Property
Property Rules of Law
The following contains the Rules of Law you'll need for the Property Practice Exam. These rules are presented in outline form only for purposes of the practice exam.
NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.
Duty to Deliver Possession
Duty to Pay Rent
Implied Covenant of Quiet Enjoyment
Constructive Eviction
Implied Warranty of Habitability
Duty to Repair - Permissive Waste
Surrender and Acceptance
Duty to Deliver Possession
Majority View:
Landlord is under a duty to deliver actual possession of the premises to the tenant when the term of the lease begins. Failure to do so puts the landlord in breach and subject to damages. Tenant may recover costs to find housing during the term she cannot inhabit the premises and any business losses that may have occurred because of the holdover tenant.
Minority View:
It is the responsibility of the tenant to evict the holdover tenant. The landlord merely has to transfer the legal right for the tenant to have possession and not actual possession.
Duty to Pay Rent
Tenant has a duty to pay rent for the entire lease term according to the provisions of the lease as to amount and when the rent shall accrue.
If a tenant is in breach of the duty to pay rent, then at common law, the landlord has a right to sue for damages but collect only that amount which is in arrears. However, the modern view is to allow the landlord to sue for both damages and evict the tenant.
The duty to pay rent may be overcome by a breach by the landlord.
Implied Covenant of Quiet Enjoyment
Every lease has an implied covenant of quiet enjoyment, whereby the landlord (or someone with paramount title) promises not to interfere with the tenant's possession or quiet enjoyment of the property. Interference with quiet enjoyment occurs when the there is a total eviction, partial eviction or constructive eviction.
Constructive Eviction
A constructive eviction occurs when the following occurs:
The landlord does not provide a service he obligated to provide or acts in some way that causes injury to the premises.
The conditions as a result of the above make the premises uninhabitable such that there is substantial interference with the tenant's quiet enjoyment of the property.
The tenant abandons the premises within a reasonable time after the covenant is breached.
Implied Warranty of Habitability
The majority of states impose a rule on landlords for residential rental property that leased premises are reasonably suitable for residential use - i.e. heat, hot water, no flooding, etc.
The remedy is for the tenant to:
Move out and terminate the lease.
Stay on property and sue for damages.
Duty to Repair - Permissive Waste
Generally, a tenant does not have a duty to make major repairs on the premises unless they are required to do so under the lease. However, under the doctrine of permissive waste, a tenant has a duty to inform the landlord of situations where major repairs are needed in order to prevent damage to the premises by the elements - such as leaky roofs, broken windows, potential flooding. Failure to do so makes the tenant liable for damages to the premises but not for the cost to repair the problem.
Abandonment, Surrender and Acceptance
At common law, when a tenant abandons the premises, he is still liable for the rent for the entire term of the lease even if the landlord does nothing to attempt to relet the premises. However, the majority of states now require that the landlord make reasonable efforts to mitigate the damages by attempting to relet the premises. Successfully reletting the premises does not remove the liability of the original tenant for the costs of reletting and for the time in which the premises stood vacant.
Tenant may also avoid liability for rent if it can be proven that landlord has accepted surrender of premises by re-entering and occupying the premises himself. Entering to make repairs after abandonment does not usually constitute acceptance the surrender.
Property Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.
We recommend that you take this exam only after you have completed your study of Landlord-Tenant issues. If necessary, review the Property Rules of Law before starting this exam.
Once you have completed the practice exam in the time allotted, then compare your answer with this Property Sample Answer.
Property Fact Pattern
Theresa was about to start her first year of law school in a new city. While visiting the school in June, she entered into a one-year lease for an apartment with Larry, a landlord. The lease stated that rent was to start on September 1 and that rent of $500 was due at the first of each month.
Theresa showed up at the apartment on September 1, having already paid the first month's rent, with a rental truck loaded with her furniture but she was unable to move in because Harry was still living there. Theresa immediately called Larry and informed him of the situation. Larry said, "It's not my problem." Theresa checked into a motel and kept her furniture in the rental truck incurring additional charges on the rental truck. Two weeks later, Harry moved out of the apartment, and Theresa moved into the apartment on September 15.
