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It’s important to note that these factors DO NOT determine fairness.The question is what did they intend when they signed the leaseFor other repairs, non-government ordered repairs, use the approach in Amoco (#10)If there is an express agreement to repair, you have to explain what repair means13. The Covenant of Quiet Enjoyment (CQE)Elements of CQE:1.Landlords wrongful conduct The landlord must have caused the problemCommon law has four:1.Fraudulent misrepresentations Does not count if there is a merger clause (see above case)2.LL did not disclose latent defect#1 is if he said something, #2 is if he did not18
Tenant wants to drill for oil, LL knew that drilling would cause explosion, LL did not say anything3.LL did not maintain the common areasNormally that’s the entryway, hallway, elevatorsAreas that substantially interfere with your use and enjoymentUnless you lease the whole building4.If the LL agreed to repair (because normally we don’t assume that the LL has agreed to repair) he has to do so non-negligentlyThe best way to find wrongful conduct is violating the lease itself2.Caused substantial interference with the tenant’s use and enjoyment of the leased premises3.The tenant gave notice to the landlord and gave him reasonable time to cure the defect, and4.The tenant vacatedthe property within a reasonable time after giving notice of the defect to the LL who failed to cure the problemConstructive eviction, as opposed to actual eviction when the tenant was thrown out.Applies to both residential and commercial leasesSo a residential tenant can use this and IWH, whereas a commercial one can only use this13. CQE vs IWH CQE compared with IWHCQE applies to both residential and commercial leasesBarash gave us the elements of CQE1.Must show that it was the LLs wrongful conductUnlike IWH, which does not require the LL to cause2.Substantially interfered with tenant’s use and enjoyment of the premises3.Tenant has to give notice and a reasonable time to fixThis one is like IWH4.Tenant has to move outUnlike IWH14. A general merger clause in a leaseAll prior promises don’t matter, that all that matters is in the lease15. Actual Partial EvictionRule: When the LL evicts from part of the premises but not allYou still have some of the space, but you don’t have that spaceHas to be from a material part of the premisesCannot be a constructive evictionTenant owes no rent starting from the day you are actually evicted Minority (Restatement) – tenant pays % of the rent equal to the % she retains16. Implied Warranty of SuitabilityExists in Texas, where a commercial premises is assumed to work for what it is used forThis does not exist elsewhere for commercial premises, though its practice exists for residential17. Duties & Rights in LL-Tenant relations (recap)Duties for LLCQE – deliver legal possessionIn some Jx (English) must deliver actual possession day 1Duty to repair if it is residential19
But not in common law (this is only here because of IWH)Rights for LLRight to self help is a minorityDuties for tenant