A tenancy is a legal relationship between the owner of property and another party, in which the owner transfers to the other party the right to possess and occupy the property for a defined period of time. During the tenancy, both the landlord, who owns the property, and the tenant, who takes possession of the property, assume obligations towards each other. These obligations may be spelled out in a lease agreement between the parties. However, common law and state regulation impose a number of additional duties, particularly on the landlord, which must be upheld in any landlord-tenant relationship.
Duty to Deliver Possession
The right of possession, which includes the right to occupy property as well as the right to exclude others, is the heart of a tenancy agreement. The landlord has a duty to transfer possession of the premises to the tenant upon concluding the lease agreement.
Historically, the duty to deliver possession meant only the duty to transfer the legal right to claim possession of the property. The law did not hold the landlord responsible to ensure that the leased property was unoccupied. Instead, the burden of removal of holdover tenants was placed on the new tenant.
Today, however, most jurisdictions hold the landlord responsible for delivering actual possession of a property he or she has agreed to lease to the tenant.[1] In this way, the burden is on the landlord who has a prior relationship with a previous tenant and is usually better versed in eviction proceedings.
If the premises are still occupied on the date agreed upon in the lease as the beginning of the tenancy, the landlord has failed to live up to the duty to deliver possession and the tenant may terminate the lease.[2]
Alternatively, the tenant may choose to continue with the lease, and refuse to pay rent for the time the leased property is not available. Additionally, the tenant can recover damages caused by the delay in entering the rental property. For example, even though the tenant does not pay rent while the apartment is not ready for occupancy, if the tenant rents an alternative property whose rent exceeds that of the unready property, the tenant may recover the difference in rent.[3]
In some jurisdictions, the tenant may also recover damages for loss of business profits in connection with the inability to occupy the property, if such loss can be proven with reasonable certainty.[4]
Covenant of Quiet Enjoyment
When a tenant leases a property, the landlord has a duty to provide undisturbed use of the property, a guarantee that no party will interfere with the tenant’s occupation of the leased premises. This obligation is known as the covenant of quiet enjoyment. This guarantee may be stated in a lease, but even without an express provision, the promise of quiet enjoyment is always implied in a lease agreement by operation of law. If this covenant of quiet enjoyment is breached by the landlord, the tenant may terminate the lease, and is free of liability for paying rent. The tenant may also collect damages for losses suffered due to the breach of covenant.[5]
As such, if the landlord evicts the tenant from the premises during the period that the lease agreement is in effect, the landlord has violated the covenant of quiet enjoyment. Even if the eviction is only partial, as for example when a landlord constructs a new wall which occupies some of the space of the property as originally leased, this is considered a breach of quiet enjoyment, even if the tenant remains on the property.[6]
The landlord must also guarantee that the tenant’s right to occupy and possess the property will not be challenged by another party on the basis of presenting a better title to the property. For example, if there is a mortgage on the leased property which predates the lease, and a bank forecloses on the leased property, the bank assumes title to the property, and may evict the tenant. Should this occur, the landlord has violated the covenant of quiet enjoyment since the tenant is no longer able to occupy and use the property in the way guaranteed in the lease.
Under certain circumstances, the landlord may breach the covenant of quiet enjoyment even when the tenant does not face eviction, if the conditions of the property are such that the tenant cannot use and enjoy the property in the manner envisioned at the time of the lease. This is known as constructive eviction. If these conditions endure after the tenant has given notice and the landlord fails to remedy the conditions within a reasonable time, the tenant may claim constructive eviction and refrain from paying rent.[7]
A standard case of constructive eviction would be when there is no proper heating in a rental property and there is no practical way for the tenant to supply the heat. Since constructive eviction does not involve actual eviction, a tenant claiming constructive eviction must demonstrate that her use of the property was substantially interfered with.
To measure substantial interference, the court employs a reasonable person test. The tenant must show that a reasonable person would consider the conditions of the rental property incompatible with the use and enjoyment of the property as bargained for in the rental agreement.[8] Factors relevant to this determination may include aspects of the rental agreement, such as the purpose for which the property was leased, whether the type of interference suffered by the tenant was foreseeable, whether the interference is permanent, the degree of harm and the means available to the tenant to mitigate the harm.[9] The tenant must also show that she gave notice to the landlord of the condition that is the alleged breach of covenant.
In addition to showing substantial interference, most jurisdictions require that a tenant who claims constructive eviction must vacate the premises within a reasonable time before stopping to pay rent. As long as the tenant remains on the property, regardless of the conditions, the rent obligation continues.[10]
However, some jurisdictions do not require the tenant to vacate the premises. In these states, the view is that imposing such a requirement unfairly penalizes those who may have difficulty finding another rental property in the interim. Rather, when conditions substantially interfere with use of the rented property, the tenant may either terminate the lease, or continue to reside at the property, but pay a reduced rental rate to compensate for the impaired state of the rental.[11]
Finally, a successful claim of constructive eviction depends on showing that the landlord is at fault for the conditions which substantially interfere with use of the property. The fault can be the result of a specific act of the landlord, but more often it stems from the failure to act when the landlord has a legal duty.
