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Chapter 50
LEASES
RESTATEMENT
A lease is a relationship by which one person is in lawful possession of the real property owned by another. The
landowner is the lessor, or landlord and the party in possession is the lessee or tenant.
A lease may require a writing in some states and there are some restrictions on the lease content including
prohibitions on discrimination and unconscionability. To be considered a lease, the landlord or lessor must have
agreed to the tenant’s possession and there must be a reversionary interest in the landlord upon termination of the
lease.
The classifications of tenancies or leases are the tenancy for years, periodic tenancy, tenancy at will and tenancy at
sufferance.
A lease can end by agreement, by notification, by destruction of the property, by fraud or by the tenant’s transfer of
the lease in violation of the agreement.
The tenant’s rights under the lease include the right to acquire and retain possession, the covenant of quiet
enjoyment, and protection in the event of constructive eviction.
The landlord can place restrictions on use of the premises and is entitled to collect rent pursuant to the parties ’
agreement. Most jurisdictions impose upon the landlord the duty to deliver the premises to the tenant in habitable
condition. The use and amount of a tenant’s deposit is regulated as is the right of a landlord to lien the tenant’s
property.
The issue of landlord and tenant liability for injuries to third parties is one of continuing debate and review by the
courts.
In the absence of a restriction, the tenant has the right to assign the lease or sublease the property.
STUDENT LEARNING OUTCOMES
LO.1: List the ways in which a lease may be terminated.
LO.2: List and explain the rights and duties of the parties to a lease.
LO.3: Describe a landlord's liability for a tenant's and a third person's injuries sustained on the premises.
LO.4: Define "sublease" and "assignment of a lease" and distinguish between them.
INSTRUCTOR’S INSIGHTS
Break the chapter down into four components – related Learning Outcomes are indicated in ( ):
1. How are leases created and terminated?
Define leases
Describe the creation of the lease relationship
List the essential elements of a lease
Provide the classification of tenancies
Explain how a lease is terminated (LO.1)
Discuss lease renewals
2. What are the rights and duties of the parties to a lease?
Explain the right of possession (LO.2)
Describe the rights of use of the premises (LO.2)
Discuss rent amounts and payments
Cover the parties’ duties with respect to repairs, improvements, taxes and assessments (LO.2)
3. What liabilities for injuries on leased premises exist?
Cover the landlord’s liability to the tenant (LO.3)
4. What are the rights and issues in the transfer of a lease? (LO.4)
CHAPTER OUTLINE
I. How are Leases Created and Terminated?
A. A lease is the relationship by which one person is in lawful possession of real property owned by another
B. Creation of the lease relationship
1. Can be oral
4. Unconscionability
a. Discuss provisions eliminating landlord liability (e.g., a provision that the landlord will not be liable
b. Bring in some standard forms of residential leases used in your area, and cover each of the
C. Classification of tenancies
1. Tenancy for years
2. Periodic tenancy
a. Period to period
3. Tenancy at will
a. Indefinite period
4. Tenancy at sufferance – holdover tenant
D Termination of lease
1. Termination by notice
2. Expiration of term in a tenancy for years
3. Notice in a tenancy from year to year
E. Notice of termination
F. Renewal of lease – generally a matter of agreement
II. What are the Rights and Duties of the Parties to a Lease?
A. Possession
1. Tenant’s right to acquire possession
4. Constructive eviction
B. Use of premises
1. Change of use – can terminate lease
2. Continued use of property
C. Rent
1. Time of payment – ordinarily in the lease
2. Assignment
3. Rent escalation – automatic increase clause in the lease
D. Repairs and condition of premises
1. A tenant must prevent waste and decay
DISCUSSION POINTS: Thinking Things Through
The Rotting Balcony
The court held that the condition of the balcony was very poor. A landlord cannot be expected to check every area on
a daily basis, but the rot here was significant and the landlord had been told by the tenant that something did not
seem right with the balcony. With notice and the longstanding problem, the landlord was liable for the injuries.
2. Inspection of premises
3. Housing laws
CASE BRIEF: Department of Housing and Urban Development v. Rucker
535 U.S. 125 (2002)
FACTS: Several young men who are grandsons of William Lee and Barbara Hill (respondents), both of
whom are residents and on the leases of Oakland Housing Authority (OHA)., were caught in the
apartment complex parking lot smoking marijuana. The daughter of Pearlie Rucker, who resides
with her and is listed on the OHA lease as a resident, was found with cocaine and a crack cocaine
pipe three blocks from Rucker's apartment. On three instances within a 2-month period, Herman
Walker's caregiver and two others were found with cocaine in Walker's apartment.
