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Chapter 51 Lanlord-Tenant
The key points in this chapter include:
1. Rights and duties regarding possession, use, and maintenance of the leased property.
2. Obligations and rights respecting rent.
3. Liability for injuries occurring on leased premises.
4. What happens when a landlord or tenant transfers his or
her rights to leased property
during the term of the lease.
5. Lease termination and renewal.
This chapter outlines laws behind the landlord-tenant relationship, including contract doctrines, and state and local statutes and ordinances. More than one-fourth of the states have adopted the Uniform Residential Landlord and Tenant Act (URLTA).
I. CREATING THE LANDLORD-TENANT RELATIONSHIP
A. FORM OF THE LEASE
To ensure the validity of a lease, it should be in writing and
1. Express an intent to establish the relationship.
2. Provide for transfer of the propertys possession to the
tenant at the beginning of the
term.
3. Provide for the landlord to retake possession at the end of
the term.
4. Describe the property.
5. Indicate the length of the term and the amount and due dates
of rent.
B. ILLEGALITY
A landlord cannot discriminate against tenants on the basis of
race, color, religion, national
origin, or sex. A tenant cannot promise to do something counter
to these laws. There may
be other state or local restrictions.
C. UNCONSCIONABILITY
Some jurisdictions (and URLTA 1.303) apply UCC 2302, under
which a court may declare
an entire contract or any of its clauses unconscionable and thus
illegal (see Chapters 16 and 17).
II. PARTIES RIGHTS AND DUTIES
A. POSSESSION
1. Landlords Duty to Deliver Possession A landlord must
give a tenant possession of the
property that the tenant has agreed to lease. Many states require
a landlord to provide physical possession. Some require only the
legal right to possession.
2. Tenants Right to Retain Possession
The tenant retains possession exclusively until the lease expires,
unless the lease provides otherwise or the tenant defaults. (A
landlord can come onto the property for some purposesfor
example, repairs.)
3. Covenant of Quiet Enjoyment
The landlord promises that during the lease term no one having
superior title to the property will disturb the tenants
use and enjoyment of it. If so, the tenant can sue for damages
for breach.
4. Eviction
If the landlord deprives the tenant of possession of the property
or interferes with his or her use or enjoyment of it, the tenant
can (1) sue for damages or possession or (2) stop paying rent
or terminate the lease.
5. Constructive Eviction
Constructive eviction occurs when this results from a landlords
failure to perform adequately his or her duties under the lease.
6. Retaliatory Eviction
Retaliatory eviction occurs when a landlord evicts a tenant for
complaining to a government
agency about the premises condition.
B. USING THE PREMISES
Unless the parties agree otherwise, a tenant may make any use
of the property (but no waste), so long as it is legal, relates
to the purpose for which the property is adapted or ordinarily
used, does not injure the landlords interest (no alterations
without consent), and does not create a nuisance.
C. MAINTAINING THE PREMISES
1. Statutory Requirements
A landlord must comply with safety and health standards. In most
states, a landlord must repair damage not caused by the tenant.
A landlord is responsible for maintaining common areas, including
defects that the landlord knows of and those the landlord should
know of.
2. Implied Warranty of Habitability
In most states, a landlord must furnish residential premises that
are habitable. This applies to substantial defects that the landlord
knows or should know about and has had a reasonable time to repair.
In deciding whether a defect is sufficiently substantial, courts
ask
a. Whether the tenant caused the defect.
b. How long the defect has existed.
c. The age of the building.
d. The defects impact on the tenants health and safety.
e. Whether a defect violates housing, building, or sanitation statutes.
3. Remedies for Landlords Failure to Maintain Leased
Property
In some circumstances, a tenant may withhold rent, pay for a repair
and deduct the amount from the rent, cancel the lease, or sue
for damages.
D. RENT
A tenant must pay rent even if he or she refuses to occupy the
property or moves out (if the refusal or move is unjustified).
