Part Four: Ownership in Common Flashcards
What is concurrent ownership?
more than one person has the right to control the same thing at the same time.
What are the three common law concurrent tenancies?
tenancy in common
joint tenancy
tenancy by the entirety
How are tenancy in commons created?
explicitly by conveying property to more than one party, there is also a presumption that tenancies in comon are the default
What “unities” are tenancy in common required to have?
unity of possession: the right to possess the entire parcel no matter how small her fractional interest.
tenants may also file to terminate the co-tenancy and divide the property or its proceeds by bringing an action for partition.
How can you extinguish or pass a tenancy in common?
by deed, will or inheritance
What are the required “unitites” for joint tenants?
- Unity of Time: the interest of each tenant must be created at the same moment in time
- Unity of Title: all JT’s must acquire title by the same insturment or title
- Unity of Interest: all JT’s must possess equal fractional undivided interests in the property and their interest must last the same amount of time
- Unity of Possession: all Jt’s must have the right to possess the entire parcel
What is the main difference between joint tenancy and tenants in common?
Joint Tenancy has the right of survivorship: when a JT dies, her property interest is immediately transferred to the remaining joint tenants in equal shares
The right of ownership consolidates property among the parties, simplifying use and ownership
How is Joint Tenant severed?
it is severed by conveyance but not by will
some jurisdictions also recognize divorce as a severance
Why is the right of survivorship so important in property transfer?
Because a joint tenant who transfers her property interest can destroy the right of survivorship of her fellow owners with respect to her share.
?
If A + B + C = JT and then
A conveys her third to D, what are the relationships between B, C and D
A + B + C = JT
A conveys her third to D
D is tenants in common with B+C
B + C are still JT’s
that is because severance is only between the selling owner and the remaining owners; it does not change the relations of the remaining owners among themselves
Can JT’s encumber their interests during their lives?
Yes they can rent their land or pledge them as security for debt but these encumberance do not generally survive the deaht of the encumbering co-tenant
What type of tenancy do joint bank accounts tend to have?
Personal joint bank accounts are joint tenancies with rights of survivorship. Such a survivorship is provided by the bank’s signature form and may even be presumed absent contrary evidence. However it must be more than a “convenience account” to permit a child/helper to write checks on their behalf the tenant must also contribute.
Who may hold a Tenancy in Common (TiC)?
2 or more persons
Who may hold a Joint Tenancy (JT)?
2 or more persons
What interest does each tenant hold in a Tenancy in Common (TiC)?
Undivided fractional share (shares may be unequal)
What interest does each tenant hold in a Joint Tenancy (JT)?
Undivided equal share
What use rights do tenants have in a Tenancy in Common (TiC)?
Each may use the entire property, subject only to the use rights of other co-tenants to the same
What use rights do tenants have in a Joint Tenancy (JT)?
Each may use the entire property, subject only to the use rights of other co-tenants to the same
How is a Tenancy in Common (TiC) created?
Severance of a Joint Tenancy (JT); inter vivos conveyance; devise; intestate succession; divorce
How is a Joint Tenancy (JT) created?
Conveyance or devise ‘to A & B as joint tenants with the right of survivorship’ (or substantially similar language)
How is a Tenancy in Common (TiC) ended?
Partition
How is a Joint Tenancy (JT) ended?
Conveyance by a JT; partition; death of the second-to-last JT
Does Tenancy in Common (TiC) have the right of survivorship?
No
Does Joint Tenancy (JT) have the right of survivorship?
Yes
Can a separate share in a Tenancy in Common (TiC) be devised or passed via intestacy?
Yes
Can a separate share in a Joint Tenancy (JT) be devised or passed via intestacy?
No
What is a judicial accounting?
when there is a dispute regarding the sharing of the benefits/burdens of a property, judicial accounting requires the co-owners to pay their portions of required expenses or to force co-owners to hand over profits from the property.
What is ouster?
it is an explicit affirmative act to exclude the other co-owner from the property.
When ouster is commited the co-owner that is being excluded can then ask the ouster tenant to pay rent
What are the rights and responsibilities of co-owners?
Mortgage/Tax/Insurance Expenses
Rent
Repairs
Improvements
Unilateral transfer (namely, leases)
Look at at slides
What did Olivas v. Olivas address?
Issue: Should the traditional ouster rules apply to divorced or separated spouses, or is an alternative framework more appropriate?
Approaches to Ouster in Divorce Cases:
Options:
Traditional Ouster – Requires an affirmative act of exclusion.
Constructive Ouster – Divorce itself may imply ouster; cohabitation is impractical.
Fault-Based – Rent recovery depends on who caused the marital breakdown, not who moved out.
Need-Based – Focuses on financial resources and equitable distribution rather than fault.