For example, if rainwater from storms regularly flood a basement apartment, the landlord is at fault for failing to ensure the leased property is usable in the manner agreed upon in the lease.[12]
Generally, landlords are not responsible for the acts of third parties, particularly those of other tenants. If the substantial interference stems from the actions of other tenants, the tenant must continue to pay rent. However, the modern trend is to hold the landlord responsible for the acts of other tenants if the landlord has the legal right to prevent the third-party actions, such as when the other tenants’ conduct is prohibited in their lease.[13]
The landlord is also at fault when the conduct in question is a result of permitting a legal nuisance on the rental premises, or is in the common areas shared by tenants, which are under control of the landlord. Should third party conduct lead to the conditions constituting a constructive eviction, the failure of the landlord to act is sufficient grounds for the tenant to vacate and discontinue to pay rent until the situation is remedied.[14]
Implied Warranty of Habitability
At common law, a landlord had no duty to make guarantees regarding the fitness of leased property unless the landlord had offered an express warranty. Instead, the tenant was expected to inspect the property prior to rental to determine the condition of the premises and judge whether property defects rendered it unfit for his purposes in leasing the property.
Today, however, most jurisdictions recognize that landlords are better situated to inspect the property. As such, they have recognized an implied warranty of habitability. Under this warranty, when a landlord rents a property in a residential lease, he automatically offers a guarantee that the property is livable, safe and sanitary.[15] If the landlord fails to remedy the conditions which render a residential lease uninhabitable after being given notice and reasonable time, the landlord has violated the warranty.
The implied warranty of habitability is almost always mandatory. This means that not only is it implied in every residential lease agreement, it cannot be waived even if both parties agree to a waiver.[16]This non-waivable warranty prevents landlords with greater bargaining power from offering to lease a property which does not meet the warranty requirements for a reduced rental rate.
Courts operate with different approaches to the scope of the implied warranty of habitability. One influential formulation provides that a landlord violates the warranty of habitability if the leased property is unsuitable for residential purposes, as it would be unsafe or unhealthy for the tenant to enter on the leased property and use it as a residence.[17] Similarly, some courts look at whether the property is safe, clean, and fit for human habitation, as interpreted by community standards.[18]
Often, violations of the state housing code are considered violations of the warranty of habitability. However, any latent or potential defect can constitute a breach, whether or not the defect would violate the housing code.[19]
When a tenant believes that the landlord has violated the warranty of habitability, she may vacate the property, cease to pay rent and collect any associated damages. Alternatively, if the tenant remains in possession of the property, she may reduce rent payments in the amount of the difference between the agreed rent and the value of the property in its defective state.[20]
Should the landlord take legal action for rent, the tenant may use the landlord’s breach of the warranty of habitability as a defense.
Landlord Tort Liability
In addition to the duty to ensure the rental property is safe and fit for use, in certain circumstances landlords may have liability for injuries suffered by tenants due to dangerous conditions on the property. The remedy for breaching the promises associated with the condition of the property is limited to the non-payment of rent, and loss due to inability to occupy the leased property. By contrast, when someone is injured due to the landlord’s failure to properly maintain the premises, the tenant can bring a personal injury action, with damages well in excess of the rent, depending on the extent of the injury suffered.
When determining the landlord’s liability, the general rule is that the landlord is not responsible for injuries that occur in leased premises, such as inside the apartments in an apartment building.[21] However, the law recognizes certain classes of cases in which the landlord is liable despite the fact that the tenant is in control of the premises.
One such class is concealed dangerous conditions which exist at the time of the lease. These are defects in the rental property which the landlord knows about, or should know about, and knows or should know that the tenant will likely not discover on her own. In such cases, the landlord must disclose the condition to the tenant. Should the landlord fail to disclose the concealed defect, and the tenant suffers injury as a result, the landlord may be held liable for the injuries.[22]
If the landlord does disclose the concealed dangers to the tenant, and the tenant nonetheless agrees to rent the property, the tenant is legally considered to have assumed the risk of the dangers stemming from this defect. In addition, since the tenant was apprised of the defect, the tenant then has a duty to warn guests who enter the premises of the danger. Failure to do so places liability on the tenantin case of injury to the guest, rather than the landlord.[23]
Duty to Control Common Areas
It is common in residential buildings with multiple leases to have common areas, like hallways, entranceways, and staircases, which are shared by the tenants. The law imposes a duty of care on the landlord to maintain these common areas, and ensure they are safe for tenants. The failure to exercise reasonable care with regard to common areas is not simply a breach of the landlord’s duties assumed in the lease but may also be the basis for civil liability in case of injury. This duty includes the obligation to take affirmative steps to prevent unauthorized access to these common areas.
