Landlord-Tenant Law

Leasehold - a present possessory interest that will be terminated at some date then followed by a reversion (future interest in the owner) Types of leases Term of years - pg 421 Lasts for any fixed period of time No notice of termination necessary because the term of years states for the outset when it will terminate Periodic tenancy - pg 421 Lease for a period of some fixed duration that continues for succeeding periods until either the LL or T gives notice of termination Period is automatically extended by another period if no notice is given Notice of termination Common law - 6 months notice required for a one year lease - For leases <1 year, notice is equal to the length of the period, but not exceeding 6 months - Must terminate a full period before on the final day of the period - Given by either LL or T - e.g. a month-to-month lease giving notice on March 20th - earliest termination date is April 30th (next full period) Modern reforms - Can be terminated with 30 days' notice - Can be given at any time Tenancy at will - pg 422 No fixed period and lasts as long as both LL and T desire Rare Usually enforced as a periodic tenancy due to rent collection at given periods In common law, it ends when one of the parties terminates OR when one of the parties dies Modern statutes require a period of notice for termination (e.g. 30 days) Estate of LL cannot kick out T at death of LL when lease expressly states that the tenancy is over when T desires legal obligations v. ability of parties to negotiate and accomplish their will Tenancy at sufferance (holdovers) - pg 427 Tenant remains in possession after termination of the tenancy Common law remedies for LL Eviction + damages Consent (express or implied) for the creation of a new tenancy - Majority of jurisdictions give rise to periodic tenancy (usually month-to-month) - Minority of jurisdiction base the length of the new tenancy based on the period in the original lease (but no more than a year) - Subject to the same terms and conditions as the original lease (includes rent) unless otherwise negotiated
Lease - pg 428 Transfers possessory interest in land (conveyance) Also creates a contract Give rise to a LL-T relationship which has certain rights, duties, liabilities, and remedies for both parties Statute of Frauds - intended to prevent fraud - pg 430 Leases more than one year MUST be in writing Most jurisdictions allow oral leases for terms less than one year ^ ones that don't allow the oral leases - oral leases plus rent create a periodic tenancy not subject to the Statute Form leases - standardized documents offered to all tenants with no negotiation (like most big apt complexes) Unequal bargaining power

Discrimination of tenants

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Discrimination of tenants Fair Housing Act - pg 431 Cannot discriminate on race, color, religion, sex, familial status, handicap, or national origin Applies only to dwellings (residential) Prohibited practices - pg 432 Refuse to sell or rent after making a bone fide offer (revoking the offer) Discriminate in the terms and conditions Make, print, publish, or cause to publish advertisements with stated preferences, limitations, or discriminations (NOBODY IS EXEMPT FROM THIS) A.D.A. amendments - For older buildings: refusal to permit reasonable modifications at the tenant's expense (LL can request that the premises are restored to its previous conditions after rental is over) - Also for older buildings: refusal to make reasonable accommodations in rules, policies, practices, or services - For newer buildings (multifamily dwellings built after March 1991): must be built so they are handicapped accessible - Definition of handicap: a physical or mental impairment which substantially limits one or more of the person's major life activities, a record of having such an impairment, or being regarded as having such an impairment > Actual or perceived disability > Does not include use or addiction to a controlled substance > Things like AIDS count > Dwellings need not be made available to people whose condition would create a direct threat to the health and safety of other tenants or result in substantial damage to the property, but LLs must try to make reasonable accommodations > No-pets policies do not apply to assistance/service animals unless there was no reasonable way to accommodate the type of pet in question Discrimination under FHA so far does not include sexual orientation, marital status, or profession Localities can pass amendments to FHA to include other things; cannot exclude things Exemptions - pg 431 Provisions regarding familial status do not apply to housing for old people Person that owns three or fewer houses and sells/rents WITHOUT using a broker or real estate agent Rooms/units in dwellings of four families or less (e.g. fourplex or duplex) AND the owner/LL lives in one of the units ("Mrs. Murphy's exemption") The above are exempt from all FHA prohibited practices EXCEPT advertising Exemptions proved for protection of Constitutional right of free association for a LL of small scale operations Proof of discriminatory impact or disparate treatment is sufficient to state a claim under FHA (discriminatory motive need not be proved) Civil Rights Act of 1866 - pg 433 Cannot discriminate based on race (this includes national origin because that was what "race" meant in the 19th century) Covers all buildings - both residential and commercial Requires proof of intentional or purposeful discrimination to state a claim (unlike FHA) Contains no exemptions at all Does not prohibit discriminatory advertising