What is the takeaway from Carr v. Decking?
Issue: Whether one TIC can unilaterally bind the estate by leasing to a 3rd party without her co-tenants knowledge and approval?
Hold: If a co-tenant disagrees with the lease, they can seek partition (either physical division or sale of the property).
Moral obligation vs. legal right – While co-tenants should ideally communicate, there’s no strict duty to do so.
Whats the takeaway from Tenhet v. Boswell?
Issue 1: Whether a lease severs JT
Issue 2: Does T encumber the lease if the JT is not severed?
H1: A joint tenant’s unilateral lease does not sever the joint tenancy.
H2: When a joint tenant dies, the right of survivorship takes precedence, extinguishing any lease granted by the deceased tenant. This is unfai to the leasee but favors preserving survivorship rights
How does Ark Land v. Harper handle the issue of partition between tenants in common?
The presumption is “in kind” more cases than not the partition gets rebutted and end up sale
“In kind” is considered fair but it is impracticable
More practicable to sell then garner the proceeds
Here the partition in kind was more practicable for sentimental value however more courts would have partitioned by sale (this case is minority)
What is a future interest?
it is the right to take possession in the future under specified circumstances.
When do future interests exist?
They exist the moment they are created NOT when they are initiated
Are future interests possessory?
They are possessory when they are activated, when they are not active they are non-possessory rights
Why do we allow property owners to delegate future interests?
Fairness
* Supports an owner’s right to use and control property as they see fit
* Promotes individualized, long-term planning (e.g., for family or charitable goals)
Right of Alineability
* Enhances the property’s transferability by allowing owners to split interests across time
* Prevents land from being locked up indefinitely and increases marketability
Utility
* Incentivizes long-term stewardship, investment, and land preservation
* Encourages estate planning and intergenerational wealth transfer
* Deters wasteful or shortsighted use of land by current possessors (e.g., life tenants)
* Aligns future interest holders’ incentives with preservation of the property
Administrability
* Legal doctrines like the Rule Against Perpetuities prevent excessive control over property
* Ensures future interests remain workable and do not impair land’s usability for future generations
What are two main policy concerns with future interests?
Dead Hand control: restrict the ability of living individuals to use, transfer, or develop property in ways that align with contemporary needs. This can lead to inefficient land use and hinder economic growth.
Hierarchy: This reduces alienability, making transactions more complex and limiting property’s economic utility. Can reinforce racial and sex discrimination
What are the three general rules when creating future interests?
- one cannot grant more than one has
- the grantor will be presumed to have given away all of the transferred interest without limitations if no limtiations are mentioned
- whatever is not granted remains with the grantor
What are the possible future interests a GRANTOR can have?
reversion
possibility of reverter (1)
right of re-entry (2)
What are the additional limitations that arise in future interests?
Determinable (1)
Subject to Condition to Subsequent (2)
Subject to Executory Limitation (3)
Subject to Partial Divestment
What is a determinable limitation?
Reverts to grantor after a specified amount of time
Future interest holder is the grantor, via possibility of reverter
What are future interests in GRANTEE?
Remainder: Contingent and Vested
Executory Interest (3)
What is a vested remainder?
A future interest in property that is given to an identifiable (ascertained) person at the time of conveyance and is not subject to any condition precedent.
The grantor has predetermined who will receive the property once the preceding estate naturally ends.
Example: “O conveys Blackacre to A for life, then to B and her heirs.”
B has a vested remainder because B is identifiable and does not have to satisfy any condition before inheriting the property.
What is a contingent remainder?
A future interest in property that is either given to an unascertained person or subject to a condition precedent that must be met before the interest vests. The remainder is uncertain because it depends on a future event or an unknown beneficiary.
Example: “O conveys Blackacre to A for life, then to B if B graduates from law school.”
B has a contingent remainder because the interest is dependent on B fulfilling the condition of graduating from law school.
what are the RAP triggers?
- There is a stated time period of more than 21 years.
- There is a condition that is not personal to someone
- An interest goes to a generation after the next
(grandchildren)
What is an example of an executory interests?
Shifting Executory Interest – Divests a grantee’s interest.
* Example: “O to A, but if A sells alcohol, then to B.” (B’s interest cuts short A’s estate.)
How does an executory interest differ from a remainder?
Remainder follows a naturally ending estate, while executory interests divest (cut short) a prior estate.
Remainders are typically vested or contingent, while executory interests always depend on a condition occurring.
What are the steps of RAP?
Step One: State the title as if no R.A.P., and identify any “vulnerable” future interests in grantees (namely, contingent remainders or executory interests)
A has a present interest in FS subject to executory limitation
B has a future executory interest in fee simple absolute
Step Two: What must happen to cause the vulnerable interest to vest or terminate?