On October 15 just as the weather began to turn cold, L turned off the heat and hot water to the apartment because T had not paid her rent on October 1. T insisted that L owed her for the two weeks in September that she was unable to live in the apartment. On investigating the lack of hot water, T noticed that the roof leaked. She did not inform L about the leak. T had to pay for a gym membership to take a hot shower every day.
On November 15, Theresa had become disgusted with the cold water and moved out of the apartment without ever having paid October or November rent. She immediately informed Larry of her reasons. Larry didn't do anything until December 1 when he finally inspected the apartment and discovered the leak. During the period of November 15 to December 1, there had been substantial rains and the leak caused considerable damage to the apartment. Larry fixed the leak and hot water, and put a one-line ad on the Internet looking for a tenant. The ad cost Larry $10. No one rented the apartment until February 1.
Question: What are the rights and obligations of both the Landlord and the Tenant?
Once you have completed the practice exam in the time allotted, then compare your answer with this Property Sample Answer.
Property Sample Answer
The following is a sample answer to the Property Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Property Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.
The rights and responsibilities of the two parties can be best understood by breaking them into three periods of time.
From Date that Lease Term Begins to Date Tenant Begins Occupancy
(September 1 to September 15)
The primary issue is whether Larry (L) had a duty to deliver actual possession of the property to Theresa (T). The applicable rule depends on the jurisdiction. The majority view is that the landlord must deliver the premises to the tenant at the beginning of the leasehold term. Failure to do so means that the landlord is in breach. Under the majority view, L had a duty to evict H in order for T to gain possession. Since the holdover tenant, Harry (H), prevented T from gaining possession, L would be in breach of the lease and be liable to T for the cost of the motel and other reasonable expenses such as the cost of rental van during the two weeks she did not occupy the apartment.
The minority view is that it is up to T to evict H to gain possession. Consequently, under this view, T is liable to L for rent even though she cannot occupy the apartment. L has no liability or duty to T under this rule.
From Date Tenant Begins Occupancy to Date Tenant Abandons Premises
(September 15 to November 15)
The issue is whether L's affirmative act of turning off the hot water and heat in retaliation for T's failure to pay was either a constructive eviction or a breach of the warranty of habitability sufficient to relieve T of her duties under the lease.
T has a duty to pay rent under the lease. Even though L may have been liable for two weeks worth of living expenses in September, T would probably have to seek a judgement in a court of law to get those expenses. Since T did not pay rent on October 1, L's remedy under the common law is to sue for the rental payment. Under the more modern view, L could sue for both the amount of rent due and to evict T. T owed L $500 on October 1 and another $500 on November 1. However, those duties may be mitigated by L's failure to provide necessary services.
However, under all leases there is an implied covenant of quiet enjoyment. The landlord can engage in no act that prevents the tenant from quietly enjoying her tenancy. Thus, the landlord must provide for services that make the residential property habitable. Alternatively T also has a theory to limit her liability for rent under the implied warranty of habitability.
Under the quiet enjoyment theory, T will argue that a constructive eviction occurred. T can argue that she can properly terminate the lease and seek damages (at very least, the cost of the gym membership to take the shower) because the landlord acted to make the premises uninhabitable by turning off the heat and hot water. In a cold climate, turning off the heat and hot water is considered by most reasonable people to make the apartment uninhabitable.
However, L can argue that since T stayed in the apartment for a month, she did not vacate within a reasonable time and therefore waived her right to terminate the lease. He will further argue that proof of her being bale to take a shower at the gym goes to show that the premises were not uninhabitable. L can also argue that changing the condition was in the hands of T. She could have had hot water and heat merely by paying her rent. This argument will probably not hold up under close scrutiny. One month is not a long period of time given the circumstances. With winter approaching and the coldest weather still ahead, T could argue that she waited a month because she felt that she might be able to reason with L to turn on the heat and that she only moved once it became clear that redress was not available. Consequently, T can probably terminate the lease and seek damages for the cost of her showers at the gym and the loss of quiet enjoyment of the property during the period she went without heat or hot water (October 15 to November 15).
If T does not prevail under a constructive eviction theory, she can alternatively pursue redress under the theory of implied warranty of habitability, which gives a broader footing to tenants. Under this view, L had a duty to maintain the apartment in a habitable state. The standard is usually the same as the local housing code. To the extent that the jurisdiction requires hot water and heat, T has rights and can seek a remedy for breach of those rights. T can either move out and terminate the lease or reduce or abate the rent to an amount that is equal to the fair market value of the apartment without heat or hot water. Since T moved out, she might seek an offset of the rent she owed for the period of October 15 through November 15.
