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The following is a sample answer to the Property Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Property Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

The rights and responsibilities of the two parties can be best understood by breaking them into three periods of time.

From Date that Lease Term Begins to Date Tenant Begins Occupancy
(September 1 to September 15)

The primary issue is whether Larry (L) had a duty to deliver actual possession of the property to Theresa (T). The applicable rule depends on the jurisdiction. The majority view is that the landlord must deliver the premises to the tenant at the beginning of the leasehold term. Failure to do so means that the landlord is in breach. Under the majority view, L had a duty to evict H in order for T to gain possession. Since the holdover tenant, Harry (H), prevented T from gaining possession, L would be in breach of the lease and be liable to T for the cost of the motel and other reasonable expenses such as the cost of rental van during the two weeks she did not occupy the apartment.

The minority view is that it is up to T to evict H to gain possession. Consequently, under this view, T is liable to L for rent even though she cannot occupy the apartment. L has no liability or duty to T under this rule.

From Date Tenant Begins Occupancy to Date Tenant Abandons Premises
(September 15 to November 15)

The issue is whether L's affirmative act of turning off the hot water and heat in retaliation for T's failure to pay was either a constructive eviction or a breach of the warranty of habitability sufficient to relieve T of her duties under the lease.

T has a duty to pay rent under the lease. Even though L may have been liable for two weeks worth of living expenses in September, T would probably have to seek a judgement in a court of law to get those expenses. Since T did not pay rent on October 1, L's remedy under the common law is to sue for the rental payment. Under the more modern view, L could sue for both the amount of rent due and to evict T. T owed L $500 on October 1 and another $500 on November 1. However, those duties may be mitigated by L's failure to provide necessary services.

However, under all leases there is an implied covenant of quiet enjoyment. The landlord can engage in no act that prevents the tenant from quietly enjoying her tenancy. Thus, the landlord must provide for services that make the residential property habitable. Alternatively T also has a theory to limit her liability for rent under the implied warranty of habitability.

Under the quiet enjoyment theory, T will argue that a constructive eviction occurred. T can argue that she can properly terminate the lease and seek damages (at very least, the cost of the gym membership to take the shower) because the landlord acted to make the premises uninhabitable by turning off the heat and hot water. In a cold climate, turning off the heat and hot water is considered by most reasonable people to make the apartment uninhabitable.

However, L can argue that since T stayed in the apartment for a month, she did not vacate within a reasonable time and therefore waived her right to terminate the lease. He will further argue that proof of her being bale to take a shower at the gym goes to show that the premises were not uninhabitable. L can also argue that changing the condition was in the hands of T. She could have had hot water and heat merely by paying her rent. This argument will probably not hold up under close scrutiny. One month is not a long period of time given the circumstances. With winter approaching and the coldest weather still ahead, T could argue that she waited a month because she felt that she might be able to reason with L to turn on the heat and that she only moved once it became clear that redress was not available. Consequently, T can probably terminate the lease and seek damages for the cost of her showers at the gym and the loss of quiet enjoyment of the property during the period she went without heat or hot water (October 15 to November 15).

If T does not prevail under a constructive eviction theory, she can alternatively pursue redress under the theory of implied warranty of habitability, which gives a broader footing to tenants. Under this view, L had a duty to maintain the apartment in a habitable state. The standard is usually the same as the local housing code. To the extent that the jurisdiction requires hot water and heat, T has rights and can seek a remedy for breach of those rights. T can either move out and terminate the lease or reduce or abate the rent to an amount that is equal to the fair market value of the apartment without heat or hot water. Since T moved out, she might seek an offset of the rent she owed for the period of October 15 through November 15.

During this time period, however, T had a duty to report the leaky roof to L. Under the doctrine of waste, T had a duty to prevent permissive waste. Most leases do not require tenants to make substantial repairs, such as repairing roofs. However, T did have a duty to report the leaky roof. Her failure to do so made her liable for any subsequent damage but not for the cost of repair. To the extent that T was still under the lease when the damage was done, she will be liable to L for any of that damage. T will argue that the substantial damage was done after the lease was terminated on November 15. To the extent that her theory survives, she will not be liable.

From Date Tenant Abandons Premises to End of Lease Term
(November 15 to August 31)

If T prevails under either of the above theories, then she does not owe L rent for any time after she abandoned the premises on November 15.

If T does not prevail under a constructive eviction or breach of implied warranty of habitability, then she must pay L rent for the entire lease period subject to the state's rules on abandonment.

Under the traditional common law view, L can let the apartment lie idle for the entire rental period. However, most jurisdictions require the landlord to make reasonable efforts to mitigate the damages by trying to rent the apartment out to another tenant. Here, L made the premises ready on December 1 and put a one-line ad on the Internet. L's duty to mitigate is met to the extent that putting a one-line ad on the Internet would reasonably alert potential renters to the availability of the apartment. The fact that no one rented the apartment until February might indicate that his efforts were not reasonable; however, L will argue that the holidays made renting the apartment more difficult and that any greater effort would not have yielded better results.

T's liability for future rent may also depend on whether L has accepted her surrender of the premises. T can argue that L's act of turning on the hot water, repairing the roof and reletting the premises meant that L resumed possession of the premises and those acts constitute acceptance of surrender. However, most jurisdictions hold that merely making repairs and attempting to re-rent the premises is not enough to constitute acceptance. Thus, if T was still under the lease, she would be liable for any month where there was not a tenant present in the apartment as well as the cost of the Internet ad since that expense was not incurred but for her abandonment of the premises.

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