Real Property 5: Landlord Tenant Law

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  1. What are the FOUR leasehold (a.k.a. nonfreehold) estates?
    1. Tenancy for Years (a.k.a. Estate for Years, Term of Years)

    2. Periodic Tenancy

    3. Tenancy at Will

    4. Tenancy at Sufferance
  2. What is a TENANCY FOR YEARS?
    A lease for a fixed period of time. No notice is needed to terminate the lease (it will happen at the end of the time period stated).
  3. A tenancy of years for a period greater than __________ must be in writing to be enforceable.
    One year (statute of frauds)
  4. What is a PERIODIC TENANCY?
    A lease which continues for SUCCESSIVE intervals until landlord or tenant gives proper notice to terminate
  5. How may a PERIODIC TENANCY be created?
    • Expressly
    • "L conveys to T from week to week."


    1. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals (e.g., month-to-month rental of apartment)

    2. An oral term of years in violation of the statute of frauds. An implied periodic tenancy is created and measured by the way rent is tendered.

    3. Holdover. In a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease. An implied period tenancy is created and measured by the way rent is now tendered.

    NY: The L who elects to holdover a T creates an implied MONTH-TO-MONTH periodic tenancy, unless otherwise agreed.
  6. How can a PERIODIC TENANCY be terminated?
    Notice, usually written, must be given.

    The notice must be AT LEAST EQUAL to the length of the period itself, unless otherwise agreed.

    Note: By private agreement, the parties may lengthen or shorten the common-law prescribed notice provision.

    Note: The periodic tenancy must end at the conclusion of a NATURAL lease period.
  7. What is a TENANCY AT WILL?
    a tenancy for NO FIXED duration
  8. How is a TENANCY AT WILL created?
    The parties must EXPRESSLY agree.

    Without an express agreement, the payment of regular rent will cause a court to treat it as an implied periodic tenancy.
  9. How may a TENANCY AT WILL be terminated?
    By either party at any time, BUT a reasonable demand to vacate is usually required.

    NY: The L terminating a tenancy at will must give a MINIMUM of 30 days WRITTEN NOTICE of termination.
  10. How is a TENANCY AT SUFFERENCE created?
    When T has wrongfully heldover past the expiration of the lease.

    We give T (the wrongdoer) this leasehold estate to permit L to recover rent.
  11. How long does a TENANCY AT SUFFERANCE last?
    Only until L either EVICTS T or elects to hold T to a NEW tenancy.

    NY: L's acceptance of rent subsequent to the expiraton of the term will create an implied month-to-month period tenancy, unless otherwise agreed.
  12. What are THREE duties of the tenant?
    1. Liability to third parties

    2. Duty to repair

    3. Duty to pay rent
  13. What is T's liability to third parties?
    T is responsible for keeping the premises in GOOD REPAIR.

    T is liable for injuries sustained by third parties T INVITED, even where L expressly promised to make all repairs.
  14. What is T's DUTY TO REPAIR when the lease is silent?
    T must MAINTAIN the premises and make ORDINARY REPAIRS.

    T must not commit WASTE (remember 3 species of waste!)
  15. What is the LAW OF FIXTURES?
    When a tenant removes a fixture, he commits VOLUNTARY WASTE.

    Fixtures PASS with ownership of the land: T must NOT remove a fixture, no matter than she installed it.
  16. What is a FIXTURE?
    A once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty.

    e.g., heating systems, custom storm windows, furnace, certain lighting installations
  17. How can you determine whether a tenant installation qualifies as a fixture?
    1. Express agreement controls (any agreement between L and T on point is binding)

    2. In the absence of agreement, T may remove a chattel that she has installed so long as removal does NOT cause SUBSTANTIAL HARM to the premises. If removal will cause substantial damage, then in objective judgment T has shown the INTENT to install a fixture.
  18. What is T's DUTY TO REPAIR when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease?
    • Historically
    • T was liable for ANY LOSS to the premises, including loss due to Force of Nature.

    • Today (majority view)
    • T may terminate the lease if the premises are destroyed without T's fault.

    • NY
    • Absent T's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of the T, T may quit the premises and surrender possession without any further duty to pay rent.
  19. What results when T breaches the DUTY TO PAY RENT and is in POSSESSION of the premises?
    The landlord's only options are to EVICT through the COURTS or continue the relationship and SUE for rent due.

    If L moves to evict, she is still entitled to rent from T until T (now at sufferance) vacates.
  20. What can L NOT do when T breaches the duty to pay rent and is still in possession of the premises?
    L must NOT engage in SELF HELP (punishable civilly and criminally).

    This includes changing the locks, forcibly removing T, and removing any of T's possessions.

    NY: Self-help entitles T to TREBLE DAMAGES.
  21. What are L's options when T breaches duty to pay rent but is OUT of possession?