OHA moved to evict the tenants and they challenged the HUD regulations on eviction of innocent
tenants as unconstitutional.
The District Court issued a preliminary injunction, enjoining OHA from "terminating the leases of the
tenants”. A panel of the Court of Appeals reversed and the full Court of Appeals reversed and
reinstated the District Court’s injunction. The tenants appealed to the U.S. Supreme Court.
ISSUE: Is the HUD eviction policy on tenants with drug activity in their apartments constitutional?
REASONING: Congress wanted to ensure the safety of public housing and allowed the eviction for criminal
activity in leased property, even when the tenant was not involved. There are no constitutional
issues so long as the proper processes under state law for eviction are followed.
DISCUSSION POINTS: Ethics & The Law
Screening Tenants for Criminal Records
Have the students cover the arguments on both sides – the need for rehabilitation as well as the need for safety for
the other tenants. Have them think of the types of crimes that might not be those that should bar them as tenants.
Consider violent crimes, sex offenders, etc., in setting the landlord’s policy on screening those with criminal records.
4. Warranty of habitability
CASE BRIEF: Bender v. Green
874 N.Y. S. 2d 786 (N.Y. Civ. Ct. 2009)
FACTS: Geoffrey Green lived in a rent-control apartment in New York City. Bedbugs in his apartment forced
him and his partner, Dana Shapiro, to sleep with the lights on, and rotate between sleeping in the
bedroom, the kitchen, and the living room. They did not use the bedroom between May and August
in 2005 and 2006.
Mr. Green testified that from April 2005 through July 2008, he did not have a single full night’s sleep
during the summer months. Lack of sleep affected Mr. Green’s relationship with Ms. Shapiro and
his ability to get to work on time.
Mr. Green withheld rent from October 2005 through January 2007, but only for the prime bedbugs
months, i.e., non-winter months, during this period for a total amount of $5,665.84. His landlord
(Petitioner) brought a forcible detainer action to have him evicted. Mr. Green counterclaimed for his
damages from the bedbugs. Mr. Green offered into evidence two zip-loc bags containing dead
bedbugs.
The exterminator for the complex had come to spray the building but said he never saw any live or
dead bedbugs in the Green/Shapiro apartment except the specimens that Mr. Green had shown
him, in a Ziploc bag. The exterminator believed Green and Shapiro (Respondents) may have
brought the bedbugs with them from their previous apartment. Theresa Lonng, a neighbor, testified
that she had bedbugs in her apartment, but that she also had had them in her apartment in the
building next door, where she had lived until moving next to Mr. Green and Ms. Shapiro.
ISSUE: Are the presence of bedbugs, regardless of where the bugs came from, a breach of the warranty of
habitability?
REASONING: As the court noted, those who travel run the risk of bedbugs and landlords must be prepared to
eliminate the bugs, wherever and however they land. The court did question the credibility of
tenants who would stay in a bug-infested place for three years without some more diligent form of
action. However, the court awarded the tenants a rent abatement to cover September 2005 through
December 2006. The first documented notification to the landlord regarding the alleged condition
was in September 2005. That was the first documented phone call to the exterminator, and the
tenants withheld their rent in September and October of 2005. Based on the log of bites that was
kept by the tenants for January 2007 forward, the court found that the tenants had failed to
establish the presence of bedbugs from January 2007 forward, and that the bites documented were
in all likelihood other insect bites. The tenants received a 12 percent abatement in rent, for the
period of September 2005 through December 2006, totaling $2,724.21.
DISCUSSION POINTS: Have the students discuss the warranty of habitability using the Bender v. Green case.
5. Abatement and escrow payment of rent
E. Improvements
1. Improvements go with the land unless agreed otherwise
2. Create several examples, and have the students solve the problems (e.g., bookcase nailed to the wall,
F. Taxes and assessments – usually the landlord’s obligation
G. Tenant’s Deposit
H. Protection from retaliation
I. Remedies of landlord
1. Landlord’s lien – not without agreement or statute
3. Recovery of possession
III. What Liabilities for Injuries on Leased Premises Exist?
A. Landlord’s liability to tenant
1. Knowledge of landlord and tenant is important
DISCUSSION POINTS: Sports & Entertainment Law
The Quarter Pipe 360 Liability Issue
In the case, the court held that the landlord had no liability as follows:
On appeal, plaintiffs frame the issue as follows: "Where a landowner lets his or her premises for the purpose
of carrying on an inherently dangerous activity, he or she has a nondelegable duty to ensure that reasonable
precautions are taken in connection with carrying out that activity. For this reason, the law imposes an
affirmative duty of care on landowners who let his or her [sic] property for the purpose of carrying on an
activity that gives rise to an unreasonable risk of injury."
