A lease is both a conveyance of an estate and a contract. For most of its history the conveyance side dominated, so a tenant owed rent regardless of the condition of the premises. Modern law has shifted decisively toward the contract side, giving residential tenants implied protections they cannot waive and treating the landlord's obligations and the tenant's rent as dependent on each other.
Rule
- Quiet enjoyment. Implied in every lease. The landlord must not substantially interfere with the tenant's use and enjoyment of the premises.
- Constructive eviction. Where a substantial interference caused by the landlord makes the premises unusable, the tenant may give notice, allow a reasonable time to cure, and vacate, ending the rent obligation.
- Implied warranty of habitability. Applies to residential leases, requires premises fit for human habitation, and generally cannot be waived. Remedies include rent withholding, repair and deduct, damages, and termination.
- Remaining in possession. A tenant may stay and sue on the warranty of habitability. Constructive eviction generally requires the tenant to leave.
- Abandonment. On abandonment the landlord may accept a surrender, hold the tenant liable, or relet on the tenant's account, and most states now require reasonable efforts to relet.
- Self-help. Modern law requires the landlord to use the judicial eviction process rather than changing locks or removing possessions.
Leading cases
- Reste Realty Corp. v. Cooper: repeated flooding caused by the landlord's failure to fix a driveway amounted to a constructive eviction, and the tenant could vacate and stop paying rent.
- Hilder v. St. Peter: Vermont recognized an implied warranty of habitability in residential leases and allowed the tenant to recover rent already paid for uninhabitable premises.
- Sommer v. Kridel: a landlord who sued an abandoning tenant had a duty to make reasonable efforts to relet the apartment and mitigate the loss.
- Berg v. Wiley: a landlord who locked out a tenant without a court order was liable, because self-help repossession is no longer lawful.
Where students go wrong
The first mistake is mixing up the two main doctrines. Constructive eviction generally requires the tenant to move out. The warranty of habitability lets the tenant stay, withhold rent, and sue.
The second is applying the warranty of habitability to a commercial lease. It is a residential doctrine, and commercial tenants generally rely on the lease terms and on quiet enjoyment.
The third is forgetting mitigation. The old rule let a landlord let the apartment sit and sue for every month. Most states now require reasonable efforts to relet.
FAQ
Can a tenant just stop paying rent for repairs?
Only within the local rules. Most jurisdictions require notice, a reasonable time to repair, and often escrowing the rent rather than simply keeping it.
What is the difference between an assignment and a sublease?
An assignment transfers the tenant's entire remaining interest, putting the assignee in privity of estate with the landlord. A sublease keeps a reversion in the original tenant, who stays responsible for the rent.
Can a lease waive the warranty of habitability?
Generally no in residential tenancies. Courts treat it as a matter of public policy that a tenant cannot contract away.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.