Subject to partial divestment (vulnerable interest)
A or her heirs have to stop farming for this to vest or terminate
Step Three: Circle all “lives in being.”
O is alive so consider him
A
Any already existing heirs
B
Any already existing heirs
**Step Four: ** Will the interest definitely vest or terminate within the lifetimes of everyone circled +21 years?
Consider whether someone born after the conveyance could affect whether and when the vulnerable interest vests/terminates.
Current generations during conveyance + 21 years long to tie it up for
Step Five
If the interest will definitely vest or terminate within generation + 21 years then it is valid
If the interest will NOT vest within that statute of time then the conveyance is VOID
Strike it and restate the title
What are the categories of tenancies?
- Term of years
- Periodic tenancy
- Tenency at will
- Tenancy at sufferance
What is a term of years tenancy?
A term of years lasrs for a specified period of time determined by the parties.
Notice is not required
Most states do not require a reason for treminating a terms of years
Death does not terminate
(no cause termination)
Examples of when a LL can’t evict a tenant:
- as a result of retaliation
- if a tenant has a legit complaint
What is a periodic tenancy?
Most Common
Initial fixed-period then auto-renewal for successive period
Death does not terminate
CL requires notice to terminate for the length of the period but not to exceed six months
Ex: month-to-month lease that renews on the 31st
if on jan 12. the tenant gives noties that they will leave the 31st does the tenant owe rent for Feb?
If at least the period is required then this notice was not enough and therefore must pay Feb
what is tenancy at will?
Similar to a periodic tenanacy excpet thatit can be ended with no notice by either party
But it does not mean the LL can terminate at will
Death terminates
Statutory requirements can turn it into a periodic tenancy
What is a tenancy at sufferance?
Not really a tenancy
A tenant rightfully in possession who wrongfully stays after the leasehold terminated
The term is intended to distinguish between a tenant who wrongfully retains possesion after the end of the lease term from a trespasser, who never had a right to posses the property.
They are owed due process
Or be treated like a new tenant under a new lease
Can’t physically eject
What is the main difference between residential and commercial tenancies?
Policy considerations and the justified expectations of the parties
Fairness: common law for residential b/c they have less bargaining power and less expertise in contract forming to bargain for appropriate terms in the contract that reflect their justified expectations
Is notice a waivable term?
Notice is a split opinion
what is a main difference in end goals for commercial and residential tenancies?
Commercial goal: money
there is an investment strategy when they enter their agreement in commercial (the power is slightly more even)
Residential: shelter and money
the nature of the relationship changes when you need to find habitable shelter
What are the benefits of notice to a tenant?
Gives an opportunity to find somewhere else to live
Opportunity to mount a defense, consult with an attorney
What are the benefits of notice to a landlord?
The LL doesnt want the period between notice and eviction to be too long
They want to put someone else in the unit to get money/work from them
What are the rights of a landlord?
Landlords have the right to collect rent, seek conribution for certain repairs and right of entry
What are the rights of a tenant?
Tenants have rights to possess the land, reap profits in some ways
to exclude others (including the landlord at some instances)
to withhold rent
somewhat rights to transferring the property (sub-lease, assignments)
How does Vasquez address the question of whether migrant farmworkers are “tenants” under NJ’s anti-eviction statute?
Migrant farmworkers may not be traditional tenants since they don’t pay rent—services are exchanged instead. However, their interest in stable housing (esp. when far from home like PR) suggests a need for some tenant-like protections.
NJ is a just cause jurisdiction, so landlords must give a valid reason at a hearing before eviction. The case asks whether these protections extend to nontraditional tenants like farmworkers.
How does Vasquez address how courts should imply a term in an employment/housing contract requiring a hearing before an eviction?
They should imply that a hearing is required before eviction.
Even if the legislature hasn’t required it, courts might imply a term based on public policy—especially when self-help evictions (like lockouts) are involved.
Benefits of a hearing:
* Gives residents time to find new housing
* Allows them to mount a defense or consult a lawyer
* Prevents violent altercations from self-help evictions
Follow-up: Should the implied term be waivable? Arguably no, due to unequal bargaining power and public interest in housing stability.
Why is notice to a tenant important, even if they aren’t a traditional tenant?
Notice provides:
* Time to relocate, avoid homelessness
* Chance to respond legally
* Protects due process rights
* Prevents confrontations from surprise evictions
Even if not a tenant, the worker’s dependence on employer-provided housing justifies procedural protections like notice and a hearing.
What are Institutional Arguments for the Landlord in the case of Vasquez?
The legislature, not the courts, should decide whether migrant workers are protected.
* The statute does not include them, and courts should not rewrite legislation.
