What are Landlord's and Tenant's rights and obligations? Discuss.

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1 REAL PROPERTY ESSAY #1 MODEL ANSWER Tenant entered into a written lease of an apartment with Landlord on January 1, The lease provided that Tenant would pay $12,000 per year rent, payable in $1000 per month installments, commencing immediately. Tenant moved into the apartment. Soon thereafter Tenant was visited by Inspector, who told Tenant that Landlord had received numerous warnings over the years about the unsafe electrical wiring in the bathroom, and had been cited and fined once for it. Tenant called Landlord and asked him to fix the wiring. Landlord promised to send someone to fix the wiring, but when no one had come for several weeks, Tenant decided to fix the wiring himself. While he was doing the work, he also put mirrors on the ceiling and tore out the tub and replaced it with a whirlpool bath. A few months later, a noxious slime began oozing from the fixtures in the kitchen sink. Tenant complained of this condition to Landlord, but Landlord refused to have it fixed. The ooze continued, and it became so bad that Tenant was forced to stop using the kitchen. Tenant reported the problem to Inspector, who caused Landlord to be cited and fined for the condition. Despite this, Landlord did not make the repairs and the kitchen remained unusable. Tenant has remained in the apartment but has stopped paying rent. On December 1, 1995, Tenant received a registered letter from Landlord giving him notice to vacate the apartment on January 15, In a subsequent telephone conversation, Landlord told Tenant that the notice was given because he was tired of Tenant's demands for repairs and angry because of the fine. What are Landlord's and Tenant's rights and obligations? Discuss.

2 MODEL ANSWER LANDLORD /TENANT. STATUTE OF FRAUDS. Here, we are told that Tenant and Landlord entered into a written lease, which provided that tenant pay $12K per year rent, in $1K installments, commencing immediately. Therefore, since we have parties, amount, and the other parameters of the lease in a written contract, the Statue of Frauds is satisfied. COVENANTS. At common law, the duties of landlord and tenant were independent of each other. However, modernly, more jurisdictions have statutes that establish dependence of covenants, such that a tenant's duty to pay rent may be ameliorated if landlord breaches the lease contract. Each party must abide by the provisions of the will, including both implied covenants such as habitability, and specific lease provisions such as those related to assignment or sub-leasing. TYPE OF LEASE. Lease agreements may be tenancy for years, periodic, at will or at sufferance. TENANCY FOR YEARS. The lease agreement began on January 1, We are not told if the lease has a solid and specific termination date, which would make the lease a tenancy for years, and tenant would not need to give landlord a notice of termination. The fact that rent payments are paid monthly, as it the case in this instance, or at some other interval does not change the nature of the leasehold. PERIODIC TENANCY. Alternatively, if the lease provided for automatic renewal, then the lease would be a periodic tenancy, and one of the parties would be charged with giving notice before termination. Notice of tenant's action is required equal to the term. However, a six month notice is required when the lease is year to year. Here, since no specific ending date is mentioned for the lease, it is likely that this

3 situation would entail a periodic tenancy, and notice of termination should occur six months before the one year renewal date. RIGHTS AND DUTIES. A lease will entail that each party have certain rights and duties. POSSESSION. Landlord must allow tenant rightful possession of the premises. Here, we are told that tenant moved into the apartment, and maintained possession of the apartment throughout the time period involved in the question. RENT. Tenant must pay rent as part of the lease agreement. The promise to pay rent is in the lease. Thus there is both a contractual priority and privity of estate regarding this covenant, and the tenant will be required to pay. However, the duty to pay rent may be abated or excused when landlord breaches the lease agreement. WARRANTY OF HABITABILITY. The implied warranty of habitability applies to residential leases. The premises must be fit for basic human habitation. The appropriate standard is often found in local housing codes. If a warranty of habitability is breached, tenant may terminate the lease and move, repair the problem and deduct the rent, withhold the rent until the court determines a fair value, or pay the rent and seek monetary damages. BAD WIRING. Here, tenant apparently notified inspector of unsafe electrical wiring. Inspector notified tenant the landlord had had received numerous warnings over the years about the unsafe electrical wiring in the bathroom, and had been cited and fined once for it. Tenant then called landlord and requested that landlord fix the bad wiring. Tenant then waited several weeks for someone to fix the wiring as landlord indicated