During this time period, however, T had a duty to report the leaky roof to L. Under the doctrine of waste, T had a duty to prevent permissive waste. Most leases do not require tenants to make substantial repairs, such as repairing roofs. However, T did have a duty to report the leaky roof. Her failure to do so made her liable for any subsequent damage but not for the cost of repair. To the extent that T was still under the lease when the damage was done, she will be liable to L for any of that damage. T will argue that the substantial damage was done after the lease was terminated on November 15. To the extent that her theory survives, she will not be liable.
From Date Tenant Abandons Premises to End of Lease Term
(November 15 to August 31)
If T prevails under either of the above theories, then she does not owe L rent for any time after she abandoned the premises on November 15.
If T does not prevail under a constructive eviction or breach of implied warranty of habitability, then she must pay L rent for the entire lease period subject to the state's rules on abandonment.
Under the traditional common law view, L can let the apartment lie idle for the entire rental period. However, most jurisdictions require the landlord to make reasonable efforts to mitigate the damages by trying to rent the apartment out to another tenant. Here, L made the premises ready on December 1 and put a one-line ad on the Internet. L's duty to mitigate is met to the extent that putting a one-line ad on the Internet would reasonably alert potential renters to the availability of the apartment. The fact that no one rented the apartment until February might indicate that his efforts were not reasonable; however, L will argue that the holidays made renting the apartment more difficult and that any greater effort would not have yielded better results.
T's liability for future rent may also depend on whether L has accepted her surrender of the premises. T can argue that L's act of turning on the hot water, repairing the roof and reletting the premises meant that L resumed possession of the premises and those acts constitute acceptance of surrender. However, most jurisdictions hold that merely making repairs and attempting to re-rent the premises is not enough to constitute acceptance. Thus, if T was still under the lease, she would be liable for any month where there was not a tenant present in the apartment as well as the cost of the Internet ad since that expense was not incurred but for her abandonment of the premises.
The following contains the Rules of Law you'll need for the Property Practice Exam. These rules are presented in outline form only for purposes of the practice exam.
NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.
Duty to Deliver Possession
Duty to Pay Rent
Implied Covenant of Quiet Enjoyment
Constructive Eviction
Implied Warranty of Habitability
Duty to Repair - Permissive Waste
Surrender and Acceptance
Duty to Deliver Possession
Majority View:
Landlord is under a duty to deliver actual possession of the premises to the tenant when the term of the lease begins. Failure to do so puts the landlord in breach and subject to damages. Tenant may recover costs to find housing during the term she cannot inhabit the premises and any business losses that may have occurred because of the holdover tenant.
Minority View:
It is the responsibility of the tenant to evict the holdover tenant. The landlord merely has to transfer the legal right for the tenant to have possession and not actual possession.
Duty to Pay Rent
Tenant has a duty to pay rent for the entire lease term according to the provisions of the lease as to amount and when the rent shall accrue.
If a tenant is in breach of the duty to pay rent, then at common law, the landlord has a right to sue for damages but collect only that amount which is in arrears. However, the modern view is to allow the landlord to sue for both damages and evict the tenant.
The duty to pay rent may be overcome by a breach by the landlord.
Implied Covenant of Quiet Enjoyment
Every lease has an implied covenant of quiet enjoyment, whereby the landlord (or someone with paramount title) promises not to interfere with the tenant's possession or quiet enjoyment of the property. Interference with quiet enjoyment occurs when the there is a total eviction, partial eviction or constructive eviction.
Constructive Eviction
A constructive eviction occurs when the following occurs:
The landlord does not provide a service he obligated to provide or acts in some way that causes injury to the premises.
The conditions as a result of the above make the premises uninhabitable such that there is substantial interference with the tenant's quiet enjoyment of the property.
The tenant abandons the premises within a reasonable time after the covenant is breached.
Implied Warranty of Habitability
The majority of states impose a rule on landlords for residential rental property that leased premises are reasonably suitable for residential use - i.e. heat, hot water, no flooding, etc.
The remedy is for the tenant to:
Move out and terminate the lease.
