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61 Cards in this Set
- Front
- Back
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Tenants and waste
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Tenants are not to commit voluntary or permissive waste
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Tenants duties
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not commit waste, leave fixtures, pay rent
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Fixtures and tenants
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Tenants cannot remove fixtures, even when the tenant has installed it… fixtures are objectively seen as thigns meant to permanently improve the property (lighting, storm windows, furnace)
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Landlord's options to get rent
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either sue for rent owed, or continue relationship and sue for lost rent. MUST NOT ENGAGE IN SELF HELP OF CHANGING LOCKS OR TAKING PROPERTY. SELF HELP IS CRIMINAL AND CIVILALLY PUNISHABLE
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Landlord options when tenant leaves
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"SIR-
surrender (landlord just lets the tenant leave, landlord accepts this) Ignore- hold Tenant responsible for rent (available in only a minority of states) Re-let the premises- Re-let the tenancy and hold the wrong doer former tenant for any deficiency. Try to mitigate" |
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Landlord Duty
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"must give physical possession of the premises at the start of the lease
Implied duty of quiet enjoyment " |
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Constructive eviction by landlord
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"Tenant must show the landlord ""SING""s
SI-Substantial Interferrence (A regularly recurring problem… every time it rains, the apartment floods) N- Notice. Tenant must give Landlord Notice of the problem, and landlord must fail to act meaningfully G- Get out. Tenant must vacate in a reasonable time after Landlord does not correct the problem" |
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Fixed term Tenancy
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transfer of possessory interest in property for a detminate set of time.
terminates at the end of the lease with no notice that the lease is about to expire Statute of frauds requires a writing for any term longer than a year in many jurisdictions |
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Option to renew v. option to extend
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Renew can have new terms... option to extend is just keeeping the same lease over a longer period of time
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Periodic Tenancy
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A lease giving tenant possession of the leased property for successive identical periods is periodic
can be indefinite, because the party that owns just has to keep giving the option to lease (open ended) Landlord OR tenant can give proper notice to terminate "To T for year to year"…. "T for week to week" |
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Notice for Periodic
Tenancy |
6 months for a year to year tenancy or greater
notice equal to the length of the period if its less than a year (month for a month to month tenancy) Most modern statutes provide for at least 60 days notice. TDate for termination must be at the end of the period THIS TIME OF NOTICE IS ALL IN THE ABSENCE OF LANGUAGE TO THE CONTRARY |
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Tenacy at will
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can be terminated at the election of either party, no fixed duration. (This exists because they allow it… it will end when they demand it"
common law- no advance notice of temination statutory- some difference for time to notify termination |
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Tenancy at sufferance
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a person who remains on a leased property after the termination of the lease
Landlord can treat him as a trespasser or a new tenant In issues of “hold over” in some states, if the tenant does not state to the contrary and continues acting as he did under contract and if the lease was a year or over, the hold over can be assumed to have entered a new 1 year lease |
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Quiet enjoyment during the lease term
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a covenant of quiet enjoyment is implied in leases in virtually all states and expressly included in many written leases. This is breached when evicted by the land lord, by someone acting under the landlord’s authority, or by someone asserting paramount title. (Example would be renovation that removes space leased... a reduction in size of the property)
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Eviction by Paramount title
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Eviction by paramount title occurs when landlord does not own the leased property and true owner demands possession, or when a prior mortgage on the property is forclosed
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Constructive eviction
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tenant does not have to pay rent if the landlord interferes with the tenant’s possession of the premises (landlord beaches some duty to the tenant, such as failed to make repairs as required by the lease)
Tenants have to actually vacate the premises for it to be an eviction |
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Partial actual eviction
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if a landlord changes the dimensions of the space without knowledge by the parties (who don’t notice until after) the lease in SOME states may not necessarily end the lease or other obligations such as keeping the building in repair.
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Security deposits
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covered by statute (In PA, double recovery by breach by landlord)
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Tenable repairs
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under some contracts, there is an implied covenant to make gradual repairs. A landlord may not be liable for gradual change, but a sudden act (flood) would requre landlord to fix things
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Voluntary Waste
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any substantial injury doen to the inheritance, during the continuance of an estate... as applied to tenant laws, whenever you voluntarily chane a property in material manners, is waste
you cannot make changes without the consent of the landlord (voluntary waste) Under modern law, a change that increases value to the property may be looked at.... it has to be enough of a change that is material (a change of 800 dollars in valuet to a 25000 property is not material) |
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Permissive waste
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"a. Failure of tenant to undertaken the ordinary care that a tenant would take
b. Common law: when tenant sees a roof leak, cannot ignore it and then use subsequent deterioration as excuse to not pay rent, no requirement to make substantial repairs " |
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Duration of lease and waste
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"a. If the lease is for 99 years, then obviously there is going to be some obsolescence that requires the tenant to make substantial changes to have a fruitful enjoyment of the property
b. But for a short-term lease, the landlord is interested in the rental income but as well the basic integrity of the structures which will shortly return to his possession " |
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Implied warranty of habitability
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"Warranty of habitability is implied in residential leases
Tied to housing codes ---------Some states require the landlord to meet housing code standards, others measure it independently Strict obligation for the landlord Non-waivable Must be set for basic human living conditions are satisfied" You may or may not breach a warranty with a housing code violation |
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Notification
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Tenant must notify the landlord of a condition
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Percentage diminution
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Unless the decrease in fair rental value is the entire level of habitability, you only withold the amount of rent for the amount of loss to the habitability
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Occupation= habitable?
