ESSAY EXAM QUESTIONS AND ANSWERS

ANSWERS

ANSWER TO QUESTION 1

       Assumptions:  The lease was written and signed by Tenant (and so there is no Statute of Frauds problem even though the lease in question exceeded one year).

To advise Landlord (“LL”) of his rights against Tenant (“T”) it is initially necessary to determine if T can successfully assert any defenses against LL.

         Duty to Deliver Possession:  Under the English rule, a landlord has the obligation to assure his/her tenant that no other party will be in possession of the premises when the lease term commences. T might assert that LL breached his duty, since Ralph was in the apartment when T’s lease term began. However, even assuming this jurisdiction adheres to this rule that the landlord must evict holdover tenants, T has probably waived (voluntarily relinquished a known right) this breach by going into possession of premises after Ralph moved out. At most, T can probably deduct the rent attributable to the period from June 1 through June 15. If the American view is followed, LL has the duty only to deliver legal possession, not actual possession, so the holdover (Ralph) would be T’s problem.

         Constructive Eviction (“CE”):  A CE occurs where there is a substantial interference with a tenant’s right of quiet enjoyment by reason of some cause for which the landlord is responsible, and the tenant vacates within a reasonable time thereafter. T might argue that a CE occurred by reason of (i) the noise caused by Charlie’s friends, (ii) the broken window pane and warped floor, and (iii) the stove’s malfunction.

In response, however, LL could assert the following arguments. With respect to the noises caused by Charlie’s band, LL is not responsible for the activities of other tenants. In some states, where the lease contains a provision permitting the landlord to evict lessees who are disturbing other tenants, the landlord has been deemed responsible for the former. However, there is nothing in the given facts to indicate such a clause exists. Additionally, even assuming the band noise persisted from June 15th through July 15th (when 3 persons in the band were arrested), this probably did not constitute a substantial deprivation of T’s right to the beneficial enjoyment of the premises since it occurred during daylight hours (rather than in the evening), when other tenants would be trying to sleep. Finally, LL could probably successfully argue that T waived the right to assert a CE by waiting 45 days after the noise had ceased to vacate the premises.

As to the broken window pane and consequent warped floor, LL could argue that, at common law, it is T’s duty to make repairs, so T cannot complain about being deprived of the beneficial enjoyment of the premises when the condition which made them unsuitable was T’s fault. As to the malfunctioning stove, LL could argue (1) again, this was T’s responsibility, and (2) T apparently never even advised LL about this problem, and so he did not have the requisite opportunity to remedy this situation.

          The Implied Warranty of Habitability:  Many states recognize an implied warranty of habitability that leased premises will not become uninhabitable by reason of the landlord’s failure to make repairs attributable to the natural deterioration of the premises. (A few jurisdictions limit this doctrine to situations involving housing code violations.) T might argue that defects vital to the use of the premises existed by reason of (i) the broken pane and consequent warping, and (ii) the malfunctioning stove.

The warping was the result of the failure to repair the window; so whoever had the responsibility for repairing would be liable for the warped floor. LL can argue that the widows should have been repaired by T since (1) the pane was broken by other persons (the children playing ball), as opposed to the natural deterioration of the premises, and (2) a broken window is not a defect which causes premises to become uninhabitable. As to the non-functioning stove, LL can argue that the stove would not cause premises to fall below the bar living requirements. Finally, LL was (apparently) never even informed of this event.

LL should prevail against T on this issue too.

         Surrender:  T will also probably argue that LL’s acceptance of the keys to the apartment constituted a surrender, so that therefore T is not liable for any rent accruing after August 31. However, the fact that LL merely permitted T to hand the keys to him probably does not, without more, demonstrate a willingness to permit T to avoid his prospective obligations under the lease.

          Advice/Extent of LL’s Recovery:  (We’ll assume that rent was payable monthly, and that the lease did not have an accelerated rent or liquidated damage clause.)

LL should be able to recover T’s unpaid rent, and for the additional rentals as they become due. However, LL should probably attempt to locate a new tenant for the premises since (1) many states require a landlord to mitigate a tenant’s liability, and (2) it may be difficult for LL to recover any judgment against T (even if one were obtained). Finally, LL should be advised to notify T that any subletting is being done for T’s account. This precaution would preclude T from contending that a surrender of the premises had occurred via the subletting.