Stay on property and sue for damages.
Duty to Repair - Permissive Waste
Generally, a tenant does not have a duty to make major repairs on the premises unless they are required to do so under the lease. However, under the doctrine of permissive waste, a tenant has a duty to inform the landlord of situations where major repairs are needed in order to prevent damage to the premises by the elements - such as leaky roofs, broken windows, potential flooding. Failure to do so makes the tenant liable for damages to the premises but not for the cost to repair the problem.
Abandonment, Surrender and Acceptance
At common law, when a tenant abandons the premises, he is still liable for the rent for the entire term of the lease even if the landlord does nothing to attempt to relet the premises. However, the majority of states now require that the landlord make reasonable efforts to mitigate the damages by attempting to relet the premises. Successfully reletting the premises does not remove the liability of the original tenant for the costs of reletting and for the time in which the premises stood vacant.
Tenant may also avoid liability for rent if it can be proven that landlord has accepted surrender of premises by re-entering and occupying the premises himself. Entering to make repairs after abandonment does not usually constitute acceptance the surrender.
Property Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.
We recommend that you take this exam only after you have completed your study of Landlord-Tenant issues. If necessary, review the Property Rules of Law before starting this exam.
Once you have completed the practice exam in the time allotted, then compare your answer with this Property Sample Answer.
Property Fact Pattern
Theresa was about to start her first year of law school in a new city. While visiting the school in June, she entered into a one-year lease for an apartment with Larry, a landlord. The lease stated that rent was to start on September 1 and that rent of $500 was due at the first of each month.
Theresa showed up at the apartment on September 1, having already paid the first month's rent, with a rental truck loaded with her furniture but she was unable to move in because Harry was still living there. Theresa immediately called Larry and informed him of the situation. Larry said, "It's not my problem." Theresa checked into a motel and kept her furniture in the rental truck incurring additional charges on the rental truck. Two weeks later, Harry moved out of the apartment, and Theresa moved into the apartment on September 15.
On October 15 just as the weather began to turn cold, L turned off the heat and hot water to the apartment because T had not paid her rent on October 1. T insisted that L owed her for the two weeks in September that she was unable to live in the apartment. On investigating the lack of hot water, T noticed that the roof leaked. She did not inform L about the leak. T had to pay for a gym membership to take a hot shower every day.
On November 15, Theresa had become disgusted with the cold water and moved out of the apartment without ever having paid October or November rent. She immediately informed Larry of her reasons. Larry didn't do anything until December 1 when he finally inspected the apartment and discovered the leak. During the period of November 15 to December 1, there had been substantial rains and the leak caused considerable damage to the apartment. Larry fixed the leak and hot water, and put a one-line ad on the Internet looking for a tenant. The ad cost Larry $10. No one rented the apartment until February 1.
Question: What are the rights and obligations of both the Landlord and the Tenant?
Once you have completed the practice exam in the time allotted, then compare your answer with this Property Sample Answer.
Property Sample Answer
The following is a sample answer to the Property Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Property Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.
The rights and responsibilities of the two parties can be best understood by breaking them into three periods of time.
From Date that Lease Term Begins to Date Tenant Begins Occupancy
(September 1 to September 15)
The primary issue is whether Larry (L) had a duty to deliver actual possession of the property to Theresa (T). The applicable rule depends on the jurisdiction. The majority view is that the landlord must deliver the premises to the tenant at the beginning of the leasehold term. Failure to do so means that the landlord is in breach. Under the majority view, L had a duty to evict H in order for T to gain possession. Since the holdover tenant, Harry (H), prevented T from gaining possession, L would be in breach of the lease and be liable to T for the cost of the motel and other reasonable expenses such as the cost of rental van during the two weeks she did not occupy the apartment.
The minority view is that it is up to T to evict H to gain possession. Consequently, under this view, T is liable to L for rent even though she cannot occupy the apartment. L has no liability or duty to T under this rule.
From Date Tenant Begins Occupancy to Date Tenant Abandons Premises
(September 15 to November 15)
The issue is whether L's affirmative act of turning off the hot water and heat in retaliation for T's failure to pay was either a constructive eviction or a breach of the warranty of habitability sufficient to relieve T of her duties under the lease.
