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If the landlord was in error as to unpaid rent the tenant could bring an action in replevin or for conversion.  Some statutes allow punitive damages for a landlord’s wrongful distraint of property.

In many jurisdictions distress for rent has been modified or abolished by statute or by case law.  The modifications vary widely.  Some states limit the type of tenancy to commercial tenancy and exempt residential tenancies.  The Uniform Residential Landlord-Tenant Act abolishes distress for rent.

Some distress for rent statutes modify the procedure to enforce the remedy so as to afford more safeguards to tenants.  In some states there must be a hearing and a warrant issued for distress for rent.  However, in some jurisdictions the landlord may seize property before rent is late if the tenant is attempting to remove property from the premises.

The constitutionality of distress for rent has been challenged, sometimes successfully.

This article is a short summary of the common law right of distress for rent.  Consult an attorney in your jurisdiction about your rights.

Further reading -

American Law of Landlord and Tenant, Robert Schoshinski, §6.21.

In general a person has a duty to protect others for criminal acts of third persons absent a special relationship.  Special relationships may exist for innkeepers and common carriers.[1]

At common law no such special relationship between landlord and tenant and the landlord had no duty to protect the tenant from third party criminal act.  Courts have historically been reluctant to move away from this common law rule for a variety of reasons.

Among the reasons for the application of this rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the landlord tenant relationship; the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.[2]

In Kline a tenant was assaulted in a hallway of the apartment building.  There had been prior criminal incidents of which the landlord was aware.  Nevertheless, the landlord reduced the security measure that had been in place when the tenancy began.

The court found the landlord liable because 1) the landlord has a general duty to maintain common areas 2) the modern landlord-tenant relationship is more analogous to that of innkeeper than to the agrarian landlord-tenant relationship of the past and 3)modern jurisprudence views a lease as a contract as well as a conveyance and the tenant in the case bargained for the security measures that were in place when she entered into the lease.

Some subsequent cases have viewed Kline as limited to the rule that a tenant is entitled to the same security measures that were in place when the lease was entered into.[3]

The Supreme Court of Massachusetts has considered whether criminal acts of third persons breach the implied warranty of habitability or the covenant of quiet enjoyment.[4]

The Court held that behavior of third parties does not violate the warranty of habitability because it does not relate to a physical defect in the building.

The plaintiffs have pointed to no case in which a landlord was found to have breached the warranty of habitability as a result of a nonphysical “defect” in the premises, and our own review of our case law and that of other jurisdictions likewise reveals no such case. But see Pippin v. Chicago Hous. Auth., 78 Ill. 2d 204, 214, 35 Ill. Dec. 530, 399 N.E.2d 596 (1979) (Clark, J., Concurring in part and Dissenting in part) (“Safe encompasses both the physical and social conditions of the premises”). The plaintiffs rely on Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980), where the Supreme Court of New Jersey held, in general terms, that the warranty of habitability included the provision of reasonable measures of security. Trentacost, supra at 227-228. In Trentacost, however, the plaintiff was attacked in the hallway of an apartment building that had no lock on its front door. Id. at 218. The court found that the landlord breached the warranty because he failed to secure the front door in any way.[5]

The Court remanded for further proceedings on the issues of whether the covenant of quiet enjoyment had been violated.

The issue on which our decision turns…is whether this serious interference with the tenancy of the plaintiffs is the natural and probable consequence of what the landlord did, failed to do, or permitted to be done. We conclude that this is a question of fact to be determined on remand. There is no authority, however, for the proposition that the defendant must provide around the clock security or other police services. In fact, the decision as to the proper means to ensure security is a discretionary decision left to the housing authority. Accordingly, we cannot say that the defendant breached the covenant of quiet enjoyment by failing to provide particular security measures. We do believe, however, that if the defendant has failed to take any measures, especially those measures which can be undertaken relatively easily, to remove unwelcome persons from the property that it owns and controls, and the presence of those persons seriously interferes with the tenancy, then the defendant may be liable for a breach of the covenant of quiet enjoyment.[6]

In a commercial setting courts may be more open to finding a special relationship and imposing liability.[7]

[2] Kline v. 1500 Mass. Ave. Apartment Corp., 141 U.S. App. D.C. 370, 439 F.2d 477, 481(1970).

[3] See, for example, Dietz v. Miles Holding Corp., 277 A.2d 108(1971); Williams v. Williams J. Davis, Inc.,   275 A.2d 231(1971).

[4] Jane Doe v. New Bedford Housing Authority, 630 N.E.2d 248, 417 Mass. 273 (1994).

[5] Id.

[6] Id.

[7] See, for example, Morgan v. Bucks Associates, 428 F.Supp. 546(1977).

The purchaser at foreclosure takes the property subject to any unexpired lease.  The law also requires the foreclosure auction purchaser to give notice to vacate to any month-to-month tenant.  The notice must be served at least ninety days prior to its effective date.

