Priscilla Bullitt

ASP Hypo Practice

Class: Property
Date: January 14, 2015
Time Started: 2:42
Time Finished: 3:59
Book used: Emanuel Crunchtime on Property
Question number: Question One
Landlord rented a furnished apartment in his building to Tenant, a law student, for
two years, beginning June 1. When Tenant arrived at the apartment on June 1, Ralph
(the prior tenant) was still there. Tenant complained to Landlord and Landlord was
able to evict Ralph on June 15. Tenant went into possession of the apartment on
June 16. During early July, some children playing baseball broke a windowpane in
Tenants apartment. Tenant demanded that Landlord replace the windowpane, but
landlord refused. Rain, which subsequently came through the broken pane, caused
damage to the living room floor, which began to warp.
The apartment above tenants was occupied by Charlie, a member of a famous rock
group ( The Charles River). The daily rehearsals ( typically 2-6 pm) of this group
interfered with the Tenants law studies so much that he complained repeatedly to
landlord. On July 15, three of Charlies friends (the other members of charlies band)
were arrested at Charlies apartment and charged with possession of narcotics. The
noise stopped immediately thereafter.
On August 30, Tenant discovered that the stove in his apartment was no longer
functioning. On August 31, Tenant, disgusted with all these events, knocked on
Landlords door, tendered the key to landlord, and said This place is a zoo; I
wouldnt live here if you paid me! Landlord took the key without saying a word.
Landlord now comes to you wanting to sue tenant for the accrued (Tenant has yet to
pay any rent) and prospective rent. What would you advise landlord? Discuss.
Answer
The lease set up between Landlord and Tenant is an estate for years, for the fixed
period of time of two years to terminate at that point. An estate for years varies
from a periodic tenancy in that periodic tenancies automatically renew whereas in
an estate for years no additional notice needs to be given at the end of the lease.
However, because the Tenant terminated two months into a two year lease, it isnt
that simple.
Ignoring for a moment the issues of warranty of habitability and the landlord and
tenants duties under the lease, lets consider first the tenants abandonment of
lease.

Assuming there were no excuses for Tenant abandoning the premises (warranty of
habitability, etc), if a tenant abandons the premises and defaults on the rent before
the scheduled end of the lease, the landlord has three basic options.
Landlord can accept the tenants abandonment as a surrender, which would
terminate the lease. This would best benefit the Tenant, as no further rent would
become due. If landlord takes possession and/or releases the property without
informing the tenant that he is acting on his behalf, this may constitute acceptance
of Tenants abandonment. Although the Landlord is not moving back in or releasing
the apartment under our facts, he did accept the return of the key from Tenant. It
can be argued either way whether this is acceptance of Tenants abandonment.
Landlord could re-lease the apartment on Tenants behalf. This has the best possible
outcome for Landlord as the Tenant remains liable for all rent coming due until a
new tenant is found, and in the event the new tenant pays a lesser amount, Tenant
would be responsible for the difference under Tenants original lease.
The simplest scenario would be to leave the premises vacant and still hold the
Tenant responsible for rent as it comes due, however courts are split on whether this
is permissible. An increasing number of courts are finding a duty to mitigate
damages, in which case Landlord would be obligated to attempt to find a suitable
replacement or Tenant would not be held responsible.
Assuming there were no excuses for Tenant abandoning, I would recommend that
the Landlord begin looking for a new tenant immediately so as to mitigate damages.
This way, if the acceptance of the apartment key is not deemed an acceptance of
the surrender, he can claim that he was re-leasing the apartment on the tenants
behalf and that the tenant is responsible for the rent between the time of
abandonment and the finding of a new tenant, as well as the difference in rent, if
there is one. If the acceptance of the key is an acceptance of the tenants surrender
(which would mean the lease is terminated) it would still certainly benefit the
landlord to find a new tenant as soon as possible and sue tenant on the past due
rent for those two months.
However there may be excuses for tenants abandonment, which must be
considered.
The tenants lease was set to begin June 1 st, however a prior tenant was still in the
unit and as such Tenant did not take possession until June 16 th. Under the English
rule, Tenant has two options if the prior tenant holds over. Tenant may terminate the
lease (which he did not do in this case) or may continue the lease and get damages
for the period until the prior tenant is removed. With this in mind, at most the
Landlord will recover damages from June 16th through August 31, when the Tenant
surrendered the key. As discussed above, it is a secondary issue whether Landlord
can recover for ongoing rent.

Beyond the initial delay in the lease term, Tenant complained frequently as to noise
and condition of the premises. Tenant has the right of quiet enjoyment of the
premises. Under a traditional view, the landlord is not responsible for the acts of
other tenants unless their actions are immoral or lewd, or conducted in common
areas. Thus under a traditional view, the landlord likely would not be responsible for
the noise made by the band, but he may be responsible for not evicting Charlie for
the illicit drug use in the apartment. The modern rule however, takes it further,
holding Landlord responsible for acts of other tenants that are in violation of other
leases. Assuming that the excessive noise was a violation of Charlies lease which
could have been addressed by Landlord evicting Charlie or taking some other
action, the Landlord may be responsible. The modern rule is that Tenant can then
terminate the lease.
In regards to the broken window, the modern implied warranty of habitability comes
into play. This is to say that when Landlord leases residential premises, he impliedly
warrants that the premises are in a good enough condition to be lived in. The
implied warranty of habitability generally cannot be waived.
The tenant generally has three options when they can show a breach of implied
warranty of habitability: Terminating lease and vacating the premises, withholding
rent until the defects have been cured, or using the rent for repairs. It could be
argued that the Tenant chose to withhold the rent after informing Landlord of the
broken window and he refused to make the repairs. It could be argued that
ultimately the tenant chose to vacate and terminate the lease as the repairs were
not being made.
However, to prove uninhabitability, Tenant must show that the conditions are a
substantial threat to health or safety. A broken window alone, without the flooding
that resulted, may not be a threat to health. Had the Tenant excercised the option to
withhold rent to repair the window (after first informing the landlord of an intention
to do so, so that he had an opportunity to fix it himself) the resulting flooding and
warping of the floor may not have been an issue.
Ultimately, there are valid arguments under warranty of habitability for Tenant
terminating the lease early. The best advice to Landlord would be for him to
immediately begin looking for a new tenant so as to mitigate the damages. He may
be able to sue for the past due rent, however with the noise issues, the other
tenants use of narcotics, and the broken window which eventually led to flooding
and unsafe conditions, the tenant may be justified in withholding rent. The landlord
may even be able to sue for ongoing rent through the end of the original lease term,
but his safest bet is still to seek another tenant so as to mitigate damages, and sue
only for the difference in rent.