Landlord and Tenant Rules in the USA

Landlord and Tenant Rules in the USA

Landlord-tenant law is concerned with landlord and tenant rights and obligations. The landlord-tenant relationship is defined by the existence of a leasehold estate.[1] Traditionally, the only obligation of the landlord in the United States was to grant the estate to the tenant,[2] although in England and Wales, it has been clear since 1829 that a Landlord must put a tenant into possession.[3]  In American landlord-tenant law, many of these rights and duties have been codified in the Uniform Residential Landlord and Tenant Act.[4] Landlord–tenant law generally recognizes differences between residential and commercial leases on the assumption that residential leases present much more of a risk of unequal bargaining power than commercial leases.[5] Let us learn more about this with the help of this article.

Tenant Remedies and Duties

1. Constructive Eviction: A constructive eviction means that the tenant is no longer able to occupy the lease, but that the tenant was not physically evicted by the landlord.[6]
2. Breach of Covenant: Leases include dependent covenants – if the landlord fails to perform their duties, the tenant will be relieved of paying rent and in addition to these, the breach of these covenants can be used as an affirmative defense by the tenant in an action for unpaid rent or eviction.[7] These covenants include the warrant of habitability (keeping the premises habitable) and the covenant to repair (requiring the landlord to repair damage to the premises).[8] In American law, the warrant of habitability was established by the D.C. Circuit case Javins v. First National Realty Corp.[9]
3. Retaliatory Eviction: A landlord cannot evict a tenant in retaliation for reporting health and safety code violations.[10] The California code 1942.5 defines the legal aspects of its use and further goes on to prohibit Retaliatory eviction, for no less than 180 days, after a series of triggering events.[11] However, in the state of Oklahoma, it is a misdemeanor criminal offense to willfully disturb, interfere, or obstruct state business, such as the official business of code enforcement, and thus retaliatory eviction may violate various applicable state criminal laws.[12]
4. Money Damages: If the tenant can prove that an Agriculture, Trade, and Consumer Protection Code rule was violated, they are entitled to double the damages under Wisconsin Law.[13]
5. Duty to preserve the premises: the tenant must keep the premises just the way it was handed to them.
6. Duty to Operate:  A duty to operate does not exist unless written into the lease or obviously in line with the intent of the lease.[14]
7. Duty to pay rent: A tenant’s duty to pay rent was traditionally thought of as an independent covenant, meaning that the tenant was required to pay rent regardless of whether the landlord fulfilled their duties of performance.[15] Now the duty of a tenant to pay rent is considered to be a dependent covenant, and the tenant can be freed from the duty to pay rent if the landlord breaches the covenant of repair or warranty of habitability.[16]

Landlord Remedies:

1. Forfeiture: Before statutory eviction processes, landlords could use the common law remedy of forfeiture to reclaim possession of a lease. Forfeiture was generally achieved by adding a condition subsequent to the terms of the lease.[17]
2. Self-Help: Landlord self-help remedies are evictions where “the landlord takes active steps to remove the tenant from the property without initiating legal action.” Self-help remedies have been limited by forcible entry and detainer (FED) statutes.[18]
3. Monetary Damages: Landlords can also recover monetary damages for unpaid rent, and the methods of obtaining the rent and the amount that can be obtained are dictated by state statutes.[19]

In the United States of America, the landlord–tenant laws vary from state to state. In Massachusetts tenants who do not have a lease term may be evicted either for cause or without cause upon proper notice.[20] For the majority of Texas history, landlord-tenant relationships were governed by principles of old English common law.[21] exas tenants leased their property “as is” under the common law doctrine of caveat emptor, Latin for “let the buyer beware.”[22] Of course, landlords and tenants could contract for the landlord to make needed repairs and maintain the condition otherwise, but there was no legal duty to do so.[23] The default was that the tenant’s duty to pay rent was independent of the landlord’s duty to maintain or repair the premises.[24] In 1979, the Texas legislature swiftly responded by enacting Section 92 of the Texas Property Code[25] which regulates tenant-landlord relationships. Now, per Texas statutory law, the landlord must make a diligent effort to repair or remedy a condition if the tenant gave notice of the condition, the tenant is not delinquent in the payment of rent at the time notice is given, and the condition materially affects the physical health or safety of an ordinary tenant.[26] However, Texas landlords have no duty to repair conditions caused by tenants.[27] If a landlord has breached the lease agreement, the tenant has the option to terminate the lease; they can make the repairs themself and then deduct the cost from a subsequent rent payment; or they could take their landlord to court.[28]