* NJ legislature has addressed migrant workers in other contexts and could have done so here.
* Courts must respect the separation of powers and avoid overstepping.
What are Institutional Arguments for the Employee (migrant workers) in the case of Vasquez?
Courts should modernize and interpret the common law when the statute doesn’t cover a situation.
* Migrant workers weren’t explicitly included, but that doesn’t mean they’re excluded.
* Common law self-help eviction doctrine is outdated and courts are equipped to revise it.
* NJ courts are equitable forums and should resolve power-imbalanced disputes.
* Judicial updates to CL may reflect legislative intent, not override it.
* Courts have a duty to adapt legal rules to reflect contemporary values.
* Updating self-help eviction rules aligns with NJ’s just cause framework and concern for housing stability.
* * Legislature can’t foresee every scenario
* Courts interpret and apply common law in gaps
* Legislative silence ≠ legislative exclusion
* Courts can reflect underlying legislative values (e.g., concern for migrant workers)
Why are self-help eviction frowned upon? (self-help is “change the locks”)
They can make people homeless without warning
Can lead to violent altercations
Undermines housing stability
Violates public policy in a state like NJ that requires just cause for eviction
Leg. says here are the procedures so we should enforce them
LL can’t be the judge of his own rights
LL has the option of a restraining order
On the flip-side the legal route is slow and expensive
What are some utility arguments for the landlord/employer in Vasquez?
Requiring hearins before evictions could mean fewer migrant workers hired to offset litigation costs, lower wages to offset housing costs which would unintentionally harm the people the law aims to protect people.
What are fairness arguments for the Employer/Landlord in Vasquez?
- Employers argue that migrant workers voluntarily accept the job and housing conditions.
- If the arrangement becomes too burdensome (e.g., requiring hearings before eviction), employers might stop offering housing altogether.
- The housing is a benefit tied to employment, not an independent right.
- Interfering with that relationship could disincentivize hiring, especially for short-term or seasonal jobs.
- In their view, this is about contractual freedom: workers agree to the deal knowing the terms — it’s not the court’s role to rewrite contracts.* If workers don’t like the conditions, they don’t have to accept the job
- A bad contract may still be better than no job at all
What are fairness arguments for the worker in Vasquez?
- Workers can’t meaningfully negotiate terms due to unequal bargaining power
- Employers cannot contract away fundamental rights (like housing or safety)
- Just like you can’t contract into slavery or waive habitability, you shouldn’t be able to waive eviction protections
What are utility arguments for migrant workers?
- Encourages stability and predictability in housing for vulnerable workers.
- Promotes fairer treatment by deterring employers from using housing as leverage or retaliation.
- Incentivizes employers to treat housing as part of the employment contract, subject to basic legal protections.
- Reduces risk of sudden homelessness that could disrupt work and community welfare.
Overall utility: Promotes a more humane and orderly employment-housing relationship, aligned with public policy disfavoring self-help eviction.
General Policy arguments for Landlords: Freedom of Contract
- Property owners should be free to set terms of property use, including rent, maintenance responsibilities, and termination procedures.
- Allows landlords to tailor leases to specific business models or tenant types (e.g., short-term housing, commercial leases).
- Encourages market efficiency by letting supply/demand determine lease terms.
- Judicial interference in freely negotiated terms could disincentivize rental investments and reduce housing stock.
General Policy arguments for Tenants: Freedom of Contract
Tenants may prefer the flexibility to negotiate lease terms that suit their needs (e.g., early termination clauses, shared maintenance).
Some tenants are sophisticated parties (e.g., commercial tenants) and don’t need paternalistic oversight.
Freedom of contract preserves autonomy and encourages mutual accountability.
General Policy arguments for Tenants: Unequal Bargaining Power
- Many tenants, especially in residential contexts, face asymmetric power dynamics:
- Lack of alternatives
- Urgency of housing need
- Limited legal knowledge
- Landlords often present non-negotiable leases (contracts of adhesion), leaving tenants with a “take it or leave it” choice.
- Unequal bargaining power can result in unfair terms, like excessive late fees, repair waivers, or arbitrary eviction clauses.
- Courts and legislatures may need to intervene to prevent exploitation and ensure basic fairness.
General Policy arguments for Landlords: Unequal Bargaining Power (Rebuttal)
- Not all landlords are large corporations; many are individuals or small businesses with limited resources.
- The assumption of superior bargaining power isn’t always accurate—some tenants may be more legally or financially savvy.
- Overregulation based on assumed power imbalance could discourage leasing and increase compliance costs.
General Policy arguments for Tenants: Minimum Standards
- Minimum standards (e.g., habitability, notice before eviction, right to quiet enjoyment) protect basic living conditions.
