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10 Cards in this Set

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THE LANDLORD’S DUTIES
a. DUTY TO DELIVER POSSESSION:

i. The MAJORITY rule requires that L put T in PHYSICAL possession of the premises. Thus, if at the start of T’s lease a prior holdover T is still in possession, L has breached and the new T gets damages.
ii. The MINORITY [American] rule: does NOT require the Landlord to put the Tenant in physical possession, but ONLY LEGAL right to be put in possession.

b. **IMPLIED COVENANT OF QUIET ENJOYMENT:**
i. Applies to both
1. **RESIDENTIAL AND
2. **COMMERCIAL leases.
3. Tenant has a right to quiet enjoyment & use of the premises without interference from L.
ii. Breach by actual wrongful eviction: This occurs when L wrongfully evicts Tenant or wrongfully excludes Tenant.

iii. ****Breach by CONSTRUCTIVE EVICTION:****
1. For example, every time it rains, Dido’s apartment floods. She has a claim for constructive eviction if 3 elements are met. So she should SING.
a. Substantial Interference: CHRONIC problem due to L’s actions or failure to act [not necessarily of a permanent nature]
b. Notice: T must NOTIFY L of the problem and L must FAIL TO ACT Meaningfully
c. Goodbye: or get out: T MUST VACATE within a REASONABLE TIME after L FAILS to Fix the problem
2. Landlord is not liable for acts of other tenants, BUT
a. Landlord must NOT permit a NUISANCE on the premises [eg. allowing Riverdance to live upstairs from you]
b. Landlord MUST control COMMON AREAS.
c. **IMPLIED WARRANTY OF HABITABILITY**
i. **Applies ONLY to RESIDENTIAL leases.**
ii. **NOT to COMMERCIAL leases.**
iii. Implied warranty of habitability is NOT WAIVABLE.
iv. The standard for warranty of habitability is that the PREMISES MUST BE FIT FOR BASIC HABITATION [it’s just bare living conditions, not anything luxurious]
1. The appropriate standard may be supplied by local housing code OR independent court conclusion.
2. The sorts of problems to trigger breach of the implied warrant of habitability include no heat in the winter, no plumbing, no running water
v. T’s entitlements when implied warrant of habitability is breached:
1. M:ove out and end lease.
2. R:epair and deduct, allowable by statute in many jurisdictions.
a. T may make REASONABLE REPAIRS and DEDUCT the cost FROM FUTURE RENT.
3. R:educe Rent or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent into an ESCROW to show her GOOD FAITH.
4. R:emain in possession, pay rent and affirmatively seek $$ damages.
5. ASSIGNMENT Vs. SUBLEASE:
a. In the absence of some prohibition in the lease, a T may freely transfer his/her interest
a. IN WHOLE [ASSIGNMENT] OR
b. IN PART[SUBLEASE]
b. In the lease, L CAN PROHIBIT T from assigning or subletting WITHOUT L’s PRIOR WRITTEN CONSENT.
i. HOWEVER, once L consents to one transfer by T, L waives the right to object to future transfers by that T, UNLESS L EXPRESSLY reserves the right to do so.
e. Assignment:
i. Eg. T1 has 10 months remaining on a 2 year term of yrs. T1 transfers all 10 months to T2. This is an assignment.
1. As a result, L and T2 are IN PRIVITY OF ESTATE.
2. This means that L & T2 are LIABLE TO EACH OTHER FOR ALL OF THE COVENANTS IN THE ORIGINAL LEASE “that run with the land”
a. Eg. promise to pay rent, paint, repair, pay tax
3. **L & T2 are NOT in privity of K UNLESS T2 EXPRESSLY assumed all promises in the original lease.**
4. L & T1 are NOT in privity of estate.
5. **L & T1 are still in privity of K, which means L and T1 are secondarily liable to each other***
ii. Eg. L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises.
1. Can L proceed against T3, the direct wrongdoer?
a. Yes. L wins because L and T3 are in privity of estate
2. Can L proceed against T1, the original tenant?
a. Yes. L wins because of privity of contract. T1 is secondarily liable to L so that if T3 runs from the jurisdiction then T1 is liable.
3. Can L proceed against T2?
f. Sublease:
i. L and sublessee are in neither privity of estate nor privity of K.
a. The common law of CAVEAT LESSE:
i. T should be ware – L has NO duty to make premises safe.
b. HOWEVER, 5 exceptions to caveat lesse:
i. CLAPS:
ii. Common areas: L must maintain all common areas [eg. hallways, stairwells]
iii. Latent defects rule: L must WARN T of HIDDEN defects of which L has knowledge or reasonably knows
iv. Assumption of repairs: L who volunteers and undertakes repairs must complete them with REASONABLE CARE.
1. If the repairs are completed negligently, L is liable in tort.
v. Public use:
1. L who leases public space [such as a convention hall, museums] and who should know because of the NATURE of the DEFEACT and the LENGTH OF the LEASE, that T will NOT REPAIR, IS LIABLE for ANY DEFEACTS ON THE PREMISES. [eg. rotten floor at convention center]
vi. Short term lease of furnished dwelling: L is responsible for any defeact that proximately causes injury to T.
c. Easements can be Affirmative OR Negative:
i. Affirmative easements: are those that provide you with the right to do something on the servient land.
ii. Negative easements: entitles its holder to PREVENT the servient landowner from doing something that would otherwise be permissible. Negative easements are generally only in 4 categories:
a. Light
b. Air
c. Support
d. Stream of water from artificial flow [eg. irrigation]
iii. Minority of states also allow an easement for scenic view.
iv. NEGATIVE easements can ONLY BE CREATED
1. EXPRESSLY,
2. by WRITING,
3. SIGNED BY GRANTOR.
v. There is no natural or automatic right to a negative easement.
ii. Easement is in Gross:
1. The easement is in gross if it confers upon its holder ONLY SOME PERSONAL or PECUNIARY ADVANTAGE that is NOT related to his use or enjoyment of his land.
e. Appurtenant easement PASSES
AUTOMATICALLY WITH THE DOMINANT TENEMENT, REGARDLESS of whether it is even mentioned in the conveyance.
i. NOTE: burden of the easement appurtenant also passes AUTOMATICALLY with the SERVIENT ESTATE UNLESS the new owner is a BONA FIDE PURCHASOR WITHOUT NOTICE.