Transfers of Leaseholds & Landlord Tort Liability

Question 1

what is an assignment?

Answer 1

when a tenant transfers their interest in whole

Question 2

what is a sublease?

Answer 2

when a tenant transfers their interest only in part

Question 3

what is the consequence of a landlord consenting to a transfer by a tenant?

Answer 3

the landlord WAIVES the right to object to future transfers by that tenant UNLESS he expressly reserves the right

Question 4

what relationship does an assignee have with the landlord?

Answer 4

they stand in the shoes of the OG tenant (direct relationship) aka – PRIVITY OF ESTATE

Question 5

what is the consequence of being in privity of estate? (assignees/landlords)

Answer 5

each is liable to the other on all covenants in the lease that run with the land

Question 6

what relationship does the OG tenant have with the landlord after assignment?

Answer 6

NO privity of estate BUT remains in privity of contract (OG tenant remains liable on the OG lease obligations, such as to pay rent)

Question 7

what key event must happen for an assignee to be in privity of estate with the landlord?

Answer 7

the assignee must be in possession of the premises

Question 8

what is the consequence of an OG tenant and landlord being in privity of contract?

Answer 8

they are secondarily liable to each other (ie – if T2 fails to pay rent and L goes after them, T1 is on the hook if T2 can’t pay)

Question 9

can a landlord sue the assignee for failure to pay rent?

Answer 9

yes (because of privity of estate)

Question 10

what is the relationship of the sublessee to the OG tenant?

Answer 10

sublessee is a tenant of the original lessee and usually pays rent to OG lessee (who then pays the landlord)
**liable to them ONLY (not landlord)

Question 11

what is the relationship of the sublessee to the landlord?

Answer 11

NEITHER privity of contract or privity of estate (not personally liable to the landlord for rent/other covenants UNLESS they expressly agree to be)

Question 12

what happens to the relationship between the OG tenant and landlord during a sublease?

Answer 12

remains FULLY intact (BOTH privity of estate and privity of contract)

Question 13

what is the one circumstance where a sublessee may enforce a covenant made by the landlord in the main lease?

Answer 13

in a residential lease, may enforce implied warranty of habitability against L

Question 14

can a landlord prohibit a tenant from subleasing/assigning without their prior written approval?

Answer 14

yes

Question 15

when is a covenant against assignment/subleasing considered waived?

Answer 15

when the landlord was aware of the assignment/sublease and did not object

Question 16

when is a conditional waiver of a covenant against A/S effective?

Answer 16

when that condition is agreed to (if not, covenant against A/S still valid)

Question 17

what are a landlord’s options if tenant breaches covenant against A/S?

Answer 17

1) can terminate the lease
2) can sue for damages
**NOTE = transfer is NOT automatically void!

Question 18

may a landlord assign their interest without the tenant’s consent?

Answer 18

yes

Question 19

how is a landlord’s interest typically assigned?

Answer 19

usually by deed when a landlord conveys a building to a new owner

Question 20

when must tenants recognize/pay rent to new owner?

Answer 20

when they are given reasonable notice of the assignment

Question 21

for what covenants is L2 liable for?

Answer 21

all covenants that touch and concern the land

Question 22

for what covenants is L1 liable for?

Answer 22

all covenants they made in the lease

Question 23

what is the common law rule of caveat lessee?

Answer 23

“let the tenant beware”; landlord under NO duty to make the premises safe

Question 24

what are the 5 exceptions to caveat lessee? (CLAPS)

Answer 24

(CLAPS)
1) Common areas
2) Latent defects
3) Assumption of repairs
4) Public use rule
5) Short term lease of furnished dwelling

Question 25

what is a landlord required to do as to common areas?

Answer 25

must maintain in good repair

Question 26

what is a landlord required to do as to latent defects?

Answer 26

must warn tenant if defects are not ones that the tenant could discover by reasonable inspection AND landlord knows/has reason to know
**NOTE = NO duty to repair, only to warn

Question 27

when is a tenant liable for latent defects?

Answer 27

when they accept the premises after disclosure (T assumes the risk)

Question 28

when is a landlord under a duty to make repairs?

Answer 28

only when L chooses to start making repairs (assumption), then L must complete them with reasonable care

Question 29

when will a landlord be liable for assumption of repairs?

Answer 29

when repairs are done negligently and an injury results

Question 30

what is the public use rule?

Answer 30

(short lease + significant defect)
a landlord – who leases public space and who should know, because of the significant nature of the defect and short length of lease, that a tenant will NOT be able to repair – will be liable for any defects on premises that cause injury to the public

Question 31

what is a landlord liable for under a short term lease of a furnished dwelling?

Answer 31

(stricter duty)
landlords are responsible for ANY defective condition which proximately injures WHETHER OR NOT THEY KNEW of the defect