“Neithamer v Brenneman Property Services Inc (1999) is an example of a case regarding a landlord discriminating against a potential tenant. The court in that case created a test (shown below) for when a landlord engages in discrimination of a potential tenant. If the plaintiff (potential tenant) offers no direct evidence of discrimination, then the plaintiff must prove the prima facie case, which has 4 components. The burden of proof is on the plaintiff to prove all four components; if they do, then the court will find that the landlord acted in violation of the Fair Housing Act via an inference of unlawful discrimination:

1. The plaintiff is a member of a protected class and the landlord knew this or suspected this to be true
2. The plaintiff applied for and was qualified to rent the property in question
3. The defendant rejected the plaintiff’s application
4. The property remained available and unrented thereafter

Anti-discrimination provisions of the Fair Housing Act do not apply to the selection of roommates. Further, it does not apply when the individual is the landlord of a single-family dwelling or when the individual is the landlord of an owner-occupied dwelling with 4 or fewer units.”[29]

[1] Casner, A.J. et al. Cases and Text on Property, Fifth Edition. Aspen Publishers, New York, NY: 2004, p. 403.

[2] Teitelbaum v. Direct Realty Co., 13 N.Y.S.2d 886 (NY 1939).

[3] Coe v. Clay (1829) 5 Bing. 440; Woodfall Landlord & Tenant Sweet & Maxwell, 11.269.

[4] Glendon, M.A. The Transformation of American Landlord-Tenant Law, 23 B.C. L. Rev. 503-05 (1982).

[5] Rabin, E.H. The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 Cornell L. Rev. 517 (1984).

[6] Schoshinski, R. American Law of Landlord and Tenant §3.1 (1980), §§3.3-3.8.

[7] Landlord–tenant law - Wikipedia

[8] Casner, A.J. et al. Cases and Text on Property, Fifth Edition. Aspen Publishers, New York, NY: 2004, p. 422

[9] Ibid 7.

[10] Casner, p. 504

[11] "California Civil Code Section 1942.5 - California Attorney Resources - California Laws". law.onecle.com.

[12] 21 Okla. Stat. §21-280 (2017). https://law.justia.com/codes/oklahoma/2017/title-21/section-21-280/ RET. April 02 2018.

[13] "ATCP 134: Residential Trade Practices" (PDF). WI Gov.

[14] John A. Glenn, J.D. (1971). "Lease of store as requiring active operation of store". American Law Reports 3d. Westlaw. 40. 971.

[15] Schoshinski, §10.7

[16] Casner, A.J., et al. p. 483

[17] Casner, A.J., et al. pp. 490-491

[18] Casner, A.J. et al. pp. 492-493

[19] Schoschinski, §6.1

[20] McDonagh, Maureen E.; Devanthéry, Julia E. (May 2017). "Evict When Can Landlord Evict". MassLegalHelp.

[21] Landlords and Tenants Guide, Special Report No. 866, Judon Fambrough (Revised September 2016).

[22] Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47 (1943); Morton v. BurtonLingo Co., 136 Tex. 263, 150 S.W.2d 239 (1941).

[23] Clarence Clinton Davis Jr., Recognition of an Implied Covenant of Habitability in Residential Leaseholds: Kamarath v. Bennett, 32 SW L.J. 1037 (1978).

[24] Landlords and Tenants Guide, Special Report No. 866, Judon Fambrough (Revised September 2016).

[25] Landlords and Tenants Guide, Special Report No. 866, Judon Fambrough (Revised September 2016).

[26] Texas Property Code § 92.052.

[27] Property Code § 92.053.

[28] Property Code § 92.056.

[29] landlord-tenant law | Wex | US Law | LII / Legal Information Institute (cornell.edu)