Real Estate

Landlord-Tenant Laws, Rights and Remedies

Landlord-tenant law governs the rental and leasing of both residential and commercial property in the United States. Landlord-tenant law often varies by state but most states base their statutory law on either the Uniform Residential Landlord and Tenant Act or the Model Residential Landlord-Tenant Code. Federal statutory law focuses on the prevention of discrimination—as it relates to the landlord-tenant relationship—and becomes relevant during times of national/regional emergencies.

The legal relationship between a landlord and tenant is based on both contract and property law. The landlord through a contractual agreement provides the tenant a limited property interest in the land for a set perid of time before the property interest is transferred back to the landlord. While the four types of landlord-tenant relationships are almost always true, they are subject to state law and local statutes, as well as the lease agreement between the landlord and the tenant.

Landlord-Tenant Duties and Remedies

Landlords in the United States have a myriad of legal responsibilities to tenants. Failure fulfill these responsibilities can lead to fines, penalties and civil action by both state and private entities. Beyond conveyance of the lease, there are three basic duties of the landlord to the tenant:

Duty to Deliver Possession

The fundamental duty inherent in any leasehold is the landlord’s duty to deliver possession of the property to the tenant. The rule in most jurisdictions is that the landlord must not only transfer legal right to possess the property but actually deliver possession of the property to the tenant. In other words, the property must be ready for the tenant to occupy at the beginning of the lease.

In the case of a wrongful holdover, where a former tenant does not give up possession of the lease after the lease term has ended, the burden is on the landlord. In most jurisdictions, if the landlord does not deliver posession of the property, as per the lease terms, the tenant can do one of two things: (1) void the lease and collect any damages suffered as the result of the landlord’s failure to deliver possession or (2) uphold the lease and withold rent for the time the property was unavailable.

When the tenant is only denied partial possession of the property, the tenant’s sole remedy in most jurisdictions is to deduct from rent payments the amount of rent proportionate to the amount of the possession of the property that was denied to the tenant.

Covenant of Quiet Enjoyment

Basic to all leases is the covenant of quiet enjoyment. While most leases do not expressly include a “Quiet Enjoyment” clause, it is implied even when not written into a lease. The covenant of quiet enjoyment ensures that a tenant’s possession of the leasehold will not be disturbed by someone with a superior legal title to the property—specifically the landlord. If the landlord, manager, or owner’s agent violates the covenant of quiet enjoyment, technically the tenant can be relieved for his or her obligation to pay rent. If violation of quiet enjoyment occurs repeatedly so that the tenant cannot enjoy the property, a tenant may have legal grounds to terminate the lease.

There are three ways in which a landlord can breach the covenant of quiet enjoyment:

  • Actual Eviction: Here the tenant is physically removed from the premises. When the landlord wrongfully evicts the tenant by throwing or locking the tenant out, the landlord is liable for damages.
  • Actual Partial Eviction: When the tenant is evicted from any part of the premises, an actual partial eviction has occurred and the rent obligation to the landlord stops entirely until the tenant is permitted to repossess the entire property.
  • Constructive Eviction: A tenant is considered “constructively” evicted if the landlord substantially interferes with the tenant’s ability to use and enjoy the leased property. This may occur for a number of reason including the landlord’s failure to provide adequate heating, a functioning elevator where necessary, or access to life-sustaining utilities or services.

A breach of the covenant of quiet enjoyment can also occur when a landlord fails proactively ensure that a tenant’s ability to enjoy the property is not compromised. If a tenant is unable to sleep because the tenant next door continues to play loud music late into the night, and the landlord fails to adequately resolve the issue, then the tenant’s right to quiet enjoyment have been breached and he or she has the right to recover compensation from the landlord for damages.

