Landlord’s Duties
Duty to Deliver Possession
The landlord’s first important duty is to deliver possession of the premises at the beginning of the tenancy.
Quiet Enjoyment
All tenants are entitled to quiet enjoyment of the premises, meaning the right to use the property without
the interference of the landlord. Courts can also find activities of other tenants, if the landlord allows them
to continue to disturb neighbors, to breach the landlord’s covenant of quiet enjoyment.
For example, a Massachusetts court upheld the eviction of two tenants because second-hand smoke from
their cigarettes seeped into neighboring units and disturbed other tenants. The evicted tenants’ lease did
not include a no-smoking clause, and the landlord had said they could smoke in their apartment.
Nevertheless, the court held that their second-hand smoke breached the other tenants’ covenant of quiet
enjoyment and gave the landlord the right to evict them.1
Actual Eviction
If a landlord prevents the tenant from possessing the premises, he has actually evicted her.
Constructive Eviction
A landlord’s substantial interference with a tenant’s use and enjoyment of her leased premises can
constitute a constructive eviction, or the practical; equivalent of an eviction. For a constructive eviction to
occur the landlord’s interference with the tenant’s use and enjoyment must be so substantial as to cause
the tenant to leave the premises.
Duty to Maintain Premises
In most states, a landlord has a duty to deliver the premises in a habitable condition and a continuing duty
to maintain the habitable condition.
Implied Warranty of Habitability
The implied warranty of habitability requires that a landlord meet all standards set by the local building
code, or that the premises be fit for human habitation. If students completed the research on the implied
warranty of habitability, they should present their results now.
Duty to Return Security Deposit
Most landlords require tenants to pay a security deposit, in case the tenant damages the premises. In many
states, a landlord must either return the security deposit soon after the tenant has moved out or notify the
tenant of the damage and the cost of the repairs.
Case: Mishkin v. Young2
Facts: A Colorado statute required a landlord to either return a security deposit or provide an accounting
of why it withheld money. The landlord had to do this within one month of the tenant’s surrender of the
property, or up to 60 days if the lease permitted. If the landlord failed to refund the money, the tenant,
after giving seven days notice, could sue for treble damages. The landlord could avoid the treble damages
by refunding the deposit within those seven days.
Marc Mishkin leased an apartment from Dean Young, paying a security deposit of $1,625. The lease
stated that the landlord would return the deposit no later than 45 days after the tenant moved out. After
Mishkin left, Young did not return the money. Forty-eight days after leaving, Mishkin sent a demand for
1 Stefanie Shaffer, “Mass. Court Upholds Eviction of Condo Tenants for Smoking,” The National Law
Journal, Jul. 8, 2005.
2 107 P.3d 393; 2005 Colo. LEXIS 166 Supreme Court of Colorado, 2005.
the deposit, notifying Young that in seven days he would sue for treble damages. Six days later, Young
gave Mishkin a statement detailing $1,574.60 worth of property damage, along with a check for $50.40.
Mishkin sued. The trial court ruled that Young was entitled to withhold the money because of the
damages. Mishkin appealed. The appellate court ruled that the Colorado statute required the landlord to
return the full security deposit within the seven-day period. Young appealed.
Issue: May a landlord avoid treble damages by accounting for the security deposit within seven days of
the tenant’s notice to sue?
Holding: Judgment for Mishkin affirmed. Prior Colorado cases implicitly held that a landlord who failed
to account for a security deposit as required by the statute forfeited all rights to withhold any portion of
the deposit and could be liable for treble damages. A landlord may avoid treble damages only by returning
the entire security deposit during the seven days following a tenant’s demand notice. The purpose of the
seven-day notice provision is to give landlords one last week to avoid treble damages by returning the
security deposit. It does not give landlords a second chance to account for the deposit. The money actually
belongs to the tenant; it was only security for the landlord, who has by unilateral action forfeited all right
to retain any of it. A landlord may not avoid treble damages by accounting for a security deposit during
the seven-day period following a tenant’s demand notice.
Question: What did the Colorado statute in this case require?
Answer: It required that a landlord do one of two things within one month (or up to 60 days if the
lease so permitted):
Question: Which of these did Young do?
Question: What were the consequences of his failure to do either?
Question: Did Mishkin notify Young that he would sue for treble damages if he did not receive the
deposit?
Question: Did Young return the deposit within the seven days?
Question: Did this satisfy the statute?
Answer: No. The court held that the statute required the landlord’s accounting of damages within the
Question: Did Mishkin get all of his security deposit back?