- Prevent landlords from contracting around public policy (e.g., waiving habitability or eviction notice).
- Promotes health, safety, and housing stability, especially for vulnerable populations.
- Ensures housing fulfills its role as a public necessity, not just a private contract.
What happens if the Landlord sells the property or it is inherented by the landlord’s heirs?
The new owner receives what the LL was able to sell/give which was the LL’s reversion subject to the tenant’s leasehold.
Does the new owner obtain an immediate right to posses the property?
No, because the tenant’s leasehold interest survives the transfer.
The new LL could terminate a m-to-m lease but if the tenant has six months left on a one-year lease the new owner is obligated to honor the tenant’s remaining possessory right
What happens if the property was mortgaged and the LL fails to make the mortgage payments and loses the property via foreclosure?
Which was made first the lease of the mortgage?
If the LL leased first, the lease takes priority and vice versa.
so if the mortgage was first and the LL’s title endds through foreclosure, so does the tenants lease
If the LL has the property for life (no heir, no reversion) and the LL dies what happens to the tenant?
Since you can only convey what you own and the landlord did not own the right to lease the property after her death, the tenants lease ends.
Leases survive conveyance not death
What is an assignment?
An assignment conveys all the tenant’s remaining property interests without retaining any future rights to enter the property
What is a sublease?
the tenant conveys their property interests but retains some future interest or the right to control the property in the future.
NOTE: a sublease may also exist of the tenant retains a right of entry that can be exercised if the subtenant violates one or more terms of the sublease agreement.
Can a LL prohibit transfer of a tenants interests?
They are allowed to include a “no subletting” or “no assignment” clause
This is to uphold the LL’s right of security (choose who lives in your space)
Tenant’s freedom to exit becomes limited
If the tenant makes a transfer, who is liable to the landord and for what?
Assignment: directly liable to the landlord for the covenants made by the original tenant to the landlord. It also makes the landlord liable to the assignee for breach of the landlord’s covenants
Sublease: LL has no right to sue the subtenant to enforce any of the covenants in the original lease, if the relief is damages, unlesss the ST EXPRESSLY PROMISES to pay the rent. LL sues OG T and the OG T has the right to sue the ST for the damages
What are the two privities and difference between them?
Privity of Contract: Liable based on contents of the contract
Privity of Estate: shared insterests, conveyance in an interest in property, the only promises that flow upon a transfer, only the ones that run with the land
What legal rule did the court adopt regarding a landlord’s ability to withhold consent to assignment? Kendall v. Ernest Pestana
Court adopted the minority view (now majority): A landlord may not unreasonably or arbitrarily withhold consent to a commercial lease assignment.
- Restrictions on alienation are disfavored.
- If the lease requires landlord’s consent to assign, consent cannot be withheld without a commercially reasonable reason.
- Presumption: Assignment is allowed unless the lease clearly prohibits it.
Case facts:
– City leased to Perlitch
– Perlitch subleased to Bixler
– Bixler wanted to assign to Kendall (financially stronger)
– Perlitch assigned interest to Pestana, who refused consent, would only consent for more money
- Court sided with Kendall: Landlord’s refusal must be commercially reasonable to protect tenant alienability and fair dealing.
- Right to exclude v. Right of freedom
- security from harm v. alienability
What are the factors of good faith and commercial reasonableness?
Financial Responsibility of the proposed assignee, suitability of the use for the particular property, legality if the proposed use, need for alteration of the premises and nature of the occupancy (office, factory, clinic)
What were the policy reasons Ernest Pestana brought forth in favor of the majority rule that a lessor can arbitraroly deny subleasing/assigning?
- Freedom of ownership and control over one’s property
- The lessee could have bargained for the addition of a reasonableness clause but didn’t, the law should not rewrite the parties contracts for them.
- stare decisis
- Any increase in market value of real property during the term of a lease properly belongs to the lessor, not the lessee.
What were the policy justifications for the minority rule to become the majority rule where consent can only be withheld for a comercially reasonable objection?
- necessity of permitting reasonable alineation of commercial space has become paramount in our increasingly urban society.
- policy of K, fairness, neither party shall do anything which will have the effect of destroying or injuring the right of the other party (good faith and commercial reasonableness)
- You cannot contract around good faith and fair dealing
- Must respect risk allocation, it would be unfair to the tenant if we allowed the LL to get more than it bargained for in the original contract
Do the reasons for and against implying a
reasonableness requirement in the
commercial context differ in the residential
context?
The context differs because there is no economic incentive to withhold consent in a residential lease because the landlord has such limited ocntrol over the rent that can be changed.
This would flood the courts with questions about whether the LL’s withholding of consent was reasonable.