One court found a landlord liable for injuries when a tenant was assaulted in the lobby of the building in which the tenant leased an apartment. The court held that the failure of the landlord to install a security system or take other steps to secure the lobby of a building in which assaults are known to occur was sufficient to constitute a breach of duty of care with regard to common areas. Thus, he was liable for the injuries resulting from the assault.[24]
Duty to Repair
Landlords assume the responsibility to maintain rental property so that it is fit for use and safe to inhabit. If the conditions of the rented property violate the warranty of habitability, the landlord has a duty to repair the property within a reasonable period of time. If the landlord fails to correct the problem, he can be held liable for injuries if the tenant can show the harm was suffered as a result of the landlord’s neglect of the duty to repair.[25]
This avenue of liability exists any time a landlord has a legal duty to repair but fails to take the necessary steps. So, for example, since landlords are bound to maintain property in accordance with the state housing code, a landlord whose property is in violation of the housing code may face liability for injuries suffered by a tenant or the guest of a tenant, who is injured as a result of the housing code violation.[26]
Note that if the landlord contracts with the tenant to generally repair and maintain the premises, this contractual relationship can be another source of tort liability. Most jurisdictions have allowed civil suits for injuries against landlords who fail to maintain premises when contracted to do so, on the rationale that since the tenants have contracted with the landlord to be responsible for repair, the tenants rely on the landlord to mitigate dangers, and may not take remedial steps on their own.[27]
Finally, note that some courts have ruled that exculpatory clauses in the lease agreement, which release the landlord from tort liability for personal injury stemming from the landlord’s actions or inactions, are void for public policy reasons, since the clauses may impose an unreasonable risk of harm to others, especially in light of the unequal bargaining positions of landlords and tenants.[28]
[1] Restatement of The Law 2d Property: Landlord and Tenant § § 6.2.
[2] Coronado Co. v. Jacome’s Dep’t Store, Inc., 629 P.2d 553 (Ariz. Ct. App. 1981).
[3] Restatement of The Law 2d Property: Landlord and Tenant § § 6.2.
[4] Adrian v. Rabinowitz, 116 N.J.L. 586, 186 A. 29 (1936).
[5] Restatement of The Law 2d Property: Landlord and Tenant § § 4.1.
[6] Smith v. McEnany, 170 Mass. 26, 48 N.E. 781 (1897).
[7] The Uniform Residential Landlord Tenant Act [URLTA] § 4-104.
[8] Berzito v. Gambino, 63 N.J. 460 (1973).
[9] Reste Realty Corporation v. Cooper, 251 A.2d 268, 53 N.J. 444, 53 N.J.2d 444 (1969).
[10] See Thompson v. Shoemaker, 173 S.E.2d 627, 7 N.C. App. 687 (Ct. App. 1970).
[11] Restatement of The Law 2d Property: Landlord and Tenant § § 6.1.
[12] See Reste Realty Corporation v. Cooper, 251 A.2d 268, 53 N.J. 444, 53 N.J.2d 444 (1969).
[13] Restatement of The Law 2d Property: Landlord and Tenant § § 6.1, comment d.
[14] Phyfe v. Dale, 130 N.Y.S. 231, 72 Misc. 383, 130 N.Y. 231 (1911).
[15] See, e.g., NY Real Prop L § 235-B (2015).
[16] See Javins v. First National Realty Corporation, 428 F.2d 1071 (D.C. Cir. 1970).
[17] Restatement of The Law 2d Property: Landlord and Tenant § § 5.1, comment e.
[18] URLTA § 2-104.
[19] Restatement of The Law 2d Property: Landlord and Tenant § § 5.1, comment e.
[20] See URLTA § 4-104.
[21] Restatement of The Law 2d: Torts § 356, comment a.
[22] Restatement of The Law 2d: Torts § 356.
[23] Restatement of The Law 2d: Torts § 356.
[24] Walls v. Oxford Management Co., 137 N.H. 653, 633 A.2d 103 (1993).
[25] Peterson v. Superior Court, 899 P.2d 905, 10 Cal. 4th 1185, 43 Cal. Rptr. 2d 836 (1995).
[26] Whetzel v. Jess Fisher Management Co., 282 F.2d 943 (D.C. Cir. 1960).
[27] Restatement of The Law 2d Property: Landlord and Tenant § 17.5.
[28] McCutcheon v. United Homes Corp., 486 P.2d 1093, 79 Wash. 2d 443, 79 Wash. 443 (1971).