I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.
Landlord and Tenant (part B)
by
Charles Lamson
Duties of the Tenant
The lease imposes certain duties upon the tenant:
- To pay rent
- To protect and preserve the premises
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To Pay Rent
The tenant's primary duty is to pay the rent. This payment must be made in money unless the contract provides otherwise, such as a share of the crops. The rent is not do until the end of the term, but leases almost universally provide for rent in advance.
Landlords commonly appoint an agent for the purpose of collecting the rent. The death of the principal automatically terminates such a principal-agent relationship. Any rent paid to the agent after this termination and not remitted to the proper party must be paid again.
If the tenant fails to pay rent on time, the landlord may terminate the lease and order the tenant to vacate, or the landlord may permit the tenant to continue occupancy and sue for the rent. However, even if the landlord forces the tenant to vacate the property the tenant is still liable for the agreed rent. Under the common law the landlord could cease and hold any personal property found on the premises. This right has been either curtailed or abolished by statute.
To Protect and Preserve the Premises
Traditionally, a tenant had to make repairs on the premises. This was because a tenant had a duty to keep the leased property in as good condition as the landlord had it when the lease began. some states have enacted statutes requiring the landlord to make repairs. Other states had a warranty of habitability, which makes the landlord responsible for keeping the premises livable. Some statutes even give tenants a form of self-help. The tenant must notify the landlord of needed repairs. If the landlord does not make the repairs, the tenant may fix things and deduct the cost from the rent. Tenants, however, must repair damage caused by their negligence. In some states in which statues have not altered the traditional responsibility, tenants must repair damage except reasonable wear and tear and damage by the elements.
Rights of the Landlord
The landlord has three definite rights under the lease:
To Regain Possession
Upon termination of the lease, the landlord has the right to regain peaceable possession of the premises. If the tenant refuses this possession, the most common remedy is to bring an action of ejectment in a court of law. Upon the successful completion of this suit, the sheriff will forcibly remove the tenant and any property.
When the landlord repossess leased property, all permanent improvements and fixtures may be retained. Courts determine whether or not the improvements have become a part of the real estate. If they have, they cannot be removed.
To Enter Upon the Property to Preserve It
The landlord has the right to enter upon the property to preserve it. Extensive renovations that interfere with the tenants peaceable occupancy cannot be made. If the roof blows off or becomes leaky, the landlord may repair it or put on a new roof. This occasion cannot be used to add another story. A landlord who enters the property without permission may be treated as a stranger. A landlord has no right to enter the premises to show the property to prospective purchasers or tenants unless the lease reserves this right.
To Assign Rights
The landlord has the right to assign the rights under the lease to a third party. The tenant cannot avoid any duties and obligations by reason of the assignment of the lease. Like all other assignments, the assignment does not release the assignor from the contract without the consent of the tenant. If, for example, the tenant suffers injury because of a concealed but defective water main cover and the landlord knew of this condition, the landlord has liability even though rights under the lease were assigned before the injury.
Duties of the Landlord
The lease imposes certain duties upon the landlord:
To Pay Taxes and Assessments
Although the tenant occupies and uses the premises, the landlord must pay all taxes and special assessments. Sometimes the lease provides that the tenant shall pay the taxes. In such event, the tenant has no liability for special assessments for sidewalks, street paving, and other improvements.
To Protect the Tenant from Concealed Defects
The landlord has liability to the tenant if the tenant suffers injury by concealed defects that were known or should have been reasonably known to the landlord at the time of giving the tenant possession of the premises. Such defects might be contamination from contagious germs; concealed, unfilled wells and rotten timbers in the dwelling. The tenant bears the risk of injury caused by apparent defect or defects reasonably discoverable upon inspection at the time that the tenant enters into possession. Most cities and many states have tenement laws that require the landlord to keep all rental property habitable and provided with adequate fire escapes. The question of the habitability of the property relates to major defects in the structure. Any damage due to a failure to observe these laws may subject the landlord to liability for damages.
