Chapter 48

Landlord- Tenant Relationships

 

 

Basic Definitions:

 

·        The landlord is the Lessor

 

·        The party renting the property from the landlord is the Lessee or Tenant.

 

 

Creation of the Relationship:

THE LEASE AGREEMENT

 

·          Requisites of Lease: A lease agreement (which is a contract) should:

 

(1)     be in writing (not required in some states, but always advisable);

(2)     express an intent to establish a landlord-tenant relationship (recall this is voluntary);

(3)     provide for transfer of possession of the property to the tenant at the beginning of the lease;

(4)     provide for the reversion of possession of the property to the landlord at the end of the lease's term;

(5)     describe the property reasonably; and

(6)     clearly indicate the length of the lease term, the amount of rent due, and how and when rent is to be paid. Of course, this is the one clause we pay the most attention to in our normal dealings.

 

 

IMPERMISSIBLE LEASES

 

·                  Illegality: Many state laws make it illegal for

          (1)     a lease to require the tenant to pay the landlord's attorneys' fees;

          (2)     a landlord to rent a structure that is in disrepair or not in compliance with building codes;

          (3)     a landlord to lease for an illegal purpose; or

          (4)     a landlord to refuse to lease for discriminatory reasons.

·                  Unconscionably: A lease containing one or more material, unconscionable terms may be void as a matter of law.  A landlord can’t disclaim responsibility for providing access to necessary utilities, for example.

 

Parties Rights-

LANDLORD-TENANT: POSSESSION

 

·          The landlord is obligated to deliver possession of the leased property at the inception of the lease, during the term of which the tenant is entitled take and retain possession until the lease expires assuming rightful rent is paid.

 

·        Covenant of Quiet Title: The landlord is also obliged to ensure that no one claiming superior title disturbs the tenant's possession and use of the property during the lease term.  In other words, someone else coming along trying to take over the apartment who claims to be a rightful land owner or a person who signed a lease before you.

 

·        Eviction occurs when the landlord deprives the tenant of her use or possession of the leased property (e.g., by changing the locks on the tenant's doors). è Usually the result of not paying rent or trying to get people out of  a building to convert it into other use.

 

·        Constructive Eviction occurs when the landlord wrongfully performs or fails to perform an essen­tial duty of the lease thereby making the tenant's use and enjoyment of the property untenable (e.g., failing to provide heat, water, electricity).

 

·        Retaliatory Eviction: Evicting a tenant for com­plaining to the appropriate authorities about the improper condition of leased premises or other violations of the lease terms by the landlord.

 

 

 

LANDLORD-TENANT: USE

 

·        Unless the lease agreement specifies otherwise, the tenant may use the leased property for any legal purpose that does not injure the landlord's reversionary interest. However,

 

·        The tenant may not create a nuisance that substantially interferes with others' quiet enjoyment of their own property rights- such as loud parties each and every night, or rock band practice at 3:00 a.m., etc. ;

 

·        The tenant is obliged not to commit waste by abusing or destroying the leased property (putting fists through the sheetrock, etc.);

 

·                    The tenant may not make alterations to the leased property (note: some states permit alterations without permis­sion, but they become part of the property and, at the landlord's discretion, the tenant must pay for their removal or repair ) without the landlord's permission; and

 

 

·        The tenant is responsible for all damages to the premises caused by the tenant and/or his guests and invitees, except for ordinary wear and tear. You have a huge party and your guests cause damage to your apartment.  You try to say you didn’t do it, others did.  What do you really think the outcome will be??

 

 

LANDLORD-TENANT: MAINTENANCE

 

·          A landlord must ensure that the leased property meets local building, safety, fire, and health codes.

 

·        Common Areas: The landlord must also maintain areas used by or accessible to all tenants, such hallways, stairs, elevators, and laundry rooms.

 

·        Nonetheless, in some circumstances, the landlord and tenant may agree that the tenant will maintain property and make all necessary repairs. Usually there is an adjustment to the rent as a result.

 

·        Implied Warranty of Habitability: The landlord impliedly promises that rented residential premises are fit for human habitation and are free from substantial defects.

 

·        Remedies for Failure to Maintain: If a landlord fails to maintain the premises, the tenant may:

 

(1)     withhold rent;

 

(2)      repair and deduct the cost of repair from rent due;

 

(3)      cancel the lease; or

 

(4)                sue for the lost use value of the premises and/or the cost of repair.

 

è HOWEVER, you MUST give the landlord and opportunity to fix any defects and not simply stop making payments! ç

 

 

LANDLORD-TENANT: RENT

 

·      Generally, a tenant must pay rent if under contract, even if she refuses occupy to or no longer occupies the leased premises -- unless her refusal to occupy is due to a breach of the landlord's warranty of habitability.