Additional Case: Harris V. Soley3
Facts: The tenants (probably students) moved into an apartment that had been condemned and, contrary
to the landlord’s promises, not fixed up. There were mice, roaches, terrible odors, roof leaks, no heat,
broken toilets and more. The landlord failed to repair and the tenants stopped paying rent. The landlord
made various threats; the tenants moved out; the landlord converted some of the tenants’ personal
property and made more threats; and the tenants sued. The landlord was defaulted for failing to respond to
discovery orders.
3 2000 ME 150, 756 A.2d 499 Supreme Judicial Court of Maine, 2000
The jury awarded each tenant $15,000 for emotional distress, plus a total of $1 million in punitive
damages.
Issue: Were the tenants entitled to such large damages.
Holding: Affirmed. The landlord’s various illegal acts were so outrageous as to justify a substantial award
for emotional distress, and a large punitive award.
Question: How can the landlord be defaulted when in fact he was in court, arguing the case?
Answer: The landlord answered the complaint but then failed to cooperate with discovery requests.
Question: Name some or all of the rules of law that this landlord broke.
Answer:
Quiet enjoyment. The landlord interfered with the tenants’ quiet enjoyment by failing to
provide a livable apartment.
Constructive eviction. The apartment was in such terrible shape that a reasonable tenant
would feel forced to move out. That is a constructive eviction.
Tenant’s Duties
Duty to Pay Rent
Rent is the compensation the tenant pays the landlord for use of the premises, and paying the rent is the
tenant’s foremost obligation. If the tenant fails to pay rent on time, the landlord has several remedies. She
is entitled to apply the security deposit to the unpaid rent. She may also sue the tenant for nonpayment of
rent, demanding the unpaid sums, cost of collection, and interest. Finally, the landlord may evict a tenant
who has failed to pay rent.
Duty to Use Premises for Proper Purpose
A lease normally lists what a tenant may do in the premises and prohibits other activities. A tenant may
not use the premises for any illegal activity, such as gambling or selling drugs.
Duty Not to Damage Premises
A tenant is liable to the landlord for any significant damage he causes to the property. The tenant is not
liable for normal wear and tear.
Duty Not to Disturb Other Tenants
A landlord may evict a tenant who unreasonably disturbs others. The test is reasonableness.
Injuries
Tenant’s Liability
A tenant is generally liable for injuries occurring within the premises she is leasing, regardless of the
nature of the premises.
Landlord’s Liability
Common Law Rules. Historically, the common law held a landlord responsible for injuries on the
premises only in a limited number of circumstances. In reading these common law rules, be aware that
many states have changed them, dramatically increasing the landlord’s liability.
Latent Defects. If the landlord knows of a dangerous condition on the property and realizes the tenant
will not notice it, the landlord is liable for any injuries. But notice that, under the common law, if the
landlord notifies the tenant of the latent defect, he is no longer liable.
Common Areas. The landlord is usually responsible for maintaining the common areas, and along with
this obligation may go liability for torts.
Negligent Repairs. Even in areas where the landlord has no duty to make repairs, if he volunteers to do
so and does the work badly, he is responsible for resulting harm.
Public Use. If the premises are to be used for a public purpose, such as a store or office, the landlord is
generally obligated to repair any dangerous defects, although the tenant is probably liable as well. The
purpose of this stricter rule is to ensure that the general public can safely visit commercial establishments.
Additional Case: You Be the Judge: McGuire v. K & G Management
Co.4
Facts: The McGuire family rented a second-story apartment from K & G Management, which managed a
residential complex on behalf of Avant Co. Robin McGuire notified K & G that a window screen was
loose in her son’s bedroom, and had fallen out once. Neighbors had also complained about loose-fitting
screens. Five days after Robin reported the loose screen, her son, 26-month-old Devin, was playing in his
bedroom with his eight-year-old cousin. Somehow, Devin fell or leaned into the window screen, which
gave way. Devin fell to the ground and was seriously hurt.
The McGuires filed suit against K & G and Avant, claiming negligent maintenance, management, and
repair. In Ohio (and most states), a landlord has a statutory duty to “make all repairs and do whatever is
reasonably necessary to put and keep the premises in a fit and habitable condition.” The trial court granted
summary judgment for both defendants, ruling that the defendants had no duty to install screens strong
enough to restrain a child. The McGuires appealed.
You Be the Judge: Are the McGuires entitled to a jury trial?
Holding: The court affirmed summary judgment for both defendants: The court said “case law, in this
state and other jurisdictions, has held the purpose of window screens is not child restraint but to provide
ventilation and to keep birds and insects out of the apartment. Appellees presented no evidence that the
screen in question did not serve the purpose for which it was installed. Based upon this, we find appellees
did keep the apartment ‘fit and habitable’ with regards to the window screen since the purpose of window
screens is not to prevent tenants from exiting through the windows.”