Duty to Provide Habitable Premises

The Implied Warranty of Habitability requires that a rental property be habitable at the time of occupancy and throughout the tenancy. In other words, the landlord is resonsible for making sure the unit remains in good living condition. In most jurisdictions, the Implied Warranty of Habitability is inferred even when it is not expressed in the lease. When the implied warranty of liability is breached, the tenant has several legal remedies:

  • The tenant can vacate the property and terminate the lease.
  • The tenant can repair the property to make it habitable and deduct costs of repair from the rent.
  • The tenant can reduce or withhold rent until a court determines a fair reduction of rent due to account for the inhabitable condition of the property.
  • The tenant can remain in the property and sue the landlord for monetary damages caused by breach of the implied warranty of habitability.

Neither the landlord nor the tenant can waive the implied warranty of habitability. Any lease clause waiving, negating or invalidating the implied warranty of habitability is not usually enforceable in a court of law.

The following are basic steps to follow to ensure your property meets implied warrant of habitability requirements.

  • Comply with all state and local health and building codes.
  • Ensure access to basic utilities including heating, electricity, and hot and cold water.
  • Make requested repairs in a timely fashion.
  • Keep all structural components of the property in good repair.
  • Make sure the property and premises are free from identifiable hazards.
  • Maintain the property structure and premises free of pests.
  • Inspect the property regularly or as required by local statute.
Right to Sublet, Share and Assign

Even when the lease forbids it, in most states landlords are legally required to allow tenants to sublet, share and assign their rental premises. Sublet means the tenant has the right to lease the rental premises to a third party while the tenant is temporarily gone. Sharing means the tenant is taking a third party in as an additional tenant while still maintaining possession of the premises. Assignment means the tenant is permanently leaving the premise and assigning the lease and the premise to a third party for the duration of the lease term. To sublet, a tenant must follow specific procedures as set forth by state law.

Other duties of the Landlord

The following duties serve to create a blueprint for the additional interactions, rights and obligations of the landlord to the tenant.

  • Provide tenant 30-day written notice of non-renewal of rental agreement.
  • Provide tenant notice of name and address of property owner.
  • Exercise “due diligence” and “due care”. Landlords must stay abreast of defects, issues or other findings.
  • Exercise “due diligence” and “due care”. Landlords must stay abreast of defects, issues or other findings and resolve all issues in a timely and appropriate manner.
  • Ensure effective weatherproofing of roof and exterior walls.
  • Comply with federal and state anti-discrimination and fair housing laws.
  • Follow state rent rules.
  • Meet state security deposit limits and return rules.
  • Prepare tenant a legal written lease or rental agreement.
  • Make legally require disclosures (ie. mold, lead-based paint, utility obligations, etc.)
  • Do not request renewal of lease prior to 90 days before lease expiration date.
  • Respect tenants’ privacy and provide 24-hour advance notice of entry.
  • Entry without notice is only legal in cases of emergency.
  • Follow exact procedures for terminating tenancy or evicting a tenant.
  • Provide notification in writing of any transfer in ownership of the property.
  • Make sure all commons areas remain safe and clean.

Because landlord-tenant disputes are primarily governed by state law, you should always make sure you’re familiar with the specific landlord-tenant laws for your jurisdiction.

As a landlord, property manager or owner’s agent, it’s important not only to be familiar with the duties of the landlord to the tenant but also the duties and obligations of the tenant to the landlord. The following are the basic duties of the tenant to the landlord applicable in most jurisdictions.

Duty to Pay Rent

The most important duty of the tenant is to pay the landlord rent. Traditionally, a tenant’s duty to pay rent was maintained and enforced independent of a landlord’s performance of duty. If a landlord was in breach of the lease agreement, the tenant was still required to pay rent. That is no longer the case. Today, the tenant’s duty to pay rent is dependent upon the landlord’s compliance with his or her legally implied and contractually expressed duties.

Rent amount is to be stipulated in the terms of the lease agreement. If and when a rent amount is absent from the terms of the lease, the court will infer a reasonable rent as determined by the fair market rental value for the property.

An agreement to pay rent must comply with local law and regulations. If a rental agreement is illegal, the tenant is not obligated to pay rent. In some states and local jurisdictions there are rent controls that stipulate how much rent can be charged and under what conditions rent amounts can be increased.

