Property I - Defaulting Tenants, Warranty of Quiet Enjoyment, Illegal Lease Doctrine

Self-Help

• Common law

  • A landlord can use self-help provided that:

    • Landlord was legally entitled to possession (e.g., because of ROE clause); and

    • Landlord exercised right in a peaceable manner

• Modern law

  • No self-help allowed

  • Must use judicial process (usually an expedited process)

Summary Eviction Proceedings

• Forcible detainer actions

  • Requires 3-7 days notice, depending on the jurisdictions

  • Sole issue at the hearing is whether the tenant has a legal right to possession. If the tenant does not, the tenant will be evicted

Must a landlord mitigate damages by making reasonable efforts to re-let an apartment wrongfully vacated by the tenant?

A landlord must mitigate because leases are of a contractual nature

Duty to Mitigate

• Traditional rule

  • Landlord has no duty to mitigate because a lease is a conveyance of property that divests the landlord of control of the premises for the length of the lease; only tenant has the right to lease the property during the life of the lease

• Modern rule

  • Landlord has duty to mitigate by using reasonable diligence in attempting to re-let premises (e.g., offered, advertised, and showed apartment)

  • Landlord has burden to show he or she mitigated

Rent

• New lease rent is less than old lease rent

  • Old tenant is liable for the difference between fair rental value and the original rent plus reasonable costs to procure a new tenant

• New lease rent is more than old lease rent

  • Some jurisdictions say landlord keeps extra rent

  • Others say tenant gets excess rent

Surrender and Eviction

• Surrender

  • If landlord accepts tenant’s surrender of lease, LL has no recourse against old T, but may keep all rent under new lease, even if higher than old lease

• Eviction

  • LL can evict a tenant, assignee, or sub-tenant for nonpayment of rent

  • Back rent only available from tenant or assignee, not subtenant

Problem 1

LL lease to T1 for $1k monthly. T1 abandons the premises. LL leases to T2 for $800 monthly. Is T1 Liable for the difference?

Yes because T1 defaulted on the lease. T1 must pay LL $200 for each month left on T1’s lease.

Landlord Duties - Condition of Premises

1. Warranty of Quiet Enjoyment

2. Illegal Lease Doctrine

3. Implied Warranty of Habitability.

Warranty of Quiet Enjoyment

1. Landlord’s express or implied promise that tenant will not be disturbed in tenant’s use or enjoyment of the premises

2. Breach entitles tenant to damages or termination of rent obligations

3. Requires actual or constructive eviction

Eviction

• Actual eviction

  • Occurs when the tenant is deprived of the occupancy of some part of the leased premises

• Constructive eviction

  • Occurs when the landlord, through act or omission and without intending to oust the tenant, deprives tenant of the beneficial enjoyment of some part of the premises

  • Conditions must be a serious deprivation of quiet enjoyment of premises

_{Obligation to Pay Rent}

• If tenant remains in possession

  • Tenant must pay rent, but can sue for damages (difference between the value of the premises with and without the breach)

• If tenant leaves the premises

  • Tenant is relieved of obligation to pay rent

  • Tenant can sue LL to recover losses suffered while in possession and for losses resulting in higher rent for equivalent replacement premises

Illegal Lease Doctrine

1. Tenant can stay in premises ad not pay rent when the premises are in an unsafe/unsanitary condition in violation of the housing code at the time the lease was made (i.e. lease is unenforceable because it’s illegal)

2. Minor, technical violations are not enough to support illegal lease claim

3. Tenant is liable for reasonable rental value of premises given its condition