They said let the Leg. decide further than this.
Is there a meaningful distinction between the issue of consent to assign/sublease and a duty to mitigate damages?
Consent to assign/sublease involves whether the tenant can transfer their interest to someone else.
Duty to mitigate damages arises after breach or abandonment, requiring the landlord to make reasonable efforts to re-let the premises and reduce losses.
The former is about tenant autonomy, the latter about landlord responsibility after tenant departure.
Are there instances in which a tenant can abandon a lease without the landlord’s consent when the landlord has done nothing wrong?
Generally, no—a tenant must perform unless the landlord breaches.
Exceptions:
– Constructive eviction
– Frustration of purpose
– Impossibility of performance
In rare cases, statutory protections or contractual clauses may allow early termination.
Does the landlord have obligations with respect to the renewal of a lease?
Only if the lease expressly provides a renewal right.
If so, the landlord must act in good faith and comply with any notice or procedural terms.
Absent a clause, no duty to renew—landlord can refuse without cause.
Commercial reasonableness may still be relevant depending on context (e.g., discriminatory refusals may be challenged).
What happens if the tenant wrongfully holds over after the end of the lease term and continues to pay rent?
If the LL accepts a rent check for one month rent then a new month-to-month established
Or
Can treat the tenant as a tenant as a tenant at sufferance and sue for possession
What is a policy challenge common in LL-T cases ?
Lack of tenant representation
Most LL have counsel while a majority of tenants do not
there is no right to council in civil cases meaning a lot of tenants lose because they are outmatched
What are the landlords remedies when a tenant ceases payment and moves out before the end of the lease term?
- Accept the tenant’s surrender. LL agrees that the T will not be legally obligated to pay the future rent because the LL accepted possesion of the property. Can still pay for back rent owed before abandonment OR sue immediately for damages (Agreed upon rental price minus the fair market price)
- Refuse to accept the surrender and re-let the apartment on the tenants account. When a new T is found the LL may sue the former tenant for the difference between the old rent and new rent
- Wait for the term to end then sue (almost all states reject this option and requires the aggrieved party to mitigate damages)
Sommer v. Kridel, what are the main takeaways?
Issue: Whether a landlord seeking damages from a defaulting tenant must first take reasonable efforts to mitigate damages by attempting to re-let the unit that the tenant wrongfully vacated.
Holding: Yes. The landlord has an affirmative duty to mitigate by making reasonable efforts to re-rent the premises.
Significance: Rejects the old “property rule” in favor of a contract-based approach—treats leases more like contracts with reciprocal obligations.
The landlord can’t just let the unit sit empty and collect full rent.
What were the policy consideration behind the courts decision in Sommer v. Kridel?
Modern View of Leases: Shift from treating leases as property interests to treating them like contracts with mutual obligations.
Fairness: It’s unfair for a landlord to sit on a vacant unit and recover full rent from the tenant.
Avoiding Economic Waste: Encourages landlords to put unused property back into productive use.
Efficiency: Promotes active re-letting, benefiting both the landlord (rental income) and the public (housing availability).
Consistency with Contract Law: Aligns landlord-tenant law with the general duty to mitigate damages found in contracts.
In a jurisdiction that imposes a duty on landlords to mitigate damages what advice would you give a tenant who wanted to leave before the end of lease term?
Notify the landlord in writing as early as possible—give clear notice of intent to vacate and the planned move-out date.
Help the landlord re-let—offer to assist in finding a new tenant, allow showings, and keep the unit in good condition.
Understand you may still owe rent—you’re responsible for rent until the lease ends or a new tenant is found, minus any rent the landlord collects from the new tenant.
Document everything—communication, move-out condition, and any offers to help re-let.
Check the lease for early termination clauses—some leases include options or fees for breaking early.
Be proactive—courts favor tenants who act reasonably and in good faith.
how do security deposits protect landlords from the possibility that tenants may fail to pay rent or damages the premises?
Financial cushion: Provides immediate funds to cover unpaid rent, damage beyond normal wear and tear, or cleaning costs after the tenant vacates.
Incentive for care: Encourages tenants to maintain the property and comply with lease terms to recover the deposit.
Reduces litigation: Offers a practical solution for minor disputes without needing to sue the tenant.
Mitigates loss during vacancy: If a tenant leaves without notice, the deposit can help offset the time it takes to re-let.
What are the landlord’s duties regarding the physical condition of leased premises under the covenant of quiet enjoyment (CQE) and implied warranty of habitability (IWH)?
- “As is” lease – Breach of the covenant of quiet enjoyment (CQE) only occurs upon actual eviction.
- Constructive eviction – CQE can be breached if the tenant is forced to leave due to uninhabitable conditions and stops paying rent.
