VII. Landlord & Tenant Flashcards
What are the 3 types of tenancies? (landloard)
Term of Years, Periodic Tenancy, Tenancy at Will
Term of Years?
Estate that continues for a designated period (fixed in advance), at which time no notice is needed for its termination
Periodic Tenancy
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
Tenancy at Will
No fixed duration that endures as long as landlord and tenant desire (often arise by implication and with hold over tenants)
Two Rules for Delivery of Possession
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.
Hannan v Dusch
Hold over tenant that landlord did not evict, count found for the American rule but that is a minority view
What’s the difference between a tennant giving an assingment or sublease?
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.
Ernst v. Canditt
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
Berg v. Wiley
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
Duty to Mitigate?
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
Landloard remedies?
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
Constructive Eviction?
is tenant deprived of beneficial enjoyment of part of the premises?
Tenant has power to terminate lease, vacate, withhold rent
Village Commons, LLC v. MCPO
yes constructively evicted when landlord sent letter saying not to use basement storage space that water was destroying
Covenant of Quiet Enjoyment
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
Implied Warranty of Habitability
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
What is the law of nuisance?
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
What is a nuisance?
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
Restatement of Torts Balancing Test?
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
Morgan v. High Penn Oil Co.
gases and odors that were making people sick were nuisance because knew/should have known would cause harm without reasonable enough purpose
Nuisance Remedy:
Typically (damages); Injunction when: defenddant activity is unsuited to the neighborhood; and there’s a low social cost to shutting down the nuisance
Boomer v. Atlantic
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)
