub-lease?

Answer 18

A sublease transfers LESS than the entire interest remaining in the leased property.

Tenant subleases if he or she re-leases to another tenant any portion less than the time (or space) remaining in the tenant’s lease.
Often called, a lease within a lease

Ex. Heather has a 2-year lease that ends on June 30, but she moves away for 4 months to do an externship, so she rents out her pad to Tim for the months of Jan through April.

Question 19

What is an assignment?

Answer 19

An assignment transfers all the remaining time (and space) of the leased premises.

Tenant assigns a lease if he or she rents out the property for the remaining time of his or her lease.

Ex. Heather has a term-of-year lease that ends on April 30, 2020, but she has an Externship that will lead into her graduation, so she no longer needs the property. She would assign her lease to Tim if she let Tim rent out her property until the lease ended on April 30.

Question 20

If there is a sub-lease who can the LL sue in the event of a breach?

Answer 20

Only the original tennant becasue they have no privity of contract with the sub-leases

Question 21

If there is an assignment who can the LL sue in the event of a breach?

Answer 21

With assignments, the LL can sue the new tenant directly because there is privity of estate with the new tenant who assumed the entire term of the lease.
NOTE: The LL can also sue the original tenant under the contractual terms of the lease because there is still privity of contract with the original tenant.

Question 22

What distinguishes a sub-lease from an assignment?

Answer 22

If a tennant transfers away the entirety of their remaining interest in the space and term of lease, then it its an assignment. A partial transfer of the time and space of the lease is a subleasse

Question 23

What is Self-Help?

Answer 23

A LL entitled to possession under common law could resort to self help without fear of civil liability, so long as the LL used no more force than was reasonably necessary (i.e., LL could not breach the peace)

Note: Over the years, breach of peace became anything that “might provoke a tenant” – which is just about anything

Modern, majority view: Self help is not allowed because most states have summary proceedings acts that expedite the eviction/recovery process.
Self-Help prohibitions usually apply to both residential and commercial leases.

Question 24

What is Surrender?

Answer 24

is an agreement between LL and Tenant to terminate the tenancy prematurely.
Ex. If the LL agrees to keep 2-months prepaid rent and release a tenant from lease’s obligations, then this would be a surrender.

Question 25

What is Abandonment?

Answer 25

is essentially an implied surrender. An abandonment occurs when the tenant vacates the leased property without justification and without any present intent to return – and then defaults on payment of rent.

Question 26

Does the LL have a duty to re-rent the premises in the event of abandonment? What is the modern rule?

Answer 26

The LL has a duty to use reasonable efforts to mitigate damages if a tenant abandons the premises.
Vacant-stock rule: The LL must treat the abandoned unit as part of its vacant units to be reletted – can’t hold it out as non-rentable or dissuade people from renting.
Rules regarding reasonable efforts?
Tenant bears costs of reletting the premises, if any. (ad costs, etc)
No need to accept less rent or “substantially alter” LL’s rental obligations to re-rent unit.
LL can accept higher rent, but must do so for all unit – not just this unit. (Increased rent can’t be far greater than for abandoning tenant.)

Question 27

What is Waste?

Answer 27

Waste is any change in the physical nature of the preoprty

Question 28

What are the 2 kinds of waste?

Answer 28

Voluntary waste (aka Affirmative Waste): direct, willful, or intentional injury to the premises.
Permissive waste is the result of neglect or omission, such as allowing a structure on the premises to deteriorate.

Question 29

What is allowed under the implied duty to deliver?

Answer 29

Reasonable wear and tear

Question 30

Can a tennant make changes that increase the value of the peropty?

Answer 30

In most jurisdictions, yes with the LL permission

Question 31

What are the remedies for waste?

Answer 31

Damages equal to the loss of value due to the waste OR
The cost to return the premises to its prior condition.

Note: In some states, there are double or triple damages for committing waste.
Equitable relief (like preventing future waste) is allowed too.

Question 32

What is the American Rule? Is it in the majority or minority?

Answer 32

(minority) The landlord is obligated ONLY to deliver legal possession when the lease term begins

Question 33

What is the English rule? Is it in the minority or majority?

Answer 33

(majority) the landlord must deliver not only legal possession, but also actual possession.
If the LL defaults in this provision, the T can terminate the lease and sue for damages – or may continue the lease and still sue for damages.
Policy rationale: The LL has the greater ability to guard against the risk of trespassers and holdovers.

Question 34

What is the covenant of the tenants obligation to pay rent dependant on?

Answer 34

The tennant must have UNDISTURBED possession of the premises

Question 35

Every ___ lease includes an implies warranty of habitability

Answer 35

residential

Question 36

Which 3 states do not have an implied warranty of habitability?

Answer 36

Alabama, Arkansas, and Wyoming