Duties of the Landlord

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Delivery of Possession

The landlord’s duty to deliver possession of the property to the tenant is, of course, the essence of any leasehold, because the leasehold itself is nothing more than possession of the property for a certain period of time. Therefore it is clear that, as a fundamental duty inherent in the leasehold, the landlord must give the tenant to legal right to possess the property.

The question becomes whether the landlord has to give the tenant not only the right to possess the property but actual possession as well. In other words, does the landlord have to make sure that the tenant can actually physically take possession of the property or must he simply allow the tenant to legally take possession? For example:

George leases his ranch in Texas to Colin. When Colin comes to take possession, however, he finds that Dick is occupying the land illegally. The question becomes, whose responsibility it is to force Dick to leave the ranch and to allow Colin to take possession of the land. If the landlord’s duty is merely to transfer the right to possess the land, then George has fulfilled that obligation and Colin would have to force Dick off the ranch through an eviction action in order to take his rightful possession. However, if the landlord also must deliver possession of the property, then it would be George’s responsibility to throw Dick off the ranch and thus deliver possession of the ranch to Colin.

The rule in most jurisdictions is that the landlord must deliver actual possession of the property to the tenant in addition to the legal right to possess the property. In other words, the property must be ready for the tenant to move into at the beginning of the lease. In our example, George must take whatever legal steps are necessary to throw Dick off the ranch so that Colin can move in at the beginning of the lease. This is known as the “English rule.” See Adrian v. Rabinowitz, 116 N.J.L. 586 (N.J. Sup. Ct. 1936).

If, in a jurisdiction that follows the English rule, the landlord does not provide actual possession at the outset of the lease, the tenant can do one of two things. He or she can void the lease and collect any damages that the tenant may have suffered as a result of the failure of the landlord to deliver possession. Or, the tenant can uphold the lease and withhold rent for the time that he or she was unable to move onto the property.

If the tenant is only denied partial possession of the property, the only available remedy for the tenant is to deduct from rent payments a proportional share of the rent that corresponds to the amount of the possession of the property that was denied to the tenant. For example:

George leases his ranch in Texas to Colin. When Colin comes to take possession, however, he finds that Dick is occupying a portion of the land illegally. Dick is only occupying one small corner of the ranch on which he has built a house and on which he is living. Although George has violated his duty to deliver the entire possession of the property to Colin, Colin may not void the entire lease. Instead, he can deduct a share of the rent that corresponds to the percentage of the land that Dick is occupying. Of course, he can also bring an ejectment action against Dick to throw Dick off the property since he has a legal right to possess the whole ranch.

Some jurisdictions do not follow the “English rule.” There is another school of thought called the “American rule.” This rule does not require that the landlord give actual possession to the tenant at the beginning of the lease. In these jurisdictions, if an illegal possessor is living on the property, it is the tenant’s responsibility to throw the possessor off the property. The tenant may bring an action against the possessor, but may not bring an action against the landlord.

The Duty to Allow the Tenant Quiet Enjoyment of the Property

A tenant has the right to quiet enjoyment of the property without interference by the landlord. This is called the “covenant of quiet enjoyment”. It exists in every lease. Even if the parties did not expressly agree to this term, it is an implied term inherent in any leasehold.

At common law the tenant’s obligation to pay rent was dependent on the landlord upholding the covenant of quiet enjoyment. If the landlord violated the covenant of quiet enjoyment so that the tenant could not enjoy the land, then the tenant’s obligation to pay rent stopped. This remains the rule in many jurisdictions.

There are three ways in which the covenant of quiet enjoyment can be breached by the landlord:

        1. Actual Eviction: Actual eviction is where the tenant is physically removed from the premises. The most obvious case is when the landlord wrongfully evicts the tenant by physically throwing the tenant out or by locking the tenant out of the property. Actual eviction can also take effect if a third party acquires a legal right to evict the tenant from the landlord and then does evict the tenant. For example:

Ethel owns a building in which Lucy rents one of the apartments. Obviously, if Ethel wrongfully throws Lucy out of the apartment, she will have breached the duty to allow the tenant quiet enjoyment. Consider this scenario, however. Ethel takes a loan from First National Bank and mortgages the building as collateral. Ethel defaults on the loan and First National Bank repossesses the building. If First National Bank evicts Lucy, then Ethel will be liable to Lucy for the damages caused by the eviction. This is because the landlord who conveys the property to the tenant has the duty to allow the tenant quiet enjoyment. If the quiet enjoyment of the tenant is disrupted through the fault of the landlord (as in this case), then the landlord has breached the covenant and is liable for damages.

        2. Actual Partial Eviction: If the tenant is evicted from any part of the premises, the rent obligation stops entirely until he or she repossesses the entire property. In addition, the tenant can stay in possession of the rest of the property without paying rent. Rent obligation will only begin again once that other part of the property is restored to the tenant. Note the contrast between this rule and the previous rule that stated that if the tenant only had part of the property delivered to him or her, than he or she still had to pay the rent, but could deduct the proportionate share of the property from which he or she was excluded. The reason behind this difference is that an eviction is considered to be a worse breach of duty on the part of the landlord than a failure to deliver the whole property in the first place. For example:

Ethel owns a building in which Lucy has a term of years that is set to last for three more years. One day, Ethel comes into the apartment and announces that Lucy’s apartment is too big and so from that point forward, another tenant is going to live in Lucy’s spare bedroom. She then changes the lock to the spare bedroom and gives a new tenant the key. Lucy can remain in the rest of the apartment and she will not have to pay any rent at all to Ethel until Ethel returns the entire apartment to her control.

