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CHAPTER 34 LANDLORD AND TENANT Outline I. Nature of leases. A. A lease is a contract for possession of property. A tenancy may be fixed, periodic, at will, or at sufferance. Example: Schultz v. Wurdlow: A tenancy at will was created where there was no valid written lease but the tenant took possession of the property. II. Rights and duties of the landlord. A. The landlord impliedly warrants that the tenant will have quiet possession; in most states, a residential lease also carries with it an implied warranty of quality or habitability. Example: Solow v. Wellner: The court held that conditions in the apartment building constituted a breach of the implied warranty of habitability. B. Housing codes and other legislation may impose other duties on the owner of leased property. C. Landlord's liability for injuries: a number of courts impose on landlords the duty to reasonable care in maintenance of leased property. Example: Howard v. Horn: The landlord was not liable for injuries sustained by tenant where landlord was unaware of latent defect in premises causing injury to tenant. D. A landlord may be liable for negligently failing to protect a tenant from the criminal acts of third parties. Example: Morgan v. 253 East Delaware Condominium Association: The court held that Association had not breached a duty to plaintiff who was attacked by gunman. III. Rights and duties of tenant. A. Tenant has the right of possession and duty to pay rent and not to commit waste. B. The lease may generally be assigned; a subleasing occurs when the tenant transfers less than complete rights to possession to a third person. IV. Assignment and subleasing: Assignment occurs when the landlord or tenant transfers all rights under the lease to another. Subleasing occurs when the tenant transfers some but not all of his right to possess the property to another. V. Termination. A. Constructive eviction occurs when a tenant vacates after giving the landlord a reasonable opportunity to cure a defect and he fails to do so. Example: Weingarden v. Eagle Ridge Condominiums: A wet basement was sufficient to create constructive eviction of the tenant. B. Today, many states require the landlord to attempt to mitigate damages if the tenant abandons the premises. Example: Stonehedge Square Limited Partnership v. Movie Merchants, Inc.: A tenant may not avoid paying rent by leaving the property and sending the landord the key. C. The landlord should be careful to comply with all applicable laws governing evictions. 34-1 Learning Objectives 1. You should understand when leases have to be in writing and when oral leases are effective. 2. You should understand the rights, duties, and liabilities of the landlord and tenant as a result of a lease agreement. 3. You should know the meaning of the implied warranty of habitability. 4. You should understand the circumstances under which a landlord may be liable for failing to protect tenants against criminal conduct of third parties. 5. You should understand the difference between an assignment and sublease. 6. You should know the difference between a periodic tenancy, a tenancy at will, a lease for a definite period of time, and a tenancy at sufferance. 7. You should know when a landlord is liable for injuries caused by dangerous conditions on the leased premises. 8. You should know the different ways in which a tenancy can be terminated. Learning Hints 1. A lease is a contract, and thus is subject to the requirements of the statute of frauds. Generally, an oral short-term lease is enforceable. 2. As in the case of contract law in general, there has been an erosion of the traditional doctrine of "caveat emptor" in landlord-tenant disputes. Today, many courts and legislation protect tenants by imposing upon the landlord an implied warranty of habitability in leased premises. Further, many states regulate by statute provisions for lease termination and other lease provisions. 3. In leasing real property, a landlord and tenant will often agree that the tenancy is to last for a specified period of time. For example, a student signs a lease for nine months on an apartment in a college town. The lease will automatically expire at the end of the period specified in the lease. Also, neither party, acting alone, can terminate the tenancy during the lease period. 4. In other situations, the parties do not specify how long the tenancy will last, but they agree that the tenant is to pay rent at regular intervals of time: monthly, weekly, or even yearly. These are called periodic tenancies. They continue until one of the parties gives advance notice to the other party that he or she wants to terminate the tenancy. 