To support their theory, plaintiffs assert that Voll acknowledged at the inception of the lease that
skateboarding was a dangerous activity. Moreover, he required Impact to maintain a liability insurance policy
for its patrons and required all participants to sign a waiver and release of liability form. Lastly, they posit that
"the issue of whether extreme skateboarding is an inherently dangerous activity presents a question that
should be determined by a finder of fact," thus precluding summary judgment.
We need not address the merits of plaintiffs' negligent entrustment claim because they have failed to present
any competent evidence that skateboarding is an inherently dangerous activity. As the motion justice aptly
noted, the mere fact that the landlord thought the activity to be sufficiently hazardous to insist upon the
signing of waivers and the procurement of liability insurance was irrelevant. Here, plaintiffs provided no basis
for categorizing Impact's skate park as an inherently dangerous activity.
In opposing a motion for summary judgment, it is incumbent on the nonmoving party to prove "by competent
evidence the existence of a disputed material issue of fact." Accent Store Design, Inc. v. Marathon House,
Inc., 674 A.2d 1223, 1225 (R.I.1996). Here, the plaintiffs have failed to do so. It is clear from the evidence
that the injury was caused by an alleged defect in the quarter pipe or ramp – a trade fixture installed,
maintained, and owned by the tenant. The landlord had relinquished full control of the demised premises,
and was under no contractual obligation to maintain the interior part of the building occupied by the tenant or
to inspect the trade fixtures or indeed any portion of the interior for dangerous conditions. Moreover, the
plaintiffs failed to produce evidence upon which a trier of fact could conclude that skateboarding is an
"inherently dangerous" activity. In short, we concur with the motion justice's assessment that the plaintiffs
had failed to demonstrate any "duty-triggering" facts, and therefore Voll owed no duty of care to the plaintiffs.
We therefore affirm the judgment of the Superior Court.
2. Crimes of third persons
CASE BRIEF: Yu Fang Tan v. Arnel Management Co.
170 Cal. App. 4th 1087, 88 Cal. Rptr. 3d 754 (2009)
FACTS: Arnel Management Company (Defendant) manages the Pheasant Ridge Apartments. Pheasant
Ridge is a 620-unit, multi-building apartment complex, with over 1,000 residents, situated on 20.59
acres in Rowland Heights, California. Before the gated entrance to the complex are two parking
lots, one is a visitor lot, and the other is the parking lot for the leasing office, located on the other
side of the road. There are two security gates just past the parking lot. The gates are
remote-control operated. Most of the property's parking spaces lie behind these gates by the
apartments.
Yu Fang Tang and his wife, Chun Kuei Chang, and their child (Plaintiffs) moved into Pheasant
Ridge in July 2002 and received one assigned parking space. Tenants could pay an additional fee
for a garage, but Tang chose not to rent one. Tenants with a second car could park in unassigned
parking spaces located throughout the complex, or in one of the two lots described as long as the
car was removed from the leasing office lot before 7:00 a.m.
At around 11:30 p.m. on December 28, 2002, Tang returned home and tried to find an unassigned
open parking space because his wife had parked the family's other car in their assigned space.
Unable to locate an available space, he parked in the leasing office parking lot outside the gated
area.
As Tang was parking his car, an unidentified man approached him and asked for help. When Tang
opened his window, the man pointed a gun and told him to get out of the car because the man
wanted it. Plaintiff responded, “Okay. Let me park my car first.” But, the car rolled a little, at which
point, the assailant shot Tang in the neck. The incident rendered Tang a quadriplegic. Tang and
Chang filed suit against Arnel for their negligent management of the complex as well as its policy
on not having sufficient parking inside the gated area and charging more for such additional
spaces. The trial court granted judgment on the pleadings for Arnel and Tang and Chang appealed.
ISSUE: Is the landlord/owner liable for the injuries caused by the criminal conduct of third parties on the
premises?
