Property 2 Senger Winter 2011–
Landlord Tenant Law
1. Leasehold Estates – Contract for the conveyance from Landlord to Tenant of right to possess/occupy property. Independent Covenants Rule: a breach of a covenant by one party does not excuse other party’s duty to perform.
● when tenancy is created:
○ Landlord transfers right to possession on (physical control)
○ space already exists, intended fixed location (for the duration of the lease)
● Statute of Frauds – Transfer of an interest in land for over one year must be in writing. Writing must: (1) identify the parties, (2) describe the property, (3) specify a duration, (4) state rent, and (5) be signed by party to be bound.
○ looser – sometimes oral statements and physical actions may create or destroy. in L/t, easements/servitude.
a. Term of Years – Estate with a definite and pre-determined beginning and ending date. Can last for any period – does not need to be in even year increments. Because end date is set from the start, no notice needed to terminate.
b. Periodic Tenancy – Estate with a fixed duration, renews automatically for another period unless landlord or tenant gives notice to terminate.
i. Most often created by inference from holdovers, void leases, etc. In a period of a year, 6 months notice is required to terminate. For any period less than a year, notice must be length of the period (30 days for a month period).
c. Tenancy at Will – Estate with no fixed duration that is terminable by either landlord or tenant. Terminates if either party dies or tries to transfer its interest.
i. No notice required to terminate at common law,
ii. but modern law requires 30 days notice. Normally converts into a periodic tenancy, and courts are likely to treat them as such.
d. Tenancy at Sufferance – (Holdovers) Exists when a tenant doesn’t vacate the premises after the estate ends.
i. can remedy by election
2. Discrimination in Renting
a. Shelley v. Kramer- couldnt do anything abotu discrimination so came up with next 2 statutes.
b. Civil Rights Act of 1866 (42 USC 1982)
i. “All citizens of the US shall have the same right as is enjoyed by white citizens to inherit, purchase, lease, sell, hold, and convey real and personal property.”
ii. Scope – as compared to Fair Housing Act
1. Applies to residential and commercial properties
2. Only prohibits race-based discrimination
3. No exemptions or exceptions
iii. Stating a Claim – claimant must prove that defendant intentionally or purposefully discriminated b/c of race
c. Fair Housing Act of 1968 (42 USC 3601-3619, 3631)
i. Cannot refuse to sell or rent to a qualified applicant, post an ad w/ a preference, or lie about availability
ii. Scope – compared to Civil Rights Act
1. Applies only to residential properties
2. Prohibits discrimination based on race, color, religion, sex, familial status, or national origin
3. Exceptions and Exemptions – landlords who are not subject to the restrictions in the Fair Housing Act
a. Owner Occupied Dwellings – if landlord lives in the home with the tenants
b. Single Family Houses – where owner owns no more than three such units
c. Misc. – can select based on age, sexual orientation, marital status, drug use, # of occupants
iii. Stating a Claim – claimant can prove by intent to discriminate or disparate impact
1. If claimant proves he/she is part of protected class and was rejected, burden shifts to defendant to justify
d. Affordable Housing –statutes funding state housing projects or “base rent” for low-income families. These statutes are constitutional so long as landlord gets a reasonable rate of return in rent to cover taxes, labor, etc.
i. Rent Control:
1. reduces land and resources plus increase costs
2. no ground effect
3. shelter trumps human rights- must just accomplish shelter.
3. Subleases and Assignments – transferring lease interests. Difference matters for who can be held liable.
a. Sublease – when tenant transfers a portion of tenant’s interest or retains any interest at all. Implied reversion.
i. Privity – there is no privity of contract or estate between landlord and sub-lessee.
1. Landlord can only hold original lessee liable, and original lessee can sue sub-lessee for contribution or indemnity to recover.
b. Assignment – when
lease agreement
ii. Abandonment – vacating the property before the end of the lease term does not relieve tenant of duty to pay
c. Landlord Remedies – if tenant breaches the lease agreement, ball is in landlord’s court to choose how to proceed
i. Self Help – Landlord can personally evict tenant if done peaceably and landlord legally entitled to possession. This was widely available at common law, but modern/minority view is to require court proceedings.
ii. Election – When a tenant holds over, landlord can choose how to proceed. The decision is binding.
1. Eviction – depending on duty to deliver possession, landlord or new tenant can move to evict holdover, or
2. Create a Periodic Tenancy – implied if landlord accepts rent payment from holdover beyond original term
3. Are limited to 1 year (new lease)
iii. Re-let – if tenant breaches or abandons, landlord can re-let premises to another tenant
iv. Duty to Mitigate – landlord can hold defaulting tenant liable for difference b/w rent amt in lease and re-let
1. Common law, landlord had no duty to re-let premises to mitigate damages. Landlord could leave the premises unoccupied and hold tenant liable for all the rent.
2. Modern/Majority: landlord has a duty to make reasonable efforts to re-let the premises, and the burden to prove compliance with duty. Split of authority on whether landlord can recover if efforts to re-let fail.
d. Tenant Options/Remedies
i. Surrender – offer by tenant to landlord to mutually absolve each other of obligations under the lease.
ii. Assert Constructive Eviction – Exception to independent covenants rule that allows tenant to abandon and terminate if landlord breaches covenant of quiet enjoyment.