VIII. Landlord/Tenant Duties Flashcards
Self Help- Common Law
a LL can use self-help provided that landlord was legally entitled to possession, and LL exercised right in peaceable manner
Self Help- Modern Law
No self-help allowed. Must use judicial process (usually expedited)
Summary Eviction Proceedings
Forcible detainer actions: requires 3-7 days notice. Sole issue at the hearing is whether the tenant has a legal right to possession. if tenant does not, t will be evicted.
Duty to Mitigate: Traditional Rule
LL has no duty to mitigate because a lease is a conveyance of property that divests the landlord of control of the premises for the length of the lease; only tenant has right to lease the property during life of the lease
Duty to Mitigate: Modern
LL has duty to mitigate by using reasonable diligence in attempting to re-let premises (ex: offered, advertised, showed apt). LL has burden to show he/she mitigated
Rent: New lease less than old lease rent
Old tenant is liable for the difference between fair rental value and the original rent plus reasonable costs to procure a new tenant
New lease is more than old lease rent
Some jurisd. say LL keeps extra rent. Others say tenant gets excess rent.
Surrender
If LL accepts tenant’s surrender of lease, LL has no recourse against old tenant, but may keep all rent under new tenant, even if higher than old lease.
Eviction
LL can evict a t, assignee, or subtenant for non-payment of rent. Back rent only available from tenant or assignee, but sub-tenant.
Warranty of Quiet Enjoyment
LL’s express or implied promise that tenant will not be disturbed in tenant’s use or enjoyment of the premises. Breach entitles tenant to damages or termination of rent obligation. Requires actual or constructive eviction.
Actual Eviction
Occurs when the tenant is deprived of the occupancy of some part of the leased premises.
Constructive Eviction
Occurs when the LL, through act or omission and without intending to oust the tenant, deprives tenant of the beneficial enjoyment of some part of the premises. Conditions must be a serious deprivation of quiet enjoyment of the premises.
WQE- Obligation to pay rent
If tenant remains in possession, tenant must pay rent, but can sue for damages
If tenant leaves premises, tenant is relieved of obligation to pay rent. T can sue LL to recover losses suffered while in possession and for losses resulting in higher rent for equivalent replacement premises.
Illegal Lease Doctrine
Tenant can stay in the premises and not pay rent when the premises are in an unsafe/unsanitary condition in violation of the housing code at the time the lease was made. (lease is unenforceable bc it’s illegal). Minor technical obligations are not enough to support this claim. T is liable for reasonable rental value of premises given its condition.
Implied Warranty of Habitability
An implied warranty that exists in every written or oral lease that the LL will deliver and maintain, throughout the period of the tenancy, premises that are safe, clean and safe for human habitation.
Covers all latent and patent defects in the essential facilities of the residential unit. Cannot be waived by tenant. Does not apply to defects caused by T.
