Pg 21 Flashcards
What are the common law and modern rules under a tenancy for years regarding how rent accrues?
– Common law: Landlord can only sue for rent as it accrues, so have to wait for the period to pass to get full rent, or go to court every six months to sue for rent of the previous six
– today: lease is a contract, so anticipatory repudiation applies. Landlord is entitled to payment immediately of the rest of the rent.
If somebody stops paying rent, how does the duty to mitigate apply?
While modernly a landlord is entitled to payment immediately of the rest of the rent because of an anticipatory repudiation, that also triggers the landlord’s duty to mitigate. This means the landlord owes an affirmative duty to make reasonable efforts re-rent the premises, and the tenant is liable for the difference between the amount of the rent in the lease and the rent received by the landlord in mitigation.
If the landlord’s efforts to mitigate fail, the tenant is liable for the amount of the lease less what could’ve been earned through reasonable mitigation
If there was a fight over rent in a periodic tenancy, what is the landlord entitled to?
The rent that is due until the notice period runs
If there is a fight over rent in a tenancy at will, what happens?
The rent is whatever was in the lease that hasn’t been paid, so anything that has not yet been paid, the landlord can sue for
What happens if there’s a fight over rent in a tenancy at sufferance?
Technically if a tenant pays rent and the Landlord accepted it at any point during a tenancy at sufferance, it turns into a periodic tenancy. So rent is the same as the expired lease.
For a true tenancy at sufferance, not one that has turned into a periodic tenancy, if there is a fight about rent, what happens?
Rent is a reasonable rental value of the property until the landlord succeeds in evicting the tenant. If rental values have increased from their original amount, the tenant pays a reasonable value
What are the landlord’s duties in relation to the condition of the premises?
– common-law: if there is no express agreement, then there’s no obligation to maintain the premises once the tenant takes possession
– modernly: there is an implied warranty of habitability to maintain the premises in a habitable condition
What are the tenant’s duties in relation to the condition of the premises?
– Common law: there is no direct obligation to maintain the condition of the premises, the tenant just has to avoid waste
- modernly: there are rules on voluntary waste, permissive waste, and ameliorative waste
Modernly what are the tenant’s duties in relation to waste?
- voluntary waste: The tenant has a duty to prevent waste to the premises, and he cannot intentionally or negligently damage the property. He needs the landlord’s consent to remove natural resources.
- permissive waste: He also has to avoid permissive waste by taking reasonable steps to guard against damage to the property.
- ameliorative waste: He cannot alter the property without specific authorization from the landlord, even if it improves the property or increases the value.
If a tenant begins removing natural resources from the property without getting the landlord’s permission, what can the landlord do?
He cannot terminate the lease, but he can get injunctive relief to stop the removal
If a tenant doesn’t put in storm windows during hurricane season, is that considered to be waste?
Yes, that would be permissive waste
If a tenant doesn’t put in storm windows during hurricane season, and extra damage is caused because of it, what is the tenant liable for?
He’s liable for the extra damage because of the permissive waste
If a tenant alters property without being authorized by the landlord, but it improves the property and increases its value, what is the tenant responsible for?
The tenant can be forced to pay to restore the property to its original condition
When a lease is formed, possession transfers to whom?
The tenant.
If a landlord wishes to retake possession before termination of the lease, what must he do?
He must establish breach of the lease
What is considered to be a material breach of a lease?
Habitually failing to pay rent, regularly having noisy parties that disturb other tenants.
What happens if a tenant materially breaches a lease?
If a tenant has materially breached the lease, the landlord can treat the lease as ended and can retake possession
If there is a fight over possession of the land, how does common law and the modern approach deal with that?
– Common law: the landlord can use reasonable force to retake possession after a material breach
– modernly: the LL cannot use any force to retake possession, but he can use the legal process. He must give notice to the tenant to cure or quit, there must be a formal hearing to see if a breach was present, and if so, the tenant is evicted.
What are the two different approaches to anytime there’s a fight over improvements to the land between the landlord and the tenant?
– common law: anything attached to real property is a fixture, and at expiration it stays on the property. Although this can be rebutted by an express agreement or a trade fixture
– modernly: anything the tenant affixes to the property can be removed at the expiration of the lease if it leaves the property in substantially the same condition as when the tenant arrived.
What is the exception for trade fixtures under the common-law approach to a fight between a landlord and tenant over improvements?
Anything that the tenant affixes to the property as part of his trade or profession can be removed unless it would cause substantial damage the premises. The same is true if it was installed for the tenant’s exclusive benefit (then he must fix any damage from removal).
Modernly what is the presumption for structural changes when there’s a fight over improvements between the landlord and the tenant?
The presumption is that structural changes stay on the land because they cannot be removed and still leave the land in the same condition
If an item is going to be removed because it belongs to the tenant, when must that happen?
Before the lease expires. Although the tenant can remove things after expiration if he didn’t have reason to know that the lease would be ending. In that case he’s given a reasonable time to remove them
What is a forfeiture clause?
A clause that gives one party the power to terminate the lease under certain conditions
What is required for a termination of the lease to happen?
The party that has the power must exercise it unequivocally. Landlord can do this by entry or court action for possession by notice.