VI. LANDLORD-TENANT LAW (443-51, 461-526)

Question 1

caveat lessee

Answer 1

let the lessee beware

Question 2

tenancy for years

Answer 2

fixed period with beginning and end dates, may be less than a year

Question 3

periodic tenancy

Answer 3

period to period (e.g. month to month) until notice of termination given

Question 4

tenancy at will

Answer 4

no stated duration, continues until L or T desires an end, or at the death of either

Question 5

holdover tenancy or tenancy at sufferance

Answer 5

tenant remains after the end of tenancy

Question 6

What are the landlord’s duties in most jurisdictions?

Answer 6

deliver possession at the beginning of the lease, not to interfere with T’s quiet enjoyment, provide habitable premises

Question 7

What are the tenant’s duties in most jxns?

Answer 7

MUST pay rent, not to damage the premises beyond normal wear and tear, not to disturb other tenants; T’s duties may be independent of the duties of L

Question 8

interesse termini

Answer 8

contract right to enter; before T enters she only has a contract right to enter (interesse termini) and not property rights until she takes possession

idea is fading but may support holding that if T breaks the lease before taking possession L can sue for contract damages but not for rent, not likely to make a diff bc in most cases contract damages will be equal to rent

Question 9

Garner v. Gerrish

Answer 9

Gerrish cherished his privilege of termination

Holding: language and intent of the conveyance was to create a determinable life tenancy that would terminate at T’s will; lease expressly gave T(∆) right to terminate and gave landlord no similar right.

defendant had lease agreement that stated he had privilege of termination at date of his choice; upon L’s death, plaintiff (executor of his estate) demanded defendant leave the premises, arguing a tenancy at will was created.

Question 10

Is a lease a conveyance or a contract?

Answer 10

BOTH!
o A lease is a conveyance because it transfers a possessory interest in the land. (property rights)
o The lease is a contract because it contains a number of promises by the tenant to pay rent or by the landlord to provide utilities. (contract rights)

Note: Modern approach has been to reform the law of landlord-tenant by importing into it much of the modern law of contracts.

Question 11

Hannan v. Dusch

Answer 11

Duschy L gets away with it

Holding: adopting “American rule,” (minority view) court says defendant had no duty to deliver actual possession to plaintiff; plaintiff has cause of action against holdover and landlord should not be held responsible for actions of an independent wrongdoer

defendant leased land to plaintiff; defendant refused to oust holdover tenant even though plaintiff was ready to take possession; question is what is the default setting of the lease (absent specific provisions does L have duty to deliver actual possession or merely legal possession)

Question 12

Assignment

Answer 12

T transfers entire remaining term of his leasehold and retains no reversionary interest in himself; assignee comes into privity of estate with L; privity of estate makes L and assignee liable to each other on covenants of the original lease (e.g. L can also sue T2 for failing to pay rent)

Question 13

Sublease

Answer 13

T transfers less than the entire remaining term of leasehold, retaining a reversionary interest in himself; T becomes L of the sublessee.

Question 14

Ernst v. Conditt

Answer 14

Remember that Ernest Hemmingway ASSIGNMENT?

Holding: Court held agreement created an assignment (conveyed whole term) because Rogers had no reversionary interest in leasehold; this was enough to overcome fact that agreement claimed to be a sublease and fact that agreement explicitly made Rogers liable for breach of covenant (Rogers did not retain right to reenter during lease)

Ernst leased land to Rogers, who in turn “subletted” land to ∆ with Ernst’s consent; agreement purported to be sublease, so ∆ claimed he was not liable to Ernst for rent not paid because there was no privity of estate

Question 15

Kendall v. Ernest Pestana, Inc.

Answer 15

Kendall lives in San Jose.

Holding: L can only withhold consent when he has reasonable commercial objections to assignment (this is now the default position; even absent provision saying consent will not be unreasonably withheld). L wanting rents was not reasonable.

Facts: Airport property leased to Perlitches, who entered into 5 year sublease with Bixler plus 4 5-year options to renew (25 years total) and then assigned remaining interest to Apee; Bixler then attempted to sell property to Appts, but Apee refused owing to clause in contract that required its consent before any interests could be assigned; ∆ claims it can withhold consent for any reason whatsoever (can be arbitrary)

Question 16

Berg v. Wiley

Answer 16

JBerg the creeper.

