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Landlord-Tenant Law Overview
I. Constructive Eviction
A. Elements of Constructive Eviction
Three Essential Elements:
-
Substantial Interference
- Must be significant or substantial interference with tenant’s use and enjoyment
- Measured objectively (reasonable person standard), not subjectively
- Examples of substantial interference:
- Broken locks
- No heating or gas
- No hot water
- Roach or rodent infestations
- Leaks
- Electrical issues
- Noise problems
- Toxic mold
- Minor issues typically insufficient (e.g., single moth in closet)
-
Notice to Landlord
- Tenant must provide landlord notice of the issue
- Landlord cannot cure problems they don’t know about
- Tenant must give landlord reasonable time to cure the problem
- What constitutes “reasonable time” is case-by-case
- Emergency situations (overflowing toilet) vs. non-emergency (single mouse)
- Failure to give notice = constructive eviction claim fails
- If tenant leaves before allowing reasonable cure time, claim fails
-
Vacate the Premises
- Tenant must vacate the property
- Cannot claim constructive eviction while still occupying premises
- Rationale: If condition is truly uninhabitable, tenant would be forced to leave
- Tenant leaves on their own based on landlord’s omissions
Important Note: Constructive eviction discussion is typically brief - don’t over-write the vacate element.
B. Relationship to Abandonment
- Landlord will often claim abandonment when tenant vacates
- Tenant’s response: justified departure due to constructive eviction
- If constructively evicted, tenant’s obligation to pay rent is extinguished
- Abandonment is arguable when constructive eviction is contested
C. Constructive Eviction vs. Habitability
- Can incorporate habitability issues
- Same facts may raise both constructive eviction AND implied warranty of habitability
- Two separate discussions required
- Example: Toxic mold could support both claims
II. Illegal Lease
A. Definition and Requirements
An illegal lease is based on violation of housing code at the inception of the lease
- If city issues order that property is not habitable, landlord cannot rent it
- Leasing property in violation of housing code = illegal lease
- Illegal lease is unenforceable
B. Timing Is Critical
- Issue must exist at inception of lease
- If problem arises after lease begins, illegal lease does not apply
- Post-inception problems may be habitability issues instead
C. Examples of Illegal Leases
- Lease for purposes of cooking methamphetamine
- Lease for running prostitution ring
- Any lease premised on illegal activity
- Lease of property under housing code violation order
Note: If activity is illegal but landlord unaware (no meeting of minds), lease may not be illegal
III. Implied Warranty of Habitability
Very commonly tested - expect this on exams
A. Basic Principles
- Applies only to residential leases (NOT commercial)
- Is implied in every residential lease (need not be in writing)
- Landlord cannot waive habitability protections (public policy)
- Protects tenant’s right to premises suitable for ordinary residential use
B. Key Question
Is the premises habitable for ordinary residential use?
C. Effect on Tenant’s Obligations
- Uninhabitable premises excuses tenant from paying rent
- No requirement to vacate (unlike constructive eviction)
- Tenant may remain on premises and refuse rent payments
D. Analysis Requirements
Must show:
- How the condition is a habitability issue
- How it affects the entire premises to deem it uninhabitable
- Objective standard applies (reasonable person)
Common exam mistakes:
- Identifying habitability issue but failing to explain impact on entire premises
- Vague fact patterns require analysis of whether issue rises to uninhabitability level
E. Examples of Habitability Issues
Clear habitability concerns:
- Toxic mold (sanitary issue)
- Rat/rodent infestations
- Non-functioning toilet (only toilet in unit)
- No electricity
- No hot water
- Broken locks (California law recognizes as habitability issue)
Questionable/arguable issues:
- Broken elevator (generally not habitability, but could be if wheelchair-bound tenant cannot access unit)
- One non-working toilet in multi-bathroom unit
- Ants in kitchen (minor, tenant could spray/wipe)
- “Sometimes” non-working toilet (vague - requires analysis)
NOT habitability issues:
- Broken elevator (general annoyance)
- Issues that are merely inconvenient vs. sanitary/safety concerns
F. Scope of “Entire Premises”
- “Premises” = the unit being rented, not entire apartment complex
- Must affect tenant’s specific rental unit
G. Tenant’s Remedies for Habitability Issues
- Refuse to pay rent
- Remedy defect and offset cost against rent
- Example: $5,000/month apartment with mold
- Tenant pays $1,000 to remove mold
- Following month, tenant pays only $4,000
- Defend against eviction
H. Exam Tips
- Constructive eviction can exist without habitability discussion (100%)
- Sometimes both doctrines coincide
- Don’t write “same as above” after constructive eviction discussion
- Habitability requires different analysis:
- Focus on sanitary issues, not mere annoyances
- Explain impact on entire premises
- Address whether reasonable person would find uninhabitable
IV. Retaliatory Eviction
A. Definition
- Occurs when landlord retaliates against tenant for reporting violations
- Landlord punishes tenant for exercising legal rights
B. Elements
- Tenant reports problem (to city, housing authority, etc.)
