Landlord–tenant law

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Landlord–tenant law governs the rights and responsibilities of leasehold estates, like in an apartment complex.

Landlord–tenant law is a part of the common law that details the rights and duties of landlords and tenants. It includes elements of both real property law (specifically conveyances) and contract law.


The landlord-tenant relationship is defined by 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] Modern landlord-tenant law includes a number of other rights and duties held by both landlords and tenants.

The modern interpretation of the tenant-landlord relationship has hinged on the view that leases include many elements of contract law in addition to a simple conveyancing. In American landlord-tenant law, many of these rights and duties have been codified in the Uniform Residential Landlord and Tenant Act.[4]

Residential and commercial leases[edit]

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]

Residential leases are contracts that are designed for individuals or groups to live, or reside, in the leased space. Most governmental entities have "recognized the sanctity of the home." Therefore, lessees of residential spaces are generally afforded more rights and protections than commercial leases. It is also because of the presumption of unequal bargaining power that residential spaces are afforded more protections. States, counties, and cities have different laws, and likewise, varying levels of protections for the tenants and landlords of commercial spaces.

Commercial leases are leases for spaces that are for business uses, such as industrial, office, retail, and manufacturing. Commercial leases generally have fewer consumer protections than residential leases because they are subject to much more negotiation.

Landlord duties[edit]

The modern concept of landlord-tenant law includes duties beyond simple conveyancing of the lease:

Duty to deliver possession[edit]

In England and according to the Uniform Residential Landlord and Tenant Act in India, the landlord has a duty to deliver possession to the tenant at the beginning of a lease. The justification for placing this burden on the landlord is the idea that the landlord has more resources than the new tenants to pursue legal remedies against wrongful holdovers (former tenants that will not give up possession of the lease).[6]

Covenant of quiet enjoyment[edit]

By virtue of the contractual aspects of a lease, modern leases in America include an implied covenant of quiet enjoyment. This means that the landlord will not interfere with the tenant's possessory rights to the lease.[7] Though a landord may forcibly enter without required notice during an emergency, generally a mere necessity for quick action does not constitute an emergency within the doctrine of imminent peril, where the situation calling for the action is one which should reasonably have been anticipated and which the person whose action is called for should have been prepared to meet;[8] the doctrine of imminent peril does not excuse one who has brought about the peril by her own negligence.[9]

Implied warranty of habitability[edit]

A landlord must provide shelter free of serious defects which might harm health or safety.[10] In some states, the tenant has the right to cancel the lease and move out if the defects are severe enough and the landlord has not made repairs in a reasonable amount of time. Tenants who want to cancel their leases should seek the counsel of an attorney or a governmental agency devoted to landlord tenant issues to ensure that the conditions are severe enough to cancel the lease.

Duty to Provide essential Services[edit]

In at least one state, the state of Oklahoma, a landlord is required by state law to provide for reasonable amounts of running water, hot water, electricity, gas, or other essential services. Failure of which, may result in, among other remedies, deduction of the price paid by the tenant for said services from the rent. Other States may have similar provisions of law. [11]

Tenant remedies[edit]

Landlord–tenant law also includes protections for tenants:

Constructive eviction[edit]

In an action for unpaid rent brought by a landlord against a tenant, a tenant can offer constructive eviction as an affirmative defense. 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.[12] This is often used in conjunction with a breach of the implied covenant of habitability.

Breach of covenant[edit]

Leases include dependent covenants - if the landlord fails to perform their duties, the tenant will be relieved of paying rent. The breach of these covenants can be used as an affirmative defense by the tenant in an action for unpaid rent or eviction. 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).[13] In American law, the warrant of habitability was established by the D.C. Circuit case Javins v. First National Realty Corp.

Retaliatory eviction[edit]

also see: Retaliatory eviction
A landlord cannot evict a tenant in retaliation for reporting health and safety code violations.[14] A tenant can use retaliatory eviction as both an affirmative defense against an eviction and as a cause of action against a landlord. The defense of retaliatory eviction was first recognized in the D.C. Circuit case Edwards v. Habib.

In California, retaliatory eviction is considered an affirmative defense and can be used to defend a case. 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.[15] Some form of protection for tenants against retaliatory eviction is available in 42 State statutes and the District of Columbia laws. The only eight states without this protection are Georgia, Idaho, Indiana, Louisiana, Missouri, North Dakota, Oklahoma, and Wyoming. 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. [16]

Money damages[edit]

Some states, such as Wisconsin, allow for the tenant to recover money damages if the landlord breaks the state statutes or administrative codes. The tenant has the duty to prove that the landlord owes money to the tenant for 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.[17]

Tenant duties[edit]

An eviction notice for failure to pay rent. The fact that the city of New Orleans was under a mandatory order and no mail had been delivered since two months before was not taken into consideration.