Delivery of possession - pg 438 English rule - pg 439 LL required to put tenant in possession Implied covenant does not extend beyond the day the lease begins (one day right of T to go after LL) Remedy: new T can terminate the lease and sue LL for damages American rule - pg 439 LL not required to put them in actual possession, only legal possession Remedy: suit for possession and damages against holdover T by new T Both are default rules; not mandatory If you contract around the default rule, the court will allow it; if your lease is silent on either issue, courts will read in the relevant default rule

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courts will read in the relevant default rule Sublease v. assignment - pg 445-446 Assignment - lessee transfers the interest for the entire remainder of the term (T --> assignee) Leaves no reversionary interest in the grantor Can do partial assignment (such as assigning part of farm land for the rest of the term) Sublease - lessee transfers the interest for only a part of the remainder of the term (T --> sub-T) Lessee reserves a reversionary interest in the term Reserves the right to re-enter the property at the end of the sublease Partial sublease also possible Privity Privity of estate - conceptual aspects of the lease Privity of contract - contractual aspects of the lease Using the words "sublet"/"subletting" in lease are not conclusive of the intent Discrimination in subletting or assigning CL majority-now-minority rule: lessor can arbitrarily refuse to approve an assignee Traditional justifications (pg 453): - Lessor is under no obligation to look to anyone else but the lessee for rent since they have previously exercised a personal choice in the selection of a tenant (undermined by the adoption of the rule to mitigate damages upon abandonment) - Approval clause is an unambiguous reservation of absolute discretion in the lessor over assignments; lessee did not bargain for a reasonableness clause so it's not the law's duty to rewrite the contract for them - Courts shouldn't depart from the CL "majority" (now minority) rule b/c many current leases are based on this viewpoint - Lessor has a right to realize the increased value of this property CL minority-now-majority rule: lessor can only refuse an assignee only when it is commercially reasonable to do so Policy against restraints on alienation Increased recognition of and emphasis on the duty of good faith and fair dealing Some reasons why it might be commercially reasonable to deny: - Economic ability of the new lessee to pay (not as financially secure) - Risk of damage or harm to the property (includes any necessary alterations) - Legality of the proposed use NOT commercially reasonable to deny based on personal taste, convenience, or sensibility Residential LL may deny SL/A for arbitrary reasons; however, duty to mitigate can limit this (especially if T has proffered a commercially reasonable replacement T) Defaulting tenant T currently in possession - pg 460 Self-help is permissible under CL if: LL is legally entitled to possession (e.g. holdover tenant) LL's means of reentry are peaceable (use no more force than reasonably necessary) HOWEVER, modern doctrine says that no self-help reentry is peaceful due to the possibility of violence LL must resort to judicial process to enforce his statutory remedy against a T wrongfully in possession Self-help is discouraged and not permitted This reasoning applies to ALL leases (residential and commercial) Berg v. Wiley (LL thought T abandoned and changed the locks) Move away from CL: self help --> judicial eviction (too slow - LL disadvantage) --> summary proceedings (too fast - T disadvantage) Summary proceedings Quick and efficient means by which to recover possession HOWEVER, in some jurisdictions, you cannot bring other evidence - Some jurisdictions allow evidence if you're raising the defense of IWH Limits possible remedies Surrender and abandonment Surrender Terminates a lease IF the LL accepts the offer Extinguishes lessee's liability for future rent (not past rent or breaches) if LL accepts Abandonment - leaving premises without giving clear notice that you are doing so Implied offer of surrender

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Implied offer of surrender LL acceptance is generally found in the LL's intent to retake possession Mitigation CL - mitigation not required due to the leasehold as a conveyance Most jurisdictions now require mitigation due to the leasehold as a contract Application of the contract rule requires mitigation of damages in a residential lease as a matter of basic fairness and equity If a LL has vacant apartments and an abandoned one, the LL must treat the abandoned one like a vacant one Duty to mitigate applies to a defaulting T and requires reasonable efforts to rent it out burden of proof on T LL offers or shows the apartment to prospective tenants LL advertises the apartment Mandatory rule - must mitigate damages; cannot contract around it (most jurisdictions) Default rule - can negotiate around mitigation requirements If LL fails to mitigate: No rent recovered after default or abandonment, OR LL can recover the difference between the agreed rent and avoidable loss for the remainder of the term - This figure is the same also if LL does mitigate but can't rent out the property at the full rental value Benefits Allows for efficient use of the land (encourages physical and economic use) Helps prevent property damage (possibility of damage through accident or vandalism is increased if the property is unoccupied)