- Landlord takes adverse action in response
- Raising rent
- Refusing to renew lease
- Other punishments
C. Presumptions
Statutory Presumptions (0-180 days depending on jurisdiction):
- If landlord increases rent within 90-180 days after tenant reports violation
- Presumption that action is retaliatory
- Presumption can be rebutted
- Some jurisdictions: 90 days
- Other jurisdictions: up to 180 days
D. Public Policy
- Law encourages tenants to report problems
- Landlord cannot silence “whistleblowers”
- Retaliatory eviction violates public policy
E. Consequences
- Lease can be canceled
- Tenant protected from retaliation
V. Tort Liability (Premises Liability)
NOT TESTED in Property course
- Covered in Torts 2
- Deals with injuries on premises
- Who is liable: landlord or tenant?
- Involves invitee/licensee/trespasser distinctions
- Professor will never test this because not all students have taken Torts 2
VI. Fixtures
Definition: A chattel (personal property) that becomes affixed to the realty
A. Basic Rule
When tenant installs fixture, does it become part of realty (landlord’s property)?
B. Test for Fixtures
Two-part inquiry:
- Is the chattel affixed to the property?
- Did tenant intend for it to become part of the realty?
Intent is determined by:
- Nature of the item itself
- Whether item is typically transient
- Combination of objective intent and actual installation
C. Examples of Fixtures
Likely to be fixtures (remain landlord’s property):
- Water heater (affixed via plumbing)
- Carpet (installed, not area rug)
- Wallpaper
- High-tech toilet bolted down (even $8,000 Japanese toilet)
- Rose garden planted in ground
- Solar panels attached to house
- Security system (if permanently installed)
Analysis considerations:
- Is item typically transient?
- Toilets are not typically taken from place to place
- Carpet is installed (vs. area rug which is movable)
- Intent shown by permanent installation
D. Trade Fixtures (Commercial Exception)
Special rule for commercial leases:
- Machinery/equipment installed for business operations
- May be removed if:
- Removed upon termination of lease
- Do not cause significant damage to realty
- Recognizes transient nature of business operations
- Example: Manufacturing equipment in warehouse
Important: Trade fixtures apply to commercial leases only, NOT residential
E. Remedies for Fixture Disputes
- If tenant removes fixture improperly, landlord can sue for:
- Return of the item
- Replacement cost
- Damages resulting from removal
F. Exam Considerations
- If facts mention installation of items, consider fixture analysis
- Discuss whether item affixed and intended to become part of realty
- Address whether item is typically transient
- If price mentioned (e.g., $8,000 toilet), still likely fixture if affixed
VII. Duty to Repair
A. General Rule
- Tenant has no obligation to make significant repairs
- Tenant not responsible for ordinary wear and tear
B. Tenant’s Responsibilities
Tenant must repair if:
- Damage caused by tenant’s own actions
- Example: Knife going through wall during knife fight
C. Relationship to Other Doctrines
- Consider duty to repair when discussing:
- Constructive eviction issues
- Habitability issues
- Analysis: Is damage significant enough to require landlord repair?
- Or is it minor enough for tenant to handle?
VIII. Waste
Same rules of waste apply to landlord-tenant as to other property interests
A. Tenant Cannot Commit Waste
- Cannot damage the property
- Cannot change character of property
- Cannot be negligent
- Cannot be a hoarder
- Cannot spray paint walls
B. Types of Waste
- Voluntary waste
- Permissive waste
- (Same framework as discussed earlier in semester)
Case Law
IX. Delivery of Possession
Hanan v. Dusch (Virginia Supreme Court of Appeals, 1930)
Facts:
- Hanan rented property from Dusch beginning January 1, 1928
- Prior tenant still occupying when Hanan tried to move in
- Hanan sued, claiming landlord must deliver vacant possession
Issue: Does landlord have implied duty to deliver actual possession at lease commencement?
