MBE Property Essay

Question 1

Common Fact Patterns

Answer 1

LCJEOT
look, cait just expects other things

Landlord-Tenant

Covenants + Equitable Servitudes

Joint Tenancy

Easements

Ownership

Takings

Question 2

Landlord-Tenant Outline

Answer 2

Types of Leaseholds (4)

Tenant Duties / Landlord’s Duties
- Implied warranty of habitability
- Covenant of Quiet Enjoyment
- Constructive Eviction

Assignment/Sublease (privity, prohibition)

Question 3

Tenant’s Duties - potential issues:

Answer 3

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

Question 4

Tenant’s duties

Answer 4

pay rent, avoid waste, and make reasonable repairs

Question 5

Landlord’s Duties (highly testable)

Answer 5

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

Question 6

Implied Warranty of Habitability (highly testable - #1)

Answer 6

 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

Question 7

Implied Warranty of Habitability… If the landlord fails to make repairs, the tenant may:

Answer 7

• 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

Question 8

Covenant of Quiet Enjoyment (highly testable - #2)

Answer 8

 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)

Question 9

Constructive Eviction

Answer 9

 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)

Question 10

Assignment (def)

Answer 10

a transfer of the tenant’s remaining lease to a new party

Question 11

Assignment - when allowed and are assignees liable to landlord for rent/covenants?

Answer 11

 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

Question 12

Sublease (def)

Answer 12

a transfer of a portion of the tenant’s lease (less than the remainder of the lease)

Question 13

are sublessees liable to landlord for rent or covenants?

Answer 13

Sublessee-tenants are not liable to landlord for rent or covenants because they are not in privity of contract or privity of estate

Question 14

Prohibition Clauses (def)

Answer 14

clause in the lease prohibiting assignment or sublease

valid as long as expressly written in lease (has to specifically say assignment or sublease)

Question 15

If the tenant violates the prohibition, the landlord can…

Answer 15

terminate the lease

BUT - Waiver—if the landlord accepts payment from the new tenant, he waives the right to
enforce the prohibition clause

Question 16

 Consent—some clauses allow assignment or sublease only with the landlord’s consent
but the landlord can only withhold consent for

Answer 16

/on a commercially reasonable ground

Question 17

The Land-Sales Contract - implied covenant? deadline? remedy?

Answer 17

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

Question 18

Merger doctrine

Answer 18

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.

Question 19

Tenancy for Years

Answer 19

A tenancy for years is an estate measured by a fixed and ascertainable amount of time.

also mention SoF and termination

Question 20

Statute of Frauds for lease

Answer 20

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.

Question 21

Termination of Tenancy for Years

Answer 21

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.

Question 22

Lease - Tenant duty

Answer 22

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.

Question 23

Duty to Repair

Answer 23

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.

Question 24

Implied Warranty of Habitability

Answer 24

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.

Question 25

What can tenant do if implied warranty of habitability is violated?

Answer 25

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.

Question 26

Covenant of Quiet Enjoyment

Answer 26

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.

Question 27

Actual and Partial Eviction

Answer 27

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.

Question 28

Constructive Eviction

Answer 28

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.

Question 29

Lease Assignment

Answer 29

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.

Question 31

Landlord’s damages/duty to mitigate if tenant justifiably abandons lease

Answer 31

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.

Question 32

If tenant abandons lease, can a landlord recover future rent?

Answer 32

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.