To Mitigate Damages Upon Abandonment by the Tenant
Unless the landlord accepts the abandonment, a tenant who abandons leased property before the end of the lease term still has an obligation to pay the rent due through the end of the term. Under the common law the landlord could do nothing and sue the tenant for the unpaid rent. However, in most states the landlord now has a duty to take reasonable steps to mitigate the tenant's damages by attempting to secure a new tenant. If a new a tenant occupies the premises, the landlord's damage from the first tenant abandoning the property equals the difference between the rent the original tenant had to pay and the rent the new tenant pays. In this way, the original tenant's obligation amounts to less than the original rent called for by the lease and the new tenant's payments mitigate the landlords damage due from the original tenant.
Termination of the Lease
A lease for a fixed time automatically terminates upon the expiration of that period. The death of either party does not ordinarily affect the lease. If the leased property consists of rooms or apartments in a building and fire or any other accidental cause destroys them, the lease terminates without liability on the part of the tenant. In the case of leases of entire buildings, serious problems arise if fire, tornado, or any other cause destroys the property. Under the common law the tenant had to continue to pay rent even though the property was destroyed. Some states retain this rule; other states have modified it. A landlord who has a 10-year lease on a $100,000 building destroyed by fire one year after signing the lease would not be inclined to rebuild if fully covered by fire insurance. The landlord would find it more profitable to invest the $100,000 and continue to collect the rent. To prevent this, statutes may provide that if the landlord refuses to restore the property, the lease terminates. The lease itself may contain a cancellation clause. If it does not, the tenant can carry fire insurance for the amount of possible loss. Even when the lease will thus terminate, the tenant will probably wish to carry fire insurance for personal property and, if the premises are used for a business purpose, may carry Insurance to indemnify for business interruption or loss of business income.
The landlord may agree to the voluntary surrender of the possession of the premises before the lease expires. This terminates the lease. However, an abandonment of the premises without the consent of the landlord does not constitute a termination of the lease, but a breach of contract.
If the lease runs from year to year or from month to month, the party wishing to terminate it must generally give the other party a written notice of this intention. Statutes prescribe the time and the manner of giving notice; they may also specify other particulars, such as the grounds for a termination of the tenancy.
If either party fails to give proper notice, the other party may continue the tenancy for another period.
Eviction
Tenants sometimes refuse to give up possession of the property after the expiration of the lease or fail to comply with requirements of the lease or laws. In such a case, a landlord may seek an eviction of the tenant. eviction is the expulsion of the tenant from the lease property. The laws of the states vary, but all have some form of summary eviction law. The summary action brought by the landlord is called a forcible entry and detainer action. The tenant has a right to written notice and a court hearing. However, the court will set an early right to written notice and a court hearing. However, the court will set an early date, usually 7 to 15 days after notification of the tenant, for the trial. If the landlord wins, law enforcement officers may enforce the eviction in a few days. The proceedings permit quick recovery of real property by the one legally entitled to it.
Improvements
Tenants frequently make improvements during the life of the lease. Many disputes arise as to the tenant's right to take these improvements after the lease is terminated. Courts must determine whether an improvement has become a fixture, which must be left on the land, or whether it remains personal property. If the improvements are trade fixtures, or fixtures used in business, and can be removed without substantial injury to the leased property, the tenant may remove them. If a farm tenant builds a fence in the normal way, the fence is a fixture, and the tenant has no right to remove it upon leaving. A poultry house built in the usual way is a fixture and cannot be removed. In a similar case a tenant built the poultry house on sledlike runners. When ready to leave, the tenant had the poultry house hauled away and took it when vacating. The court held the shed had not become a fixture but remained personal property.
Unless prohibited by law, one may freely contract away rights or may waive them, so the parties may agree as to how to treat fixtures. In one case a tenant built a permanent frame house on leased property with the landlord agreement that the house could be moved at the end of the lease. The landlord was bound by this contract.
Discrimination
Federal law prohibits landlords from discriminating against tenants or proposed tenants because of race, color, religion, sex, familial status, or national origin. The term familial status refers to whether the tenant has children. Additionally, some states and even municipalities prohibit discrimination based on such aspects as physical or mental handicaps, age, or marital status.
INTERNET RESOURCES FOR BUSINESS LAW
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., PGS. 534-539, 541*
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