- To prove constructive eviction, the landlord must engage in wrongful conduct that substantially interferes with the tenant’s use.
- Wrongful conduct includes action or failure to act in accordance with a duty from the lease, statute, or common law (can be waived).
- Some courts hold that CQE creates an independent duty to provide and maintain premises suitable for their leased purpose.
- The Implied Warranty of Habitability (IWH) provides similar protections, but:
* It cannot be waived,
* It applies primarily to residential leases, and
* It offers broader remedies than CQE.
What is a covenant of quiet enjoyment?
The covenant of quiet enjoyment is an implied promise in every lease that the tenant will have the right to possess and use the premises without substantial interference from the landlord or someone acting under the landlord’s authority.
A breach occurs when the landlord’s wrongful conduct substantially interferes with the tenant’s beneficial use or enjoyment of the premises, and may give rise to a claim for constructive eviction if the tenant vacates the property within a reasonable time.
What is a partial actual eviction?
A partial actual eviction is when the LL bars the T from only part of the leased property. It constitutes a breach of the lease and provides the tenant with ample justification to move out before the end of the lease term; the tenant will not be liable for the rent after moving out.
Remedy is to stop paying rent or abate rent
What are key arguments against implying a duty to mitigate in residential leases?
- Freedom of contract – Imposing a duty undermines the autonomy of the landlord-tenant bargain. If parties didn’t agree to this duty, courts shouldn’t impose it.
- Undue burden on landlords – Landlords just went through the trouble of vetting and securing a tenant; requiring them to re-market the unit shifts the burden unfairly.
- Asymmetric valuation – Landlords may value not having this duty more than tenants value the protection it provides; forcing mitigation could disrupt that balance.
- Fairness and fault – Landlords are not at fault; the tenant is the one who breached. It’s arguably unfair to shift the obligation to find a new tenant onto a non-breaching party.
- Vacant stock dilemma – If the landlord has two vacant units (2 and 3), and is already getting rent from 2 (via the breaching tenant), there’s no incentive to prioritize re-letting 2.
- Imposing a duty to mitigate would force the landlord to show both units, like a loss volume seller in contract law, treating rental units as interchangeable goods.
- But landlords argue they shouldn’t be forced to change their business model or leasing strategy because a tenant left early.
What are key arguments for implying a duty to mitigate in residential leases?
- Individual units are not fungible – Unlike widgets or commercial goods, rental units are unique (size, layout, view, natural light). Prospective tenants may prefer one unit over another.
- Residential leases involve a significant power imbalance – Tenants often lack the resources and knowledge to re-rent or find subtenants, while landlords are in a better position to market and fill units efficiently.
- Presumption that land is unique – Courts have long recognized that land has unique attributes, so each leasehold interest is not interchangeable.
- Mitigation aligns with contract principles – Like in Sommer v. Kridel, leases are increasingly viewed as contracts, and general contract law requires mitigation of damages.
- Vacant stock not equivalent to lost volume – A landlord isn’t guaranteed to fill both units. Just because unit 3 is shown and rented doesn’t mean unit 2 would’ve remained vacant otherwise.
- Burden should fall on the party in the best position to reduce harm – Since the landlord controls the unit and has access to marketing tools, they are in a better position to mitigate loss.
- Tenant still pays the difference – Imposing a duty to mitigate doesn’t relieve the tenant of responsibility; they’re liable for the rent gap if the unit re-lets at a lower rate or after a delay.
What are the main takeaways from Minjak v. Randolph
Minjak recognized the doctrine of partial constructive eviction, holding that a tenant may withhold a portion of rent if the landlord’s wrongful conduct substantially interferes with the use of part of the premises, even if the tenant continues to occupy the remaining space.
* Traditional rule required full vacatur to claim constructive eviction.
* Minjak rule allows tenants to remain in partial possession and still get a rent abatement proportional to the unusable space.
* The case expands tenant protections by recognizing the practical burdens of full vacatur.
Policy:
Promotes equitable outcomes by acknowledging that tenants shouldn’t pay full rent for space they cannot use due to the landlord’s misconduct.
When is a landlord’s failure to act considered wrongful conduct?
A landlord’s failure is wrongful only if they had a duty to act—found in:
1. The lease
2. Statutes (e.g., housing codes)
3. Common law
No duty = no breach. A breach of these duties typically supports a claim for damages, not rent abatement or withholding, unless the wrongful conduct is substantial (e.g., constructive eviction or breach of warranty).
What is the difference between constructive eviction and the implied warranty of habitability?