Rules - Two Competing Views:
-
English Rule (Majority View):
- Landlord must deliver both legal AND actual possession
- Landlord responsible for removing holdover tenants
- More protective of incoming tenant
-
American Rule (Minority View):
- Landlord only required to provide legal right to possession
- NOT responsible for delivering actual physical possession
- Tenant’s burden to remove holdover occupants
- Rationale: Unfair to hold landlord responsible for third party wrongdoing
Holding: Court adopted American Rule - affirmed for Dusch
Analysis:
- This case applies specifically to holdover tenants (prior tenants refusing to leave)
- Tenant has ability to include provision in lease requiring landlord to remove holdovers
- If not in lease, law doesn’t require it under American Rule
Modern Application:
- English Rule believed to be majority view in most jurisdictions
- American Rule creates burden on incoming tenant
- Better reasoned view: Landlord should remove prior tenant (it’s their property)
Exam Application:
- If holdover tenant issue arises, discuss both rules
- English Rule: Landlord must provide actual possession
- American Rule: Only legal possession required
X. Assignment vs. Sublease
Ernst v. Conditt (Tennessee Court of Appeals, 1964)
Facts:
- Ernst (landlord) leased lot to Rogers for 1 year with renewal option
- Lease required written consent for any transfer
- Rogers built go-kart track business
- Rogers wanted to sell business to Conditt
- Ernst approved transfer only after Rogers guaranteed rent if Conditt defaulted
- Agreement stated Rogers “sublet” premises to Conditt for remainder of term
- Rogers waived all right of reentry or control
- Conditt took possession, paid rent directly to Ernst
- Conditt failed to pay rent and abandoned property
- Ernst sued Conditt for unpaid rent
Issue: Was transfer a sublease or assignment?
Rule: Courts look to intent of parties and surrounding circumstances, not merely labels used
Key Factors Indicating Assignment:
- Exclusive possession for entire remainder of term (defining feature)
- Rent paid directly to landlord (Ernst), not to intermediate party (Rogers)
- Rogers retained no right of reentry
- Rogers sold entire business to Conditt (showed no intent to return)
- Conditt remained in possession even after original lease expired
Holding: Transaction constituted assignment, not sublease
Analysis:
- Label “sublease” in document NOT controlling
- Court examines:
- Intent from instrument as a whole
- Parties’ conduct
- Legal effect, not name
- Rogers’ promise to remain liable for rent = surety agreement, NOT reversionary interest
- Conditt in privity of estate with Ernst, personally liable for rent
Important Distinctions:
Assignment:
- Transfer of entire remaining interest
- All durational interest transferred
- Landlord can sue both original tenant AND assignee
- Privity of estate between landlord and assignee
Sublease:
- Transfer of less than entire interest
- Original tenant retains reversionary interest
- Sublessee pays rent to original tenant (not landlord)
- Original tenant then pays landlord
Exam Tips:
- Don’t rely solely on labels (“sublease” vs. “assignment”)
- Analyze duration of transfer
- Follow the rent payments
- Look for intent to return to premises
- Sale of business suggests no intent to return = assignment
XI. Consent to Assignment
Kendall v. Ernst Pestana, Inc. (California Supreme Court, 1985)
Facts:
- Bixler leased commercial hangar space in San Jose (1969, 25-year lease)
- Lease assigned to Ernst Pestana (became landlord)
- Bixler subleased to Kendall (plaintiffs) for aviation service business
- Sublease included clause: “Sublessee shall not assign or sublet without written consent”
- Plaintiffs sought to sell business (including sublease) to new buyer
- Pestana refused consent UNLESS:
- Rent increased
- Other concessions granted
- No evidence proposed assignee was unfit or would breach lease
- Trial court and Court of Appeals sided with Pestana
Issue: May commercial landlord arbitrarily withhold consent to assignment when lease requires consent but doesn’t specify standard?