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no, just because someone is living in a condition does not mean the home is habitable
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Remedies for tenants
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Termination of lease
witholding rent abatement of rent repair and deduct pay in full |
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Termination of the lease
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"i. Tenant has right to stop paying rent entirely and abandon the premises
ii. Usually requires a material breach " |
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Witholding Rent
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"i. Tenant is entitled to withhold rent until problem fixed
ii. Best option is to pay withheld rent into escrow account managed by the court " |
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Abatement of rent
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"i. Tenant can stop paying rent in proportion to the violations by the landlord
ii. Court will agree and abate the rent for that period iii. Tenant still liable if the court finds there to be back rent owed despite abatement " |
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Repair and deductions
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"i. Tenant can devote funds that would otherwise be used to pay rent to pay for repairs to bring building into compliance with housing codes
ii. Typically minor repairs " |
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Pay in full
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e. Pay the rent in full and seek damages (rarely done)
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Net Lease
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When a tenant agrees to undertake ALL of the repairs of a facility they are inhabiting
Characterized by lesee’s paying of payroll tax, long terms, assume 3rd party liability, insurance on the property, etc |
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Repair timeline
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the landlord needs a reasonable time to make repairs because a duty is created by the contract that the landlord must try to ameliorate the problem as soon as possible
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Repairs by tenant when not at fault
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When an emergency occurs (fire, earthquake), not the fault of tenant, and a NET lease is not applied, the tenant will likely not be held to have to repair the facilities before returning the property (although in some jurisdictions, they may be liable to rebuild the property if they have signed a waiver)
Under Common Law, the tenant would be liable (this is because the building was not iewed as important... it was the tillable land that was) |
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Landlord tort liability
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Not liable in common law, is liable under most systems today for harm coming from negligent care of facilities
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Crime prevention and habitability
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Some jurisdictions require a landlord to take reasonable precautions (knowing the area) to protect against high crime
other jurisdictions require no landlord liability for crime protection |
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Subleasing provisions (3 different theories)
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"1. Common law: Lessee may not sublet or assign the premises to be used in a manner which is injurious to the property or inconsistent with the terms of the original lease
2. Original view: Landlords have a right to withhold their consent to a subletting or assignment even though the withholding of the consent was arbitrary and unreasonable 3. Modern view: impose a standard of reasonableness on the landlord in withholding consent to a sublease unless the lease expressly states otherwise " |
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Common law rule for assignment or sublease
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in the absence of language to the contrary, the tenant is free to do as he pleases with the property.
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Assignments
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one transfers his whole estate (up to the end of the term) without reserving a reversionary interest to himself. If reversionary protections, not an assignment
a. But if the transferor retains or reserves a reversionary interest, the privity of the transferee and the original lessor is not established and there is no assignment... in other words, it has to be AN ABSOLUTE TRANSFER |
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Silent consent clause
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in order to sublease, the landlord has to give written consent
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Preference in sublease interp.
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favors the right to alienate freely on part of tenant
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Assignment privity
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an assignment creates a vertical privity between assignee and assignor (original tenant)
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Privity of estate
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"a. All covenants which run with land/in original lease are enforceable against assignee
b. Tenant's assignee is in privity of estate with the landlord, thus liable for rent (occupies the space, is compelled to pay for the space) " All benefits and burdens of the initial lease transfer |
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Liability of the original assignor
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assignor/original tenant still has privity of contract with landlord and is liable if assignee fails to pay rent, in addition to the assignee being liable
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Perpetual renewal
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some leases may have a provision that allows the tenant to renew as many times as he wants to
courts are reluctant to enforce these unless it is abundantly clear it is the intention |
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seizing of property
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in some states, a landlord can still seize property of tenant for nonpayment of rent (some states require a public officer to assist in this
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retaliatory eviction
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tenants are protected under most states statutes for reporting violations, complaining, or joining tenants unions... landlords cannot just raise the prices to force someone out
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abandonment of lease
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if a tenant abandons a lease, he is still under obligation to pay for it, unless the landlord fills the lease to his benefit (not the tenant’s)
-----in many jurisdicitons, a landlord has to attempt to mitigate his costs by trying to fill the property. Landlord has to mitigate, let it sit then sue, or accept the loss. |
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Provisions to not mitigate
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In some jurisdictions, a tenant can waive the landlord’s duty to mitigate. In others, a tenant must need to lobby when making the contract to have the landlord have a duty to mitigate. In others, it is implied
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Partial assignments
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when you transfer a portion of your lease to another for the duration of the lease. (500/1000 sq ft. transferred to another until the end of a lease)
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Landlord of subtenant (assignment)?
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Tenant
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Privity of estate in Assignment
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Landlord and assigned
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Privity of estate in sublet
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tenant and subleasee
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Privity of contract in assignment
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landlord and assignee
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Privity of contract in sublease?
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landlord and initial tenant still (Unless landlord releases tenant from contract)
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When a clause req. Landlord be reasonable to give assignment or sublease
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In some states, the landlord must do so reasonably. (A grocery store subletting to another grocery is reasonable) ex. the transferee cannot pay, the landlord asks for references and gets information that states they are a poor tenant
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assignment from an asignee
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just because a property has been assigned or subleased once, does not necessarily mean it is free to be assigned or subleased to a 4th party under common law. (Rule in Dumper’s case)
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Landlord’s 3 choices when ∆ abandons (common law)
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mitigate his damages
let it lay fallow and sue the tenant accept the tenant’s surrender of the property |
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When a landlord does not release an original tenant of a lease
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The original tenant is still liable because he still has privity of contract
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Holdover tenants
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Common law- (old) lease renews for length of the lease. (New) Lease renews for a year (unless there is evidence of a contrary intent by the parties)
If negotiating, it may be a month to month basis. |