5. If the landlord agrees that someone else may live on or otherwise possess the landlord's property but the parties do not have an understanding about how long the tenancy will last or at what intervals the tenant is to pay rent, a tenancy at will exists. For example, a father permits his son and his son's wife to live in the apartment above the father's garage. Such tenancies last until they are terminated by either party. Most states require the landlord to give some advance notice of termination. 6. A tenant who has retained possession of the leased property after his lease has expired is called a tenant at sufferance. For example, George signs a 9-month lease on an apartment until May 10. George does not move out on May 10, however, and stays in possession. George's landlord has two choices now. He can treat George as a trespasser and evict him, or he can accept rent from George and treat George as a periodic tenant or a tenant for a specified term. In the period between the time George holds over and the time the landlord takes action (either rejecting or accepting George as a continued tenant), George is a tenant at sufferance. 7. Although a tenant may often assign or sublease leased property, assignment or subleasing does not permit the tenant to escape his legal obligations under the lease. If the subtenant does not pay rent during the period covered by the lease, for example, the landlord can go after the tenant for payment. 34-2 8. A tenant who abandons leased property (moves out before the lease term has elapsed) breaches his legal obligations to the landlord. The tenant cannot escape the obligation to pay rent merely by moving out. However, many states now place the obligation on the landlord to make reasonable efforts to re-rent the property. 9. Constructive eviction is a doctrine that developed in the days when tenants had no legal protection with respect to the quality and safety of the leased property. If the leased premises (generally residential premises) became uninhabitable because of the landlord's act or failure to act, the tenant could move out without incurring liability for rent for the remainder of the lease term. The idea was that he had been forced to leave by the condition of the property. For the doctrine to apply, there must be some serious defect in the property such as rodent infestation or inoperative plumbing--a Jacuzzi on the blink would not be enough. After giving the landlord a reasonable opportunity to fix the problem, the tenant must move out within a reasonable time in order to claim constructive eviction. True-False In the blank provided, put "T" if the statement is True or "F" if the statement is False. _____ 1. Today a landlord is more likely to be responsible for injuries caused to a tenant by a defect in the premises than in the past. _____ 2. A lease must be for a fixed period of time. _____ 3. In a tenancy at will, either party may terminate the tenancy at their option. _____ 4. In most states, a lease for less than one year must be in writing to be enforceable. _____ 5. The landlord retains the right of possession in a lease agreement. _____ 6. A lease can be created without an explicit agreement between landlord and tenant as to how long the lease will last. _____ 7. A landlord is liable for all injuries suffered on leased premises. _____ 8. Constructive eviction occurs when a landlord ejects a tenant for nonpayment of rent. _____ 9. The tenants are responsible for keeping the common areas in repair and in a safe condition for tenants and visitors to the property. _____ 10. The implied warranty of habitability means that the tenant has the obligation to return the property to the landlord at the end of the lease in the same condition in which it was rented, normal wear and tear excepted. Multiple Choice Circle the best answer. 1. The implied warranty of quiet possession: a. Means that a landlord warrants the condition of leased premises; b. means that the landlord impliedly warrants the quality of leased premises; c. means that the landlord has no right to enter the premises during the term of the lease; d. means that the landlord may evict tenants who do not pay rent as agreed. 2. An agreement to lease premises for one year is called: a. a tenancy at will; b. tenancy at sufferance; c. tenancy at term; d. constructive tenancy. 34-3 3. Which of the following statements concerning a tenant's rights is correct? a. The tenant generally has no right to exclusive possession of the leased premises; b. The tenant generally has the right of quiet enjoyment of the property during the term of the lease; c. The tenant never has the right to sublease the premises; d. The tenant is generally not liable to persons injured on the premises over which the tenant has control. 4. If a tenant transfers all of her rights under a lease to a third person, this is called: a. a novation; b. a sublease; c. an assignment; d. constructive eviction. 