Landlord / Tenant

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 Bar Notes

I. LANDLORD / TENANT

A. Types of Leases
1. Term of Years
a. A term of years has a:
definite start and end date
b. No notice is required to terminate a lease for a term of years.
c. If a term of more than one year is contemplated:
it must be in writing
2. Periodic Tenancy
a. A periodic tenancy has a set beginning date and continues from period to period (e.g., from month
to month) without a set termination date until proper notice is given.
b. Under the modern statutory approach, termination may take place on any date, and the notice
period is measured by:
the lease period (ex if its mo-mo, than must give one mo notice)

EXAMPLE:
In a month-to-month periodic tenancy, one month’s notice is required.
c. Under the modern approach, notice may be given by both parties.
3. Tenancy At-Will
a. An at-will lease has:
no set termination date and no notice required for brining tenancy to end

4. Tenant at Sufferance / Holdover Tenant
a. A tenancy at sufferance occurs when a tenant remains in possession of the leased premises
(holds over) after the end of the lease term.
b. A landlord has two choices when dealing with a holdover tenant:
(1) may evict tenant
(2) bind that holdover to new lease
(a) If the landlord chooses this option, the tenant will be bound to:
the same conditions that he originally agreed to prior to being held over
B. Parties’ Duties
1. Tenant’s Duties
a. Duties contained in a written lease are:
expressly contained inside the lease (aka covenants)
b. Duty to Pay Rent
(1) At common law, a tenant had a duty to pay rent:
under any circumstances (even if premises were destroyed)

(2) At modern law, in case of destruction of the premises:
tenant is relieved of liability to pay rent unless tenant is
responsible for destruction

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c. Duty to Refrain From Committing Waste

(1) Where waste is concerned, the question is whether the tenant is destroying the property or
decreasing its value.
(2) There are three types of waste:
(a) voluntary waste (eg punch a hole in the wall)

(b) permissive waste (although you did not cause the problem, you did not take reasonable
steps to prevent the problem; e.g. natural disaster)



(c) ameliorative waste - without permission you have improved the property in some way
(eg install hot tub)


2. Landlord’s Duties
a. Duty to Deliver Possession
(1) The landlord has a duty to deliver possession of the premises to the tenant:
as of the first day of the lease
(a) This is actually a jurisdictional duty.
(b) The majority (English) rule requires:
the LL has the responsibility to deliver legal possession (T has lease that says he is entitled to premises as of start date)
AND actual possession (LL must make certain T can takeover actual possession that day; must get rid of holdover )
(c) The minority (American) rule requires delivery of:
legal possession only
b. Covenant of Quiet Enjoyment
(1) Every lease contains a covenant of quiet enjoyment (express or implied). In the covenant of
quiet enjoyment, the landlord promises that the tenant:
has exclusive right to the premises free and clear of any type of unwanted or unwelcome intrusion
by the LL


(2) This covenant does not include:
doesn’t include the prevention of acts by 3rd party

(3) A tenant may treat the lease as terminated and withhold rent if the landlord or someone
claiming through him breaches the covenant of quiet enjoyment by actual eviction of the
tenant.
(4) A tenant may treat the lease as terminated and withhold rent if the landlord breaches the
covenant of quiet enjoyment by constructive eviction of the tenant. For a constructive eviction
to exist:
the LL is substantially and permanenty interfering with T’s quiet enjoyment

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(5) The following acts by the landlord constitute constructive eviction:

(a) he LL renders the premises uninhabitable


(b) failure to disclose latent defects (that only LL could be aware of and T
couldn’t possibly have known about )



(c) landlord’s lack of maintenance of the common areas, like lobbies, stairs, hallways,
outside grounds, porch lights, etc.;
negligent or faulty repairs
(d)
(e) engagement in fraudulent misrepresentation; and
(f) in a minority of jurisdictions, the refusal or choice not to abate a nuisance caused by
another tenant or, sometimes (and rarely), third parties.
(6) To claim total constructive eviction, the tenant must:
move out

(7) Under the majority rule, if a tenant is constructively evicted from part of the premises, the
tenant may receive a rent abatement but is not relieved of all liability for rent.
(8) In some states, if a landlord’s breach of the covenant of quiet enjoyment does not constitute
actual eviction or is not substantial enough to constitute constructive eviction, the tenant who
remains on the premises can seek money damages from the landlord.
c. Implied Warranty of Habitability
(1) The implied warranty of habitability is read into every lease, even where the lease itself is
silent on the issue.
(a) Constructive eviction may actually occur as a result of the landlord’s breach of this
implied warranty of habitability.
(2) To prove that the landlord has breached this warranty, the tenant must show:
the defect in the premises that affects health or safety

