Landlord-tenant law governs the rental of commercial and residential property. It is composed primarily of state statutory and common law. A number of states have based their statutory law on either the Uniform Residential Landlord And Tenant Act (URLTA) or the Model Residential Landlord-Tenant Code. Federal statutory law may be a factor in times of national/regional emergencies and in preventing forms of discrimination.
The landlord tenant relationship arises by reason of agreement, between the landlord and tenant. A tenancy is created when an owner of an estate in land grants another the right to exclusive possession of the land. This agreement is called a lease, and the relationship may be referred to as lessor-lessee or landlord-tenant.
A lease outlines the responsibilities of both the tenant and the landlord. While some landlords consent to verbal leases, get a written lease if at all possible. A basic lease details all rental terms and dates, including:
Names of all tenants and the landlord
Amount of monthly rent
Amount of security deposit
Late payment penalties
Length of lease
Notice to renew the lease or vacate the property
Notice for the landlord to enter the property
A lease is usually valid for one year, although another length of time could be specified. Shorter leases usually mean higher rent. Month-to-month leases are good for one month and, unless specified by either party, are automatically renewed each month. Make sure you understand everything that is outlined in the lease. If there is anything you don’t agree with or understand, it should be changed or removed from the lease. All changes should be initialed by both parties. Once the lease is signed, it becomes a legally binding document. Remember to keep a copy for your records
There are four types of leasehold interests: (i) the terms for years (ii) the periodic tenancy (iii) the tenancy at will (iv) tenancy at sufferance.
The term for years is created by express agreement, subject to the Statute of Frauds. To qualify as a term for years, the lease must be for a fixed or computable period of time. A fixed period of time means the term has specific beginning and ending calendar dates. The interest of the landlord is described as a reversion, and the interest of the tenant is described as a term for years.
The duration of a term for years is a fixed or computable period of time in units of one year, or multiples of divisions thereof. The term may be one month, six months, one year, five years, or longer.
The term for years is terminated by expiration of the specified period of time set forth in the lease. The term of year may also be terminated by the happening of a specific contingency, surrender of the unexpired term, by release, and under certain other circumstances.
A periodic tenancy is most commonly created by express agreement, written or oral. A periodic tenancy also arises when: a landlord gives possession to a talent for an unspecified period of time coupled with an agreement that rent will be paid periodically, i.e., weekly, monthly or annually. A tenant remains in possession with the consent of the landlord after termination of a prior tenancy and makes periodic payments of rent; or a tenant takes possession under a void lease and makes periodic rent payments.
The periodic tenancy is an indefinite tenancy which continues for successive like periods until it is terminated by proper notice given by either the landlord or the tenant.
Absent a “notice to terminate” provision in a lease, the notice required to given to terminate a periodic tenancy is determined by the period itself. Where the period is less than one year, the requires notice is one full period;
When someone originally enters into possession rightfully and after the end of the tenancy retains possession wrongfully, a tenancy at sufferance is created.
The tenancy continues until the landlord makes demand for possession or elects to treat the tenancy as a new consensual tenancy.
There is no true leasehold; and therefore, there is no tenancy to terminate. The continued possession may not be defended against any reasonable action by the owner in fee to remove the wrongful holdover tenant. As an alternative to dispossession, the landlord may elect tot consider the holdover tenant as holding under a new tenancy for an additional period of time and may charge a higher rent.
The landlord has a duty to place the tenant in possession of the premises at the beginning of the term.
The landlord is under a duty to disclose to the tenant all latent defects existing on the property at the time of leasing.
Landlord’s have a duty to maintain, repair and keep reasonably safe the common areas of a multi-unit building.
In general, entryways, hallways, passageways, lobbies, stairs, elevators, approaches, yards, basements, porches and all other portions of the premises maintained for the benefit of and use by the tenants.
A substantial majority of jurisdictions have abandoned the doctrine of caveat emptor with respect to residential leases and adopted the principle that there is an implied warranty by the landlord that the leased premises are, or will be put, in a condition suitable for residential purposes.
