Duties of the Tenant

Rent

The first and foremost duty that a tenant has is to pay rent. Traditionally, the duty to pay rent was an independent duty, meaning that the tenant was obligated to pay rent regardless of whether of not the landlord was in breach of certain covenants. Today, as we saw in the last subchapter, the duty to pay rent is dependent upon the landlord’s performing certain duties. As we discussed before, many duties of the landlord have been interpreted such that breach by the landlord will terminate the tenant’s duty to pay rent.

The amount of the rent is obviously almost always set forth in the terms of the lease. If, for some reason, it is absent from the terms of the lease, a court will infer a reasonable rent under the circumstances, as determined by the fair market rental value of the property at the time.

If a rental agreement is illegal (for example, because the property's condition falls below the standards required by housing codes), then the tenant is not obligated to pay rent.

Unless the parties agree otherwise, rent is due on the last day of the term (e.g., last day of the month in a month-to-month tenancy or last day of the tenancy in the term of years). Of course, in the vast majority of cases, the payment intervals are spelled out in the lease agreement and any such agreement is fully binding.

It is important to reiterate that, as we discussed earlier, the tenant’s failure to pay rent allows the landlord to bring an eviction action against the tenant. However, in most states, it does not allow the landlord to physically throw the tenant off the property. Such “self-help” repossession is outlawed in most states when it comes to real property.

Repair

The tenant has a duty to avoid waste to the same extent that any holder of a present interest has a duty to the holder of a future interest to avoid waste. This means that a tenant may not destroy the property, may not consciously allow the property to disintegrate into a state of complete disrepair and may not make any significant changes in the property without the landlord’s permission. For a discussion of waste, see the subchapter on Future Interests in Chapter 2 of this course.

In addition to the normal rules of waste, the tenant has a duty to make ordinary repairs so that the property is maintained in essentially the same condition it was in when the tenant first occupied the property. However, the tenant is not obligated to prevent or repair ordinary wear and tear that comes with the tenant’s ordinary usage of the property.

In addition, the tenant is not obligated to make substantial repairs that are necessary as a result of a catastrophe. However the tenant is obligated to try to prevent substantial damage from occurring if it is reasonable for the tenant to do so. For example:

George rents his beachfront apartment in South Carolina to Martha for the summer. One day, Martha sees on the news that a hurricane is approaching and that strong winds and flooding are expected at the South Carolina coast. Martha knows that she ought to put sandbags out around the house and to board up the doors so that the storm does not damage the property. However, she is on vacation and she does not feel like working so hard. So, the storm comes and causes severe damage to the beach house that would not have occurred had Martha taken the time to take ordinary preventative steps. In this case, Martha has violated her duty to maintain the premises and she will be liable to compensate George for the damage to the house.

Refrain From Using the Property for Illegal Purposes

The tenant has a duty to the landlord to avoid using the property for illegal purposes. Although this may seem obvious (as the tenant has a duty to society in general not to use the property for illegal purposes), this gives the landlord the right to enforce this duty and to take steps against the tenant should the tenant use the property for illegal purposes. The landlord’s remedy against such usage by the tenant depends on the landlord’s role in the illegality:

• If the landlord knew of the tenant’s illegal purpose in the lease, then the whole lease will be unenforceable. The landlord could recover possession of the property, but could not collect rent. Essentially, since both parties are at fault, the court will simply refuse to enforce the lease.
• If the landlord was unaware of the illegal purpose of the lease, then the landlord has two options. The landlord could continue the lease and get a court order enjoining (ordering a stop to) the illegal activity. Or, the landlord can terminate the lease if he or she does so while the property is being used for the illegal purposes or shortly after the cessation of the illegal activities. The landlord can then sue the tenant for back rent and damages caused by the illegal activities. For example:

Flash rents his house to Candy, knowing full well that Candy intends to use the house as a base out of which to operate Candy’s thriving cocaine selling business. In this case, a court will simply refuse to enforce the lease. Flash can evict Candy, but cannot sue Candy for rent. However, if Flash did not know anything about Candy’s intention to use the house as a cocaine dealership, then Flash will be able to collect rent from Candy and/or terminate the lease.