1. Security Deposits and Late Charges
These are legal. A landlord may withhold an amount from the deposit
to cover damages.
2. Rent Escalation and Property Taxes
Unless the lease states otherwise, a landlord cannot raise rent
during the term or charge the
tenant for property taxes.
3. Landlords Remedies for Tenants Failure to Pay
Rent
If a tenant fails to pay rent or refuses to give up wrongful possession
of leased property, the
landlord can resort to
a. Landlords Lien
In some states, a landlord can exercise a lien on the tenants
personal property (and sell it to
recoup unpaid rent).
b. Lawsuit
In some states, a landlord must wait for up to ten days after
the rent is due (and give notice)
before suing for damages or termination.
c. Recovery of Possession
A landlord may bring an action in ejectment or, in most states,
an unlawful detainer action
(shorter and faster than ejectment).
2. Landlords Duty to Mitigate Damages
In many states, even if a tenant vacates leased property unjustifiably,
the landlord must make a
reasonable attempt to lease the property to another party.
III. LIABILITY FOR INJURIES ON THE PREMISES
Liability usually depends on who controls the area where the injury
occurred; the standard is
one of reasonable care under all circumstances (see Chapter 6).
A. LANDLORDS LIABILITY
1. Injuries Caused by Defects on the Premises
A landlord is liable for injuries resulting from a dangerous condition
that the landlord knew
about or should have known about, when the landlord fails to tell
the tenant about it or
actually conceals it. (Exceptionobvious conditions or conditions
the tenant knows about.)
2. Common Areas
A landlord is liable for injuries occurring on property within
the landlords control (common
areas, such as hallways and elevators). This includes a duty to
inspect and repair.
(Exceptionsareas where people could not be reasonably expected
to go.)
3. Injuries Caused by Crimes of Third Persons
If crimes are reasonably foreseeable and the landlord takes no
steps to prevent them, he or
she may be liable for negligence if an injury results. Foreseeability
may depend on recent,
prior, similar, criminal activity.
B. TENANTS LIABILITY
A tenant must maintain in a reasonably safe condition those areas
under his or her control.
Under a commercial lease, the tenants duty may coincide
with the landlords (and both may
be liable).
IV. TRANSFERRING RIGHTS TO LEASED PROPERTY
A. TRANSFERRING THE LANDLORDS INTEREST
A landlord can sell, give away, or otherwise transfer his or her
real property (see Chapter
50), or transfer only the lease, only the reversionary interest,
only the rent, or any of
these rights in combination. If complete title is transferred,
the tenant becomes the tenant of
the new owner.
B. TRANSFERRING THE TENANTS INTEREST
Before a tenant can assign or sublet his or her interest, the
lease may require the landlords
consent may be required (it cannot be unreasonably withheld).
If the assignee or sublessee later defaults, the tenant must pay
the rent.
V. TERMINATION OR RENEWAL OF THE LEASE
A. TERMINATION
On termination, a tenant is no longer liable for rent and is no
longer entitled to possession of
the property. A lease terminates when its term ends or by
1. Notice
A periodic tenancy (see Chapter 51) will renew automatically unless
one of the parties
gives timely notice of termination.
2. Release and Merger
If a landlord conveys his or her interest in the property to the
tenant, the transfer is a release,
and the tenants interest in the property merges into the
title to the property (which he or she
holds).
3. Surrender by Agreement
4. Abandonment
A landlord may treat a tenants moving out with no intent
of returning before the end of the
term as an offer of surrender. The landlords retaking of
possession relieves the tenant of the
duty to pay rent.
5. Forfeiture
If a tenant fails to fulfill a condition under the lease, the
tenant may forfeit his or her interest
in it. Generally, if neither the lease nor a statute provides
for forfeiture, a landlord may
claim only damages.
6. Destruction of the Property by a Cause Beyond the Landlords Control
B. RENEWAL
If a lease does not contain an option for renewal and the parties
have not agreed that
the tenant may stay on, the tenant has no right to remain.