HOLDING AND
REASONING: There had been three alleged prior incidents of violence in the ungated area of apartment complex
that were sufficiently similar as to impose on landlords a duty of care to provide relatively minimal
The security measures that tenant proposed to prevent harm from foreseeable third party criminal
acts on apartment complex premises were minimal and not onerous. The tenant merely proposed
DISCUSSION POINTS: Have the students discuss the landlord's liability for the crimes of third parties using the Yu
Fang Tan v. Arnel Management Co. case.
b. Limitation of liability
B. Landlord’s liability to third persons
C. Tenant’s liability to third persons
IV. What Are The Rights and Issues in The Transfer of a Lease?
A. Transfer of rights
1. Assignment – transfer of full lease
4. Tenant’s assignment of lease and sublease
a. Assignment is a transfer of an entire lease
b. It is considered a sublease if a transfer of less than the entire interest occurs
f. Effect of assignment or sublease
ANSWERS TO QUESTIONS AND CASE PROBLEMS
1. Warranty of habitability. The issue is whether the lack of a small detector makes the premises uninhabitable or if
Ordinance 2021 of the Fire Code provides: “except that existing conditions not in strict compliance with the
requirements of this Code may be permitted to continue if it can be proven that they do not constitute a distinct
hazard to life or property.” While it is clear that the absence of smoke detectors was an “existing condition,” there
In a majority of jurisdictions, a finding of negligence per se only creates a mandatory finding of negligence that
can be attacked on the grounds that the violation of the ordinance was not the proximate cause of the injury. In
2. Warranty of habitability. The court was sympathetic with the tenants:
As for claimants' demand for the recovery of rent for the months of March and April 2010, the court is
mindful that although they did not have full use and enjoyment of the apartment for those months, they
maintained possession of the premises. Since claimants were deprived of full use and enjoyment of the
premises, an abatement of rent for the two months is appropriate. The court is also mindful that while
Finally, as to the claim for loss of property, claimants testified that they had to throw out practically all
their furniture and personal items. They, however, did not have any receipts or any evidence to support
this claim. There was also no testimony as to the value of any of the items now discarded, or how much
Accordingly, judgment is in favor of claimant Petra Valoma, index SCK 4704/10, in the amount of
$1,525.00; claimant Samuel Bromell index SCK 3796/10 in the amount of $1,525.00; claimant Audrey
3. Tenant’s assignment of lease. Yes. The tenant is not released from liability under the original lease by either the
4. Liability of sublessee. No. A sublessee is not liable to the landlord without an expressed contract imposing such
5. Landlord liability for injuries. The court upheld a summary judgment for CAA because the premises were
To establish a cause of action for negligence, a plaintiff must show (1) the defendant owed the plaintiff a
duty of care, (2) the defendant breached that duty, (3) the defendant's breach proximately caused the
plaintiff's injury, and (4) damages. Lang v. Holly Hill Motel, Inc., 122 Ohio St. 3d 120, 2009-Ohio-2495,
909 N.E. 2d 120, ¶ 10. A duty may be established by common law, by legislative enactment, or by the
particular facts and circumstances of the case. Chambers v. St. Mary's School, 82 Ohio St. 3d 563,
565,697 N.E. 2d 198 (1998).
{¶ 10} As a general matter, a property owner has no common-law duty to warn individuals lawfully on
the premises against known or open and obvious dangers − also known as the open-and-obvious
doctrine. Robinson v. Bates, 112 Ohio St. 3d 17, 24, 2006-Ohio-6362, 857 N.E. 2d 1195. The rationale
for the open-and-obvious doctrine is that an invitee or occupier of the property can reasonably be
expected to discover known or obvious dangers and protect against them. Daniels v. Verai Ents., 1st
Dist. Hamilton No. C-110440, 2012-Ohio-2264, ¶ 12, citing Armstrong v. Best Buy Co., Inc., 99 Ohio St.
3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶ 5.
{¶ 11} In derogation of the common-law duties of landlords, the Ohio legislature created various
obligations upon landlords in the Landlord-Tenant Act. See R.C. 5321.04. A landlord's violation of a
provision of the Landlord-Tenant Act constitutes negligence per se, meaning that duty and breach have
been conclusively established. Cipollone v. Hoffmeier, 1st Dist. Hamilton No. C-060482,
2007-Ohio-3788. The common law, open-and-obvious doctrine will not protect a landlord from liability
for breaches of statutory duties under the Landlord-Tenant Act; however, if no statutory breach
occurred, the open-and-obvious doctrine remains a bar to a common-law negligence claim. See
Robinson; Mann v. Northgate Investors LLC, 2012-Ohio-2871, 973 N.E. 2d 772 (10th Dist.).