Unless otherwise agreed, the tenant is required to pay rent on the last day of the term (e.g. last day of the month). In most residential and commercial leases, the rent payment date is clearly identified and fully binding.

A tenant’s failure to pay rent entitles a landlord to bring legal suit against the tenant, seek monetary damages and file with the courts for lawful eviction of the tenant. However, it does not allow the landlord to remove the tenant from the leasehold property by physical force or other form of coercion.

Repair

While it’s primarily the duty of the landlord to keep the leased property in good repair, the tenant also shoulders some of the responsibility. The tenant “has a duty to avoide 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.” What exactly does this mean? It means the tenant (1) cannot destroy the leased property, (2) may not consciously allow the property to fall into a state of disrepair and (3) may not significantly alter the state of the property without prior written consent from the landlord.

The tenant also has a duty to make ordinary repairs to the property within their control and means so that the property remains in the same condition it was in when the tenant first acquired possession of the property. The tenant is not, however, required to prevent or repair ordinary wear and tear that comes with normal usage.

Any substantial repairs that result due to catastrophe are the responsibility of the landlord. However, the tenant has a duty to maintain the premises, and as is reasonable to do so, the tenant is required to take steps to prevent foreseeble damage from occuring to the property. A landlord can pursue monetary damages from a tenant who neglects this duty.

Refrain from Using the Property for Illegal Purposes

The tenant has a duty not to use a leased property for any purpose that may be deemed illegal. Although this should seem obvious to most people, this legal duty of the tenant provides the landlord the right of enforcement. Should the tenant use the leased property for any illegal purpose, and as long as the landlord was not aware of the illegal purpose at lease signing, the landlord has the following remedies as recourse.

  • The landlord can continue the lease and obtain a court order enjoining (ordering a stop to) the illegal activity or;
  • The landlord can terminate the lease while the illegal activity is occuring or shortly after the illegal activity has ceased. The landlord can then sue the tenant for damages caused by the illegal activity and for any back rent owed.

    Conversely, where a tenant leases a property where the use for which the property was leased becomes illegal, the tenant will be allowed to terminate the lease and stop paying rent to the landlord, but only if it is not possible for the tenant to practically put the property to legal use. For example, if a tenant opens up a retail smoke shop and the county where the smoke shop is located, shortly after the leased is signed, outlaws smoke shops, then the tenant may legally terminate the lease. However, if the tenant can use the lease property for another purpose, the lease cannot be terminated.

    Even if and when the use for which a property was leased has not become illegal, but is otherwise frustrated through circumstances that were unforseeable to either the tenant or landlord, and the primary purpose of the lease becomes “frustrated”, the tenant may be able to get out of the lease.

    Honesty as to Intended Purpose

    Upon request, the tenant must be forthright as to his or her intended use of the leased property. If the tenant uses the lease property in a manner inconsistent with the purpose originally represented to the landlord, or which is stated in the lease, then the landlord may terminate the lease.

    Most commercial lease agreements require the tenant to specify in writing the intended use the leased property. However, intended purpose is a bit more difficult to ascertain with residential leases and rental agreements. If a tenant of a residential lease represents that he or she is quiet and rarely has friends over and then throws wild parties every night, and causes other tenants aggravation, the landlord may have grounds to evit the tenant based on the tenant’s breach of “honesty as to intended purpose”.

    Duty not to Commit Nuisance

    A tenant has an implied duty not to intentionally or unreasonably interfere with other tenants’ right to “quiet enjoyment” of their adjoining properties by commiting nuisance. However, what constitutes “nuisance” or unreasable interference can be subjective and open to interpretation. In order to effectively enforce the tenant duty and prevent tenants from causing disturbances, landlords should always define this restriction by clearing stating all terms (e.g. loud noise, late night parties, etc.) in the lease agreement.

    Fixtures

    The tenant has the duty to leave any fixtures behind when he or she vacates the leased premises. Obviously, the tenant may take personal property that belongs to the tenant, however, the tenant must leave behind anything that is attached to the real property itself. “Fixtures” are materials that are permanently attached to the real property of the leased premises.

