#11078 - Landlord Tenant Law - Property

Types of tenancy

1. Term of years: it will continue for a designated period

   1. Termination: it automatically expires when the agreed period ends, or upon breach of terms, or eminent domain

2. Periodic tenancy: lasts for an initial fixed period and then automatically continues for addition equal periods until either the landlord or tenant terminates the tenancy by giving advance notice.

3. Tenancy at will: has no fixed duration and endures only so long as both the landlord and the tenant desire.

   1. Today most tenancies at will arise by implication, not from an express agreement. E.g. under an unenforceable lease, before any lease has been negotiated.

   2. Usually ends by advance notice (at common law, it ends whenenver the landlord or tenant chooses, any form of notice would terminate the tenancy immediately)

   3. One way tenancy at will (T can occupy premises for as long as he wants) can be construed as tenancy at will, or a determinable life estate.

1. The tenant may terminate the lease and stop paying rent if the landlord materially breaches any lease obligations

2. If structures crucial to the lease are destroyed, the tenant has no obligation to pay rent.

3. Landlord may be obligated to mitigate damages if the tenant abandons the premise

LL Remedies if T abandons:

1. Accept Surrender

2. Sue for Damages (limited by duty to mitigate)

3. Re-let on Tenant’s Account (only in states without duty to mitigate)

Philosophical Perspectives for the chart above

1. Fairness – Protect Tenants

2. Utilitarianism

   1. Peace, order (no self-help?)

   2. Efficient markets

Rights Against Discrimination: landlord may not refuse to rent due to race, gender, religion, national origin, or certain other discriminatory reasons.

1. 14th Amendment, equal protection clause

   1. Race, and other suspect classifications.

   2. Applies to state action/government policies (e.g., Buchanan v. Warley)

   3. Could also cover agreements that need to be enforced in State courts (e.g., Shelley v. Kraemer): but this is very narrow.

2. Civil Rights Act of 1866, 42 U.S.C. §1982

   1. Race: “All citizens of the US shall have the same right . . . as . . . white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property”

3. Fair Housing Act of 1968, 42 U.S.C. §3601 et seq

   1. Race, color, religion, sex, familial status, national origin, handicap

      1. Does not prohibit discrimination based on marital status or sexual orientation

   2. Sale, rental, terms, advertising.

   3. Does not require proof of intent, but just proof of discriminatory effect.

   4. 3603(b) two exempted categories of property

      1. single family residence rented or sold without the assistance of a real estate broker

      2. an owner-occupied building with four or less units

         1. Exceptions subsection (c): advertisement of these two categories of property is covered by the Act.

Implied Covenant of Quiet Enjoyment (p. 623-624) – If the landlord/ someone with landlord’s consent does an act or fails to provide some service that he has a legal duty to provide, and thereby makes the premises uninhabitable, the tenant may terminate the lease and seek damages if he vacates within a reasonable time.

1. Increasingly courts are beginning to extend the quiet enjoyment duty to landlords when their other tenants disrupt the enjoyment of another tenant.

2. Tenant must show eviction:

   1. Actual (total; partial)

   2. Constructive (total; partial) – so bad that you were denied use of premises

      1. T must voluntarily vacate premises within a reasonable time

Tenant’s Right to Habitable Premises (p. 629-634) – Each residential lease is deemed to contain an implied warranty that the landlord will deliver the premises in habitable condition, and maintain them in that condition during the lease term.

1. Remedies:

   1. Rescission

   2. Damages

   3. Injunctive Relief

   4. Rent Application

   5. Rent Withholding

   6. Rent Abatement

2. Rationale for implied warranty of habitability

   1. T is less able and had less incentive to repair

   2. LL is lowest cost avoider; risk pooler (if many units)

   3. Unequal bargaining...