- Constructive eviction requires:
– Wrongful conduct by the landlord
– Substantial interference
– The tenant must vacate- Implied Warranty of Habitability (IWH):
– No need to vacate
– Requires material breach of housing conditions
– Allows rent abatement, damages, or repair-and-deduct remedies
– Is non-waivable and applies to residential leases
- Implied Warranty of Habitability (IWH):
What remedies are available under the Implied Warranty of Habitability?
- Stay and sue for damages
- Stay, withhold rent
- Repair and deduct cost from rent
Unlike constructive eviction, IWH lets tenants remain in possession while pursuing remedies. Courts presume habitability is a dependent covenant—what the tenant pays is tied to what the landlord provides.
Why did courts adopt the Implied Warranty of Habitability?
- Tight housing markets left tenants without realistic alternatives
- Constructive eviction was too risky—if a court disagreed, tenants could be liable for full rent
- Tenants lack bargaining power and access to information
- Ensures basic safety, health, and dignity
- Landlords are in the best position to repair and maintain units
Can the Implied Warranty of Habitability be waived?
No. IWH is a mandatory, non-waivable term in residential leases.
Against waivability:
– Protects vulnerable tenants from exploitative housing
– Tenants often lack real alternatives
– Public health externalities (e.g., slums, increased societal costs)
For waivability:
– Allows tenants to choose lower rent in exchange for fewer protections
– But courts say no one truly chooses uninhabitable housing if real choice exists
What does a court look for when determining a breach of the Implied Warranty of Habitability?
- Notice to the landlord
- Reasonable opportunity to repair
If conditions persist, a material breach is found. Courts often look at violations of:
– Local housing codes
– Health and safety standards
– Persistent, serious issues (e.g., no heat, water leaks, pests)
- Reasonable opportunity to repair
What is the Implied Warranty of Suitability in commercial leases?
Adopted in a few jurisdictions, it implies that leased premises are suitable for their intended commercial use.
– Similar to IWH, but tailored to commercial tenants
– Constructive eviction still plays a more significant role in commercial contexts
– Less commonly recognized, but still evolving
What is the law of waste and how does it relate to landlord-tenant law?
Waste is conduct by the tenant (or life tenant) that harms the future interest holder’s rights.
Three types:
1. Affirmative waste – acts that damage the property
2. Permissive waste – neglect or failure to maintain
3. Ameliorative waste – unauthorized improvements
Tenant’s duty not to commit waste mirrors the landlord’s duty under IWH to maintain the property in habitable condition.
What happens when a tenant makes improvements or adds fixtures?
- Governed by the law of fixtures
- Improvements may be removed only if:
– They don’t cause permanent damage
– They were not intended to be permanent - Disputes often turn on intent, method of attachment, and custom
- Improvements may be removed only if:
What rule did Javins v. First National Realty establish regarding the Implied Warranty of Habitability?
Rule: they held that residential leases include an Implied Warranty of Habitability, requiring the landlord to maintain the premises in compliance with housing code standards throughout the lease term.
* Facts: Tenants in a large apartment complex withheld rent due to numerous housing code violations (e.g., broken plumbing, rodents).
* Holding: The court recognized that modern leases are more like contracts than conveyances of land, and tenants should be entitled to a livable home.
* Impact: Tenants can use breach of the warranty as a defense to nonpayment of rent, without having to vacate.
Policy: Shifts landlord-tenant law toward consumer protection, emphasizing that safe, sanitary housing is a fundamental right—not just a private bargain.
What are the policy arguments against the rule change in Javins?
It takes away the landlord form a relatively speedy trial for eviction of tenants who were violating the terms of the lease
Do commercial leases have an implied warranty of habitability?
No unless they state so explicitly.
What are the remedies available to vindicate tenant’s rights under the implied warranty of habitability?
- Rescission or the right to move out before the end of the lease term
- Rent withholding
- Rent abatement
- Repair and deduct
- Injunctive relief or SP
- Administrative remedies
- Criminal Penalties
- Compensatory damages
What are the rights-based policy arguments for minimum housing standards?
- Human dignity and fairness – Safe, habitable housing is a basic human need, not a luxury.
- Preventing exploitation – Tenants should not be forced to accept uninhabitable conditions due to poverty or lack of alternatives.
- Unequal bargaining power – Tenants often lack knowledge or leverage to negotiate fair terms.
- Moral obligation – It is unjust to profit from unsafe, degrading living environments.
What are the economic-based policy arguments for minimum housing standards?
- Landlord efficiency – Landlords are in the best position to repair and maintain the property at scale and with expertise.
- Reduces externalities – Prevents slum conditions that impose costs on society (e.g., healthcare, code enforcement, homelessness).
- Market regulation – Without minimum standards, a “race to the bottom” could emerge, lowering housing quality across the board.
- Long-term societal cost savings – Investing in habitability reduces downstream costs to public systems and improves community welfare.