    So what happens when a tenant attaches his or her own materials to the leased property? The general rule is that if the material is permanently attached to the real property, it becomes part of the real property and must be left behind when the tenant vacates the premises. So what exactly constitutes a “permanent” attachment?

    There are two factors that must be considered in this determination:

    1. What was the tenant’s intent? If the tenant is able to show that it was never his or her original intent to leave the materials attached to the real property of the leased premises, then the materials would not be considered fixtures.
    2. Will removing the attached materials cause significant damage to the leased property? If removal of the attached material will cause significant damage or decrease in value to the leased property, then most courts would consider the materials to be fixtures that must remain after the tenant has vacated the premises.

    Examples of materials that may or may not be considered fixtures include large kitchen appliances such as stoves, built in bookcases or chandeliers. Most commercial leases expressly specify that any leasehold improvements, including fixtures, that the tenant attaches to the real property during tenancy must remain after the lease term ends.

    When a tenant defaults on a residential or commercial lease, it can be difficult to know how best to respond. There are however a multitude of legal remedies that a landlord can pursue. Which remedy landlord pursues is determined by the unique circumstances of the default. In exploring various landlord remedies, the best place to start is with the nature of the tenant default. Was the tenant default due to unpaid rent (monetary) or abandonment of premises (non-monetary)?

    Remedies for monetary default of a lease agreement are broader than those for non-monetary default.

    Remedies for Unpaid Rent

    The following are the remedies available to a landlord upon monetary default of a lease agreement by a tenant:

    1. The landlord has the option to negotiate an agreeable solution with the tenant. Working out a solution with the tenant does not terminate any obligations of the tenant or landlord under the lease, unless agreed upon by both parties in writing.
    2. The landlord can request from the defaulted tenant a security for the rent in arrears. This remedy also does not terminate the current lease agreement between the landlord and tenant.
    3. The landlord can request that the tenant perform the terms of the lease as agreed upon and sue the tenant for rent as it becomes due.
    4. In a few states, landlords are permitted to seize a tenant’s personal property when a tenant falls behind on rent or the tenant’s security deposit becomes insufficient to cover the cost of damages to the rental unit. This is known as a “landlord’s lien”. Such a lien typically requires a court order before it can be enforced.
    5. The landlord can terminate the lease by providing the tenant proper notice, evict the tenant, sue the tenant for rent arrears and also seek monetary damages for losing the benefit of the balance of the lease term. This remedy, unlike other, terminates the lease between the landlord and the tenant.

    Remedy No.5 listed above is usually the remedy of choice for landlords who wish to re-let the rental premises, as it allows the landlord to re-let the premises to a new tenant while pursuing monetary damages from the tenant in default.

    The most basic damages a landlord may incur when a tenant defaults on a lease are fairly obvious. Most lease defaults occur when the landlord stops making rent payments to the landlord. Under this scenario, the first question is equally as obvious — how does the landlord get paid the amounts that have accrued, including base rent, as well as any payments for operating expenses, taxes or similar charges due under the lease?

    How the landlord is entitled to collect monetary damages is dictated in large part by the terms set forth in the lease agreement. Absent any provision to the contrary, a landlord is entitled to collect base rent and any additional amounts that accrue under the lease as those amounts come due. However, once a tenant is in default of the lease agreement for non-payment of rent, most landlords would prefer to collect the balance of the rent and other charges owned under the lease for the remainder of the lease immediately. While this would be ideal, it often doesn’t happen this way — especially if it isn’t stipulated in the lease. Commercial leases may include a “rent acceleration” clause that permit the landlard to declare all amounts due under the lease for the balance of the lease term due and payable immediately if and when a tenant is found to be in default under the lease. Unfortunately, when tenant default is a result of non-payment of rent, it’s usually a sign the tenant is facing financial difficulties. Collecting monetary damages from a tenant who is struggling financially can be problematic.