General Questions: If you agree with the tenant’s position, answer these questions:
A window screen is supposed to keep bugs out, not children in. Why should a landlord be
responsible for the child’s fall?
4 1998 Ohio App. LEXIS 4742 Ohio Court of Appeals, 1998.
How is a landlord supposed to know how strong a screen must be? How heavy is a
“toddler”? What if a screen is strong enough to hold one child, but not two children leaning
against it at the same time?
Isn’t the danger of an open window as obvious as any risk can be?
If you agree with the landlord’s position, answer these questions:
A properly fitted window screen might well save lives. Why shouldn’t the law require a
landlord to maintain the screens in proper order?
The legal standard in a negligence case is “reasonable conduct,” and it is normally the
jury that decides whether the defendant behaved reasonably. Why shouldn’t the court permit a
jury to hear these cases?
In at least one case, a few months after one child fell from a window, a second child fell
from the same building. Wouldn’t a landlord at some point start to be responsible? What is that
point?
Personal Property
Personal property is all property other than real property.
Gifts
A gift is a voluntary transfer of property from one person to another without any consideration. A gift has
three elements:
The donor intends to transfer ownership of the property to the donee immediately,
The donor delivers the property to the donee, and
The donee accepts the property.
Inter Vivos Gifts and Gifts Causa Mortis
An inter vivos gift means a gift made “during life,” when the donor is not under any fear of impending
death.
An inter vivos gift becomes final upon delivery.
The donor may not revoke an inter vivos gift after it becomes final.
A gift causa mortis is one made in contemplation of approaching death.
A gift causa mortis is valid if the donor dies as expected, but is revoked if he recovers.
The donor can revoke the gift at any time before he dies.
You Be The Judge: Albinger v. Harris5
Facts: Michelle Harris and Michael Albinger lived together in a stormy relationship, marred by alcohol
abuse and violence, on and off for three years. When they announced their engagement, Albinger gave
Harris a $29,000 diamond ring, but the couple broke off their wedding plans because of emotional and
physical turmoil. Harris returned the ring. Later, they reconciled and resumed their marriage plans, and
Albinger gave his fiancée the ring again. This cycle repeated several times over the three years.
Eventually they ended their affair, and Harris moved to Kentucky, with the ring.
Albinger sued for the value of the ring. The trial court found that the ring was a conditional gift, made
in contemplation of marriage, and ordered Harris to pay its full value. She appealed. The Montana
Supreme Court had to decide, in a case of first impression, whether an engagement ring was given in
contemplation of marriage. (In Montana, and many states, neither party to a broken engagement may sue
5 2002 MT 118, 2002 WL 1226858 Supreme Court of Montana, 2002.
for breach of contract, because it is impossible to determine who is responsible for ending the
relationship.)
You Be The Judge: Who owns the ring?
Holding: Michelle Harris gets to keep the ring. The court was unwilling to create a new type of
conditional gift. The court discussed the history of anti-heart balm statutes, the history of ring giving, and
other issues. Some excerpts of the decision follow.
Abolition of Breach of Promise Actions
By the mid-1930’s, several state legislatures questioned the efficacy of court “interference with
domestic relations” and passed statutes barring actions for breach of promise to marry, alienation of
affections, criminal conversation and other inappropriate conduct of the “private realm.”
Engagement Ring Symbology
The custom of giving expensive engagement rings is largely a mid- to late 20th Century phenomenon.
The six-prong gold or platinum setting holding a raised, brilliant-cut diamond, which has become the
classic engagement ring style, was created by Tiffany’s in the 1870s. DeBeers’ launched its national
advertising campaign in 1939 that promised: “A diamond is forever.” To cultivate a no-return custom
in America, the cartel threatened to cut off supply to dealers who bought diamonds back from
purchasers. An interesting correlation exists between the mid-20th Century increase in demand for
costly diamond engagement rings and the statutory changes by state legislatures to abolish the breach
of promise action. After the Second World War, expensive rings became not just symbols of love, but
tangible economic commitments in themselves, and appear to have gained significance as other
economic incidents of marriage were in flux.
Conditional Gift Theory
According to Montana law, “a gift is a transfer of personal property made voluntarily and without
consideration.” The essential elements of an inter vivos gift are donative intent, voluntary delivery,
and acceptance by the recipient.