4 would occur, but the wiring was never fixed. Tenant then fixed the wiring himself. Bad wiring could cause a fire to occur at anytime, thus rendering it a dangerous residence to live or sleep in. Landlord's failure to repair this wiring resulted in a breach. In the situation of breach of habitability, tenant may vacate the premises, sue for damages, or abate rent and sue for repairs. Here, tenant has not paid rent. Tenant's argument is that they are abating the rent for the cost of the repairs. However, tenant may not continue to abate rent after the cost of repairs have been abated, and tenant will be in breach of lease if he continues to fail to pay rent. NOXIOUS SLIME / GREEN OOZE IN KITCHEN. Landlord may have also breached the warranty of habitability when he failed to repair the kitchen. We are told that a noxious slime began oozing from the fixtures in the kitchen which rendered the kitchen unstable and unusable. A kitchen is necessary to have in a residence, so as to be able to prepare food. Additionally, the noxious slime could have been dangerous, in and of itself. It could possibly cause disease, that may spread. Thus, Landlord breached his duty under warranty of habitability, when he failed to adequately provide for safe living conditions. RETALIATORY EVICTION. A tenant who is evicted after reporting housing defects or requesting a landlord to make necessary repairs is presumed to be in retaliation for the complaint. This type of eviction is prohibited. If a tenant reports landlord for violations, landlord cannot penalize tenant by raising the rent, ending the lease, or other such negative actions. Landlord was first informed that inspector had visited the apartment, and found that the wiring was bad. Then, as per the noxious slime, inspector fined landlord, and cited landlord for a violation of code. When landlord gave notice to vacate to tenant, such notice came after inspector's fine and censure. Landlord additionally stated that he was tired of paying habitability fines and hearing complaints from tenant. Thus, both the

5 timing of the notice to vacate, and the reasoning of landlord, indicate that this was not a notice pursuant to contract to vacate, rather, this situation entails a retaliatory eviction for tenant's enforcement of the warranty, and thus tenant need not heed the notice. However, as stated earlier, in the event this lease is deemed a term of years, the lease would end automatically at the end of the year, and landlord would be under no duty to automatically renew the lease. In such an event, tenant could not claim retaliatory eviction. COVENANT OF QUIET ENJOYMENT. A landlord also has a duty not to interfere with the tenant's right to quiet enjoyment of the premises. This duty is implied in residential leases and cannot be waived by either party. Landlord clearly breached this duty by failing to remedy the situation in the kitchen. This failure results in either a partial eviction or a constructive eviction under the Covenant of Quiet Enjoyment. PARTIAL EVICTION. When a landlord acts in a manner to partially evict a tenant from the premises, the tenant's obligation to pay rent is entirely extinguished. If it's a third person interfering, tenant merely abates in proportion to the interference. Here, landlord has partially evicted tenant from the premises, as he is forced to stop using the kitchen. As landlord's failure to make necessary repairs caused tenant to be unable to use this portion of the premises, a partial eviction has occurred. Tenant will not be liable for rent during that time period. CONSTRUCTIVE EVICTION. This occurs when a landlord fails to provide a service which results in depriving the tenant from quiet enjoyment of the premises. The landlord must fail to provide a service, and the tenant must vacate within a reasonable time of discovering landlord's failure to provide the service. Here, tenant did not move out within a reasonable time of discovering

6 the defect, and so constructive eviction does not apply. FIXTURES. Fixtures are items which are personal property, but that become part of the real property when they are attached or installed to a premises. When determining whether an item is a fixture, courts will consider the degree of attachment, harm to premises if removed, custom, intent of person installing the item and the length of the lease. A bathtub/whirlpool is considered a fixture in most circumstances, depending on whether it is installed or whether it just sits on top of the floor. Here, we are told that the original bathtub was removed, and replaced with the whirlpool tub. If tenant had placed the whirlpool bake on top of a deck, the whirlpool would probably not be seen as a fixture that should stay with the premises. However, because tenant permanently affixed the tub, while taking out the previous tub, the whirlpool tub would be a fixture, which would remain on the premises. The mirrors will also probably be considered fixtures because they are probably attached to the ceiling with glue and would cause damage if removed. AMELIORATIVE WASTE. When a tenant acts in a manner to alter the leased premises she commits waste. Waste may be permissive, voluntary or ameliorative. Tenant has a duty not to commit waste, even ameliorative waste which increases the value of the property. However, sometimes a tenant may commit waste if, the waste increases the value of the premises, it is a long-term lease, or the changes are in-keeping with the changes of the neighborhood. Here, tenant committed ameliorative waste by altering the nature of the property through installation of the whirlpool and mirrors. Arguably, the price of the property was enhanced, but under ameliorative waste, notwithstanding the increase, the tenant could be held liable to the tenant for costs of returning the bath and ceiling to the original state.

7 NOTICE UNDER THE LEASE. If this lease is a tenancy for years, it would end automatically at the end of the year, and there would be no need for a notice from landlord for tenant to vacate the premises. It is more likely that this situation involves a periodic tenancy. A notice under a periodic tenancy must be given, and it must be equal to the period involved, or, if one year or longer, at least six months notice must be given. Here, landlord gave a notice of six weeks instead of six months. Therefore, tenant would not need to vacate. Rather, landlord must give a notice of six months, and tenant would be able to stay in the apartment for another six months.