Where the use for which the property has been leased becomes illegal after the lease is made, the tenant will be allowed to terminate the lease and stop paying rent, but only if the tenant cannot practically put the property to legal use. In other words, there are other, legal uses that the tenant can find for the property and the tenant can effectively use the property for those purposes, the lease will not be terminated just because the primary purpose for which the property was leased has become illegal. For example:

Assume that the State of California legalizes the sale and use of marijuana. Stiff rents his store on Main Street to Easy for five years so that Easy can open a marijuana shop. One year later, California passes a law making it illegal to sell marijuana. If it would be impractical for Easy to change his business to a legal business (e.g., set up a coffee shop instead), then Easy can terminate the lease and stop paying rent. If Easy can operate another business there, then he must keep the lease until the five year term ends.

Note that even if the primary purpose for the rental does not become illegal, but is otherwise frustrated, the tenant may be able to get out of the lease. This will occur if, through circumstances that were unforeseeable to either party, the primary purpose of the lease becomes no longer relevant. Note that this doctrine is very similar to the doctrine of “frustration of purpose” that is part of the Contracts class.

Honesty as to Intended Purpose

If the landlord asks, the tenant must be honest about his or her intentions for using the premises. If the tenant uses the property in a manner inconsistent with his or her original representations, then the landlord may terminate the lease. For example:

Jerry leases an apartment in a building owned by Elaine. Elaine asks Jerry why he wants the apartment. Jerry responds that he just wants to live there and that he lives quietly and rarely has friends over. It turns out that Jerry likes to throw wild parties on a nightly basis and he continues to do so after moving into the apartment, causing the other tenants all sorts of aggravation. Because of Jerry’s misrepresentation, Elaine might be allowed to terminate the lease and evict Jerry.

Duty not to Commit Nuisance

A tenant must not unreasonably interfere with the use and enjoyment of possessors of other, adjoining properties. What constitutes unreasonable interference is obviously very difficult to define and the determination varies on a case by case basis. For this reason, landlords almost always define this restriction by putting terms in the lease that prevent tenants from causing disturbances to the other tenants by making too much noise, etc.

Fixtures

When a tenant vacates leased premises, he or she obviously may take any personal property that the tenant brought into the premises during the lease. However, the tenant must leave behind anything that is attached to the land itself. Materials that are attached to the land itself are known as “fixtures.” For example:

Jim leases his house in the country to Patty for 3 years. During the first year, Patty builds a picket fence around the property. Each section of the fence is nailed into the ground for anchorage. It is clear that the fence is a fixture. So, when Patty leaves the property after her rental term is up, she will have to leave the fence behind.

A problem arises when a tenant attaches his or her own materials to the property. The general rule is that if a chattel is attached permanently to the real property, it becomes a fixture and must be left behind when the tenant vacates the premises. Obviously that begs the question: What constitutes a “permanent” attachment?

The two key factors involved in this determination are:

1. The tenant’s intent: If the tenant can show that he or she clearly intended to later remove an object when it was originally put in, then the object will not be considered a fixture.
2. If removing the object will cause a significant amount of damage to the property, then that factor will weigh heavily in favor of a finding that the object is a fixture.

Examples of installed materials that are in the gray area between fixtures and non-fixtures include chandeliers, large kitchen appliances (e.g., stoves) and bookcases that are built into the walls. For example:

Mozart rents an apartment into which he brings a large grand piano. At one point, he builds a wall that blocks the piano’s exit from the room. When Mozart’s lease runs out, the landlord claims that the piano is a fixture because removing the piano would require removing a wall and thus causing severe damage to the property. If Mozart can show that he intended to take the piano with him and can show that the wall can be torn down and replaced without having the house sustain permanent damage, a court would probably rule that the piano is not a fixture. See Ballard v. Alaska Theater Co., 93 Wash. 655 (1916).