Evictions
What is an actual eviction? Constructive?
Actual Eviction: when LL ha used force to purposely remove or exclude tenant from premises or a part of the premises
Constructive Eviction: tenant vacates, LL interferes with T's use and enjoyment and T gives notice to LL about the problem & allowed reasonable time for LL to fix problem
Can the LL sue an assignee without a novation for unpaid rent?
Yes. The assignee is in privity of estate with the LL (is primarily liable for rent payments not made while having the possessory interest
The original tenant is in privity of K (secondly liable for assignee's non-payments
What are the three characteristics of Periodic Tenancy?
1. automatically renews, absent notice
2. termination requires timely advanced notice
3. no fixed duration or termination
What are the 5 duties of a LL?
Duty to Deliver Possession, Covenant of Quiet Enjoyment, Warranty of Habitability, Warranty of Suitability and Duty to Make Repairs
What are the 2 duties of a Tenant?
1. Pay Rent timely
2. Avoid Waste
If an complete actual eviction occurs...
tenant is relieved of all rent obligations under the lease and may treat the lease as terminated
Can the LL sue an assignee with a novation for the unpaid rent?
Yes. The assignee is in privity of estate and K with the LL. Thus, the A is solely liable for rent payments not made while having the possessory interest
What are the 4 characteristics for Terms for Years?
1. fixed duration
2. fixed termination
3. notice does not effect termination
4. no auto renewal
What is the English Rule for Duty to Deliver Possession?
American Rule?
English: LL must give TT actual and legal possession
American: LL must give legal possession
What's LL Remedy for T breach duty to pay rent?
Lawful eviction or recover damages
*modern lease may include a rent acceleration clause
If complete constructive eviction occurs...
tenant is relieved of all rent obligations and may treat as a terminated lease
Can LL sue for a sublessee for unpaid rent?
The LL cannot sue the sublessee. No privity with the LL.
LL Sue the T (assuming no novation) or the assignee (if there is one)
What are the main characteristics of At- Will Leases?
1. terminates immediately upon notice (advanced not needed) or transfer rights by LL or T
2. no fixed duration or termination
Under the Majority Rule, what are the tenant's remedies for breach of Duty to Deliver Possession? Breach of Quiet Enjoyment Covenant?
Tenant can void lease and seek damages OR Tenant can withhold rent for the period during which tenant could not gain possession of the premises.
Tenant remedy for quiet enjoyment covenant: for minor breaches, damages or injunctive relief. For actual or constructive eviction, rent abatement or withholding rent
What's LL remedy for destruction of premises?
Modern majority rule: that duty to pay rent is relieved when premises are destroyed unless T intentionally or negligently caused the destruction
if a partial actual eviction occurs
Tenant is relieved of all rent obligations
Is the original assignee still sue-able for unpaid rent, if an assignee assigns the lease to another party without a novation?
Yes, with a qualification. the assignee is no longer in privity of estate with the LL. The Assignee remains liable for rent payment not made while the assignee was in privity!
However, any rent unpaid by the assignee is not recoverable from the first assignee absent a novation, b/c at the time of the second assignee's breach the first assignee is no longer in privity with the LL.
What are the LL rights to a Holdover Tenant?
Eviction and Recover the Fair Market Value for the time the tenant was in unlawful possession
What are the requirements of Tenant to claim a breach of habitability? Remedies?
(1) provide notice of defect and (2) allow LL reasonable time to make necessary repairs
LL could make repairs and offset the cost vs. future rent payments or could lead to a constructive eviction & its remedies
What is LL Remedy for breach of T's duty to avoid waste?
LL can seek damages or get equitable relief
if partial constructive eviction occurs...
Tenant is entitled to rent abatement
What happens if LL Accepts a rent payment from a Holdover Tenant?
the lease becomes a month to month periodic tenancy lease
What's the Common Law for LL Duty to Make Repairs? What's the Modern Law?
under common law, no duties to make repairs
Under modern law, LL generally have the duty to pay for the cost of repairs and to make "major" repairs
What is the T's duty to avoid waste? What is Ameliorative Waste?
Waste adversely affects future interest in the premises involves allowing the property to fall into state of disrepair
AM: substantial change made to premises w/o LL's permission that increases value or the premises (only recognized in a minority of jurisdictions)