Property - Landlord Tenant Law

Question 1

What are 4 types of leaseholds/non-freehold estates?

Answer 1

1) Tenancy for years 2) Periodic tenancy 3) Tenancy at will 4) Tenancy at sufferance

Question 2

What is the tenancy for years?

Answer 2

Tenancy for years = a lease for a FIXED PD of time (i.e. 2 DAYS – 50 yrs) aka Estate for Years or Term of Years NO notice requirement for termination b/c agreement states at outset when lease expires If term = +1 yr (366 days) must be in writing (SOF)

Question 3

What is the periodic tenancy? NOTE: NY Distinction

Answer 3

A lease that continues for successive intervals until LL or T gives proper notice of termination Express creation: “month-to-month”; “yr-to-yr”; “week-to-week” Implied creation: 3 ways to create implied periodic tenancy Land is leased w/ no mention of duration, but rent pd at set intervals Oral lease for +366 days (violates the SOF); interval is based on intervals when rent is tendered If LL elects to holdover residential lessee who stayed on past conclusion of the original lease, periodic tenancy based on interval of payment NY DISTINCTION: the LL who elects to holdover a tenant creates an implied MONTH-TO-MONTH periodic tenancy, UNLESS otherwise agreed

Question 4

How is aperiodic tenancy terminated?

Answer 4

Termination by giving notice at least duration = to period (weekly lease needs 1 week notice, EXCEPT 1 yr, which needs only 6 months) By private agreements, parties may LENGTHEN or SHORTEN the common law pds Must end at the end of natural lease period (e.g. ends on 1st, termination on 1st)

Question 5

What is a tenancy at will? NOTE: NY Distinction

Answer 5

A tenancy for NO FIXED duration Must be expressly agreed-to: if not, court will treat as implied periodic tenancy Tenancy may be terminated by EITHER PARTY at ANY TIME (but a reasonable demand to vacate is usually needed) NY DISTINCTION: in NY the terminating LL must give a MINIMUM of 30 days written notice of termination

Question 6

What is a tenancy at sufferance?

Answer 6

Is created when T has WRONGFULLY held over past the expiration of the lease Created so LL can recover rent from T who wrongfully holds over past expiration This tenancy last ONLY UNTIL LL either evicts T or elects to hold T to a new tenancy See Hold-Over Doctrine

Question 7

What is theHold-Over Doctrine? NOTE: NY Distinction

Answer 7

If a T CONTINUES to possess property after his lease is up, the LL can (i) evict T; OR (ii) hold T to NEW TENANCY Commercial T = may be held to a yr-to-yr (if the lease was for ≥ 1yr) OR mo-to-mo (if the lease was for < 1yr) Residential T = can ONLY be held to mo-to-mo (REGARDLESS of lease term) If there is NOTICE of rent increase BEFORE lease expires, then new tenancy will be at increased rent NY DISTINCTION: The LL’s acceptance of rent subsequent to the expiration of the term will create an IMPLIED month-to-month periodic tenancy (unless otherwise agreed) If a T who holds a lease of INDEFINITE duration, and henotifies LL of intention to VACATE premises, but fails to leave, the LL MAY CHARGE 2X the rent

Question 8

What are a tenant’s 3 duties?

Answer 8

1) T’s liability to 3d PARTY INVITEES 2) T’s duty to REPAIR 3) T’s duty to PAY RENT

Question 9

What are T’s duty to 3d party invitees?

