question 2 :: real property :: common mistakes

1. duty to deliver possession: There are two competing views regarding a landlord’s duty to deliver possession of the premises. When there are competing views, and the facts are silent as to which view is controlling, examinees should discuss both alternatives. The majority view states that a landlord is under a duty to deliver actual possession of the premises to the tenant when the term of the lease begins. Failure to do so puts the landlord in breach and subject to damages. On the other hand, the minority view states that it is the responsibility of the tenant to evict the holdover tenant. The landlord merely has to transfer the legal right for the tenant to have possession and not actual possession.

2. implied covenant of quiet enjoyment: This implied covenant states that a landlord guarantees that a tenant may take possession of leased premises and that the landlord will not interfere in the tenant’s possession or use of the property. Examinees should not interpret “quiet enjoyment” literally. The implied covenant doesn’t necessarily mean that a landlord has a duty to deliver a quiet, noise-free, and otherwise enjoyable rental environment. Think quiet title, instead.

3. implied warranty of habitability: This implied warranty, which exists in most states, governs residential rentals and asserts that regardless of what a lease says, the landlord must provide premises that are safe and livable (e.g., “habitable”) at some basic level. Typically, breaches of this warranty are based on violations of local housing codes. However, if no local housing codes are offered in the fact pattern (which will most likely be the case), examinees should avoid reaching a conclusion by simply stating there are insufficient facts to determine whether there was a breach of the implied warranty of habitability. Examinees should attempt to resolve issues the best they can with the facts given to them.

4. constructive eviction: Remember that constructive eviction is a three-part test, and each element of the test must exist to find that a tenant has been constructively evicted. To find constructive eviction: (1) the conditions must be very bad; (2) the very bad conditions must be the direct result of an act or omission of the landlord; and (3) the tenant must move out.

5. tone: The fact pattern indicated that the landlord asked for advice. Thus, examinees were to place themselves in the shoes of the landlord’s potential lawyer. They, therefore, should have developed arguments that more reflected the goals and objectives of the landlord. If issues were such that the outcome favored the tenant, examinees should still try to develop some counterarguments in support of the landlord’s position.

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real property :: 2.8 (out of 7)

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