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Landlord/Tenant Law

With its origins in the common law, landlord/tenant law once favored landlords. After reforms during the 1970s, however, tenants are now offered more protection.

 

Leasehold Estates

A leasehold estate is an interest that allows a tenant possession of land for a period agreed upon by the landlord and tenant. There are four main categories of leasehold estates, differentiated primarily by duration. Most landlord/tenant agreements today involve a term of years or a periodic tenancy.

  1. Term of years

    1. A term of years is also known as a tenancy for years or an estate for years.

    2. The lease is for a fixed, determinable period.

    3. Since the termination date is known from the start, notice of termination is unnecessary.

      • Example: Leon and Tina agree that Tina can lease Blueacre for 10 years, with the lease ending at midnight on May 31, 2015. The lease will end automatically at that time, without notice.

  2. Periodic tenancy

    1. The periodic tenancy has an initial fixed period and then continues for successive intervals until the landlord or tenant give notice to terminate the tenancy.

    2. A periodic tenancy can be created by express terms or by implication based on the parties’ conduct.

    3. At common law, notice of termination had to be given in advance in an amount of time equal to the period involved, or six months if a year-to-year tenancy was involved.

      • Example: Leon and Tina enter into a week-to-week lease of Blackacre. The initial lease period is one week but automatically continues each week. The periodic tenancy will not end until Leon or Tina gives notice.

  3. Tenancy at will

    1. A tenancy at will has no fixed period of duration.

    2. A court will imply tenancy at will if there is no agreement as to duration and payment of rent.

    3. A tenancy at will can be terminated by either party at any time.

      • Example: Tina has Leon’s permission to occupy Goldacre, but they do not have an agreement regarding duration or payment of rent. A tenancy at will is implied.

  4. Tenancy at sufferance

    1. A tenancy at sufferance is created when a tenant wrongfully holds over after once having rightful possession.

    2. The duration of a tenancy at will is until the landlord evicts the tenant or holds the tenant to a new term.

    3. The landlord may evict the tenant and recover past rent.

      • Example: Tina and Leon agreed on a term of years tenancy for five years, which terminates automatically on June 1, 2005. Tina continues to stay on the premises after that date, refusing to pay rent. This is a tenancy at sufferance. Leon can either evict Tina or hold her to a new term.

 
 

Tenant’s Duties

  1. Liability to third parties

    1. In some states, the tenant may be liable for injury to invited third parties even if the landlord promised to make a repair.

    2. Other states allow the invited third party to maintain a cause of action against the landlord if the landlord had written notice of the problem.

  2. Duty to repair

    1. If the lease is silent with regard to repairs, the tenant has a duty to keep the premises in reasonably good repair and not to commit waste.

    2. If the lease expressly covenants that the tenant is to maintain the premises in good condition, the tenant is responsible for any loss or destruction.

    3. The tenant may terminate the premises if it is destroyed and the tenant is not at fault.

  3. Duty to pay rent

    1. If the tenant breaches while in possession:

      1. The landlord may evict the tenant or continue the relationship and sue for back rent.

      2. The landlord may not engage in self-help by changing the locks, forcibly removing the tenant or the tenant’s possessions.

    2. If the tenant breaches out of possession by leaving before the lease is up:

      1. The landlord can accept the abandonment, which the tenant demonstrates by words or action.

      2. The landlord can ignore the abandonment and hold the tenant responsible for the unpaid rent.

      3. The landlord can lease the premises and hold the tenant responsible for any deficiency.

 
 

Landlord’s Duties

  1. Duty to deliver possession

    1. The landlord must put the tenant in actual physical possession.

    2. If a prior tenant holds over, the new tenant is entitled to damages.

  2. Implied covenant of quiet enjoyment

    1. The implied convenant of quiet enjoyment applies to both commercial and resident property.

    2. The landlord has a duty not to permit nuisance and must control the common areas.

    3. This convenant can be breached by actual wrongful eviction or by constructive eviction through the landlord’s action or failure to act after the tenant gives notice and the landlord fails to respond meaningfully.

  3. Implied warranty of habitability

    1. The implied warranty of habitability applies to residential property.

    2. The premises must be fit for basic human habitation. Examples of breach include no heat during the winter, no running water, or no plumbing.

    3. The tenant has the following options if the landlord is in breach:

      1. Terminate the lease

      2. Repair damages and deduct the cost from future rent

      3. Reduce or withhold the rent until a court can determine the fair rental value

      4. Remain in possession and keep rent current while seeking money damages

    4. If the tenant lawfully reports the landlord for housing violations, the landlord is barred from retaliatory eviction, raising the rent, ending the lease, or harassing the tenant.

 
 

Assignment and Sublease

An assignment occurs when a tenant transfers his entire interest in an existing lease to a third party. A sublease involves a new lease between the tenant and a third party for less than the entire interest. If a landlord or tenant assigns a lease to a third party, the third party is an assignee. If a tenant sublets to a third party, the third party is a sublessee.

  1. Consent

    1. The landlord can assign the lease to a third party without the tenant’s consent, but the tenant may need the landlord’s consent.

    2. The lease may require that the tenant have the landlord’s consent to sublease.

  2. Privity of estate

    1. Privity of estate means that the parties are bound to covenants in the original lease that run with the land.

    2. If the landlord assigns the lease, the assignee and tenant are in privity of estate.

    3. If the tenant assigns the lease, the assignee and landlord are in privity of estate. The privity of estate between the landlord and tenant dissolves.

    4. For a sublease, the tenant and landlord are in privity of estate.

  3. Privity of contract

    1. Privity of contract means that the parties are bound to each other by the terms of the contract.

    2. If the landlord assigns the lease, the landlord and tenant remain in privity of contract. The landlord and assignee are also in privity of contract, but the assignee and tenant are not in privity of contract.

    3. If the tenant assigns the lease, the landlord and tenant remain in privity of contract. The tenant and assignee also are in privity of contract, but there is no privity of contract between the landlord and the assignee.

    4. For a sublease, the tenant and landlord remain in privity of contract, and the sublessee and tenant are in privity of contract.

  4. Liability

    1. Assignment

      1. If the landlord assigned the lease, the assignee is liable to the tenant on all covenants that run with the land. The original landlord remains liable on all covenants in the lease.

      2. If the tenant assigned the lease, the assignee is liable to the landlord on all covenants that run with the land. The original tenant remains liable on all other covenants in the lease.

    2. Sublease

      1. The sublessee cannot enforce the covenants in the original lease and is not liable for them either.

      2. The tenant remains liable for all covenants in the lease and can enforce them.

Summary of Assignment and Sublease

 
  Consent   Privity of estate   Privity of contract   Liability
 
Assignment by landlord   consent by tenant not required   assignee and tenant are in privity of estate   landlord and tenant are in privity of contract; assignee and tenant are not   landlord is liable for all covenants in the lease; assignee is liable to tenant for all covenants that run with the land
 
Assignment by tenant   landlord’s consent may be required   assignee and landlord are in privity of estate   tenant and landlord are in privity of contract; assignee and landlord are not   tenant is liable for all covenants in the lease; assignee is liable to landlord for all covenants that run with the land
 
Sublease by tenant   landlord’s consent may be required   landlord and tenant are in privity of estate   landlord and tenant are in privity of contract, as are tenant and sublessee   tenant is liable for all covenants in the lease, but sublessee is not; tenant can enforc elandlord’s covenants, but sublessee cannot