    Understandably, tenants often try to negotiate rent acceleration clauses out of the lease or at minimum mitigate their effects. In lieu of accelerating the rent for the balance of the term, leases may provide that the landlord can elect to continue collecting the rent and other charges as they become due, while transferring possession of the leased premises to the landlord for re-letting. An acceleration clause will typically hold the defaulted tenant liable for re-letting expenses and any loss in rent amounts under the new lease. In essense, it is as if the landlord is leasing the premises to a new tenant on behalf of the defaulted tenant.

    As a result of tenant default, a landlord may also suffer monetary damages in addition to the accrued and unaccrued rent and other charges owed under the lease. A good lease will stipulate that the landlord is entitled to collect all costs that he or she incurs in obtaining possession of the premises and re-letting the premises to a new party as a result of tenant default. Such additional damages may include attorneys’ fees, necessary leasehold improvements, cleaning and similar charges that the landlord would not have incurred if the tenant had not defaulted on the lease.

    At the end of the day, a landlord’s ability to collect monetary damages is going to be based on the credit-worthiness of the tenant. If a tenant, whether an individual or a business, is not credit-worthy, a landlord should obtain a guaranty of the lease obligations from a credit-worthy guarantor that has money and assets. The guarantor should be directly liable for the obligations of the tenant under the lease. The guarantor should be a co-obligor with the tenant — not just a “backstop”. When renting an apartment to a non credit-worthy individual via a residential lease agreement, having a credit-worthy guarantor (co-signer) is particularly important. It is also important that the guarantor for a residential lease agreement reside in the same state as the leasehold.

    In some states, a commercial lease can include a “confessions of judgment” for monetary damages clause. This clause allows the landlord, upon default of the tenant, to obtain an actual judgment against the defaulted tenant in court for the amount of damages permitted under the lease. This process permits the landlord to obtain a judgment for monetary damages without going through a lengthy trial. This remedy for monetary damages is only available in certain states.

    So what is the key to collecting monetary damages in the event of tenant default for non-payment of rent? A good lease. A properly drafted lease provides a landlord the ability to collect the full amount of monetary damages to which the landlord is entitled from both the defaulted tenant and the co-obligor under the lease.

    Remedies on a Tenant’s Abandonment of the Premises

    When a tenant has abandoned the rental premises, the landlord has the following remedies:

    1. Demand performance of the lease terms and treat the lease as valid and in force. This requires that the landlord leave the premises vacant for the duration of the lease term. Under this scenario the landlord may sue the tenant for all unpaid rent and other expenses under the lease as they become due. This remedy does not terminate the lease. The risk this remedy presents is that under this scenario the landlord is unable to re-let the premises to a new tenant.
    2. Inform the defaulted tenant of the taking and repossession of the premises in order to re-let the premises on behalf of the defaulted tenant to a new tenant. This remedy does not terminate the lease and permits the landlord to sue the defaulted tenant for rent arrears, re-letting expenses and any difference between the original rent amount and rent received from the new tenant.
    3. Seek injuctive relief from the courts ordering the defaulted tenant to re-enter the premises and conitue operating it’s business therein as outlined under the terms of the lease. This remedy may make sense under certain commercial lease default scenarios but does not serve as a viable remedy for abandonment of a rental home or apartment under a residential lease agreement.
    4. Initiate legal proceedings seeking damages for losses caused by the tenant’s abandonment of the premises, including loss of rents from other tenants who leave as a result of the abondonment or losses caused by a decline in the property’s value. This remedy is usually only persued under commercial lease agreements where a large, well-known tenant defaults on a lease agreement through abondonment of the premises.
    5. Upon abandonment the premises, terminate the lease, take possession of the premises and sue the defaulted tenant for rent arrears and for monetary damages associated with the lost benefit of the remainder of the lease term. This remedy terminates the lease but allows the landlord to re-let the abandoned premises.