Answer 9

T’s liability to 3d PARTIES (tort law) 1)T is responsible for keeping the premises in good repair 2) T is liable for injuries sustained by 3d parties T INVITED, even where LL promised to make all repairs NOTE: T may be able to seek indemnification from LL

Question 10

What is a tenant’s duty to pay rent? NOTE: NY Distinction

Answer 10

T’s duty to pay RENT 1) If T doesn’t pay rent AND remains on premises, LL… may EVICT T thru cts (still entitled to unpaid rent from T while on premises) may continue the relationship and SUE for rent may NOT engage in SELF-HELP (e.g. changing locks, forcible removal, removing T’s possessions); LL would be liable civilly and criminally NY DISTINCTION: LL who engages in self-help is liable for treble damages 2) If T doesn’t pay rent BUT T is off premises, LL may “S-I-R”… SURRENDER: LL could choose to treat T’s abandonment as an implicit offer and acceptance of surrender [NOTE: if unexpired term is > 1 yr, must be in writingsigned by LL (SOF)] IGNORE: LL could ignore the abandonment and hold T responsible for the unpaid rent (minority rule) RE-LET: the LL can re-let the premises and hold T responsible for the shortfall Majority rule: LL must at least TRY to re-let (mitigation) NY DISTINCTION: does NOT require a LL to mitigate damages by re-letting

Question 11

What is a tenant’s duty to repair? NOTE: NY Distinction

Answer 11

T’s duty to REPAIR… 1)…when the lease is SILENT T must maintain (but nothing more) the premises ANDmake ordinary repairs T must NOT commit waste (voluntary, permissive, ameliorative) Fixtures: a T may NOT remove a fixture (voluntary waste) Fixture = moveable chattel, by virtue of annexation to real property, objectively shows intent to improve (heating systems, custom storm windows, furnace, certain lights) Fixture status determined by (1) express agreement (agmt that says no fixture); (2) whether removal cause substantial harm (if so, yes); OR (3) if it’s a COMMERCIAL piece of property, a commercial T prior to expiration of a lease is entitled to remove all trade fixtures (i.e.Trade Fixtures Doctrine) 2)…when the lease has EXPRESS COV’T to maintain property At common law historically: T was liable for any loss to the property INCLUDING loss due to force of nature Today’s majority view: T is off the hook for natural disasters (gives T the option to END lease) NY DISTINCTION: T is off hook UNLESS he made express agmt to restore property when destroyed

Question 12

What are the 4duties of a landlord?

Answer 12

1) Duty to deliver posession 2) The implied cov’t of quiet enjoyment 3) The implied warranty of habitability 4) Duty NOT to commit retaliatory eviction

Question 13

What is the landlord’s duty to deliver possession?

Answer 13

1) The majority (English!) rule = LL must put T in PHYSICAL possession of the premises When lease starts, if someone is STILL IN THE APT, LL has breached lease and new T gets damages 2) The minority (American) rule = LL need only give T LEGAL possession (i.e. a signed lease)

Question 14

What is the landlord’s implied cov’t of quiet enjoyment?

Answer 14

T has a right to the quiet use/enjoyment of the premises w/o INTERFERENCE from LL Applies to BOTH residential AND commercial leases Can be breached by a wrongful eviction Can be breached by constructive eviction (elements = “S-I-N-G”) Substantial Interference due to LL’s actions or failures (a chronic problem suffices( Notice was given by T to LL of the problem Goodbye: the T must VACATE the premises w/in a reasonable time after LL fails to remedy LL is NOT liable for the acts of OTHER tenants EXCEPTION 1: LL must not permit a nuisance on site EXCEPTION 2: L must cntl all COMMON areas

Question 15

What is the landlord’s implied warranty of habitability?

Answer 15

The std: the premises must be fit for BASIC human dwelling (based on housing code/case law) Applies ONLY TO residential leases This warranty is NON-WAIVABLE E.g., no heat in winter; no running water; OR no plumbing When warranty is BREACHED, T can “MR3”…. Move out/end lease (BUT T doesn’t have to; Cf. constructive eviction) Repair and deduct (allowable by statute in a number of jx): T may make REASONABLE repairs and deduct their costs from future rent Reduce rent AND/OR withold all rent until a ct determines fair rental value (T must place witheld rent in escrow account) Remain in possession, pay rent AND affrimatively seek money damages

Question 16

What is the landlord PROHIBITED from doing if a T report a housing code violation?