The implied warranty cover all defects located in the demised premises and in the common areas such as stairs, hallways and yards. The implied warranty also covers defective facilities which are necessary to the tenant’s use and enjoyment of his apartment, but which remain in the exclusive control of the landlord. The type of facility covered under the implied warranty should include any facility which, if defective, would constitute a threat to the health or safety of the tenant. Thus, heating systems, plumbing systems, electrical systems, light, ventilation, dangerous common areas and vermin infestation would all be covered by the implied warranty of habitability.
Where a defect exists at the inception of the lease, the landlord will be liable for all defective conditions which he had actual or constructive notice of. After the transfer of possession to the tenant, the tenant has the exclusive right to possession of the demised premises. The landlord has no right to enter the demised premises and therefore has no duty to inspect the premise. The landlord’s liability for defective conditions in the demised premises arising after the transfer of possession is limited to those defects of which he has actual notice. This imposes a duty on the tenant to inform the landlord of any defect in the demised premises.
Where the landlord has notice of the defect from other source, such as formal notification of a housing code violation by public authorities, the tenant has no duty to give the landlord a second warning.
Where the tenant makes reasonable attempt to give notice of defect to the landlord, bit us unable to contact him, the notice requirement is deemed to be satisfied.
Remedies of the Tenant for Breach of Implied Warranty of Habitability
In order to terminate the lease the breach for failure to repair must be a substantial one. Once the right to terminate has been established, the tenant must give the landlord notice of termination in order for it to be effective. The tenant remains liable under the lease until such time as the lease is terminated. Once the termination is effective the tenant must vacate the premises.
Rescission is a discharge if all unperformed duties and undoing of those duties which parties have performed under the terms of the contract. In order to rescind, the tenant must establish that the landlord has substantially failed to perform under the terms of the lease agreement. The landlord’s breach of the implied warranty should be sufficient nonperformance to give the tenant the right rescind. The tenant must give the landlords notice of rescission and offer to restore to the landlord all benefits he has received under the lease. The tenant is entitled to a return of an amount equal to the difference between the contract rent and the value of the premises during the term of the breach. The tenant is also permitted to recover prepaid rent and security deposits.
A number of states have statutes which permit the tenant, after notice of the defect to the landlord and the landlord’s failure to repair, to repair the defect condition and deduct the cost thereof from the contract rent due and payable to the landlord. Many of these statues restrict with respect to the purposes for which such expenditures may be made and are restricted in the amount which can be expended and deducted to a specific amount or an amount based upon a set formula.
If the tenant wishes to remain in possession, specific performance of the implied warranty of habitability is one remedy the tenant may pursue. Before the tenant is entitled to specific performance, the tenant’s remedy at law, damages must be shown to be inadequate.
Courts have agreed that the landlord’s breach of the implied warranty of habitability entitles the tenant to an abatement of rent for the duration of the breach
Tenant is entitled to recover his incidental and consequential damages, including property damage and related economic losses arising out of landlord breach of implied warranty of habitability.
Rent is a normal incident of the landlord-tenant relationship. The tenant’s obligation to pay rent is a contingent one which becomes absolute upon the tenant’s use and enjoyment of the demised premises for a specified rental period. When rent becomes due and payable under the terms of the lease, it is generally considered to be merely a debt of the tenant owed to the landlord.
The lease generally contains a provision which specifies the amount of rent to be paid and the time and manner of the payment. Absent a provision for rent in the lease, a number of states have enacted statutes provide that the possession and use of the property gives rise to an obligation to pay the reasonable value of the possession and use of premises. The standard applied in determining reasonable value is the fair market rental value of the demised premises.
Subsequent agreement by the landlord and tenant to increase or decrease the reserved rent must be supported by new consideration.
Absent a lease provision specifying the time of payment of the rent, the rent does not become due and payable until the end of the period covered by the rent.
Place and Manner The lease will usually contain a provision which specifies the place at which the rent is to be paid. Absence such a provision, the general rule is that rent is to be paid at the leased property. The landlord is ordinarily required to go to the premises and demand payment before he is entitled to terminate the lease for non-payment of rent.
Absent a lease or statutory provision to the contrary, the general rule is that the tenant’s breach of the covenant to pay rent does not entitle the landlord to terminate the lease. It is common practice for the landlord to reserve a right of entry which can exercise upon breach of any of the lease covenants by the tenant. Some states contain statues which permit a summary action for possession by the landlord in the event of failure to pay rent.