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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:

  1. The landlord does not provide a service he obligated to provide or acts in some way that causes injury to the premises.

  2. 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.

  3. 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:

  1. Move out and terminate the lease.

  2. 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.

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