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.
What a Lease should Contain
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
- Property address
- 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
- Pet policy
- Repair policy
- Decorating policy
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
Types of Leasehold Interests
There are four types of leasehold interests: (i) the terms for years
(ii) the periodic tenancy (iii) the tenancy at will (iv) tenancy at
Term for years
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.
The Periodic Tenancy
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;
Tenancy at Will
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.
Disclosure of Defects
The landlord is under a duty to disclose to the tenant all latent defects existing on the property at the time of leasing.
Duty to Repair the Common Areas
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.
Implied Warranty of Habitability
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
Good and Services covered by the Implied Warranty
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.
Landlord’s Notice of Defect
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
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
Repair and Deduct
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.
Rent Abatement and Withholding
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 and Security
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.
Duty To Pay Rent
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.
Agreements to Modify Rent
Subsequent agreement by the landlord and tenant to increase or
decrease the reserved rent must be supported by new consideration.
Time of Payment
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.
Remedies of the Landlord for Nonpayment
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.