Pg 28

Question 1

What are non-assignment or non-sublease clauses?

Answer 1

Clauses that restrict the tenant’s power to assign or sublease. These are valid and enforceable, but strictly construed. The restraints are permitted if they serve good purposes

Question 2

In order for a non-assignment or non-sublease clause to be effective, what is necessary?

Answer 2

It must say which one it prohibits, and if you want it to prohibit both, it must specifically mention both

Question 3

If a clause in a contract for a leasehold specifically says it prohibits assignments, does that mean by implication that subleases are also prohibited?

Answer 3

No, restraints on alienation or strictly construed, so if it only says it prohibits assignments, then that is all that is prohibited

Question 4

What is the English rule in relation to assignments and subleases?

Answer 4

If there is a prohibition in the lease against assignments or subleases, and the landlord gives consent for this to happen once, and doesn’t restrict future assignments, the clause is deemed to be waived for the rest of the lease unless expressly stated otherwise.

Question 5

How do you determine if a landlord that is withholding consent for an assignment or sublease is doing so reasonably?

Answer 5

Look at the financial responsibility of the transferee, their suitability for property, the legality of the proposed use, the need for alteration of the premises, the nature of the occupancy, and past revenue from the person

Question 6

If a lease prohibits subleases and assignments, and says nothing about getting the landlord’s consent, what happens if a tenant wants to sublease or assign?

Answer 6

He can try, but the landlord can refuse for any reason

Question 7

If there is no restriction in a lease on subleasing or assignments, is the tenant allowed to do that?

Answer 7

Yes, and he doesn’t need the landlord’s permission because the law favours free alienability of estates in land

Question 8

If it is necessary to get the landlord’s consent for a sublease or an assignment, how does that work?

Answer 8

The landlord needs a reasonable basis for saying no and must do so in good faith unless the specific language says that he can withhold consent for any or no reason.

Question 9

What are some reasonable reasons for a Landlord to withhold consent to a transfer?

Answer 9

The person didn’t give enough financial information in a timely manner, financial disclosures showed irregularities, etc.

Question 10

If a transfer of property is made without the landlord’s consent, is it valid?

Answer 10

Yes, it is valid because you cannot and ring the bell, but the landlord has an action for damages

Question 11

If a landlord gives permission for an assignment or sublease, or accepts rent from an assignee, what does that do to a non-assignment or non-sublease clause?

Answer 11

It waives it forever unless the landlord had a time limit on permission

Question 12

In order to avoid a negligence suit, what are a Landlord’s tort liabilities regarding negligence?

Answer 12

The landlord must act as a reasonable person under all circumstances

Question 13

What was the traditional rule with regard to the landlord’s tort liability?

Answer 13

No liability to the tenant or others for personal injuries on or about the leased premises. This employs caveat emptor and the idea that the tenant has the sole right of possession, so he is responsible for what happens on the land.

Basically the landlord is not liable for conditions that came into existence after the tenant took possession or for dangerous existing ones when he took possession unless the landlord could’ve discovered them with reasonable care and corrected them. No liability for patent or obvious defects that existed at the time of the lease, or latent ones if he told the tenant about them

Question 14

What are the major exceptions to the traditional rule about Landlord’s tort liability?

Answer 14

– Latent defects
– Short term lease of a furnished dwelling
– common areas under the landlords control
– negligent repairs
– failure to repair
– Exculpatory clause is
– safety statutes
– public use exceptions

Question 15

What is involved in the exception to the traditional rule about a landlord’s tort liability regarding latent defects?

Answer 15

Landlord is only liable if defects existed at the time the lease began and they were not discoverable by the tenant. Landlord must disclose defects or ones he reasonably should have known about that the tenant didn’t.

Question 16

What is involved in the exception to the traditional rule regarding a landlord’s tort liability for the short term lease of a furnished dwelling?

Answer 16

LL is fully liable

Question 17

What is involved in the exception to the traditional rule for the Landlord’s tort liability when there are common areas that are under the landlord’s control?

Answer 17

LL is liable for injuries if the landlord failed to use reasonable care to maintain the common areas under his control. Includes: hallways, stairs, driveways, entrances, the laundry room

Question 18

What is the exception to the traditional rule for a Landlord’s tort liability regarding negligent repairs?

Answer 18

If an attempted repair makes condition more dangerous and the T didn’t know or have reason to know, the Landlord is liable. If the condition is obvious, there’s no liability.

Question 19

When does liability end under the traditional rule if a Landlord fails to disclose latent defects that he knew about and that were not discoverable to a tenant?

Answer 19

• The liability ends after the tenant has a reasonable opportunity to discover it.
• If the landlord actively conceals it, the liability continues until the tenant actually discovers it

Question 20

What is involved under the exception to the traditional rule for the Landlord’s tort liability regarding failure to repair?

Answer 20

If the tenant is injured from conditions that the landlord covenanted to repair, but didn’t, the landlord is liable.

The duty to repair doesn’t arise until the landlord has notice. The landlord is only liable if he doesn’t show reasonable diligence or care in making the repairs. It’s possible to impliedly acquire a duty by gratuitously making repairs during the term

Question 21

Is it possible for a Landlord to write a lease that has an exculpatory clause that relieves the landlord of liability in the case of tort injury?

Answer 21

These are traditionally enforced because of the freedom to contract, but they are not judicial favourites so courts try to find ways around them

Question 22

If a landlord negligently fails to make repairs that are required by a residential landlord tenant statute, what is that?

Answer 22

Considered to be negligence per se

Question 23

What is involved in the public use exception to the traditional rule for a landlord’s tort liability?

Answer 23

A landlord is liable to the public if they are injured by defective conditions existing on public areas at the time of leasing if:
– the landlord knows or should have known about a major defect and failed to repair it
– the landlord knows or should have known that the tenant wouldn’t fix the defect, and
– the landlord knows or should know that the public will use the premises

Question 24

What are some examples of places that would fall into the public use exception?

Answer 24

Stadiums, amusement parks, lecture halls, hotels, stores, shops, restaurants, motels, professional offices

Question 25

If a tenant promises to repair a condition, and not admit the public until that happens, what does that do in relation to the public use exception to the traditional rule for a Landlord’s tort liability?

Answer 25

It relieves the landlord of liability if the tenant’s promise was credible under the circumstances