Two Competing Views:
-
Majority Rule (Traditional Common Law):
- Landlord can arbitrarily and unreasonably refuse consent
- No requirement of good faith
- Can deny for any reason or no reason
- Examples: “I don’t like Sarah,” “I don’t like Alex”
-
Minority Rule (California’s Approach):
- Landlord may NOT unreasonably withhold consent
- Implied covenant of good faith applies
- Must have legitimate reason for denial
- Purely economic motivation insufficient
Holding: California Supreme Court adopted Minority Rule (reversed lower courts)
Rationale for Minority Rule:
-
Contract Principles:
- Modern commercial leases are contracts, not merely conveyances
- Should be governed by good faith principles
- Landlord cannot act capriciously
-
Policy Against Restraints on Alienation:
- Promotes free transferability of property
- Allows business transfers and sales
-
Economic Reality:
- Business transfers, sales, and absorptions common in commerce
- Should be facilitated, not arbitrarily blocked
-
Restatement (Second) Support:
- Modern trend recognizes reasonableness requirement
Application to Facts:
- Pestana’s refusal purely economic (wanted higher rent)
- No legitimate concern about assignee’s capabilities
- No concern about use of property
- Refusal unreasonable and unenforceable
Important Limitations:
Applies to: Commercial leases (explicit in holding)
Unclear: Whether applies to residential leases
- Court note 17 (page 508): “We are presented only with commercial lease, therefore do not address whether residential leases controlled by these principles”
- As of decision, unclear if extends to residential
Practical Effects:
Under Minority Rule:
- Landlord still gets multiple parties liable (original tenant + assignee)
- Transfer still requires consent
- Consent just cannot be unreasonably withheld
- Landlord must act in good faith with legitimate reason
Under Majority Rule:
- Landlord can arbitrarily deny
- Holds tenant to original lease
- No requirement of reasonableness
Exam Application:
- Discuss both majority and minority rules
- Majority: Arbitrary denial permitted
- Minority (California commercial): Good faith required, must be reasonable
- Note: California follows minority view
- Analyze whether denial reasonable under facts
- Consider: Was denial based on legitimate business concern or pure economics?
Casebook Review - Leaseholds
XII. Types of Leaseholds (p. 471-472)
A. Term of Years
Rule: Estate lasting for fixed period of time OR period computable by formula fixing calendar dates for beginning and ending
B. Periodic Tenancy
Rule: Lease for fixed duration that continues for succeeding periods until landlord or tenant gives notice of termination
C. Tenancy at Will
Rule: Tenancy of no fixed period enduring so long as both landlord and tenant desire
Important: Giving tenant sole power to terminate could create life estate
D. Tenancy at Sufferance (p. 474)
Rule: Arises when tenant remains in possession (holds over) after termination of tenancy
XIII. Statute of Frauds (p. 477)
General Rule: Leases for more than one year must be in writing
- Based on English Statute of Frauds (17th century)
- Prevents fraud in lease transactions
- American statutes commonly require writing for leases exceeding one year
Exam Consideration:
- If lease term is year-to-year by phone = fails statute of frauds
- Defaults to periodic tenancy (month-to-month based on rent payment schedule)
- May discuss both as term of years (if in writing) and periodic (if statute of frauds fails)
- Professor accepts either approach on exams
XIV. Discrimination (p. 478)
NOT heavily tested - Constitutional Law issue
- Landlord cannot discriminate based on:
- Race
- Religion
- National origin
- Sex
- Family status
- Sexual orientation
- High standard of review for race, religion, national origin
- Intermediate scrutiny for sex and family status
- Equal Protection issue (Constitutional Law)
Professor’s Note: Will not test because this overlaps with Constitutional Law, which not all students have taken
XV. Privity (p. 507, Note 2)
In Assignment Context:
Privity of Estate:
- Exists between landlord and assignee
- Assignee directly liable to landlord for rent
- Landlord can sue BOTH:
- Original tenant (privity of contract)
- Assignee (privity of estate)
Landlord Preference:
- Landlords prefer assignments over subleases
- Assignments give landlord two parties on the hook for rent
In Sublease Context:
- No privity between landlord and sublessee
- Sublessee pays original tenant
- Original tenant pays landlord
- Landlord can only sue original tenant, not sublessee
Key Exam Tips & Takeaways
-
Constructive Eviction: Three elements (substantial interference + notice with reasonable cure time + vacate). Keep vacate discussion brief.
-
Habitability: Very commonly tested. Applies ONLY to residential leases. Cannot be waived. Tenant need not vacate. Must explain how condition makes ENTIRE premises uninhabitable.
-
Constructive Eviction vs. Habitability: Can discuss both for same facts. Don’t write “same as above.” Different analyses required.
-
Retaliatory Eviction: Look for tenant reporting + landlord punishment. Presumption if within 90-180 days.
-
Fixtures: Affixed + intent to become part of realty = landlord’s property. Consider whether typically transient.
-
Assignment vs. Sublease: Ignore labels. Look at: (1) duration of transfer, (2) who pays rent to whom, (3) intent to return, (4) sale of business.
-
Consent to Assignment:
- Majority: Can arbitrarily deny
- Minority (California commercial): Must be reasonable and good faith
-
Illegal Lease: Must be illegal at inception, not after lease begins.
-
Waste & Duty to Repair: Same rules apply as elsewhere in property law.
-
Final Exam Hints: Professor indicated one definite hint dropped this session - pay attention to topics emphasized and examples given (e.g., Japanese toilet, fixtures, habitability).