T has a duty to pay rent under the lease. Even though L may have been liable for two weeks worth of living expenses in September, T would probably have to seek a judgement in a court of law to get those expenses. Since T did not pay rent on October 1, L's remedy under the common law is to sue for the rental payment. Under the more modern view, L could sue for both the amount of rent due and to evict T. T owed L $500 on October 1 and another $500 on November 1. However, those duties may be mitigated by L's failure to provide necessary services.
However, under all leases there is an implied covenant of quiet enjoyment. The landlord can engage in no act that prevents the tenant from quietly enjoying her tenancy. Thus, the landlord must provide for services that make the residential property habitable. Alternatively T also has a theory to limit her liability for rent under the implied warranty of habitability.
Under the quiet enjoyment theory, T will argue that a constructive eviction occurred. T can argue that she can properly terminate the lease and seek damages (at very least, the cost of the gym membership to take the shower) because the landlord acted to make the premises uninhabitable by turning off the heat and hot water. In a cold climate, turning off the heat and hot water is considered by most reasonable people to make the apartment uninhabitable.
However, L can argue that since T stayed in the apartment for a month, she did not vacate within a reasonable time and therefore waived her right to terminate the lease. He will further argue that proof of her being bale to take a shower at the gym goes to show that the premises were not uninhabitable. L can also argue that changing the condition was in the hands of T. She could have had hot water and heat merely by paying her rent. This argument will probably not hold up under close scrutiny. One month is not a long period of time given the circumstances. With winter approaching and the coldest weather still ahead, T could argue that she waited a month because she felt that she might be able to reason with L to turn on the heat and that she only moved once it became clear that redress was not available. Consequently, T can probably terminate the lease and seek damages for the cost of her showers at the gym and the loss of quiet enjoyment of the property during the period she went without heat or hot water (October 15 to November 15).
If T does not prevail under a constructive eviction theory, she can alternatively pursue redress under the theory of implied warranty of habitability, which gives a broader footing to tenants. Under this view, L had a duty to maintain the apartment in a habitable state. The standard is usually the same as the local housing code. To the extent that the jurisdiction requires hot water and heat, T has rights and can seek a remedy for breach of those rights. T can either move out and terminate the lease or reduce or abate the rent to an amount that is equal to the fair market value of the apartment without heat or hot water. Since T moved out, she might seek an offset of the rent she owed for the period of October 15 through November 15.
During this time period, however, T had a duty to report the leaky roof to L. Under the doctrine of waste, T had a duty to prevent permissive waste. Most leases do not require tenants to make substantial repairs, such as repairing roofs. However, T did have a duty to report the leaky roof. Her failure to do so made her liable for any subsequent damage but not for the cost of repair. To the extent that T was still under the lease when the damage was done, she will be liable to L for any of that damage. T will argue that the substantial damage was done after the lease was terminated on November 15. To the extent that her theory survives, she will not be liable.
From Date Tenant Abandons Premises to End of Lease Term
(November 15 to August 31)
If T prevails under either of the above theories, then she does not owe L rent for any time after she abandoned the premises on November 15.
If T does not prevail under a constructive eviction or breach of implied warranty of habitability, then she must pay L rent for the entire lease period subject to the state's rules on abandonment.
Under the traditional common law view, L can let the apartment lie idle for the entire rental period. However, most jurisdictions require the landlord to make reasonable efforts to mitigate the damages by trying to rent the apartment out to another tenant. Here, L made the premises ready on December 1 and put a one-line ad on the Internet. L's duty to mitigate is met to the extent that putting a one-line ad on the Internet would reasonably alert potential renters to the availability of the apartment. The fact that no one rented the apartment until February might indicate that his efforts were not reasonable; however, L will argue that the holidays made renting the apartment more difficult and that any greater effort would not have yielded better results.
T's liability for future rent may also depend on whether L has accepted her surrender of the premises. T can argue that L's act of turning on the hot water, repairing the roof and reletting the premises meant that L resumed possession of the premises and those acts constitute acceptance of surrender. However, most jurisdictions hold that merely making repairs and attempting to re-rent the premises is not enough to constitute acceptance. Thus, if T was still under the lease, she would be liable for any month where there was not a tenant present in the apartment as well as the cost of the Internet ad since that expense was not incurred but for her abandonment of the premises.
posted by alfieping at 11:19 PM
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