5. Which of the following statements concerning housing codes is not correct? a. Many cities and states have enacted housing codes that can be the basis of a lawsuit for a landlord's breach of duty under the code; b. Failure to comply with a housing code can result in the landlord's loss of rent; c. Landlords may be subject to fines or penalties for breach of housing code provisions; d. Housing code provisions are only effective if included in the terms of the lease agreement. 6. Assume a tenant abandons the leased premises before the lease term expires. Under these circumstances: a. the tenant is relieved of any obligation to pay rent; b. the tenant is relieved of obligation to pay rent if the landlord accepts the surrender; c. the landlord has no duty to mitigate damages; d. the landlord cannot rent the apartment to another tenant until the lease term expires. 7. Which of the following would create a periodic tenancy? a. A lease for a period of 9 months, from August 1, 1990 to May 1, 1991 b. Rental of a furnished apartment on a weekly basis c. A tenant stays in possession after the expiration of a one-year lease and Landlord elects to treat him as a trespasser d. A father allows his son and daughter-in-law to live in a cabin on his land indefinitely, without any agreement about paying rent or the length of time that they will remain there 8. Which of the following is true with respect to the implied warranty of habitability? a. It exists in every lease of real property for commercial use; b. It guarantees that property leased for residential use will be in habitable condition; c. If the warranty is breached, the tenant may be able to obtain a rent abatement reflecting the decreased value of the property; d. Two of the above are true concerning this warranty. 9. Which of the following is necessary for constructive eviction? a. The premises become uninhabitable because of acts of the landlord; b. The tenant must give the landlord a reasonable opportunity to correct the defect; c. The tenant must vacate the premises within a reasonable amount of time; d. All of the above are necessary for constructive eviction. 34-4 10. Which of the following is a true statement about the legal responsibilities of landlords? a. A landlord is liable for all injuries that occur on the property he has leased to a tenant for residential purposes; b. A landlord cannot be liable for trespass for entering leased premises without the tenant's permission because he owns the property; c. In many states, a landlord who leases residential property impliedly warrants that the leased premises will be fit for human habitation; d. Landlords have not yet been found liable for failure to protect their tenants from the foreseeable criminal conduct of third persons. Short Essay 1. Delbert rented an apartment for one year from Property Plus and paid a $250 deposit. At the end of the year, Property Plus refused to return the deposit because it maintained that Delbert ruined the wallpaper in the apartment by printing the words "Delbert loves Millie" all over the walls. If it will cost $500 to replace the wallpaper, may Property Plus apply the security deposit to this cost? 2. Don rents an apartment near campus. He pays his rent on the first of each month. He and the landlord have no explicit agreement about the duration of the lease. What kind of tenancy is this? If Don wanted to move out, what would he have to do? 3. Adam leased an apartment from Phillips for a period of one year beginning April 1, 1983. On April 30, 1983, Phillips entered the apartment using a passkey while Adam was at work so that he could see whether Adam was keeping the apartment clean. Adam came home from work and found Phillips in the apartment. Does Adam have a suit against Phillips? Why or why not? 34-5 4. Horizon Properties, Inc. owns a large apartment complex in University City. On January 31, University City experienced heavy snowfall. Horizon cleared most of its walks, driveways and parking lots, but neglected to take any action to remove ice and snow in the parking lot and driveway leading to one of its buildings, X building. That night, Mrs. Smith happened to visit her son, who lives in X building. As she exited her car, which was parked in the lot outside of X building, she slipped on an icy patch that was hidden beneath the snow and fell, injuring her back severely. Mrs. Smith files suit against Horizon. Discuss Horizon's possible liability. 5. Judy rented an apartment for one year, with rent of $500 payable on the first of each month. Two months after renting the apartment, she discovered the apartment was infested with snakes. She notified the landlord, who has done nothing to correct the problem. What are her rights in this situation? 6. Ron visited his friend Mike at Mike's apartment. Ron slipped and fell on the stairway leading to Mike's apartment because the stair was broken. Who, if anyone, is liable to Ron for his damages under these circumstances? 34-6
"Landlords and Tenant"