Duties of landlord
The first is to put the tenant in physical possession of the land at the outset of the lease (the English and majority rule, as opposed to the American rule which only requires the tenant be given legal possession, or the right to possess); the second is to provide the premises in a habitable condition—there is an implied warranty of habitability. If landlord violates either, the tenant can terminate the lease and move out, or stay on the premises, while continuing to pay rent, and sue the landlord for damages (or withhold rent and use breach of implied warranty of habitability as a defense when the landlord attempts to collect rent).
The lease also includes an implied covenant of quiet enjoyment – landlord will not interfere with tenant’s quiet enjoyment. This can be breached in three ways.
Total eviction of the tenant through direct physical invasion by landlord.
Partial eviction – when the landlord keeps the tenant off part of the leased property (even locking a single room). Tenant can stay on the remaining property without paying any rent.
Partial eviction by someone other than landlord – where this occurs, rent is apportioned. If landlord claims to lease tenant an area of 1000 square metres but 400 square metres of the area belongs to another person, tenant only has to pay 60% of the rent.
Landlord’s tort liability
Under the common law, the landlord had no duties to the tenant to protect the tenant or the tenant’s licensees and invitees, except in the following situations:
Failure to disclose latent defects of which the landlord knows or has reason to know. Note that the landlord has no duty to repair, just to disclose.
For a short term lease (3 months or less) of a furnished dwelling, the tenants are treated as invitees, and the landlord is liable for defects even if the landlord neither knows nor should know of them.
Common areas under landlords control (e.g. hallways in an apartment building), if the landlord failed to use reasonable care in maintaining them.
Injury resulting from landlord’s negligent repairs – even if the landlord used all due care.
Public use, if the following three factors exist:
Landlord knows or should know that the tenant makes public use of the land (e.g. the land is rented for use as a restaurant or a store);
Landlord knows or should know that there is a defect; and
Landlord knows or should know that the tenant will not fix the defect.
Duties of tenant
Under the common law, the tenant has two duties to the landlord:
- to pay rent when it is due,
- to avoid waste of the property.
A tenant is liable to third party invitees for negligent failure to correct a dangerous condition on the premise – even if the landlord was contractually liable.
For more information please contact our office now to set up an appointment with attorney Daniel Lenghea to determine the best cause of action.