 

·        Security Deposit: A landlord may require a tenant to make a deposit against unpaid rent or cleaning costs as a pre-condition to taking possession of the property. In addition, there may be other types of deposits, including pet deposits, water bed deposits, etc. 

 

·        Late Charges: A landlord may also assess a penalty for late payment of rent and even bad check fees.

 

·        Rent Escalation: Unless the lease otherwise provides, rent may not be increased during the lease term.

 

·        Remedies for Failure to Pay Rent: If a tenant fails to pay rent, the landlord may:

 

(1)      secure a lien on the tenant's personal property (including your computer, stereo, etc);

 

(2)      sue for the unpaid rent and the costs incurred collecting it; or

 

(3)      retake possession of the property by legal means.

 

The landlord does have a duty to mitigate damages in certain cases.  That is, re-let the property within a reasonable time if it can be re-let.

 

 

 

PREMISES LIABILITY

 

 

·        Definitions:

 

·        Party in Possession ("PIP"): The party who, through ownership or lease of real property, has the right to control access to that property.

 

·        Invitee: One whom the PIP invites onto the premises for the possessing party's benefit (e.g., a customer, a visitor at your apartment).

 

·        Licensee: One whom the PIP invites or allows onto the premises for the licensee's benefit (e.g., a salesperson).

 

·        Trespasser: One whom the PIP does not invite onto the premises and who has no other legal right to be there.

 

·        Attractive Nuisance: A dangerous condition, such as an unfenced swimming pool, that may reasonably be expected to attract a minor or other person having diminished capacity.

 

·        Tenant's Liability: A tenant has a duty to maintain in a reasonably safe condition those areas under her control; including, in the case of commercial property, any areas into which the tenant' s customers or other members of the public might be expected to go.

 

·        Landlord's Liability: A landlord is generally responsible for injuries occurring on the part of the property within the landlord's control (e.g., common areas). Additionally:

 

·        When the landlord has assumed an obligation to repair, he may be liable for any injuries attributable either to his failure to repair or to negligently made repairs;

 

·        The landlord is liable for any injuries resulting from a dangerous condition about which the landlord knew or should have known and which the landlord concealed from or otherwise failed to notify the tenant of;

 

·        In the case of commercial property, the landlord is obliged to inspect the property and make repairs before the tenant takes possession to prevent unreasonable risk of injury to the public;

 

·        If required by statute or local ordinance, a landlord who fails to keep property in good repair will be liable from any injuries resulting there from; and

 

·        A landlord is required to take reasonable steps to protect tenants and the public from reasonably foreseeable criminal activity.

 

 

LANDLORD-TENANT: TRANSFER

 

·          Transfer of the Landlord's Interest: As with any other real property owner, a landlord may sell, give away, or otherwise transfer his or her property. However, the existing lease agreement continues in force with the new owner assuming the landlord's rights (e.g., to collect rent) and duties (e.g., maintaining habitability).

 

·        Transfer of the Tenant's Interest: Assuming that such transfers are not forbidden by the lease agreement, a tenant may transfer his or her interest in leased property as follows:

 

·        Assignment: An agreement by the tenant (the assignor) to transfer all of his or her rights, title, and interest in the lease to another person (the assignee).

 

·         While an assignment divests the assignor of his or her rights in the leased property, unless the landlord consents to the assignment, notice the assignor remains liable to the landlord for rent and any other obligations set forth in the lease agreement.

 

·        Sublease: A lease executed by the tenant to a third person (the sublessee) which conveys less than the tenant's full interest in the lease. For example, someone subleasing an apartment for 3 months out of a 2 year contract.

 

 

TERMINATING THE LEASE

 

·          Expiration and Surrender: Most leases terminate when their term ends, the tenant surrenders the property to the landlord, who retakes possession of the property or delivers possession to another tenant.

 

·        By Notice: A lease that is self-renewing does not terminate automatically; therefore, the landlord must provide a notice of termination to the tenant.

 

·        Release and Merger: A lease may also give the tenant the opportunity to purchase the property at or before the end of the lease. If the tenant does so, she is released from any more obligations under the lease.

 

·        Surrender by Agreement: The landlord and tenant may agree to terminate the lease before it expires.

 

·        Abandonment: If a tenant abandons leased property, the landlord may treat the abandonment as terminating the lease.

 

·        Forfeiture: A lease may terminate if either party fails to fulfill an essential obligation under the lease.

 

·                    Destruction: If the leased property is destroyed, the lease will generally terminate.

 

 

RENEWAL

 

·        The lease may provide for renewal or a renewal option, in which case preexisting terms continue, with the possible exception of an increase in rent if otherwise agreed by the parties as provided by the renewal clause.  Usually this clause sets out certain time parameters and the like so both sides can be assured of an agreement to continue.

 

·        Recall if there is no such provision and the tenant stays on without the landlord’s consent, this is an illegal act and the tenant will be liable for damages.