Holding: L must not resort to self-help when he feels covenant has been breached; he must resort to judicial process to dispossess tenant who claims possession adversely to L’s claim of breach of a lease (majority rule)

Facts: ∆L thought πT was violating covenants in the lease (remodeling leased restaurant); in order to prevent this breach, he changed locks on the restaurant so π could not enter; π sought damages based on wrongful eviction

Modern Rule: L can evict T, but must do so with aid of judicial process (or, at least, peaceable self help, but this is normally not allowed) because of risks of violence and person being judge in his own case.

Question 17

Sommer v. Kridel

Answer 17

CRYdel - summer love gone bad, should mitigate the pain

∆T entered into lease with πL for 2 year term; 3 weeks after lease started, ∆T wrote πL to tell him he could not afford lease and wished it to be terminated (forfeiting 2 months rent), but π did not respond; π sued ∆ for back rent, and ∆ claimed π failed to mitigate damages

Most jxns now hold that a landlord has duty to use reasonable diligence in mitigating damages (burden is on him to show this) by attempting to re-let premises; since leaseholds are no longer thought of as abstract property interests but more like contracts, applying contractual rule of mitigating damages is appropriate

Question 18

What were the 3 implied warranties landlords were considered to have at CL?

Answer 18

(1) Power to convey good title
(2) Warrants to put tenant in possession (legal or actual)
(3) Warrants “quiet enjoyment” - Tenant is free to have possession without being ousted by another tenant on the lease with superior title. Over time the concept broadened to include warranty of suitability for purposes for which it was rented.

Question 19

Constructive eviction

Answer 19

property not suitable for purposes for which T rented it from L, relieving T of obligation to pay rent; initially courts made T actually leave premises to use constructive eviction defense, but Hilder allows T to stay on property and still use constructive eviction as defense for failing to pay rent.

Question 20

Partial Eviction

Answer 20

a tenant is either actually evicted from part of the premises, or unable to use a part of the premises so as to effect a partial constructive eviction

o Partial Actual Eviction: Tenant is relieved of all liability for rent, notwithstanding his continued occupation of part of the premises. (Although Restatement view is that tenant is only entitled to an abatement of rent.)
o Partial Constructive Eviction: Tenant may not withhold rent.

Question 21

Village Commons, LLC v. Marion County

Answer 21

VILLAGE PEOPLE can’t deal with water intrusions.

Water intrusions were recurring (not transitory or fleeting as L tried to claim) and L acknowledged that when they told T to move evidence and materials. T was deprived of a material part of the leased premises by the water intrusions and related problems. Transitory or fleeting interference is not eviction, but a mere trespass where the lessee is entitled to damages. Here, this was not the case so T was constructively evicted.

Question 22

Hilder v. St. Peter

Answer 22

Constructive eviction: no longer viable or necessary defense; when L breaches implied warranty, T may withhold future rent and seek damages for past rent paid (without leaving premises) based on the IWH defense.
• NOTE: IWH has not been adopted in a few jxns, and does not apply to all residential leases. Also, most jxns have declined to extend IWH to commercial leases.

Facts: πT leased apartment in ∆L’s building; T claimed she was constructively evicted by number of grievous problems with premises; L claims T cannot invoke constructive eviction because she never abandoned premises

Question 23

Retaliatory Evictions

Answer 23

Common law: Landlords had virtually unlimited freedom to terminate periodic tenancies and tenancies at will; reasons could be malevolent.

Most jxns today forbid retaliatory action by landlords renting residential space.

Question 24

T’s Duty to Repair

Answer 24

CL: A tenant has a common law duty to make ordinary repairs to maintain the property, and failure to do so subjects a tenant to tort liability.

Some disagreement over whether IWH negates the tenant’s duty to repair

Covenant to repair: When a tenant makes an explicit covenant to repair, he is liable for ALL repairs, unless the premises are destroyed by fire or other casualty.

Question 25

Who pays for destruction of premises?

Answer 25

CL: T

Today: Most states have statutes that provide that absent a contrary lease provision the tenant may terminate the lease if the premises are destroyed without fault of the tenant.

Question 26

At CL what can L do when T remains in possession (holds over)?

Answer 26

Eviction (plus damages) or consent (express/implied) to creation of new tenancy (usually a periodic tenancy)