{¶ 12} In response to CAA's summary-judgment motion, appellants argue that CAA breached its
statutory duty to repair under the Landlord-Tenant Act. R.C. 5321.04(A)(2) provides that a landlord must
“[m]ake all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and
habitable condition[.]” In order to maintain a claim under R.C. 5321.04(A)(2), a plaintiff must show that
the premises are unfit and uninhabitable. January Invests., LLC v. Ingram, 12th Dist. Warren No.
CA2009-09-127, 2010-Ohio-1937, ¶ 26, citing Cipollone, 1st Dist. Hamilton No. C-060482,
2007-Ohio-3788, at ¶ 22. This court has held that R.C. 5321.04(A)(2) requires the defects in the
premises to be “so substantial as to amount to a constructive eviction” and constitute “more than
nuisances or trifles.” (Internal quotation omitted.) Cipollone at ¶ 22.
{¶ 13} Appellants make no argument, nor point to any evidence in the record, demonstrating that the
premises were unsafe or uninhabitable such that they were constructively evicted under R.C.
5321.04(A)(2). In the absence of any other statutory duty breached by CAA, CAA is entitled to summary
judgment on appellants' negligence-per-se claim. See Mullins v. Grosz, 10th Dist. Franklin No. 10AP-23,
2010-Ohio-3844, ¶ 29 (summary judgment was proper where the plaintiff failed to assert any argument
or provide any evidence that the defendant had breached a provision of the Landlord-Tenant Act in
response to a summary-judgment motion).
{¶ 14} As to the common-law negligence claim, the open-and-obvious doctrine bars the appellants'
claim that CAA breached a duty with regard to the boxcutter. The evidence in the record demonstrates
that Ruben loaned Hill the boxcutter, and directed and observed Hill throughout the repair. Only when
Hill finished using the boxcutter and nearly completed the repair did Ruben head downstairs.
{¶ 15} Although Ruben averred in his affidavit that Hill left Sanchez's home without notice, Ruben
testified that he knew Hill was finished with the job and was not going to come back when he saw Hill
exit from the townhome. Appellants cannot, “without sufficient explanation,” contradict deposition
testimony in an affidavit to defeat summary judgment. See Byrd v. Smith, 110 Ohio St. 3d 24,
2006-Ohio-3455, 850 N.E. 2d 47, paragraph three of the syllabus. Ruben further testified that after he
had gone downstairs, he neglected to take his boxcutter with him, and he simply “lost total track” of it as
he became occupied with something else. Ruben knew his boxcutter remained upstairs where one of
his children could reasonably be expected to come across it when playing upstairs unsupervised. The
boxcutter was a known risk to Ruben, and he failed to guard against that risk to protect to his children.
Thus, appellants failed to establish that CAA owed them a duty with respect to the boxcutter. [In re
V.R., 2014 WL 6090396 (Ohio App.)]
6. Liability of landlord. Landlord not held liable because the railing was stressed by movement and used as
7. Constructive eviction/warranty of habitability. The noise is not within the traditional categories of habitability such
8. Lessor’s liability to lessee for crime of third person. The court held that there was joint and several liability for the
death. Any negligence on Mr. Santelli’s part with regard to security was only partially responsible. The court
NOTE: There is a trend in case law to require such when the landlord knows of problems with crime.
9. Habitability. Yes, it is possible that dust can violate the warranty of habitability, the dust presents a health hazard.
[Minjak Co. v. Rudolph, 528 N.Y. S. 2d 554]
10. Tenant’s exclusive possession; eviction by alterations not consented to by tenant. No. Cantanese properly
claimed that the lease had been canceled by the landlord’s improper disturbance of his possession in the making
11. Liability of lessor for condition of premises. This court held that the defense was not valid. A court applying the
majority common law rule would hold that the defense was valid. By the common law, control is the criterion for
liability. By the decision of this court, representing the modern minority, foreseeability is the criterion. Applying the
12. Sublease; assignment. The tenant is not released from liability through assignments or sublease. Charles
remains obligated on the lease.
13. Landlord’s liability to third persons. The landlord is liable because the landlord is under an affirmative obligation
to exercise reasonable care to inspect and repair such parts of the premises for the protection of the lessee, and
14. Liability to third parties. The court held Roswell-Windsor not liable because the railing was not a common area.
Tenants need to periodically check their premises and make maintenance requests. [Andres v. Roswell-Windsor
15. Constructive eviction. Yes. This case illustrates an example of a constructive eviction. The landlord takes action
LAWFLIX
Barefoot in the Park (1967) (PG)
In this study about Manhattan newlyweds, the students can see many issues about habitability and constructive
eviction. The students can then discuss the options the couple has for remedies.
management system for classroom use.
