Transfers of Leaseholds & Landlord Tort Liability Flashcards
what is an assignment?
when a tenant transfers their interest in whole
what is a sublease?
when a tenant transfers their interest only in part
what is the consequence of a landlord consenting to a transfer by a tenant?
the landlord WAIVES the right to object to future transfers by that tenant UNLESS he expressly reserves the right
what relationship does an assignee have with the landlord?
they stand in the shoes of the OG tenant (direct relationship) aka – PRIVITY OF ESTATE
what is the consequence of being in privity of estate? (assignees/landlords)
each is liable to the other on all covenants in the lease that run with the land
what relationship does the OG tenant have with the landlord after assignment?
NO privity of estate BUT remains in privity of contract (OG tenant remains liable on the OG lease obligations, such as to pay rent)
what key event must happen for an assignee to be in privity of estate with the landlord?
the assignee must be in possession of the premises
what is the consequence of an OG tenant and landlord being in privity of contract?
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)
can a landlord sue the assignee for failure to pay rent?
yes (because of privity of estate)
what is the relationship of the sublessee to the OG tenant?
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)
what is the relationship of the sublessee to the landlord?
NEITHER privity of contract or privity of estate (not personally liable to the landlord for rent/other covenants UNLESS they expressly agree to be)
what happens to the relationship between the OG tenant and landlord during a sublease?
remains FULLY intact (BOTH privity of estate and privity of contract)
what is the one circumstance where a sublessee may enforce a covenant made by the landlord in the main lease?
in a residential lease, may enforce implied warranty of habitability against L
can a landlord prohibit a tenant from subleasing/assigning without their prior written approval?
yes
when is a covenant against assignment/subleasing considered waived?
when the landlord was aware of the assignment/sublease and did not object
when is a conditional waiver of a covenant against A/S effective?
when that condition is agreed to (if not, covenant against A/S still valid)
what are a landlord’s options if tenant breaches covenant against A/S?
1) can terminate the lease
2) can sue for damages
**NOTE = transfer is NOT automatically void!
may a landlord assign their interest without the tenant’s consent?
yes
how is a landlord’s interest typically assigned?
usually by deed when a landlord conveys a building to a new owner
when must tenants recognize/pay rent to new owner?
when they are given reasonable notice of the assignment
for what covenants is L2 liable for?
all covenants that touch and concern the land
for what covenants is L1 liable for?
all covenants they made in the lease
what is the common law rule of caveat lessee?
“let the tenant beware”; landlord under NO duty to make the premises safe
what are the 5 exceptions to caveat lessee? (CLAPS)
(CLAPS)
1) Common areas
2) Latent defects
3) Assumption of repairs
4) Public use rule
5) Short term lease of furnished dwelling
what is a landlord required to do as to common areas?
must maintain in good repair
what is a landlord required to do as to latent defects?
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
when is a tenant liable for latent defects?
when they accept the premises after disclosure (T assumes the risk)
when is a landlord under a duty to make repairs?
only when L chooses to start making repairs (assumption), then L must complete them with reasonable care
when will a landlord be liable for assumption of repairs?
when repairs are done negligently and an injury results
what is the public use rule?
(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
what is a landlord liable for under a short term lease of a furnished dwelling?
(stricter duty)
landlords are responsible for ANY defective condition which proximately injures WHETHER OR NOT THEY KNEW of the defect
