VII. Landlord & Tenant

Question 1

What are the 3 types of tenancies? (landloard)

Answer 1

Term of Years, Periodic Tenancy, Tenancy at Will

Question 2

Term of Years?

Answer 2

Estate that continues for a designated period (fixed in advance), at which time no notice is needed for its termination

Question 3

Periodic Tenancy

Answer 3

Lease for a fixed period that automatically continues for succeeding periods until the landlord or tenant gives notice of termination

Notice→ 6mo. Advance for year tenancy

           If less than year, notice=length (6mo max) 

           NJ→ 3mo for year lease

Question 4

Tenancy at Will

Answer 4

No fixed duration that endures as long as landlord and tenant desire (often arise by implication and with hold over tenants)

Question 5

Two Rules for Delivery of Possession

Answer 5

English Role (Majority in US Now: Implied that premises will be open to a tenant entry at begining of term; policy is that landloard better equipt to handle holdovers;

American Rule: Landload only has obligation to deliver legal right of posession.

Question 6

Hannan v Dusch

Answer 6

Hold over tenant that landlord did not evict, count found for the American rule but that is a minority view

Question 7

What’s the difference between a tennant giving an assingment or sublease?

Answer 7

Assignment = transfers the estate, creates privity of estate between A and C. A can sue C.

Sublease = partial interest, no privity of estate. .A cannot sue C.

Question 8

Ernst v. Canditt

Answer 8

amended lease term then C stopped paying rent. Court found the agreement to be an assignment despite the use of the word “sublett” because

Entire term was conveyed, not part

It looked like he intended to assign

Question 9

Berg v. Wiley

Answer 9

No self=help. Berg v. Wiley→ renter did not abandon when closed restaurant for remodeling, owner did not re-enter peacefully when put new locks on

Policy→ easy to go to court and get a quick judgement, don’t want landlords taking the law into their own hands. Summary proceeding just need notice and get summary evictions

Question 10

Duty to Mitigate?

Answer 10

Majority today→ adopts contractual duty to mitigate (split on who’s burden of proof it is)

Factors

Landlord advertised unit

Showed unit to prospective tenants

Length of original lease term

Cost of preparing property for new tenant

Type of market

Sommer v. Kridel and Riverview Realty Co v. Perosio→ landlords did not attempt to mitigate so cannot recover any rent

Justifications

Fairness: landlord in better position to find new tenant

Eliminates waste of unused unit

Question 11

Landloard remedies?

Answer 11

Get back rent that tenant should have paid

Terminate the lease and recover possession

Get damages for remainder of the lease term IF anticipatory breach recognized in jurisdiction (= initial lease value - reasonable rental value for term remainder)

Keep security deposit

Accelerated rent: seek all rent for rest of lease term once tenant defaults

Question 12

Constructive Eviction?

Answer 12

is tenant deprived of beneficial enjoyment of part of the premises?

Tenant has power to terminate lease, vacate, withhold rent

Question 13

Village Commons, LLC v. MCPO

Answer 13

yes constructively evicted when landlord sent letter saying not to use basement storage space that water was destroying

Question 14

Covenant of Quiet Enjoyment

Answer 14

implied that tenant has the right of possession, occupancy, and beneficial use of all of the leased premises

Show by
Explicit term/promise in lease
Statutory requirement
Short-term lease of furnished dwelling automatic
Latent defects
Maintaining common areas
Undertake repairs carefully where promise has been made
Absolute immoral conduct/nuisance on the property

Question 15

Implied Warranty of Habitability

Answer 15

Modern Approach→ (adopts contract law) Tenant has right to habitable space

Prima Facie case→ violation of housing code in relation to health or safety

**Must give landlord reasonable time to fix issue

Tenants Remedies

Hilden→ Value of dwelling as warranted (in defecting condition)

Kline→ Agreed rent (fair rental value with unsanitary condition)

% Diminution→ Lower rent by % that reflects tenants loss of use

Remedies

Obtain rent already paid

Withhold rent (benefit of incentivising landlord to fix problem)

Terminate lease and sue for damages

Repair defect and deduct from rent (must give landlord notice and must be reasonable)

Punitive damages for wilful or prudent violations

Question 16

What is the law of nuisance?

Answer 16

Substantial non-trespassory interference with the use and enjoyment of land caused by either

Negligent , reckless, or ultra-hazardous activities or

Intentional and unreasonable activities

Question 17

What is a nuisance?

Answer 17

Intent + Unreasonableness

Threshold Test: RP able to enjoy and use the land?

Acts with purpose of creating harm

Acts where knows will create harm

Acts with substantial certainty that harm will occur

Question 18

Restatement of Torts Balancing Test?

Answer 18

Does the gravity of the harm outweigh the utility of the conduct?

Gravity of harm factors:
Extent and character of harm

Social value of Plaintiff’s use

Suitability to location

Burden on Plaintiff to avoid harm

Utility Factors:
Social value

Suitability to location

Impracticability of preventing harm

Question 19

Morgan v. High Penn Oil Co.

Answer 19

gases and odors that were making people sick were nuisance because knew/should have known would cause harm without reasonable enough purpose

Question 20

Nuisance Remedy:

Answer 20

Typically (damages); Injunction when: defenddant activity is unsuited to the neighborhood; and there’s a low social cost to shutting down the nuisance

Question 21

Boomer v. Atlantic

Answer 21

cement factory has high value so going to allow damages for all the people impacted instead of an injunction against the plant.

Alternatives to injunction

Postpone injunction (bad- no guarantee improvement)

Grant injunction but allow factory to avoid by permanent permanent damages (OK but still no incentive to change)