    In most states, when seeking relief on the basis of non-monetary tenant default, termination of the lease cannot legally be effected without first providing written notice to the tenant. In the case of abondonment, where a tenant leaves property in the abandoned premises, the landlord may also have the right to take possession of the abandoned property or sell the property. However, this is not the case in all states.

    The tenant is required to first establish that (1) the landlord has done something he or she shouldn’t have done or (2) failed to fulfill an obligation of a material nature before seeking remedy. Those actions or inactions which can lead to redress by a tenant include:

    • Breach of Contract
    • Breach of Statutory Obligation, and
    • Other
    What action may the tenant take if the landlord breaches the lease agreement?

    The tenant is required to first establish that (1) the landlord has done something he or she shouldn’t have done or (2) failed to fulfill an obligation of a material nature before seeking remedy. Those actions or inactions which can lead to redress by a tenant include:

    • Terminate the Lease. If the landlord’s breach of a lease agreement is of a material nature where the health or safety of the tenant placed in jeopordy, then the tenant must provide the landlord written notice of the act or omissions constituting the breach. The tenant must also provide notice that if the act or omissions constituting the breach are not remedied with seven days then the agreement will terminate at such time. If after receiving the written notice, the landlord does not make a reasonable effort to remedy the breach with the seven days, the rental agreement is terminated, and the landlord is required to return to the tenant the balance of prepaid rent, if any, and the tenant’s remaining security deposit.
    • Abate the Rent. If the landlord breaches the lease agreement through failure to perform his or her obligations, the tenant has the right to request an abatement of rent. The tenant must provide the landlord written notice of the conditions constituting the breach of agreement. Most often the tenant must identify a condition of disrepair in the premises which are jeopordizing the health and safety of the residents or the habitability of the unit. If within seven days the landlord does not remedy the condition of uninhabitability as set forth in the notice, the tenant is entitled to an abatement of rent as dictated by state laws.

      Where a landlord remains in breach, the tenant entitled to an abatement of rent shall receive a discount of the pro-rata daily rent for each day from the date of notification of breach that the conditions are not remedied until the day the conditions are remedied. If the necessary repairs are not completed through the subsequent rental period, the abatement of rent will continue at the same rate and until such time as the conditions are remedied.

      If the rental premises become uninhabitable and the tenant cannot stay there, the tenant shall receive one hundred percent abatement of rent for each day from the date of notification of breach until the date the conditions are remedied and the premises are once again inhabitable. If the rental becomes entirely uninhabitable the tenant may choose to terminate the lease. However, if the tenant chooses abatement of rent as the remedy for breach of lease, then the tenant may not choose an alternate remedy.

    • Seek Damages. One of most common remedies for landlord default is to sue for damages. This remedy is appropriate for wrongful eviction, failure to repair and maintain the premises, and in the case of breach of a commercial lease agreement the tenant may seek damages in a number of other default type situations, including wrongful removal of sign, breach of covenant of quiet enjoyment, unreasonably withholding consent to lease, and failure to deliver possession, among others.

      Seeking monetory damages is also a remedy for tenants who believe they’ve been the victim of discrimination.

    • Sue for Performance. A tenant may seek a court order requiring the landlord to perform specific express obligation found in the lease agreement or implied under common law. This may be an attractive option for a tenant who cannot fine another residence that meets their needs and does not wish to terminate the lease agreement.
    • Seek Injustive Relief. If the landlord’s breach of contract is something that can be remedied through a court ordered injunction, then seeking such an injuction may be the best remedy for a tenant who wished to stay in the lease under the current terms.

    Disclaimer: The information on the page is intended for informational purposes only. Each state has its own landlord-tenant laws that dictate the remedies for a landlord in the event of tenant default under a commercial or residential lease agreement. You should contact a licensed attorney in your jurisdiction if you have any questions regarding the laws in your state and how they apply to your particular situation.

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    Author: Becton Loveless
    Becton Loveless is an entrepreneur, specializing in search engine optimization (SEO) and strategic internet marketing. He has built and sold several successful businesses supported entirely by SEO including an online nutraceuticals company,.... read more
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