LL remedies - pg 479 Rent and damages Can sue for back rent and damages caused by the T's breach T still in possession but not paying Uncommunicated abandonment of which the LL has no notice - can get rent from between when T abandoned and when LL discovered it If T in possession, LL may terminate lease and recover possession (judicial ejectment or summary proceedings) Anticipatory breach Most jurisdictions don't allow it Some allow it by statute (i.e. California) Can recover back rent and damages PLUS repudiation (all of the rent for the rest of the term) if allowed, and if LL can show T has repudiated the contract - Duty to mitigate can limit this - In other jurisdictions, can only receive rent for unavoidable loss Security devices Security deposit Protect LL in case of default in rent, damages to premises, or other breaches LL has to return the deposit minus any amount taken for damages at the end of the lease Limits placed (no more than 2 months rent) plus other provisions - pg 481 Other provisions LLs may call security deposits something different to avoid the restrictions on them (e.g. consideration, bonus, advance rent, liquidated damages) Rent acceleration - if T defaults, all rent for the entire term is due immediately - Accepted by most courts if in rent default (not other breaches) - LL cannot also take possession

T remedies and rights - pg 482 Implied covenant of quiet enjoyment (ICQE) - pg 490 Implied in every lease T has a right to undisturbed use and enjoyment of the property LL has duty to restrict behavior of other tenants or can be found liable for breach of ICQE Theories under the law by jurisdiction for breach of ICQE Constructive eviction - pg 489 If ICQE is breached by LL, and the disturbance is substantial enough to amount to eviction, T can abandon the premises as if they were evicted Must depart within a reasonable time

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Must depart within a reasonable time T would not owe future rent (still liable for any back rent or damages) T must prove that something is substantially violated (pg 486) e.g.: - Failure to provide heat when it's cold - Sewer problems (blockage etc) - Something rendered in the lease - Something provided by statute or ordinance Has to be a "permanent" condition OR recurring (<-- sufficient to show permanence) Dependant covenants Can abandon (but not under CE) if the breach does not rise to the level of "substantial" Major breaches Very gray area/fine line that is determined by jurisdiction Lesser breach Can stay and sue for compensatory damages (usually monetary) Still have to pay rent Partial eviction No such thing as partial constructive eviction Partial actual eviction relieves T of rent liability

Illegal leases - pg 492 A lease made in a building that is not up to code at the time of contracting at which LL is on notice of is unenforceable and leads to rescission and reformation Does not apply if code violations happen after the lease is made Minor violations do not apply Violations that the LL does not know about and is not given notice about do not apply T under illegal lease is a T at sufferance LL entitled to rent value of the premises in its current condition Disfavored theory Implied warranty of habitability (IWH) - pg 493 Applies to residential dwellings only Doesn't apply to commercial buildings because you don't live there LL will deliver over and maintain premises that are clean, safe, fit for human habitation Covers both latent and patent defects Cannot be waived by any written provision in the lease or an oral agreement Must be considered uninhabitable by a reasonable person T must show that they notified LL and allowed a reasonable time for its correction Only ACTUAL knowledge of LL required (no "should have known" standard) Damages - pg 501 Difference between value of the dwelling as warranted and in its defective condition T's discomfort and annoyance from the breach Punitive damages Generally not recoverable under breach of contract BUT can be awarded is the breach is willful and wanton or fraudulent in nature T remedies T could also just stay, pay rent at the full amount, and sue for damages T could also withhold rent - Must show that the LL had notice of the defect and didn't fix it in reasonable time - Must show that the defect existed for the time that rent was withheld - Must pay rent again after LL corrects the defect - Defense that is allowed to be raised in summary eviction actions - T would owe back rent at the reduced amount of rent determined by court If T fixes the defect at their own expense AFTER notifying LL and a reasonable time has past without it being fixed, then the T can deduct that amount form their rent T could also terminate the lease and sue for damages (same as ICQE) Retaliatory eviction If LL terminates lease, increases rent, or decrease services within 90-180 days after T makes a good faith complaint LL has the burden to rebut within this time frame After the time frame, T bears the burden of proof LL tort liability

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LL tort liability Duty to disclose latent defects when they existed at beginning of lease, LL knew or should have known, defect was not apparent on reasonable inspection by T LL duties to avoid tort liability Keep short term furnished leases habitable Must disclose latent defects Undertake repairs with care Abstain from fraudulent misrepresentations Maintain common areas

Tenant duties Law of waste - T has a duty not to commit waste T causes damage by voluntary acts T causes involuntary/permissive waste by knowing there's an issue and not doing anything about it Common law - implied duty at CL to make minor repairs Modern - LL in best position to maintain the property Fair wear and tear excepted

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