RIGHTS AND DUTIES OF TENANT
LANDLORD REMEDIES
In addition to the duties of the tenant set forth in the lease itself, the common law imposes three other obligations:
(1) to pay the rent reserved (stated) in the lease
(2) to refrain from committing waste (damage)
(3) not to use the premises for any illegal purpose.
Duty to Pay Rent
What constitutes rent is not necessarily limited to the stated
periodic payment usually denominated as “rent.” The tenant may also be responsible
for such assessments as taxes and utilities, payable to the landlord as rent.
Simone’s lease calls for her to pay taxes of $500 per year, payable in
quarterly installments. She pays the rent on the first of each month and the
first tax bill on January 1. On April 1, she pays the rent but defaults on the
next tax bill. She has failed to pay the rent reserved in the lease.
The landlord in the majority of states is not obligated to mitigate his losses should the tenant abandon the property and fail thereafter to pay the rent. As a practical matter, this means that the landlord need not try to rent out the property but instead can let it sit vacantly and sue the defaulting tenant for the balance of the rent as it becomes due. However, the tenant might notify the landlord that she has abandoned the property or is about to abandon it and offer to surrender it. If the landlord accepts the surrender, the lease then terminates. Unless the lease specifically provides for it, a landlord who accepts the surrender will not be able to recover from the tenant the difference between the amount of her rent obligation and the new In
Tenant’s rent obligation.
Many leases require the tenant to make a security deposit—a
payment of a specific sum of money to secure the tenant’s performance of duties
under the lease. If the tenant fails to pay the rent or otherwise defaults, the
landlord may use the money to make good the tenant’s performance. Whatever
portion of the money is not used to satisfy the tenant’s obligations must be
repaid to the tenant at the end of the lease. In the absence of an agreement to
the contrary, the landlord must pay interest on the security deposit when he
returns the sum to the tenant at the end of the lease.
Alteration and Restoration of the
Premises
In the absence of a specific agreement in the lease, the tenant
is entitled to physically change the premises in order to make the best
possible permissible use of the property, but she may not make structural
alterations or damage (waste) the property. A residential tenant may add
telephone lines, put up pictures, and affix bookshelves to the walls, but she
may not remove a wall in order to enlarge a room.
The tenant must restore the property to its original condition
when the lease ends, but this requirement does not include normal wear and
tear. Simone rents an apartment with newly polished wooden floors. Because she
likes the look of oak, she decides against covering the floors with rugs. In a
few months’ time, the floors lose their polish and become scuffed. Simone is
not obligated to refinish the floors, because the scuffing came from normal
walking, which is ordinary wear and tear.
Use of the Property for an Illegal
Purpose
It is a breach of the tenant’s obligation to use the property
for an illegal purpose. A landlord who found a tenant running a numbers racket,
for example, or making and selling moonshine whisky could rightfully evict her.
LANDLORD'S REMEDIES
In general, when the tenant breaches any of the three duties
imposed by the common law, the landlord may terminate the lease and seek
damages. One common situation deserves special mention: the holdover tenant.
When a tenant improperly overstays her lease, she is said to be a tenant
at sufferance, meaning that she is liable to eviction. Some cultures, like the
Japanese, exhibit a considerable bias toward the tenant, making it exceedingly
difficult to move out holdover tenants who decide to stay. But in the United
States, landlords may remove tenants through summary (speedy) proceedings available
in every state or, in some cases, through self-help. Self-help is a
statutory remedy for landlords or incoming tenants in some states and involves
the peaceful removal of a holdover tenant’s belongings. If a state has a
statute providing a summary procedure for removing a holdover tenant, neither
the landlord nor the incoming tenant may resort to self-help, unless the
statute specifically allows it. A provision in the lease permitting self-help
in the absence of statutory authority is unenforceable. Self-help must be
peaceful, must not cause physical harm or even the expectation of harm to the
tenant or anyone on the premises with his permission, and must not result in
unreasonable damage to the tenant’s property. Any clause in the lease
attempting to waive these conditions is void.
Self-help can be risky, because some summary proceeding statutes
declare it to be a criminal act and because it can subject the landlord to tort
liability. Suppose that Simone improperly holds over in her apartment. With a
new tenant scheduled to arrive in two days, the landlord knocks on her door the
evening after her lease expires. When Simone opens the door, she sees the
landlord standing between two 450-pound Sumo wrestlers with menacing
expressions. He demands that she leave immediately. Fearing for her safety, she
departs instantly. Since she had a reasonable expectation of harm had she not
complied with the landlord’s demand, Simone would be entitled to recover
damages in a tort suit against her landlord, although she would not be entitled
to regain possession of the apartment.
Besides summary judicial proceedings and self-help, the landlord
has another possible remedy against the holdover tenant: to impose another
rental term. In order to extend the lease in this manner, the landlord needs
simply notify the holdover tenant that she is being held to another term,
usually measured by the periodic nature of the rent payment. For example, if
rent was paid each month, then the imposition of a new term results in a
month-to-month tenancy. One year is the maximum tenancy that the landlord can
create by electing to hold the tenant to another term