Another essential element of a gift is that it is given without consideration. A purported “gift” that is
part of the inducement for “an agreement to do or not to do a certain thing,” becomes the
consideration essential to contract formation. An exchange of promises creates a contract to marry,
albeit an unenforceable one. When an engagement ring is given as consideration for the promise to
marry, a contract is formed and legal action to recover the ring is barred by the abolition of the breach
of promise actions.
Albinger maintains he held a reversionary interest in the gift of the engagement ring grounded in
an implied condition subsequent. Since actions stemming from breach of the contract to marry are
barred by our “anti-heart balm” statute, Albinger urges the Court to adopt a conditional gift theory
patterned on the law relevant to a gift in view of death. Under Montana law, no gift is revocable after
acceptance except a gift in view of death. While some may find marriage to be the end of life as one
knows it, we are reluctant to analogize gifts in contemplation of marriage with a gift in contemplation
of death. This Court declines the invitation to create a new category of gifting by judicial fiat.
Gender Bias
Article II, Section 4 of the Montana Constitution recognizes and guarantees the individual dignity of
each human being without regard to gender. This Court and the Montana State Bar have recognized
the harm caused by gender bias and sexual stereotyping in the jurisprudence and courtroom of this
state.
Conditional gift theory applied exclusively to engagement ring cases, carves an exception in the
state’s gift law for the benefit of predominately male plaintiffs.
Engagement Ring Disposition
To preserve the integrity of our gift law and to avoid additional gender bias, we decline to adopt the
theory that an engagement ring is a gift subject to an implied condition of marriage.
Question: If you think that Michelle Harris should win, please answer these questions:
Intent is an element of a gift. Wasn’t Albinger’s intent to give Harris the ring only if the
couple married?
If you took a poll of 10,000 Americans, wouldn’t most agree that the former fiancée
should return an engagement ring if the relationship ends?
Harris gave back the ring each time they ended their unhappy affair. Doesn’t that indicate
she knew it was only conditionally hers?
Although Montana has no law declaring these rings as conditional gifts, isn’t that because
there has been no need of such a law – because everyone understood that the ring had to be
returned?
Question: If you think that Michael Albinger should win, please answer these questions:
Why should a court help someone who beat up his girlfriend?
If Albinger did not want Harris to keep the ring, why did he keep giving it to her?
Doesn’t Harris’s returning of the ring indicate simply that she voluntarily decided to give
it to Albinger – not that she thought she owed it to him?
There is no such thing as a conditional gift – why should this court create one?
Typically, the man gives the ring to the woman, and typically, the woman’s family bears
the expense of preparing for and hosting the wedding. Wouldn’t the proposed “conditional gift”
mean that the man gets back his money but the woman’s family does not?
Bailment
A bailment is the rightful possession of goods by one who is not the owner. Parties generally create a
bailment by agreement; a bailment without any agreement is called a constructive, or involuntary,
bailment.
Bailor: the person who delivers the goods
Bailee: the person in possession of the goods.
Example: Negative Wedding
Shana and Meng-Lu hired Billy to photograph their wedding, agreeing to pay $1,500 when Billy
delivered the proofs, negatives, and contact sheets, and extra sums for any prints they ordered. The
wedding went off beautifully and Billy snapped away feverishly. The photographer developed hundreds
of color proofs and many black and white contact sheets, and the pictures looked great. Later that week,
as Billy was driving his girlfriend to her business law class, the two had a bitter fight over the definition
of “bailment.” In a moment of forensic rage, Billy hurled into the river what he believed was his
girlfriend’s backpack of business law books, only to realize moments later that it was his own backpack,
containing all of Shana and Meng-Lu’s pictures, that was racing downstream and out to sea. Shana and
Meng-Lu sued, claiming breach of a bailment agreement and breach of contract. Billy has moved to
dismiss both the bailment and contract claims.
Question: On the bailment claim, argue for Shana and Meng-Lu.
Answer:
The parties created this bailment by agreement–namely, the contract to take pictures.
Shana and Meng-Lu were the rightful owners of all the proofs, negatives, and contact
Question: On the bailment claim, argue for Billy.
Answer: There is no bailment.
A bailment is the rightful, temporary possession of property by one who is not the owner.
A bailment is created either by agreement or by construction. Neither occurred here. This
was a simple contract for services. There was an agreement for Billy to take pictures and for the
Question: Please rule on the bailment claim.
Question: Please comment on the contract claim.
Answer: Billy has clearly breached. The big question is, what are the damages? Shana and Meng-Lu
have not paid anything, so they are not out of pocket any money. Their losses are expectation
damages. The court will have to put a price tag on their expectation, no easy feat. A court will
Control
To create a bailment, the bailee must assume physical control of the bailor’s property with intent to
possess.