David Hill - Landlord and Tenant Law in a Nutshell

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A. BENJAMIN SPENCER

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JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

LANDLORD AND TENANT LAW

IN A NUTSHELL

SIXTH EDITION

DAVID S. HILL

Professor of Law, Emeritus
University of Colorado

CAROL NECOLE BROWN

Professor of Law,
University of Richmond

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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2011 Thomson Reuters

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ISBN: 978-1-63460-323-2

To Jane

D.S.H.

To the memory of my late parents,
Allen and Valerie Brown and for my daughters, Reagan and Hannah Harris

C.N.B.

PREFACE

Since 1979, when the first edition of this book was published, the movement of landlord-tenant law toward a greater emphasis on the contractual aspects of a lease has continued relatively unabated. The most notable development in this trend continues to be adoption of the implied warranty of habitability and the accompanying idea of dependence of covenants. At the present time, most jurisdictions have adopted the implied warranty of habitability as the principal doctrine controlling landlord-tenant relations in residential leases. The trend is also reflected in increased application of the doctrine of mitigation and retaliatory eviction. Particular attention has been given to these areas. And, of course, we have tried to make all the subjects covered by this book as current as possible.

The coverage and organization of this book remains essentially the same as that of the first five editions. With respect to the purpose of the book, perhaps the preface to the first edition bears repeating:

It has been said, and it is probably true, that no first year law school course is as rule-laden and complex as Real Property. A substantial portion of the law of Real Property concerns the relationship of landlord and tenant. This book is intended as a succinct presentation of landlord-tenant law, designed primarily to aid first year law students. It contains an exposition of most of the rules that govern the legal relations of landlords and tenants, and the exceptions thereto, and also encompasses some exploration of the underlying reasons for the rules. The policy-oriented discussions are included in the hope that they will help the student to better understand the rules and to begin to examine them from a more critical perspective....

Because of the limitations of the Nutshell format, we believe that this book should be merely the starting point of a students study of landlord-tenant law. Within these limitations, we hope that we have provided a tool that students will find useful in their study of the law of landlord and tenant.

David S. Hill
Carol Necole Brown

March 2018

OUTLINE

A. Classification of the Lease as a
Nonfreehold Estate

B. Remedies Granted Tenants to Protect
Their Possessory Rights

a. Breach of the Covenant of Power
to Demise

Intended Use Illegal at Time of
Letting

b. Lease for a Purpose Requiring a Permit, License, or Zoning
Variance

c. Multiple UsesOne Use
Prohibited

d. Right to Possession of the
Premises

e. Leases That Violate Housing
Codes

(i) Landlords Right to
Possession

(i) No Duty to Mitigate, the Traditional and Minority
Rules

(b) Rent Acceleration
Clauses

(ii) The Landlords Affirmative
Duty to Mitigate

b. Voluntary Reletting for the Benefit
of the Tenant

c. Landlords Election to Terminate
the Lease

A. Change in Condition of Premises
Between the Time of Leasing and the
Time of Possession

III. Interference with the Tenants Possession
and Use of the Premises

A. Condemnation of the Entire
Leasehold

V. Duty of the Tenant to Occupy the
Premises

Conduct of the Landlord After Notice
of the Dangerous Condition in the Common Areas

B. Areas Retained Under the Landlords Exclusive Control but Necessary to the
Use of the Leased Property

Conduct of the Landlord After Notice
of the Dangerous Condition

Statutory Civil Sanctions Enforced
by the Tenant

Procedure for Raising Breach of
Implied Warranty of Habitability

b. Standard of HabitabilityBreach
of Warranty

(i) Goods and Services Covered
by the Implied Warranty

(ii) Substantial or Material
Defects Constituting a Breach
of the Implied Warranty

d. Rent Abatement and
Withholding

Tort Liability for Breach of the
Implied Warranty of Habitability

Conduct of the Landlord and
Tenant

G. Defenses of the Landlord to Tort
Liability

D. Effect of Transfer of the Parties
Interest

A. Dangerous Conditions Antedating
Transfer of Possession to the Tenant

Covenant by the Tenant to Eliminate
the Dangerous Condition

B. Effect of the Landlords Covenant to
Repair

C. Landlord Under a Statutory Duty to
Repair

Rights and Duties of the
Tenant

A. Physical Changes Due to Acts of a
Stranger or Acts of God

B. Ordinary Wear and Tear and Voluntary Alterations to the Leased Property
Made by the Tenant

b. Removal of Valuable Minerals by
the Tenant

Effect of an Assignment or
Sublease

d. Limitations on the Tenants Right
of Removal

(i) Character of the
Annexation

A. Assignment and Sublease
Distinguished

B. Covenants Against Transfer of the
Tenants Interest

a. Reassignment to the Original
Tenant

Covenants Running with the
Land

a. Running of Covenants Made by
the Tenant

b. Running of Covenants Made by
the Landlord

III. Construction and Operation of Renewal
and Extension Provisions

C. Effect of Exercise of the Option to
Purchase

Waiver of the Right to Prompt
Payment

C. Agreements to Pay Rent After