        3. Constructive Eviction: Even absent a physical eviction, a person can be considered to be “constructively” evicted if the landlord interferes with the tenants use and enjoyment of the property to a great enough extent.

There are 3 elements that must be met for there to have been a constructive eviction:

• The landlord must have committed wrongful actions or must have wrongfully neglected to maintain the property so that the existing conditions represent a “substantial interference” with the tenant’s enjoyment of the property.
• The tenant must give notice to the landlord of the problem and the landlord must fail to take the steps necessary to remedy the situation.
• The tenant must actually leave the property because of the interference.

A classic example of a constructive eviction occurs when the landlord fails to provide adequate heating or air conditioning services and it is not practical for the tenant to remedy (e.g., the central heating in a high rise office building does not work adequately) or fails to provide a functioning elevator for tenants on a high floor. See Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124 (1959).

An interesting issue that often arises is whether a landlord must prevent a third party (e.g., another tenant in an apartment building) from interfering with the tenant’s enjoyment of the property. Jurisdictions are split as to whether a landlord must prevent other people from interfering with the tenant’s enjoyment of the property if it is within the landlord’s power to do so. All jurisdictions agree that a landlord has a responsibility to control common areas such as hallways and to prevent the enjoyment of those areas by the tenants from being interfered with. For example:

Jerry leases an apartment in a building owned by George. Unfortunately, Jerry has trouble sleeping in his apartment because he has a next door neighbor, Kramer, who consistently throws loud, wild parties that last until 3:00 in the morning. Although George has every right to stop Kramer from behaving in such a disruptive manner, he refuses to do so. Jerry complains to George on numerous occasions, but George ignores him. Eventually, Jerry is forced to move out of the apartment because he cannot get a good night of sleep in the apartment. Some courts would hold that Jerry has been constructively evicted by George because George failed to act to protect the quiet enjoyment of Jerry. See Bocchini v. Gorn Management Co., 69 Md. App. 1 (1986).

If there has been a constructive eviction, the tenant’s duty of rent is terminated as of the date that the tenant vacated the property. In addition, the tenant may recover compensation from the landlord for any damage that was caused by the constructive eviction. Note, however, that the tenant must be careful before leaving the premises. If the tenant leaves the premises and it is later determined in court that there was no constructive eviction, then the tenant will be liable to pay the rent for the time that he or she was not living on the property.

Landlord’s Duty to Provide a Habitable Premises

Under the common law, there was no implied covenant that required the landlord to make sure that the property was in livable condition before he or she leased to the tenant. At common law, it was up to the tenant   to inspect the property before leasing it. Thus, unless the landlord gave the tenant an express warranty that the property is in livable condition, the landlord had no obligation to make sure the property was in livable condition and the tenant had to take the property as is.

Today, many jurisdictions infer an “implied covenant of habitability” automatically in any lease, although most jurisdictions that do infer such a covenant would limit this rule to dwellings. Thus, if in such a jurisdiction, a landlord fails to provide heating for a residential apartment in the winter, he or she will have breached this implied warranty even though the tenant could go out and buy a heater. For example:

Jerry leases an apartment in a building owned by George. Because George does not hire enough of a maintenance staff, garbage accumulates in the halls and stairwells in the building. This causes the corridors of the building to be permeated with a bad odor and causes an insect infestation in the building. Even though Jerry does not leave the building (and thus has not been constructively evicted), George has violated the implied warranty of habitability.

In jurisdictions that do infer an implied warranty of habitability, if the landlord breaches this duty, the tenant has several available options:

1. The tenant can move out and terminate the lease.
2. The tenant can repair the condition and deduct the repair price from the rent due under the lease.
3. The tenant can reduce or withhold rent until a court determines what would constitute a fair reduction of the rent due to the condition. (Although, a court would require the tenant to put the rent money in escrow until such a determination can be made.)
4. The tenant can keep the lease going under the same conditions and sue for monetary damages caused by the breach of the implied warranty of habitability.

For example:

Jerry leases an apartment in a building owned by George. George refuses to provide adequate heating in the winter. 1) Jerry can move out of the building and terminate the lease. 2) He can buy himself a space heater and deduct the cost of the heater from the rent that is due to George. 3) He can withhold rent until it is determined how much of a deduction of rent is warranted because of the lack of heat. 4) Finally, he can keep paying the same rent and he can sue George for the damages caused by the failure to adequately heat the apartment.

Note that a tenant cannot waive the implied warranty of habitability. So, even if the tenant signs a document agreeing that the landlord has no duty to provide habitable premises, that agreement will be invalid and the same implied warranty of habitability will apply.

Other Duties of a Landlord

At common law the landlord had no duty to maintain and repair property after the tenant had taken possession of it. It is possible for the landlord and tenant to agree that the landlord will make certain repairs. However, this would be an agreement that is independent of the duty to pay rent. If the landlord violated the agreement, the tenant would still be obligated to make his or her rental payments.

Many modern jurisdictions require that a landlord keep the premises in reasonable repair throughout the duration of the lease. The manifestation of this duty is that most courts will require that the landlord keep the property in a condition that is fit for human habitation. This makes this duty almost indistinguishable from the implied warranty of habitability.

Another point is that a landlord may not evict a tenant as retaliation for the tenant reporting a violation of a housing code provision. This is true even if the landlord has other legitimate grounds for evicting the tenant. If the motive for eviction is retaliation for reporting a violation, the eviction is illegal. Of course, proving intent is not easy and the tenant has the burden of proving the improper motive.

However, some states will shift the burden to the landlord to prove a proper motive for the eviction if the eviction happens within a certain period of time after the reporting of the violation.

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