Landlord Duties

Front 1

1) Duty to Deliver Possession

The American Rule
The Majority Rule

Back 1

The Majority Rule (The English Rule)
Requires Landlord to put Tenant in PHYSICAL possession of the premises.

Hint 1

If at the start of Tenant's lease a prior holdover Tenant is still in possession, Landlord has BREACHED and the new Tenant is entitled to DAMAGES.

Front 2

The American Rule (Minority View)

Back 2

Requires Landlord to deliver LEGAL possession but not actual physical possession.

Hint 2

Leases are made up of covenants that are independent of each other. If one party breaches a covenant, the other party may recover damages, but cannot terminate the Landlord-Tenant relationship.

Exception: The doctrines of actual and constructive eviction and implied warranty of habitability are exceptions to this rule of independent covenants.

Front 3

2) The Implied Covenant of Quiet Enjoyment

Residential and Commercial

Back 3

Tenant has a Right to Quiet use and Enjoyment of the premises without INTERFERENCE from the Landlord.

This is implied in every lease. It's a covenant that the Landlord nor anyone with paramount title (e.g., a prior mortgagee of the Landlord who forecloses) will interfere with Tenant's quiet enjoyment and possession of the premises.

This covenant is only breached when there has been an eviction.

Hint 3

How could Landlord interfere with the Right? = Two Ways!

Front 4

(1) = Breach by Actual Wrongful Eviction

This occurs when Landlord WRONGFULLY evicts Tenant or EXCLUDES Tenant from the premises.

Exception - Eminent Domain: quiet enjoyment isn't breached when the eviction is by govt's exercise of eminent domain.

Doctrine of Retaliatory Eviction: Tenant can't be evicted, penalized, or harassed, even under the terms of her tenancy, if the motivation for the Landlord's action is to retaliate for Tenant's exercise of her legal rights. Burden of proof is on Landlord to show her actions weren't retaliatory.

Back 4

(2) = Breach by CONSTRUCTIVE Eviction

Every time it rains, Dido's apartment floods. She has a claim for constructive eviction if she can S I N G

Hint 4

SUBSTANTIAL Interference due to landlord's actions or failures.
The conditions must be very bad and must render the premises uninhabitable (e.g., flooding, no hear, no elevator service).

Problem doesn't have to be permanent but it must be at least CHRONIC (e.g., it floods every time it rains).

The condition or act must be within Landlord's control for him to be held liable for the interference (not neighbors or strangers).

Front 5

Notice
Tenant must tell Landlord about the problem and Landlord must fail to act MEANINGFULLY.

Back 5

Goodbye
Tenant must vacate the premises within a reasonable time AFTER the Landlord fails to the fix the problem.

Hint 5

Quiet Enjoyment = both methods of interference must result in Tenant actually VACATING the property in order for her to prevail under this covenant.

*Contrast with Implied Warranty of Habitability

Front 6

Is Landlord liable for acts of other Tenants?

Back 6

General Rule = NO, however there are two exceptions: (1) Landlord must maintain Common Areas and (2) Landlord must not permit a nuisance on site.

Hint 6

Private Nuisance (Torts & Contracts Theory)

1) Landlord is liable if he leases premises with a nuisance and injury results

2) Landlord is also liable if he discovers a nuisance and fails to report it.

Front 7

What is a Private Nuisance? = a substantial, unreasonable interference with use and enjoyment of land. The interference must be so to an average person in the community, and not because of P's hypersensitivity or specialized use of his land.

"Substantial Interference" = must be either offensive, inconvenient, or annoying.
"Unreasonable Interference" = the severity of the inflicted injury must outweigh the D's conduct. Balance of Interests is key to whether or not it's considered unreasonable.

Back 7

Who can recover? = Those who have property rights and privileges in respect to the use and enjoyment of the land affected:
(1) Possessors of Land,
(2) Holders of Easements or Profits in the land, and
(3) Holders of nonpossessory estates in the land that are detrimentally affected by interferences with its use and enjoyment.

Hint 7

What are the Remedies?

(1) Damages = for a private and public nuisance where Tenant has suffered some unique damage, the usual remedy is monetary damages.

Injunctive Relief: Where the legal remedy of damages is inadequate or unavailable, injunctive relief may be granted.

Front 8

3) The Implied Warranty of Habitability (Residential Only)

NOT WAIVABLE regardless of what lease agreement might say! Implied by law into all residential leases.

Back 8

The premises must be fit for basic human dwelling, meaning bare living requirements must be met.

Appropriate standards on how Landlord is to meet his duty may be supplied by Housing Codes or case law.

Hint 8

In the event of a BREACH of the Implied Warranty of Habitability what can Tenant do?

Front 9

"Mr. Cubed has 4 options"

Back 9

Move
Move out and end the lease.

But remember, Tenant doesn't have to!

Hint 9

Repair
Tenant may make the reasonable repairs and deduct their cost from future rent.

Repair and Deduct is allowable by statute in a growing number of jurisdictions.

Front 10

Reduce
Reduce rent or withhold all rent until the court determines fair rental value.
Typically, Tenant must place withheld rent in escrow to show Tenant's good faith.

Back 10

Remain
Remain in possession, continue to pay rent, and affirmatively seek money damages by pleading a Breach of this covenant and sue for damages.

Front 11

Landlord's TORT Liability

Back 11

Under Common Law: Landlord was under no duty to make the premises safe.

Hint 11

There are five exceptions to the common law rule.

When Tenant learns of these exceptions to the hard common law rule she C L A P S

Front 12

(1) Common Areas
Landlord must maintain all common areas (e.g., hallways, stairways, elevators).
Exception to the general rule that Landlord is not responsible for the acts of other Tenants or strangers.

Back 12

(2) Latent Defects Rule
Landlord must WARN Tenant of any hidden defect that Landlord KNOWS about or SHOULD know about.

(No duty to repair, merely a duty to warn.)

Hint 12

Because Tenant is an Invitee under Tort's Premises Liability, Landlord has a duty to INSPECT because he is held liable for known dangers and all dangers she should have reasonably known about.

Front 13

Remember, Landlord satisfies his duty by simply warning Tenant of the defects. If Tenant accepts after the disclosure Tenant has assumed the risk for herself AND others (meaning Tenant could be held liable in tort for injuries caused to her invitees or licensees by this known latent defect unless she warns them too!)

Back 13

(3) Assumption of Repairs
A Landlord who voluntarily makes repairs must complete them with reasonable care.

There's no affirmative duty to act but if you do voluntarily assume the duty you must use reasonable care.

Hint 13

(4) Public Use Rule
A Landlord who leases public space (such as a convention hall), and who should know, because of the nature of the defect and the abbreviated length of the lease that Tenant will not repair, Landlord is liable for any defects on the premises.