Tenants also have duties attached to their possessory interests:

Duty to preserve the premises[edit]

Leases usually include a limited covenant to repair for the tenants, and this essentially equates to refraining from committing waste. When tenants move from the premises, if they want to get their security deposit returned to them, most statutes require the premises to be returned to the landlord in the same condition that it was in when they moved in.

Duty to operate[edit]

In commercial leases, a duty to operate may be written into the lease. This means that a commercial tenant cannot leave a rented property vacant without operating the business for which the lease was made. A duty to operate does not exist unless written into the lease or obviously in line with the intent of the lease.[18]

Duty to pay rent[edit]

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.[19] 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.[20]

Landlord remedies[edit]

Landlords also have a variety of available remedies to reclaim possession or claim unpaid rent:


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.[21]


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.[22] Most states have prohibited self-help eviction.

Monetary damages[edit]

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.[23]


A landlord may commence an action through the courts to evict a tenant. Eviction normally takes the form of a lawsuit, requiring an initial notice to a tenant, followed by court proceedings in which the tenant may contest the eviction and potentially file a counter-claim. At the conclusion of the eviction process, if the landlord prevails the court will issue an order that the property be restored to the possession of the landlord, and potentially allowing for the forcibly removal of the tenant and any property left on the premises.[24]

Subsidized Housing/ Affordable Housing/ Public Housing Landlord/Tenant Law[edit]

Affordable housing such as subsidized housing has other regulations. Many programs assign rent according to the tenant's income. Therefore, tenants have to report any changes in their income.

Jurisdiction Specific[edit]

Massachusetts Landlord/Tenant Law[edit]

Massachusetts is known as one of the more progressive states in terms of tenant rights. Since the 1970s, tenants have been able to use damages in their homes as a defense for non-payment of rent. This defense can prevent tenants from being evicted.

Just Cause: Massachusetts is currently petitioning for Just Cause which is a law that will protect tenant rights.[25] It will prevent landlords from arbitrarily evicting their tenants without a Just Cause. The Just Cause law as outlined several reasons for evictions:

  • Non-payment of rent- " A tenant's failure to pay rent must be habitual." This will stop landlords from evicting tenants for just one late payment. It also gives tenants more time to make up some payments.
  • Damage by the tenant- "The tenant must have willfully caused substantial damage to the premises beyond normal wear and tear, after written note, has refused to keep damaging the premises, or has refused to either make satisfactory correction or pay the reasonable costs of repairing such damages over a reasonable time period."
  • Disorderly Conduct -"The tenant has continued, following written notice to cease to e so disorderly as to destroy the peace of other tenant at the property"
  • Illegal Activity - "The tenant has used the rental unit or the common areas of the premises for an illegal purpose including the manufacture, sale, or use of illegal drugs."
  • Failure to Provide Access- "The tenant has after written notice to cease, continued to deny landlord access to the unit as required by the state law."[26]

See also[edit]


  1. ^ Casner, A.J. et al. Cases and Text on Property, Fifth Edition. Apsen 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)
  7. ^ Glendon, p. 511-14
  8. ^ Kuist v. Curran, 116 Cal. App. 2d 404
  9. ^ Warren v. Sullivan, 188 Cal. App. 2d 150
  10. ^ "Green v. Superior Court - 10 Cal.3d 616 - Tue, 01/15/1974 - California Supreme Court Resources".
  11. ^ See e.g. 41 Okla. Stat. Sec. 41-121(C)(2017). Retrieved April 02, 2018.
  12. ^ Schloshinski, §§3.3-3.8
  13. ^ Casner, p. 422
  14. ^ Casner, p. 504
  15. ^ "California Civil Code Section 1942.5 - California Attorney Resources - California Laws".
  16. ^ 21 Okla. Stat. §21-280 (2017). RET. April 02 2018.
  17. ^ "ATCP 134: Residential Trade Practices" (PDF). WI Gov. Retrieved July 1, 2015.
  18. ^ John A. Glenn, J.D. (1971). "Lease of store as requiring active operation of store". American Law Reports 3d. Westlaw. 40. 971.
  19. ^ Schoshinski, §10.7
  20. ^ Casner, A.J., et al. p. 483
  21. ^ Casner, A.J., et al. pp. 490-491
  22. ^ Casner, A.J. et al. pp. 492-493
  23. ^ Schoschinski, §6.1
  24. ^ "Evicting a Tenant - Considerations for Landlords". ExpertLaw. Retrieved 27 May 2017.
  25. ^ "Lawyers Journal".
  26. ^ "Boston Tenant Activists Pushing 'Just Cause' (Rent Control) Eviction Bill". Massachusetts Real Estate Law Blog. Retrieved October 24, 2016.