(3) In some jurisdictions, a housing code violation automatically breaches the implied warranty
of habitability. In other jurisdictions, the housing code provides the standard; however,
substantial compliance with the code is sufficient so long as habitability is not affected.
(4) To claim a breach of the implied warranty of habitability, the tenant must:
(a) provide LL notice of the defect ; AND
(b) reasonable time to cure
1) What is reasonable must be determined:
on a case by case basis
(5) If the landlord breaches the implied warranty of habitability:
(a) tenant can correspondingly breach

(b) may move out (or can remain where they are)
(c) abate the rent;
(d) repair the defect and seek money damages; and

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(e) the tenant may seek money damages; and

(f) the tenant may seek reformation or other traditional contract or tort remedies.
C. Remedies for Breach of Duty
1. Landlord’s Remedies for Tenant’s Breach of Duty
a. If the tenant fails to pay rent or commits another material breach of the lease, the landlord may
seek:
(1) eviction
(2) sue for monetary damages and bind him for the remainder of the lease

b. A tenant abandons the premises if she vacates the premises without intent to return and fails to
pay rent. Traditionally, if the tenant abandons the premises, the landlord may:
(1) retake the premises;
(2) ignore an abandonment and continue to hold the tenant liable for rent; or
(3) reenter and relet the premises.
(a) Under the traditional view, if the tenant abandons the premises, the landlord has no
duty to mitigate by attempting to relet the premises. However, under the modern view,
the landlord has a duty to mitigate if the tenant abandons. If mitigation is required, the
burden of proof is placed on the landlord to show that he attempted to mitigate his
losses.
c. A security deposit may be retained by a landlord only to the extent necessary to cover actual loss
that the deposit was intended to secure (e.g., unpaid rent, damage).
d. Landlords may not engage in retaliatory eviction, which is where:
the T can’t be evicted for having turned the LL in for violations of housing code

2. Tenant’s Remedies for Landlord’s Breach of Duty
a. The remedies available to the tenant include:
(1) cancellation of the lease and vacating the premises;
(2) seek retribution in form of repayment of $$ spent to fix problem
(3) withholding or abating rent.
b. A landlord is not liable to the tenant, or others on the premises with the consent of the tenant, for
injuries caused by a condition of the premises, except in the following situations:
(1) latent and dangerous conditions that LL knows about but T doesn’t know about


(2) conditions dangerous to persons outside the premises

(3) the premises are leased for admission to the public;
(4) land under LL’s control but used by T

EXAMPLE:
A swimming pool on the premises, used by all the tenants in an apartment building.
(5) the landlord has contracted to repair; or
(6) the landlord has been negligent in making repairs.

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c. Another change in personal injury and landlord-tenant law is who can sue for injuries.
(1) At common law, it was limited to:
the Tenant
(2) At modern law, it is expanded to:
tenant, family members, and any one on premises as invitee or licensee

D. Assignments and Subleases
1. If a tenant transfers his interest in a leasehold, he will be engaging in either:
an assignment or sublease

a. Landlords are permitted to put clauses into leases which:

prohibit assignment and /or subleases
(1) However, these clauses are disfavored and strictly construed.
2. Traditionally, the distinction between an assignment and a sublease was:
strictly by duration

a. An assignment was for the entire remaining duration of the lease. A sublease, by contrast, was
only for a duration shorter than the remaining lease term.
3. Today, another variable is considered when determining if a transfer is an assignment or sublease:
who pays whom
a. If an assignment is involved, the landlord will receive rent payment from:
T2 (successor T) directly from T2

b. If a sublease is involved, the successor tenant will pay:
Tenant 1 who then pays landlord


4. In a sublease, if the successor tenant fails to pay rent:
the LL can only sue T1 (bc successor T was never in privity w/ LL)


5. In an assignment, if the successor tenant fails to pay rent:
both T1 and T2 are liable for rent, but LL can’t sue both - must choose
one to recover from

6. The original tenant will always face potential liability unless:
the LL has agreed to a novation (an entirely new lease w/ privity w/the new T & the original tenant
will be removed )

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Multiple Choice Questions
kickstart

