MBE Property Essay Flashcards
Common Fact Patterns
LCJEOT
look, cait just expects other things
Landlord-Tenant
Covenants + Equitable Servitudes
Joint Tenancy
Easements
Ownership
Takings
Landlord-Tenant Outline
Types of Leaseholds (4)
Tenant Duties / Landlord’s Duties
- Implied warranty of habitability
- Covenant of Quiet Enjoyment
- Constructive Eviction
Assignment/Sublease (privity, prohibition)
Tenant’s Duties - potential issues:
1) Withholding/Deduction of Rent
* If landlord breaches the covenant of quiet enjoyment
* If the landlord violates the implied warranty of habitability (residential only)
2) Waste—tenant cannot damage the property and must repair damages he causes
3) Failure to Pay Rent—landlord can sue for damages and eviction
4) Abandonment—if the tenant abandons the property, landlord can accept as an offer of surrender
But 5) Duty to Mitigate—landlord has a duty to try and re-lease the property to mitigate the damages
Tenant’s duties
pay rent, avoid waste, and make reasonable repairs
Landlord’s Duties (highly testable)
1) Duty to Deliver Possession—landlord must deliver actual possession of premises to
tenant
2) Duty to Repair—landlord must repair damages under residential leases, unless the tenant caused the damages
Implied Warranty of Habitability (highly testable - #1)
Only applies to residential leases
Landlord must maintain the property such that it is reasonably suited for residence
Failing to comply with housing codes is a breach, especially violations related to health or safety (heat, electricity, running water, plumbing)
Tenant must give notice to the landlord and reasonable opportunity to repair
Implied Warranty of Habitability… If the landlord fails to make repairs, the tenant may:
- Stay in the property and deduct rent until the repair occurs,
- Stay in the property, pay for repairs, and deduct the cost from rent, or
- Terminate the lease and move out
Covenant of Quiet Enjoyment (highly testable - #2)
Applies to residential and commercial leases
The landlord cannot disrupt the tenant’s possession or enjoyment of the property
Landlord also has a duty to take action against other tenants’ nuisance-like behavior and
to control common areas
(Usually tested through constructive eviction)
Constructive Eviction
Landlord substantially interferes with the tenant’s use and enjoyment of the land,
Tenant gives notice of the problem and reasonable time for the landlord to repair, but
the landlord does not repair, and
Tenant vacates the premises in a reasonable amount of time
(A landlord’s breach of duty will often arise as a tenant’s defense)
Assignment (def)
a transfer of the tenant’s remaining lease to a new party
Assignment - when allowed and are assignees liable to landlord for rent/covenants?
Assignments are generally allowed, unless prohibited by the lease
Assignee-tenants are liable to landlord for rent and covenants that run with the land
because they are in privity of estate with landlord
Sublease (def)
a transfer of a portion of the tenant’s lease (less than the remainder of the lease)
are sublessees liable to landlord for rent or covenants?
Sublessee-tenants are not liable to landlord for rent or covenants because they are not in privity of contract or privity of estate
Prohibition Clauses (def)
clause in the lease prohibiting assignment or sublease
valid as long as expressly written in lease (has to specifically say assignment or sublease)
If the tenant violates the prohibition, the landlord can…
terminate the lease
BUT - Waiver—if the landlord accepts payment from the new tenant, he waives the right to
enforce the prohibition clause
Consent—some clauses allow assignment or sublease only with the landlord’s consent
but the landlord can only withhold consent for
/on a commercially reasonable ground
The Land-Sales Contract - implied covenant? deadline? remedy?
Implied Covenant of Marketable Title—implied covenant in all land-sales contracts promising that there are no encumbrances on the land
Seller is not required to deliver marketable title until the day of closing
If encumbrances not cured by closing, buyer can sue seller for breach of the implied covenant
Merger doctrine
If buyer does not discover encumbrance until after closing, buyer is not able to sue under this breach-of-contract theory because the land-sales contract and the deed have merged.
Buyer must sue for breach of deed warranty.
Tenancy for Years
A tenancy for years is an estate measured by a fixed and ascertainable amount of time.
also mention SoF and termination
Statute of Frauds for lease
The Statute of Frauds applies to a tenancy for years that is longer than one year. As a result, the lease must be in a writing that satisfies the Statute—i.e., that identifies the parties, identifies the premises, specifies the duration of the lease, states the rent to be paid, and is signed by the party to be charged.
Termination of Tenancy for Years
Termination of a tenancy for years occurs automatically upon the expiration of the term. Termination may also occur before the term expires, either by agreement of the parties or by a party exercising her right to terminate the lease due to the landlord’s breach of a leasehold covenant.
Lease - Tenant duty
The tenant has the duty to pay rent, subject to two major exceptions—i.e., destruction of the premises, or a material breach by the landlord.
Duty to Repair
The landlord has an implied duty to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant.
Implied Warranty of Habitability
Most residential leases, especially those for multi-family dwellings, contain an implied warranty of habitability. This warranty requires the landlord to maintain the property such that it is reasonably suited for residential use. In California, the landlord’s failure to comply with applicable housing code requirements constitutes a breach of this warranty, particularly with regard to violations that substantially threaten the tenant’s health and safety.
What can tenant do if implied warranty of habitability is violated?
If the premises are not habitable, the tenant may choose to (i) refuse to pay rent, (ii) remedy the defect and offset the cost against the rent, or (iii) defend against eviction. Generally, the tenant must notify the landlord of the problem and give her a reasonable opportunity to correct the problem before withholding rent or remedying the defect.
Covenant of Quiet Enjoyment
Every lease contains an implied covenant of quiet enjoyment, which is breached only when the landlord, someone claiming through the landlord, or someone with superior title disrupts the possession of the tenant. Any actions taken by the landlord that breach this covenant amount to an actual or constructive eviction of the tenant.
Actual and Partial Eviction
For there to be an actual eviction, the landlord must remove the tenant from premises. If the tenant is prevented from possessing or using a portion of the leased premises, then the tenant may seek relief for a partial eviction. The tenant is completely excused from paying rent for the entire premises if the landlord is responsible for the partial eviction.
Constructive Eviction
If the landlord substantially interferes with the tenant’s use and enjoyment of the leasehold by breaching a duty to the tenant, then the tenant’s obligation to pay rent is excused due to constructive eviction only if the tenant gives notice and vacates the property within a reasonable amount of time.
Lease Assignment
Absent contrary language, a lease can be freely assigned or sublet.
An assignment is a complete transfer of the tenant’s remaining lease term. Any transfer for less than the entire duration is a sublease.
When a lease prevents assignment or subletting of the leasehold without the permission of the landlord, and the lease is silent as to a standard for exercising that permission, the majority rule is that the landlord may withhold permission only on a commercially reasonable ground. The minority position is that the landlord may withhold permission at his discretion.
Landlord’s damages/duty to mitigate if tenant justifiably abandons lease
Tenant D will not be liable for any deficiency if landlord is unable to re-rent the premises or for any rent payments remaining under the lease.
If tenant abandons lease, can a landlord recover future rent?
No. Even if unjustifiably abandons… Although a landlord can sue a tenant for rent as it becomes due, a landlord cannot sue for future rent due under the lease because the doctrine of anticipatory repudiation does not apply to leases. This means that D would only be liable for the outstanding rent due and owing at the time P sued D. D would not be liable for any future rent not yet due under the lease.
