MBE Real Property - Landlord Tenant

Estate created & governed by a lease signed between the parties.

Types:

Tenancy for years;

Periodic tenancy;

Tenancy at will; and

Tenancy at sufferance

Tenancy with a fixed starting and ending date.

Also called a “term for years,” “fixed term tenancy,” or “estate for years”

If the lease is longer than one year, must be in writing to satisfy the SOF

Automatically at the end of the fixed period or end date

Automatically renews at the end of the period with no set end date (e.g. month-to-month lease)

Express agreement;

Implication; or

No explicit end date in agreement

Operation of law

Holdover tenant

Invalid lease

Someone who overstays their lease without the landlord’s consent. Also called a tenant-at-sufferance.

Refuse to accept payment from holdover tenant (tenant becomes tenant-in-sufferance and landlord can evict); or

Bind the tenant to a periodic tenancy by either:

Accepting rent; or

Giving notice to holdover tenant

Periodic tenancy is created for that payment period

Yes, as long as the landlord gave notice to the tenant before the original lease expired.

No, landlord cannot impose periodic tenancy

One year

Give notice by words or conduct a full period in advance (e.g. if month-to-month, must give one month’s notice). If period is one year, then six months notice is required.

Termination is effective on the last day of the period.

Tenancy with no specific term that can be terminated at any time by either party.

Created by express agreement (if no express agreement, court will imply a period tenancy)

At any time, either by:

Advance notice by either party (typically required but not always); or

By operation of law upon:

Death of either party

Waste by tenant

Assignment by tenant

Transfer of title by landlord

Transfer of lease to a third party by landlord

Pay rent;

Not commit waste (affirmative/voluntary, ameliorative, or permissive);

May also include duty to repair in some jurisdictions/depending on agreement

Not use the premises for an illegal purpose; and

Protect third party invitees from foreseeable dangers on the premises

If it is reasonably necessary for the tenant’s continued reasonable use of the premises.

Typically need to give landlord advance notice.

Yes, to the extent reasonably necessary to maintain the premises (unless otherwise specified in the lease)

⚠️ No duty for normal wear and tear

Tenant will be liable for damages unless it was the landlord’s fault or it was significant and not the tenant’s fault (e.g. catastrophic damage due to an earthquake)

No, landlord still has ultimate duty to repair even if lease says otherwise

⚠️ Exception: no duty to repair damages caused by tenant

Structures or materials that are permanently affixed to the property and were intended pass with the land.

⭐️ To determine whether something is a fixture, ask yourself: “did the party intend for this to be a fixture?” and “how much property damage would occur if fixture was removed?” The more intent and damage, the more likely it is a fixture

Only if:

Removal will not permanently alter the premises (i.e. property can be restored to pre-fixture condition); and

It is completed in a reasonable amount of time

Landlord approval. If no approval → tenant has committed affirmative waste

No, as long as the fixtures don’t breach the lease

Continue lease & sue for damages on late rent; or

Evict tenant

Yes

Treat as surrender and retake the premises;

Ignore & hold tenant responsible for unpaid rent (minority); or

Re-lease premises (majority)

Majority: Yes, should make good faith effort to rent to other tenants and can seek damages from tenant for losses.

Minority: No, landlord can seek damages for all unpaid rent

No, only for past rent

When the landlord seeks to evict a tenant by bypassing the normal eviction process (e.g. changing locks, etc)

Generally not allowed.

Give possession;

Implied warranty of habitability; and

Covenant of quiet enjoyment

Landlords have a duty of reasonable care → can be liable for injuries:

In common areas & non-common areas if defect is hidden;

From existing defects that landlord knew of and failed to notify tenant about;

From negligent repairs made by landlord; and

From failure to make repairs required by housing code

Majority: Landlord must deliver legal + actual, physical possession

Minority: Landlord need only deliver legal possession (right of possession)

Covenants that tenant has right to quiet use and enjoyment of the premises, without interference from landlord

Actual eviction; or

Constructive eviction

Physically excluding tenant from all or part of the premises

Landlord's actions are incompatible with the tenant's quiet use and enjoyment

Substantial interference caused by a landlord's act or omission, i.e. chronic and severe problems (e.g. broken pipes, leaky roof);

Notice: landlord fails to correct problem within reasonable time after being given notice; and

Vacate: tenant vacates property within a reasonable period of time after landlord fails to repair

Landlord

Warrants that residential premises meet the basic standard of living

Examples:

Heat in winter

Running water

Plumbing

No, only residential

Local housing code or case law

Move out & terminate the lease;

Repair & deduct;

Withhold rent (can either reduce or withhold entirely until court determines fair rental value; must be placed into escrow account); or

Remain & sue for damages

No, can never be waived or modified in the lease

Landlord cannot retaliate against a tenant who reports housing code violations (e.g. cannot evict, refuse to renew a periodic tenancy, or raise tenant's rent)

Transfer of the entire lease to new tenant (assignee)

Assignee is in privity with landlord and liable for all rent owed to the landlord

Transfer of only part of the lease term to the subleasee

Subleasee is in not privity with the landlord and thus is liable to the subleasor only.

No, unless expressly stated

Yes, unless otherwise specified in the lease

Only when commercially reasonable

Prohibition is considered waived

If partial (tenant still has partial use of the property) or temporary: Yes, but tenant is entitled to compensation for dispossession from condemnation

If full condemnation: No