Pg 23

Question 1

If a tenant unjustifiably abandons, what are the two things that the landlord can do?

Answer 1

– he can accept an offer of the tenant’s surrender of the property, or
– re-rent and hold the tenant liable for deficiencies

Question 2

What are the different remedies that a tenant has for a landlord’s breach?

Answer 2

– Termination of the lease
– self-help
– specific performance
– withholding rent
– punitive damages
- waiver
– retaliatory eviction defense
- basic contract remedies
– damages

Question 3

Does a minor breach by the landlord justify a tenant to withhold rent or terminate?

Answer 3

No, he can only sue for damages

Question 4

If a landlord wrongly evicts the tenant, what can the tenant do?

Answer 4

Terminate because the tenant’s obligations are dependent on the landlord’s implied promise not to interfere with the tenant’s possession

Question 5

If the landlord breaches his implied warranty of habitability, what can a tenant do?

Answer 5

The tenant can terminate and avoid further rent liability if the breach materially affected the tenant’s health or safety and the tenant complied with notice requirements. This means that the tenant must take reasonable steps to notify the landlord of the decision to terminate and the reason for it, and the breach must continue until the time for termination
- The tenant must also vacate the property.
– the tenant is then responsible for the rent for the period of possession subject to offsetting for damages for the landlord’s breach of IWH and should recover any avoidance rent that he had to pay, plus his security deposit

Question 6

What does the tenant have for self-help options if the landlord breaches?

Answer 6

The tenant can make necessary repairs to put the premises in a habitable condition and deduct the cost from the rent. The amount must be what a reasonably prudent owner would spend, and it cannot exceed the rent

The tenant can also get substitute housing during the default and be excused from paying rent at that time, as long as the tenant gives the landlord notice of the need for repairs before he exercises self-help, and afterward the tenant must give the landlord satisfactory evidence that the repairs were done

Question 7

How can a tenant get specific performance if a landlord breaches?

Answer 7

The tenant can get a mandatory injunction that the landlord put the premises into a habitable condition so that the tenant can stay in possession and get repairs. This is not favoured by the courts because it is hard to supervise

Question 8

Can a tenant withhold rent if a landlord breaches?

Answer 8

Yes in a short term periodic tenancy, this can happen in two ways:
– offset rent withholding: Tenant withholds rent and waits for the landlord to start summary eviction, which the tenant answers by admitting the default by pleading a counter claim to offset for damages for the Landlord’s breach. If the counter claim is larger than the rent, there is no need to pay rent. The action is dismissed and the tenant stays in possession
– escrow withholding: The tenant pays rent into an escrow account pending the landlord’s compliance

Question 9

When can a tenant get punitive damages for a Landlord’s breach?

Answer 9

Only if the breach involved culpable and wanton disregard for the tenant’s rights, or outrageous behaviour

Question 10

What is the retaliatory eviction defence?

Answer 10

If the landlord evicts the tenant within a certain time of the tenant taking protective action, usually from 90 days to a year, that is retaliatory unless the tenant is at fault for doing something like not paying rent.

Question 11

What basic contract remedies are available to a tenant when the landlord breaches?

Answer 11

Reformation, rescission, liquidated damages if it is impossible or very hard to figure out damages on breach, restitution, specific performance

Question 12

What damages can a tenant get if the landlord breaches?

Answer 12

Monetary judgement compensating for damages through direct actions, counter claims on the action by the landlord to recover unpaid rent, or defence to the action of the landlord to evict for unpaid rent.

Question 13

What are the four formulas that are used to measure damages for a Landlord’s breach?

Answer 13

– The difference between the agreed rent and the fair rental value during occupancy in the unfit condition
– difference between fair rental value if the premises had been as warranted and the fair rental value during the occupancy in the unfit condition
– agreed rent reduced by percentage of the tenant’s rightful use lost because of the breach
– Restatement: if the tenant terminated, he can get the amount of the contracted rent minus the fair market value of the lease on the date of the termination or the reasonable relocation costs. If the tenant didn’t terminate, he can get the reasonable costs he incurred in eliminating the default plus extra cost of substituted premises incurred while default continued

Question 14

What are a tenant’s defenses to having to pay rent?

Answer 14

– the lender doesn’t deliver possession at the start of the lease
– eviction
– surrender
– destruction of premises
– potential offset for implied warranty of habitability
– contract defences

Question 15

What is the majority common law rule and the American rule when a landlord doesn’t deliver possession at the start of the lease?

Answer 15

• Majority common law rule: the landlord must deliver possession at the start of the lease, and if he does not, the tenant is excused from paying rent until he does
  – American rule: the landlord has no duty to deliver possession at the start of the lease, it is the tenant’s obligation to take it

Question 16

If a tenant is evicted from the premises, does he have to pay rent?

Answer 16

No

Question 17

What are the different types of eviction?

Answer 17

– Actual eviction
– eminent domain
– constructive eviction

Question 18

What is involved in an actual eviction?

Answer 18

The tenant is physically removed from the premises or a portion of the premises by the landlord or someone acting for the landlord. This includes partial and total eviction

Question 19

If a tenant leases a house and garage and the landlord moves stuff into the garage so the tenant cannot enter it, what has happened?

Answer 19

An actual eviction and this excuses the tenant from paying rent through either a partial or total rent abatement

Question 20

How is eminent domain a defence to having to pay rent?

Answer 20

If a landlord leases to a tenant and the government takes a portion of the land by eminent domain, that does not discharge the tenant’s obligation to pay rent, but the tenant is entitled to share in the condemnation award for what he lost

Question 21

What is a constructive eviction?

Answer 21

The tenant is not physically removed from the land, but the landlord allowed conditions to exist that caused a substantial interference with the tenant’s use and enjoyment of the property that has the effect of evicting the tenant. Every lease has an implied covenant of quiet enjoyment which is breached here

Question 22

If a landlord knows about a hole in the roof but he doesn’t fix it, and water destroys the premises, what has happened?

Answer 22

A constructive eviction that creates rent abatement where the tenant is excused from paying the portion of the rent attributable to the portion he was evicted from, or it terminates the lease and the tenant owes no rent for the period after termination. The tenant must actually move out, because the argument is that the interference was so substantial he could not stay

Question 23

If a tenant moves out and surrenders possession before the lease term expires, and the landlord accepts it, what is it called?

Answer 23

Surrender

Question 24

If a landlord accepts a tenant’s surrender of the property, what does that do?

Answer 24

It stops the privity so the tenant has no duty to pay rent and the lease is rescinded or terminated by mutual agreement

Question 25

What are factors that show intent of the landlord to accept surrender?

Answer 25

Re-entering, remodeling, reletting

Question 26

If after a surrender, a landlord relets the premises at increased rent, can he keep the money?

Answer 26

Yes. If the landlord had not accepted the surrender then he is re-letting the property for the tenant’s account