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 property’s 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 2–302, 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. Landlord’s 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. Tenant’s 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 purposes—for 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 tenant’s 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 landlord’s 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 landlord’s 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 defect’s impact on the tenant’s health and safety.

e. Whether a defect violates housing, building, or sanitation statutes.

3. Remedies for Landlord’s 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. Landlord’s Remedies for Tenant’s 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. Landlord’s Lien
In some states, a landlord can exercise a lien on the tenant’s 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. Landlord’s 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. LANDLORD’S 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. (Exception—obvious conditions or conditions the tenant knows about.)

2. Common Areas
A landlord is liable for injuries occurring on property within the landlord’s control (common
areas, such as hallways and elevators). This includes a duty to inspect and repair.
(Exceptions—areas 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. TENANT’S LIABILITY
A tenant must maintain in a reasonably safe condition those areas under his or her control.
Under a commercial lease, the tenant’s duty may coincide with the landlord’s (and both may
be liable).

IV. TRANSFERRING RIGHTS TO LEASED PROPERTY

A. TRANSFERRING THE LANDLORD’S 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 TENANT’S INTEREST
Before a tenant can assign or sublet his or her interest, the lease may require the landlord’s
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 tenant’s 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 tenant’s moving out with no intent of returning before the end of the
term as an offer of surrender. The landlord’s 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 Landlord’s 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.