Landlord–tenant law

In England and according to the Uniform Residential Landlord and Tenant Act in India, the landlord has a duty to deliver actual 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).[9]

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.[10] Though a landlord 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;[11] the doctrine of imminent peril does not excuse one who has brought about the peril by his own negligence.[12]

A landlord must provide shelter free of serious defects which might harm health or safety.[13] 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.

This warranty does not apply to commercial leaseholds, only residential.

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.[14]

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.[15] This is often used in conjunction with a breach of the implied covenant of habitability.

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).[16] In American law, the warrant of habitability was established by the D.C. Circuit case Javins v. First National Realty Corp.

A landlord cannot evict a tenant in retaliation for reporting health and safety code violations.[17] 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.[18] 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.[19]

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.[20]

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, minus normal wear and tear.

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.[21]

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.[22] 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.[23]

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.[24]

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

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.[26] The majority rule is that the landlord will subtract the contract price from fair market value in order to determine damages.

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.

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.

If one party breaches a lease, and the landlord seeks action against the breaching party, the landlord has a duty to mitigate the monetary or economic damages. They must relet or sublease the unit or land in a reasonable manner. As evidence, landlords must produce documents that show they have showed the premises to potential tenants, advertised the premises as available, did not ask for unreasonably high rent in order to keep the premises vacant, or reject reasonable tenant applicants. Additionally, if a tenant wishes to assign or sublease the premises, the landlord has the right to refuse certain potentially tenants, but must act reasonably and in good faith. Their attempt to mitigate damages will alter their actual recoverable damages.

Massachusetts allows eviction of tenants with leases for cause, including lease violations, failure to pay rent, and use of the rental property for illegal purposes. Tenants who do not have a lease term may be evicted either for cause or without cause upon proper notice.[28]

Missouri, which follows most of the majority rules, holds that landlords have the right to be unreasonable in their duty to mitigate damages. Further, they do not have to entertain subleases or assignments from tenants whatsoever, reasonable or not. Landlords have much more discretion than in the general rule.

For the majority of Texas history, landlord-tenant relationships were governed by principles of old English common law.[29] The common law was harsh to tenants. Texas tenants leased their property "as is" under the common law doctrine of caveat emptor, Latin for "let the buyer beware."[30] The tenant was expected to carefully inspect the property before signing their lease. Afterwards, they were expected to continue paying rent even if the property became uninhabitable. Of course, landlords and tenants could contract for the landlord to make needed repairs and maintain the condition otherwise, but there was no legal duty to do so.[31] The default was that the tenant's duty to pay rent was independent of the landlord's duty to maintain or repair the premises.[32]

Texas started offering its tenants stronger protections in 1978. That year, the Texas Supreme Court decided Kamarath v. Bennett.[33] In that case, the Texas Supreme Court held that all residential leases contain an "implied warranty of habitability." The "implied warranty" changed the game. It required all landlords to keep their property "habitable," even if the residential lease did not specifically require them to make any repairs. And on top of that, it conditioned the tenant's duty to pay rent on the landlord's duty to keep the property habitable. That is, tenants had the legal right to stop paying rent if the landlord failed to keep the property habitable. In one fell swoop, the Texas Supreme Court struck a huge victory for Texas tenants.

The court-created "implied warranty of habitability" lasted for about a year. In 1979, the Texas legislature swiftly responded by enacting Section 92 of the Texas Property Code.[34] That statute comprehensively governs Texas landlord-tenant relationships. Specifically, it codified the landlord's duty to keep the property habitable, and it provided further clarifications. Now, per Texas statutory law, the landlord has a duty to make a diligent effort to repair or remedy a condition if the tenant gave notice of the condition, the tenant is not delinquent in the payment of rent at the time notice is given, and the condition materially affects the physical health or safety of an ordinary tenant.[35] However, Texas landlords have no duty to repair conditions caused by tenants.[36]

A tenant whose landlord has breached their duty to keep the property habitable has a few different legal options. They can terminate the lease; they can make the repairs themself and then deduct the cost from a subsequent rent payment; or they could take their landlord to court.[37]