404
“Good fences make good neighbors.”
Robert Frost
I. Teacher to Teacher Dialogue
ownership versus rental. Our economy has traditionally boasted a high percentage of home
ownership relative to most any other part of the world. In many countries, the percentage of home
ownership is very low. Even in more highly developed parts of the world such as Western
The disturbing aspect of this particular economic and sociological measure is that recent
history has witnessed a decline in the number of Americans who can realistically aspire to own
their own homes. As the percentage goes down, the laws involving the rights, duties, and
obligations of persons involved in nonfreehold estates of all sorts become increasingly important.
Conversely, the bargaining power between landlord and tenant has never been entirely equal.
Between market limitations of supply and the tenant’s lesser economic bargaining position, the
common law can hardly have been accused of being the tenant’s friend in the past. More modern
attitudes and statutory enactments have given the tenant a more even playing field, but not real
parity.
user’s side of the equation, public policy wants free, quiet, environmentally sensitive uses of land.
LANDLORD-TENANT LAW AND LAND
USE REGULATION
49
Landlord-Tenant Law and Land Use Regulation
enlightened measures toward those goals.
But where government sets up measures that are unreasonable and even confiscatory, a
problem is created. The results are not only higher costs of doing business, but also depreciation
of the American Dream. Zoning laws have been criticized as an insidious subterfuge to extend
II. Chapter Objectives
1. Explain how a landlord-tenant relationship is created.
2. Identify and describe the various types of tenancy.
III. Key Question Checklist
What are the main forms of nonfreehold estates?
What are the duties of landlords and tenants?
How can rights to nonfreehold estates be transferred to third parties?
What are the various antidiscrimination laws that apply to real estate?
IV. Text Materials
Introduction to Landlord–Tenant Law and Land Use Regulation
Individuals and families rent houses and apartments, professionals and businesses lease office
space, small businesses rent stores, and businesses lease commercial and manufacturing facilities.
Landlord–Tenant Relationship
A landlord–tenant relationship is created when the owner of a freehold estate in real estate
transfers a right to exclusively and temporarily possess the owner’s property. The tenant receives
The Lease – A rental agreement between a landlord and a tenant is called a lease. Leases can
Tenancy for Years – Tenancy in which the landlord and tenant agree on a specific duration of
Chapter 49
Periodic Tenancy – This lease specifies intervals at which payments are due, but not a term for
Tenancy at Sufferance – Tenant remains in possession of property after the expiration of a lease
without the owner’s consent. The tenant is liable for rent during this time, but is technically a
Landlord’s Duties to a Tenant
Duty to Deliver Possession – The lease grants the tenant exclusive possession of the property
Duty Not to Interfere with the Tenant’s Right to Quiet Enjoyment – The covenant of quiet
enjoyment prevents the landlord’s interference with the tenant’s quiet and peaceful possession,
Duty to Maintain the Leased Premises – Both the states and individual municipalities have
Case 49.1 Landlord’s Liability: New Haverford Partnership v. Stroot
772 A.2d 792, 2001 Del. Lexis 2278 (2001), Supreme Court of Delaware
Facts: Elizabeth Stroot was a tenant at Haverford Place apartments, which was owned by New
Haverford Partnership. The apartments were in a bad condition. One evening, Stroot’s bathroom
ceiling collapsed, and water flooded her floor. Stroot slept in the apartment that night. The next
morning she could not breathe. Stroot called an ambulance and was taken to the hospital.
made a motion for remittitur, asking the court that if it was held liable for negligence to reduce
the amount of the award from $1 million to $250,000.
Issue: Was New Haverford Partnership liable, and if so, was the amount of the award of damages
to Stroot appropriate?
Landlord-Tenant Law and Land Use Regulation
Stroot’s complaint they did not look into the problems. Stroot was partially at fault in this case
because she too behaved negligently to some extent. The award of damages in this case was
appropriate because New Haverford Partnership did not carry out any maintenance or repair work
even after receiving a complaint from Stroot and because of their negligence, Stroot suffered
maintain the units.
Implied Warranty of Habitability – This warranty provides that a leased property is fit, safe,
and suitable for ordinary use. If the landlord fails to maintain the property, state statutes usually
provide remedies like allowing the tenant to withhold the rent or portion of the rent, repair the
Tenant’s Duties to a Landlord
Duty to Pay Rent – A commercial or residential tenant owes a duty to pay the agreed-upon
amount of rent for the leased premises to the landlord at the agreed-upon time and terms.
Duty Not to Use Leased Premises for Illegal or Nonstipulated Purposes – Tenants may use
Duty Not to Commit Waste – A tenant cannot cause substantial and permanent damage to the
Duty Not to Disturb Other Tenants – A landlord may evict a tenant who interferes with the use
and quiet enjoyment of other tenants.
Transfer of Rights to Leased Property by Landlords
terms of the lease.
Assignment and Sublease of a Lease by Tenants
Unless otherwise restricted by the lease, a tenant may transfer his or her lease by either
Assignment of a Lease – When a tenant transfers all of his interests under a lease, it is an
assignment. The original tenant is the assignor; the new tenant the assignee. The assignee will be
Chapter 49
Sublease – If the tenant transfers only some of his/her rights under a lease, it is a sublease. The
original tenant (the sublessor) is not relieved of his/her responsibility under the lease, as there is
no legal relationship between the landlord and the new tenant (sub-lessee). Usually the tenant is
not allowed to assign or sublease without the owner’s permission.
