Real Property: Landlord-Tenant Law

Question 1

Tenancy for Years

aka Estate for Years or Term of Years

Answer 1

Lease for a fixed period, which could be less or greater than one year. When you know the termination date from the start, you have a tenancy for years.

If the lease is for more than one year, it must be in writing to be enforceable

Question 2

Periodic Tenancy: Definition

Answer 2

A lease which continues for successive intervals until landlord or tenant gives proper notice of termination.

Question 3

Periodic Tenancy: How to Create

Answer 3

(1) Expressly (e.g., “L to T from month-to-month”); or

(2) By implication:
(a) Lease with no mention of duration, but provision made for payment of rent in set intervals;
(b) Oral term of years in violation of statute of frauds;
(c) The holdover: in a residential lease, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease

Question 4

Periodic Tenancy: Termination

Answer 4

Terminate with notice, usually written

At common law, must give notice at least equal to the period itself – unless (a) otherwise agreed upon or (b) yearly or greater tenancy, in which case 6 months notice

Must end at conclusion of a natural least period

Question 5

Tenancy at Will

Answer 5

Tenancy for no fixed duration

Unless parties expressly agree to tenancy at will, payment of rent will cause a court to treat it as an implied periodic tenancy.

May be terminated by either party at any time, but a reasonable demand to vacate is usually needed

Question 6

Tenancy at Sufferance

Answer 6

It is when T has wrongfully held over past the expiration of the lease.

L is permitted to recover rent.

Lasts only until L either (a) evicts T or (b) elects to hold T to a new tenancy

Question 7

Tenant’s Duties

Answer 7

(1) T’s liability to third parties
(2) T’s duty to repair
(3) T’s duty to pay rent

Question 8

Tenant’s Duty: Liability to Third Parties

Answer 8

T is responsible for keeping the premises in good repair

T is liable for injuries sustained by third parties T invited, even where L promised to make repairs

Question 9

Tenant’s Duty: Duty to Repair

Answer 9

(1) Standard: T must maintain the premises and make routine repairs, other than those due to ordinary wear and tear
(2) T must not commit waste (voluntary, permissive, or ameliorative)
(3) Law of Fixtures

Question 10

Tenant’s Duty: Duty to Repair - Law of Fixtures

Answer 10

When a tenant moves a fixture, she commits voluntary waste (i.e. overt destruction). T must not move a fixture, no matter that she installed it. Fixtures pass with ownership of the land.

A fixture is a once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty.

Examples: heating systems, custom storm windows, furnace, certain lighting installations

Question 11

Tenant’s Duty: Duty to Repair - T expressly covenants in lease to maintain property in good condition

Answer 11

At common law, historically: T was a liable for any loss to the property, including due to force of nature

Today, majority view: T is off the hook when the premises are destroyed without T’s fault

Question 12

Tenant’s Duty: Duty to Pay Rent - T breaches and is in possession

Answer 12

Landlord must not use self help (e.g. change the locks); where self-help is flatly outlawed, it is punishable criminally and civilly

L’s only options are to (a) evict through the courts (can sue for rent until T actually leaves) or (b) continue the relationship and sue for rent due

Question 13

Tenant’s Duty: Duty to Pay Rent - T breaches and is out of possession

Answer 13

SIR

S - Surrender: T shows by words or actions she wants to give up the lease, and L can choose to accept (if unexpired term is more than one year, surrender must be in writing)

I - Ignore: Ignore abandonment and hold T responsible for unpaid rent as if T was there (only in minority of states)

R - Re-let: Re-let the premises on wrongdoer tenant’s behalf, and hold him liable for any deficiency (majority require this - mitigation)

Question 14

Landlord’s Duties

Answer 14

(1) Duty to deliver possession
(2) Implied covenant of quiet enjoyment
(3) Implied warranty of habitability
(4) No retaliatory eviction

Question 15

Landlord’s Duties: Duty to deliver possession

Answer 15

Majority (English) Rule: L must put T in actual and legal possession of premises; if at start of lease a prior holdover T is still in possession, L has breached and new T gets damages

Question 16

Landlord’s Duties: Implied covenant of quiet enjoyment

Answer 16

Applies to residential and commercial leases

T has a right to quiet use and enjoyment of the premises without interference from L

Question 17

Landlord’s Duties: Implied covenant of quiet enjoyment - Breach

Answer 17

Two types of breach:

(1) Actual wrongful eviction: L wrongfully evicts or excludes T from premises

(2) Constructive eviction: SING
S I - substantial interference: due to L’s actions or failures (could be permanent or chronic problem)
N - notice: T must notify L of the problem, and L must fail to fix it
G - goodbye/get out: T must vacate w/in a reasonable time after L fails to fix the problem

L generally not liable for acts of other tenants, except (a) L must not permit a nuisance on site, or (b) L must control common areas

Question 18

Landlord’s Duties: Implied Warranty of Habitability

Answer 18

Applies only to residential leases

Non-waivable

Standard: premises must be fit for basic dwelling, i.e. bare living requirements must be met (standard may also be provided by housing code or case law)

Question 19

Landlord’s Duties: Implied Warranty of Habitability - T’s entitlements when L breaches

Answer 19

MR3

M - Move out and end the lease (not required), or

R - Repair and deduct, T may make reasonable repairs and deduct that from future rent (allowable by statute in some jurisdictions), or

R - Reduce rent, or withhold all rent until court determines fair value (usually must put $ in escrow), or

R - Remain in possession, pay rent and affirmatively seek damages

Question 20

Assignment v. Sublease

Answer 20

In the absence of some prohibition in the lease, T may freely transfer his interest in whole, i.e. assignment, or in part, i.e. sublease

L can prohibit assigning or subleasing without L’s prior written approval

Once L consents to one transfer by T, L waives the right (unless specifically reserved) to object to future transfers by that T

Question 21

Assignment

Answer 21

T transfers his interest in the whole to a third party (T2)

L and T2 are in privity of estate, so liable to each other for covenants in original lease that run with the land

L and T2 are not in privity of contract, unless T2 assumed all promises in original lease

L and T1 are not in privity of estate but are in privity of contract. They are secondarily liable to each other.

Question 22

Sublease

Answer 22

T transfers interest in part to third party (T2)

L and T2 are in neither privity of estate nor privity of contract. T2 is liable to T1, and vice versa.

Question 23

Landlord’s Tort Liability

Answer 23

Common law of caveat lessee (tenant be ware) - in tort, L under no duty to make premises safe

Five exceptions: CLAPS
C - common areas: L must maintain common areas
L - latent defects rule: L must warn T of hidden defects L knows or should know about
A - assumption of repairs: L who makes repairs negligently is liable
P - public use rule: L who leases public space (e.g. museum), and should know, b/c nature of defect and length of lease, L will not repair, is liable for defects on premises
S - short term lease of furnished dwellings: L liable for any defect on site

Question 24

Residential Fixtures

Answer 24

When determining whether T can remove fixtures, court will look at:

(1) Nature of the chattel, e.g. heirloom v. generic
(2) Intent of annexer (person who connected chattel)
(3) How much damage will be caused to real property if removed

Question 25

Commercial Fixture

Answer 25

When determining whether T can remove fixtures, court will apply trade fixtures doctrine: commercial T may remove all trade fixtures prior to lease expiration