Answer 16

If T lawfully reports LL for housing code violation, LL is BARRED from penalizing T by, for example… raising rent ending the lease harrassing T taking any other reprisals

Question 17

What are the 2 ways a tenant can transfer an interest in her lease? NOTE: NY Distincton

Answer 17

1) Assignment: T may freely transfer interest in whole E.g. T1 has 10 months remaining on a 2-yr term of years. T1 transfers all 10 months to T2. Once assigned, LL and assignee are in privity of estate (each is liable to the other for the cov’ts in the original lease); BUT they are not in privity of K unless assignee assumed all promises in the orig lease If lease is assigned AGAIN, the original assignee loses privity of estate and the NEW assignee is now in privity of estate w/ the LL LL and assignor remain secondarily liable to each other (as there is privity of K) NY DISTINCTION: default rule is no assignment (unless you get written consent from LL) 2) Sublease: T may freely transfer interest in part The LL and the sublessee are NEITHER privity of estate OR privity of K (the relationship b/t LL and subleasor remains fully in tact); BUT sublessee and sublessor are liable to each other NY DISTINCTION: default rule T in building w/ 4 or MORE units has right to sublease subject to LL consent, which CANNOT be unreasonably withheld NOTE: LL may expressly prohibit transfer in lease; BUT once LL consents to 1 interest transfer by particular T, LL CANNOT object to further transfers

Question 18

What is the standard for landlord tort liablity and the 5 key exceptions?

Answer 18

Rule = caveat lessee; in tort, LL has NO duty to make the premises safe 5 EXCEPTIONS (“C-L-A-P-S”) 1) Common areas: LL must maintain all common areas in tort (e.g. hallways and stairways) 2) Latent defect rule: LL must WARN T of hidden defects that LL knows abt OR should know abt JUST the duty to warn, NOT to repair 3) Assumption of repairs: LL who VOLUNTARILY makes repairs, must complete w/ reasonable care 4) Public use rule: LL who leases public space (e.g. a convention hall) AND who should know, b/c of the nature of the defect (large) and the length of the lease (short term), that T will not repair is liable for any defects on the premises 5) Short term lease of furnished dwelling: LL is liable for any defects on site

Question 19

What is the Fair Housing Act (“FHA”)

Question

A developer of condominium units built a 60-unit residential complex. Each of the units was identical. Thirty of the units were restricted to families and individuals with children under the age of 18. The remaining 30 units, which were located in an adjacent building, were reserved for buyers without children. A divorced man who had joint physical custody of his minor child submitted an application to purchase a unit in the building reserved for families with children. His application was denied because all 30 of the units had been sold. The man then applied for a unit in the other building, which had available units. The developer turned down the application, stating that the man did not qualify for these units because of his child. The man sued the developer for violation of the federal Fair Housing Act. Is the man likely to prevail in his suit against the developer?

Answers

Yes, because the man was discriminated against based on his familial status.
Yes, because the developer’s refusal to sell constituted age discrimination against the man’s minor child.
No, because the developer had made identical sets of residences available to individuals with and without families.
No, because the man was seeking to purchase rather than rent the unit.

Answer 19

Rationale:

Answer choice A is correct. The Fair Housing Act (“FHA”) prohibits discrimination in the sale, rental, and financing of homes and in other housing-related transactions such as advertising, homeowner’s insurance, and zoning. Among other protected classes, the FHA prohibits discrimination on the basis of familial status, which includes having custody of children under the age of 18 and being pregnant. Here, the man’s application was rejected based on his status as a custodial parent of a minor child. This constituted a violation of the FHA. Answer choice B is incorrect because age is not a protected class under the FHA. Answer choice C is incorrect because, even though the developer had made one set of units available for individuals with children under 18, the other set was off-limits to individuals with children; segregating homeowners on the basis of familial status is a violation of the FHA. Answer choice D is incorrect because the FHA applies to the sale, as well as the rental, of housing.