Government Regulation of Real Property
control.
Antidiscrimination Laws and Real Property
Civil Rights Act of 1866 – This federal statute prohibits discrimination in the selling and renting
of property based on race or color.
Title III of the Americans with Disabilities Act – Title III of the Americans with Disabilities
Act prohibits discrimination on the basis of a physical or mental disability in places of public
accommodation operated by private entities. Title III of the ADA applies to public
accommodations and commercial facilities. Title III requires covered facilities to be designed,
regulations issued pursuant to the ADA.
State and Local Fair Housing Laws – State and local governments may provide fair housing
laws that prohibit discrimination in housing. State and local laws that are stricter than federal laws
are permitted.
Government Taking of Real Property
The Due Process Clause of the Fifth Amendment to the U.S. Constitution (and state constitutions,
where applicable) allows the government to take private property for public use. This is done by
Landlord-Tenant Law and Land Use Regulation
Critical Legal Thinking Case: Eminent Domain
The City of New London, CT was targeted by state and local officials for economic
redevelopment, which included taking 90 acres in part of the city, much of which was owned by
individual homeowners. Several of these homeowners decided to fight the taking, which was
government.
Critical Legal Thinking Questions: The state trial court found for the homeowners, but the
Connecticut Supreme Court reversed, and held that the taking was legitimate. The question of
V. Key Terms and Concepts
public accommodations and services, and telecommunications.
Americans with Disabilities Act (ADA) of 1990—It was amended by the Americans with
Disabilities Act Amendments Act (ADAAA) of 2008.
Assignee—The party to whom rights have been transferred.
Assignment of a lease—A transfer by a tenant of his or her rights under a lease to
another.
Assignor—The party who transfers the rights.
eviction.
Covenant of quiet enjoyment—A covenant that says a landlord may not interfere with the
tenant’s quiet and peaceful possession, use, and enjoyment of the leased premises.
Double net lease—In a double net lease arrangement, the tenant is responsible for paying
rent, property taxes, and utilities.
take property for “public use.”
Duty not to commit waste—A tenant is under a duty not to commit waste to the
leasehold. Waste occurs when the tenant causes substantial and permanent damage to the
leased premises that decreases the value of the property and the landlord’s reversionary
interest in it.
Chapter 49
enjoyment of other tenants.
Duty not to interfere with a tenant’s right to quiet enjoyment—The landlord may not
interfere with the tenant’s quiet and peaceful possession, use, and enjoyment of the leased
premises.
Duty not to use leased premises for illegal or nonstipulated purposes—If the tenant uses
Duty to pay rent—A commercial or residential tenant owes a duty to pay the agreed-upon
amount of rent for the leased premises to the landlord at the agreed-upon time and terms.
Eminent domain—The right of the government to take private property, subject to due
process and just compensation, for public use.
premises to the lessee.
Fair Housing Act of 1968—A federal statute that makes it unlawful for a party to refuse
to sell, rent, finance, or advertise housing to any person because of his or her race, color,
national origin, sex, religion, handicap, or familial status.
Gross lease—A lease in which the tenant pays a gross sum to the landlord and the
Land use control—The collective term for the laws that regulate the possession,
ownership, and use of real property.
Landlord—The owner who transfers the leasehold.
Landlord-tenant relationship—A relationship created when the owner of a freehold estate
another (tenant).
Lease—A transfer of the right to the possession and use of the real property for a set term
in return for certain consideration; the rental agreement between a landlord and a tenant.
Leasehold—A tenant’s interest in the property.
Month-to-month tenancy—It requires a one-month notice of termination.
property taxes.
Net, net, net lease (triple net lease)—A lease where the tenant is responsible for paying
the rent, property taxes, utilities, and insurance.
Nonconforming uses—Uses and buildings that already exist in the zoned area that are
permitted to continue even thought they do not fit within new zoning ordinances.
Landlord-Tenant Law and Land Use Regulation
accommodation operated by private entities.
Possession—A lease grants the tenant exclusive possession of the leased premises for the
term of the lease or until the tenant defaults on the obligations under the lease.
Premises liability—The liability of landlords and tenants to persons injured on their
premises.
housing.
Restrictive covenant—A private agreement between landowners that restricts the use of
their land.
Sublease—When a tenant transfers only some of his or her rights under the lease.
Tenancy for years—A tenancy created when the landlord and the tenant agree on a
specific duration for the lease.
Tenant—The party to whom the leasehold is transferred.
Title III of the Americans with Disabilities Act—It prohibits discrimination on the basis
entities.
U.S. Department of Housing and Urban Development (HUD)—A federal administrative
agency that administers the Fair Housing Act.
U.S. Department of Justice (DOJ)—The DOJ will bring a lawsuit if it finds a pattern or
practice of discrimination in violation of Title III or where an act of discrimination raises
in it.
Wrongful eviction—A violation of the covenant of quiet enjoyment. Also called unlawful
eviction.
Wrongful possession—It occurs when a tenant retains possession of property after the
expiration of a tenancy or a life estate without the owner’s consent.