    Surrender: L could choose to treat T's abandonment as an implicit offer of surrender, which L accepts. If the unexpired term is greater than one year, surrender must be in writing to satisfy the statute of frauds.

    Ignore: the abandonment. Hold T responsible for the unpaid rent just as if T were still there. Available only in a minority of states.

    Re-let: the premises on T's behalf. Hold T liable for any deficiency.
  22. Does L have to re-let the premises on behalf of a T that breaches his duty to pay rent and vacates the premises?
    Majority Rule: L must at least TRY to re-let (mitigation principle).

    NY: Generally, L is not required to mitigate damages when T abandons the premises.
  23. What are the DUTIES of the landlord?
    1. Duty to deliver possession

    2. Implied covenant of quiet enjoyment

    3. Implied warranty of habitability
    Majority ("English") Rule: L must put T in PHYSICAL possession of the premises. (Thus, if a prior holdover T is still in possession of the premises at the start of T's lease, L has breached and the new T gets damages.)

    Minority ("American" ) Rule: L is not obligated to put T in physical possession. Only LEGAL possession is required.
    T has a right to quiet use and enjoyment of the premises without interference from L.

    This applies both to residential AND commercial leases.
  26. What are TWO ways in which the implied covenant of quiet enjoyment can be breached?
    1. Breach by actual wrongful eviction: when L wrongfully evicts T or excludes T from the premises.

  27. What are the THREE elements necessary to demonstrate a CONSTRUCTIVE EVICTION under an implied covenant of quiet enjoyment?

    Substantial Interference: due to L's actions or failure to act (a chronic problem, such as a leaky roof)

    Notice: T must notify L of the problem and L must fail to act meaningfully

    Goodbye: T must VACATE within a reasonable time after L fails to fix the problem
  28. Is L liable for acts of other tenants in the context of the implied covenant of quiet enjoyment?

    • Exceptions:
    • 1. L must not permit a NUISANCE on site
    • 2. L must control COMMON AREAS
  29. What is the standard for the IMPLIED WARRANTY OF HABITABILITY?
    Premises must be fit for basic human habitation. Bare living requirements must be met.

    The standard may be uspplied by local housing code or case law.

    It applies ONLY to residential leases.

  30. What are T's entitlements when the implied warranty of habitability has been breached?

    Move out and end the lease (But T doesn't HAVE to)

    Repair and deduct (reasonable repairs - allowable by statute in certain jurisdictions)

    Reduce rent (or without all rent until the court determines fair rental value. Typically, T must place withheld rent into an escrow account to show GOOD FAITH.)

    Remain in possession, pay rent and affirmatively seek money damages.
    If T lawfully reports L for housing code violations, L is barred from penalizing T.

    Examples of penalty: raising rent; ending the lease, harrassing T or any other reprisals.
  32. What is an ASSIGNMENT?
    A transference of T's interest in whole of a lease.
  33. What is a SUBLEASE?
    A transference of T's interest in part of a lease.
  34. What is the rule governing ASSIGNMENTS and SUBLEASES?
    In the absence of some prohibition in the lease, T may freely transfer in an assignment or in a sublease.

    In the lease, L may prohibit T from assigning or subletting without L's prior written approval.

    However, once L consents to ONE transfer by T, L WAIVES the righ tto object to future transfers by T, unless L EXPRESSLY RESERVES that right.

    NY: Unless the lease provides otherwise, a residential T may NOT ASSIGN without L's consent. L CAN UNREASONABLY withhold consent to assign.

    NY: By contrast, T in a residential building having four or more units has the RIGHT TO SUBLEASE subject to L's WRITTEN CONSENT. Consent CANNOT be unreasonably withheld (deemed "consent" when unreasonably withheld).
  35. What is the relationship between L and a sublessess?
    L and sublessess are in NEITHER privity of estate NOR privity of contract. They share NO NEXUS.

    However, the relationship between L and T1 (sublessor) remanis intact. Furthermore, T2 (sublessee) is liable to T1 (sublessor) and vice versa.
  36. What is the landlord's TORT LIABILITY at common law?
    Tenant beware. L is under NO DUTY to make the premises safe.

    EXCEPTIONS (claps):

    Common areas: L must maintain all common areas

    Latent defects: L must WARN T of hidden defects that L KNOWS about or SHOULD know about (duty to WARN, not a duty to repair!)

    Assumption of repairs: L who volunteers to make repairs must complete them with REASONABLE care

    Public use: L who leases public space (convention hall or museum) and should know that T will not repair (because of nature of defect and length of lease) is LIABLE for any defects on the premises

    Short term lease of furnished dwelling: L is liable for ANY defects on site
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Real Property 5: Landlord Tenant Law
2011-07-12 14:48:30
NY Bar Exam Handout

MBE Real Property Landlord Tenant Law
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