Real Property - Landlord-Tenant

Question 1

The relationship between a landlord and a tenant can create four types of possessory estates; what are they? This relationship is generally governed by a contract (the “lease”), which contains the covenants of the parties. Generally, each party must perform his promises pursuant to the lease whether or not the other party performs his promises.

Answer 1

tenancy for years,

periodic tenancy,

tenancy at will,

and

tenancy at sufferance.

Question 2

How are possessory estates governed?

Answer 2

This relationship is generally governed by a contract (the “lease”), which contains the covenants of the parties. Generally, each party must perform his promises pursuant to the lease whether or not the other party performs his promises.

Question 3

What is a tenancy for years?

Answer 3

A tenancy for years is an interest that lasts for a fixed and ascertainable amount of time (e.g., Landlord leases Greenacre to Tenant for 6 months). If the term is longer than one year, then the agreement must be in writing because of the statute of frauds.

Question 4

Does a tenancy for years automatically termainate after the period?

Answer 4

Yes, a tenancy for years automatically terminates when the term expires.

Question 5

What is a periodic tenancy?

Answer 5

A periodic tenancy is a repetitive and ongoing interest that continues for a set period of time UNTIL it is terminated by proper notice from either party (e.g., month-to-month lease, year-to-year lease, etc.).

Question 6

How do you terminate a periodic tenancy?

Answer 6

Proper notice requires the terminating party to give notice before the start of what will be the last term. The notice is effective on the last day of the term (e.g., Landlord leases Greenacre to Tenant on a month-to-month basis. If Tenant gives proper notice of termination on June 11, the termination will be effective on July 31).

Question 7

How do you create a periodic tenancy?

Answer 7

The parties must intend to create a periodic tenancy. Intent can be:

1. Express (e.g., a specific term in the signed lease agreement);

OR

2. Implied (e.g., ongoing payment of rent).

Question 8

What is a tenancy at will?

Answer 8

A tenancy at will continues until it is terminated by either party. It may be terminated at any time for any reason, and may be terminated without notice. If either party dies, the tenancy at will is terminated.

Question 9

How can one create a tenancy at will?

Answer 9

The parties must intend to create a tenancy at will. Intent can be:

1. Express (e.g., a specific term in the signed lease agreement gives either party or both parties the “right to terminate at will”);
   If the agreement gives only the landlord the right to terminate at will, the tenant also gets the right to terminate implicitly.
   If the agreement gives only the tenant the right to terminate at will, the landlord is NOT given the right to terminate at will.

OR

2. Implied (e.g., ongoing payment of rent at will).

Question 10

How is a tenancy at will terminated?

Answer 10

It may be terminated at any time for any reason, and may be terminated without notice. If either party dies, the tenancy at will is terminated.

Question 11

What is a tenancy at sufferance?

Answer 11

A tenancy at sufferance is created when the tenant refuses to vacate the premises after his lease has terminated.

This situation creates a temporary tenancy, where the terms of the prior lease control, until:

1. The landlord evicts the tenant;
2. The landlord re-leases the property to the tenant;

OR

3.The tenant voluntarily vacates.

Question 12

What is the duty to pay rent?

Answer 12

The tenant has a contractual duty to pay rent to the landlord in exchange for his possessory interest in the landlord’s property. If the tenant fails to pay rent, the landlord may evict the tenant or sue the tenant for breach of contract.

Question 13

When is a tenant not obligated to pay rent?

Answer 13

There are three main situations where the duty to pay rent is suspended:

1. The premises are destroyed (so long as the tenant did not cause the damage);
2. The landlord completely or partially evicts the tenant;

OR

3. The landlord materially breaches on the lease (e.g., violates the implied warranty of habitability).

Question 14

What is the warrant of habitability?

Answer 14

A warranty of habitability is implied in every residential lease (NOT commercial leases). The implied warranty of habitability requires landlords to maintain their property such that it is reasonably suitable for basic human needs (failure to comply with applicable housing codes constitutes a breach). The tenant CANNOT waive habitability protection.

Question 15

What may the tenant do if the landlord breaches the warranty of habitability?

Answer 15

1. Vacate the premises and terminate the lease;
   Note that the tenant is NOT required to vacate the premises.
2. Withhold or reduce the rent;
   If the tenant chooses to withhold rent, the tenant must first notify the landlord of the problem and give the landlord a reasonable opportunity to correct the problem.
3. Remedy the defect and offset the costs against the rent;

OR

4. Defend against eviction.

Question 16

What is the implied covenant of quiet enjoyment?

Answer 16

Every lease (commercial and residential) includes an implied covenant of quiet enjoyment, which prevents the landlord from taking action that makes the premises wholly or substantially unsuitable for their intended purposes resulting in the constructive eviction of the tenant.

Question 17

What is a constructive eviction?

Answer 17

The implied covenant of quiet enjoyment is breached (tenant may withhold rent or seek damages) if the tenant is constructively evicted. A constructive eviction occurs if the:

1. Landlord caused the premises to be unsuitable for their intended purposes;
2. Tenant notified the landlord of the problem;
3. Landlord did NOT correct the problem;

AND

4. Tenant vacates the premises after a reasonable amount of time passed.

Question 18

What is an assignment?

Answer 18

An assignment is a complete transfer of the tenant’s entire remaining term under the
lease.

In an assignment, the landlord can collect rent from the:

Assignee (because there is privity of estate);

OR

Original tenant (because there is privity of contract).

Question 19

What is a sublease?

Answer 19

A sublease is a transfer of less than the tenant’s entire remaining term under the lease.

In a sublease, the landlord can ONLY collect rent from the original tenant (because there is privity of contract and estate).

The subtenant ONLY has rent obligations to the original tenant.

Question 20

What is a surrender?

Answer 20

A surrender terminates the lease agreement and ends the landlord-tenant relationship between both parties (releases both parties from their duties and obligations under the lease agreement).

A surrender occurs when:

1. A tenant returns possession of the leased premises to the landlord before the expiration of the lease;

AND

2. The landlord consents.

Question 21

What is an abandonment?

Answer 21

An abandonment occurs when the tenant unilaterally returns possession of the leased premises before the lease expires WITHOUT the landlord’s consent. Here, the tenant will have to continue paying rent until the landlord is able to find a replacement tenant. If the tenant refuses to pay rent, the landlord is entitled to damages for the difference between the original rent and the rent received from the replacement tenant.

Question 22

What is the duty to mitigate?

Answer 22

Under the majority rule, the landlord has a duty to mitigate damages if the tenant abandons the property early or is evicted by making reasonable efforts to re-rent the property to another tenant. The landlord is entitled to damages for the difference between the original rent and the rent received from the replacement tenant.

Under the minority rule, the landlord does NOT have to mitigate damages (more common in cases involving commercial leases).