672
 Landlord / Tenant Answer Grid

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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Question 1 Question 2
A married couple entered into a two-year lease. The A landowner conveyed a large estate “to my daughter,
neighborhood consisted primarily of vehicle repair her heirs and assigns, on condition that she produce an
shops and older couples. For the first year, the landlord heir with her husband, but if she dies without such an
never visited the property and the couple paid the rent as heir, then to my personal assistant.” Five years after
directed. In the second year, the couple had a child and the landowner conveyed the estate to her daughter, the
decided to use the spare room beside the master bedroom personal assistant and the landowner got into a serious
as the nursery. dispute, which resulted in the personal assistant’s
decision to set up her own rival business. At the same
Rather than leave the master bedroom each time to enter
time, the landowner’s daughter and her husband
the nursery, the couple decided to hire a local man to add
divorced. Three years later, the husband died of a stroke
a doorway in the wall between the two rooms. The man,
brought on by undiagnosed high blood pressure. The
a certified building contractor, checked the wall to make
daughter remarried to a new business protégé of her
sure it was not a “load bearing wall,” to which local
father. The estate was a heavily forested property with a
ordinances preclude any kind of alterations.
number of stands of maple trees. The daughter and her
When the lease was about to end, the landlord inspected new husband walked the property and marked stands to
the premises and noticed the doorway between the be harvested for wood. The daughter then exploited the
two rooms. He remarked that it was a nice touch, and timber on the estate for a large profit.
even conceded that it made the home more valuable,
The daughter’s act of exploiting the timber for profit was
because the neighborhood, particularly over the past
year, had begun to accommodate many younger couples (A) impermissible as affirmative waste, because the
starting families. The couple vacated the property at the daughter was only a life tenant of the estate.
expiration of the lease without restoring the wall. The
(B) impermissible as trespass, because the personal
landlord then sent the couple a bill for the estimated cost
assistant owns the estate in fee simple absolute.
to remove the doorway in the wall. The couple refused
to pay the bill, and the landlord filed suit to recover this (C) impermissible, because the daughter has not
amount. produced an heir with her first husband.
Assuming the common law applies, what is the likely (D) permissible, because the daughter holds in fee
outcome of the case? simple.
(A) The landlord will prevail, because adding a
doorway violates the lease.
(B) The landlord will prevail, because the addition
of the doorway is waste.
(C) The couple will prevail, because the addition of
the doorway increased the property value.
(D) The couple will prevail, because they were long-
term tenants.

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 Multiple Choice Questions

Question 3 Question 5
A man entered into a lease for a period of five years. The owner of a two-bedroom beachfront cottage leased
Planning to open a hardware store, the man hired a the dwelling to a couple with the occupancy period
contractor who installed overhead lighting and built terminating on March 20. On March 10, the owner
wooden shelves that were nailed into the walls. The leased the property to a college student for six months.
contractor also constructed free-standing tables for According to the written lease agreement, the tenancy
displaying merchandise. In addition, the man hired would begin on April 1 and extend through September 30.
a builder who constructed a second-floor loft that
On April 1, the couple was still in possession and refuses
was structurally attached to the main building. At the
to vacate the premises despite the fact that the lease
expiration of the lease, the man decided to vacate the
had expired. As a result, the student was prevented
premises and remove the improvements that he made. He
from taking possession. Unable to take possession, the
began disassembling the loft and started removing the
student refuses to pay the owner the rent for the month of
lighting, shelving, and free-standing tables. The landlord
April. The owner has instituted a suit against the student
immediately filed suit seeking to enjoin the man from
seeking to enforce their lease agreement and recover rent
removing these items.
for the month of April.
The court will most likely allow the man to remove what
In accordance with relevant Anglo-Saxon case law,
items?
which party will most likely prevail?
(A) Everything.
(A) The owner, because the student’s only cause
(B) Everything except the loft. of action is against the couple who are the
holdover tenants.
(C) Everything except the loft and the lighting.
(B) The owner, because the landlord is under no
(D) The free-standing tables only.
obligation to deliver possession of the premises
to the tenant.
Question 4
(C) The student, because the owner cannot deliver
A landlord and a tenant signed a lease agreement for a possession at the inception of the leasehold.
one-year term. One month into the lease term, the tenant
(D) There is a split of authority, and the outcome
changed jobs and abandoned the apartment because
will depend upon which rule of law is followed
his new job was an inconvenient commute from the
in this jurisdiction.
apartment. The landlord did not find a replacement
tenant. At the end of the lease term, the landlord sent the
tenant a bill for the unpaid rent.
In determining how much tenant owes, to which of the
following would most courts give the greatest weight?
(A) How burdensome the tenant’s new commute is.
(B) Whether the lease contained a covenant of quiet
enjoyment.
(C) Whether the landlord has met his burden of
showing that he attempted to find a replacement
tenant.
(D) Whether the tenant has met his burden of
showing that the landlord failed to attempt to
find a replacement tenant.

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 Landlord / Tenant Answer Key

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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