Lessor's remedies/Landlord Flashcards
Foundation Develp Core v. Leohman
Historically, because of the independence
of covenants doctrine, the landlord could
terminate a lease only because of nonpayment
of rent
‘ This has been changed by statute in most
jurisdictions and now leases can be
terminated for any material breach
& If the breach is “trivial … or technical,” however,
many courts will enjoin the landlord from
terminating the lease
notice to quit”
or “notice of eviction”
begins formal process of evicting a tenant
- If the tenant remains after the date set, a
formal suit is started seeking the eviction
(cannot self-helo)
summary actions
evictions are.
expedited & limited
The action takes
months to resolve rather
than years
The action takes
months to resolve rather
than years
limited
Only the limited issues surrounding whether the landlord has the right to reclaim possession can be litigated
judgment of
possession
If the landlord is successful in the action, he
or she will be given
if tenant wont move out
the landlord can give the judgment to the appropriate governmental officer who will “execute” the judgment by physically removing the tenant and his or her belongings
edward v. habib
retaliatory eviction:
The tenan tMUST HAVE MADE a prior
complaint regarding housing code violations
- As at least a partial result of this complaint,
the landlord seeks the tenant’s eviction
TIME LIMITS on retaliatory evictions
In many states, the defense is never time barred
— if the landlord is evicting in retaliation, it
doesn’t matter how long it has been
& Other states limit the defense for a set period of
time following the making of the complaint
condut that triggers defense of retaliatory eviction
restrictive states-complaints of housing code violations
-intermed states=any tenant being evicted because of any
housing-related action the tenant took
liberal states=tenant’s assertion of any statutorily or
constitutionally protected right
traditional rule abandonment by tenant
The landlord can consequently leave the premises
vacant and hold the tenant responsible for all of the rent
-If the landlord goes back into possession of the
premises, the reversionary interest and the
possessory estate merge, and the nonfreehold
estate is extinguished
& To avoid the problem, a lease can authorize the
landlord to retake the premises as the tenant’s agent,
but the landlord will then owe the defaulting tenant a
fiduciary duty!
US Natnl bank of oregon v. homeland inc
modern rule-abandonment of leasehold:
A landlord must mitigate damages
-The landlord must go back into possession of
the premises when the tenant abandons them
-The landlord must attempt to relet the premises
to lessen the defaulting tenant’s damages
-The landlord is entitled to the stipulated rent
less the rent the landlord received, or
should have received, in mitigation
historical problems with security deposits
Many residential tenants would never receive their deposits back ' The deposit would get caught up in the landlord’s legal problems, particularly bankruptcy ' The tenant would often default on the final month’s rent, making the landlord use the deposit for this purpose
modern regulation of RESIDENTIAL sec deposits
- serious penalty fail to return (unless justified)
- held in escrow
- laws clarify if deposit can be used to pay last months rent