Pg 24 Flashcards
What are the traditional common law and modern trend rules for mitigating if a tenant surrenders property?
– Common law: the landlord doesn’t have to mitigate, he can sue for rent as it becomes due
– Modern Trend: the landlord has an obligation to take steps to mitigate to ensure productive use of the property. The standard is objective commercial reasonableness, so the landlord must take steps expected of a reasonable landlord letting similar property in the same market conditions. Landlord can get the reasonable costs of re-letting in addition to the amount for the breach
What are the three tests for mitigation under the modern trend?
– Multiple cause of action approach: Landlord only gets the accrued rent through to the time of trial.
– anticipatory breach: landlord can bring suit before the end of the lease and get recovery for the accrued rent and the amount of total future rent that is due
– retained jurisdiction: The landlord gets a judgement right after the breach and the court keeps jurisdiction so the landlord can enter new damage awards as additional rent accrues
If the premises is destroyed, what is the common law and modern approach to the tenant’s obligation to pay rent?
– Common law: the land is key, so if the house on the property burns down, that doesn’t excuse the tenant’s obligation to pay rent since he still has possession and control of the land. The only exception would be if the tenant just rented a portion of a structure such as an apartment and the whole building burnt down
– modernly: tenant is excused from paying rent from either the entire structure or the part that was destroyed. Although if the tenant is responsible for the destruction through his intentional or negligent act, then the tenant still has to pay rent
What are the common law and modern approaches to the landlord’s duty of implied warranty of habitability?
– common law: the landlord has no obligation to maintain the condition of the leased premises
– modernly: IWH is a promise that is implied into the lease that the landlord will maintain the premises in a safe and habitable condition.
• majority approach: this only applies to residential premises
• Minority approach: this extends to commercial leases too.
Is it necessary that a tenant move out to assert a breach of IWH?
No, but he must notify the landlord and give a reasonable time for the landlord to remedy. If the landlord fails, the tenant can do what is necessary to remedy the breach and offset the cost against the rent owed
What is the point of a damage deposit?
The landlord holds this to recover repairs from damage or extraordinary cleaning once the tenant moves out. Anything that isn’t used is returned at the end of the term and the fund continues to stay the tenant’s property. The fund doesn’t have to be kept separate, but the landlord must account to the tenant for anything he withdraws from it.
If a landlord wrongfully withholds the damage deposit, what can the tenant get?
Double or triple damages or the tenant’s attorney fees
If a tenant wrongfully holds over, is the landlord permitted to enter the premises?
Majority rule says that the landlord is privileged to enter on a holdover tenant, but it must be peaceably and not forcibly. So he can never enter by forcing a lock/door/window, cutting off utilities, or any confrontation
What is the degree of force that a landlord can use to remove a person or goods?
No more force than is reasonably necessary to evict.
What are the landlord’s main duties?
– to give legal T rights to exclusive physical possession
– to not interfere with the tenant’s physical possession
– to comply with express covenants of the lease
– sometimes to perform acts not expressly promised
– general rule maintenance
- deliver residential premises in habitable condition
- IWH
What are the two implied covenants that are breached when a landlord interferes with the tenant’s possession?
– Implied covenant of power to lease
– implied covenant of quiet enjoyment
What is involved in the implied covenant of power to lease?
It is implied in the lease that the landlord has the legal power to make the conveyance at the time of leasing. So a breach happens if the landlord doesn’t have that power at the time of leasing
What is involved in the implied covenant of quiet enjoyment?
The landlord warrants that the tenant will not be disturbed in his possession or use and enjoyment by another with superior legal rights, or evicted by the landlord. If a disturbance does happen, the landlord must defend the tenant, and this covenant is breached if the tenant is disturbed by a third person or the landlord
What are different ways that you can breach an implied covenant of quiet enjoyment?
Landlord’s physical dispossession, actual eviction, constructive eviction, a third person dispossesses the tenant
If a stranger to the title, a.k.a. someone not acting for the landlord, interferes with the tenant’s possession of property, who is liable for that interference?
The stranger, not the landlord
