Landlord–Tenant

MBEMax wiki article — paired with the Real Property question set on mbemax.com.

One-line summary

A lease is both a conveyance and a contract; the tenant's core promises are to pay rent and not commit waste; the landlord's core promises are to deliver possession and (in residential leases) to provide a habitable, quietly enjoyable premises.

Mnemonic

TYPE-DISH — four TYPEs of leasehold + Deliver possession, Implied warranty of habitability, Surrender/sublease/assignment, Holding over.

Think of your favorite rental: you sign a lease (TYPE), the landlord hands you keys (Deliver), the place is livable (Habitability), you later swap or leave (Surrender/Sublease), and you're not a holdover (Holding).

The four leasehold types

1. Tenancy for years — fixed period with a defined end. No notice needed to terminate.
2. Periodic tenancy — automatically renews (month-to-month, year-to-year) until proper notice. Notice usually equals the period, capped at six months.
3. Tenancy at will — either party may terminate at any time. Modern rule: reasonable notice.
4. Tenancy at sufferance — holdover after a lease expires. Landlord may elect to evict or bind to a new periodic tenancy.

Landlord duties

• Deliver possession. Majority / English rule: landlord must deliver actual possession. Minority / American rule: legal right to possession is enough — tenant's remedy against holdover predecessor.
• Implied warranty of habitability (residential). Non-waivable in residential leases. Requires premises fit for human habitation. Tenant remedies: terminate, repair and deduct, withhold or pay into escrow, damages, injunction.
• Implied covenant of quiet enjoyment. Applies to residential and commercial. Breached by actual eviction, partial eviction, or constructive eviction.
• Mitigation. Modern majority requires landlord to mitigate by making reasonable efforts to relet after tenant abandons.

Tenant duties

• Pay rent on schedule.
• Avoid waste — voluntary, permissive, or ameliorative.
• Repair to prevent deterioration (unless lease reassigns).
• No illegal use or substantial alterations.

Assignment vs. sublease

• Assignment — tenant transfers the entire remaining term. Assignee is in privity of estate with landlord; original tenant stays in privity of contract unless released.
• Sublease — tenant transfers less than the entire remaining term. No privity between subtenant and landlord; original tenant stays liable on both privities.
• Anti-assignment clauses — strictly construed (Kendall v. Ernest Pestana — commercial consent must be reasonably withheld in many states).

NCBE loves to test

• Constructive eviction. Substantial interference by the landlord, notice, opportunity to cure, and tenant vacates within a reasonable time. All four required.
• Rule in Dumpor's Case. Once landlord consents to one assignment, a no-assignment clause is waived going forward unless expressly reserved. Majority/modern rule rejects this.
• Holdover tenant. Landlord's election — treat as trespasser and evict, or bind to a periodic tenancy. Terms of the old lease carry over (except duration).
• Surrender. Requires mutual agreement (writing if remaining term over one year, per SOF). Abandonment alone is not surrender.
• Habitability is non-waivable. Lease clause saying tenant waives warranty is void as to residential leases.
• Security-deposit statutes. Strict — most jurisdictions impose notice/accounting duties and double-damages on wrongful withholding.

Fast hypos

Hypo 1. Tenant's apartment floods every heavy rain. Landlord ignores notice and repair requests for three months. Tenant moves out and sues. Constructive eviction if tenant vacated within reasonable time; breach of implied warranty of habitability; damages and termination.

Hypo 2. Tenant assigns remaining 10 months of a 12-month lease to friend. Friend fails to pay. Landlord sues original tenant. Original tenant liable on privity of contract (not released); landlord may also sue assignee on privity of estate.

Hypo 3. One-year lease expires. Tenant remains. Landlord cashes next month's rent check. Holdover bound as periodic (month-to-month), using original lease terms.

Hypo 4. Tenant abandons with 8 months left. Landlord does nothing. Sues tenant at end for 8 months' rent. Under modern majority, landlord must mitigate — recovery limited to rent for reasonable reletting period.

Case anchors

• Javins v. First National Realty, 428 F.2d 1071 (D.C. Cir. 1970) — implied warranty of habitability.
• Kendall v. Ernest Pestana, Inc., 40 Cal.3d 488 (1985) — reasonableness standard for commercial consent to assign.
• Sommer v. Kridel, 74 N.J. 446 (1977) — duty to mitigate on abandonment.
• Reste Realty Corp. v. Cooper, 53 N.J. 444 (1969) — constructive-eviction elements.

See also

• Recording Acts
• Easements
• Future Interests
• Fixtures

Sources

Restatement (Second) of Property: Landlord and Tenant §§ 5.1, 5.4, 11.1, 14.1–14.4; Javins, 428 F.2d 1071 (D.C. Cir. 1970); Sommer v. Kridel, 74 N.J. 446 (1977); Kendall v. Ernest Pestana, Inc., 40 Cal.3d 488 (1985); Reste Realty Corp. v. Cooper, 53 N.J. 444 (1969).