The law expires at the end of 2012.

Possible ramifications include the seller being denied the right to pursue the summary unlawful detainer process to regain possession from a defaulting purchaser, the remedy of distress is not available, and the seller is not liable for defective conditions of the premises.  

Some commentators have argued that since early possession does not naturally arise from the vendor-vendee relationship the parties are best viewed as landlord and tenant.  Some courts have agreed.

This argument may be most persuasive when there is a lease with an option to purchase and the option remains unexercised.[3]

[2] See Uniform Residential Landlord and Tenant Act at   http://www.law.upenn.edu/bll/archives/ulc/fnact99/1970s/urlta72.htm (last accessed 04-20-09).

[3] Napper v. National Mortg. Group, Inc., 194 Ga.App. 148, 390 S.E.2d 70 (1990).

In some American jurisdictions a landlord may use reasonable force to oust a commercial tenant and is only required to resort to eviction lawsuits if it is not possible to self-help evict the tenant without excessive force.[2] If the lease provides for self-help eviction some courts will enforce such a provision, but the published opinions may be limited to commercial leases.[3]

In many jurisdictions landlord may not resort to self-help eviction regardless of whether the tenancy is commercial or residential.[4] Some courts have held that a lease provision to the contrary is not enforceable.[5]

[2] See, for example, Watson v. Brown, 67 Haw. 252, 686 P.2d 12 (1984); Craig Wrecking Co. v. S.G. Loewendick & Sons, Inc., 38 Ohio App.3d 79, 526 N.E.2d 321 (1987); PRC Kentron, Inc. v. First City Center Associates, II, 762 SW2d 279 (Tx.App. 1988).

[3] See, for example, Rucker v. Wynn, 212 Ga.App. 69, 441 SE2d 417 (1994); Jovana Spaghetti House, Inc. v. Heritage Co. of Massena, 189  AD2d 1041, 592 N.Y.S.2d 879 (1993).

[4] See, for example, Spencer v. Commercial Co., 30 Wash. 520, 71 P. 53 (1902); Nelson v. Swanson, 177 Wash. 187, 31 P.2d 521 (1934).

[5] Spencer v. Commercial Co., 30 Wash. 520, 71 P. 53 (1902).

Many courts have declined to extend the implied warranty of habitability to commercial leases.  The rationales given include that the housing code which in many court decisions form part of the basis for finding an implied warranty do not apply to commercial leases, commercial tenants have more bargaining power than residential leases, and the expectations of a commercial tenant vary from a residential tenant.

At common law the tenant’s obligation to pay rent was independent of any covenants made by the landlord.[1] In finding an implied warranty in residential leases courts moved away from the common law rule that covenants were independent and adopted the view that lease covenants are depending, as in contract law.[2] In other words, the tenant’s obligation to pay rent may be abated by the landlord’s failure to comply with an implied warranty of habitability, contrary to common law rules of independent covenants.

The common law rule that paying rent is an independent covenant still has application. For instance, courts still apply this rule to commercial leases, or if the landlord’s breach of an express covenant does not relate to habitability. [3]

Some courts have found an implied warranty of fitness for intended use or suitability in commercial leases.  Courts have reasoned that services such as air-conditioning, elevators, heat, light, and cleanings might be vital to the operation of a business and therefore the provision of these services by the landlord could be reasonably assumed to have been within the intent of the parties.  Also, small businesspersons should not be expected to discover or hire expects to discover code violations of latent defects.

Although some courts have declined to find an implied warranty in commercial leases, others have found such a warranty.

A significant number of commentators have recognized the similarities between residential and commercial tenants and concluded that residential warranties should be expanded to cover commercial property.[4] It cannot be assumed that a commercial tenant is more knowledgeable about the quality of the structure than a residential tenant…. Additionally, because commercial tenants often enter into short-term leases, the tenants have limited economic incentive to make any extensive repairs to their premises. Consequently, commercial tenants generally rely on their landlords’ greater abilities to inspect and repair the premises. In light of the many similarities between residential and commercial tenants and the modern trend towards increased consumer protection, a number of courts have indicated a willingness to apply residential property warranties to commercial tenancy situations.[5]

There is no valid reason to imply a warranty of habitability in residential leases and not in commercial leases.

Davidow v. Inwood North Professional Group-Pahse I, 1988.TX.40286 http://www.versuslaw.com; 747 S.W.2d 373, 31 Tex. Sup. J. 247  (1988).

[2] See, for example, Javins v. First Nat. Realty Corp., 428 F.2d 1071 (1970).

[3] See Schonshinski, American Law of Landlord and Tenant §3:29 and cases cited.

[4] Davidow v. Inwood North Professional Group-Pahse I, 1988.TX.40286 http://www.versuslaw.com; 747 S.W.2d 373, 31 Tex. Sup. J. 247  (1988), citing Chused, Contemporary Dilemmas of the Javins Defense: A Note on the Need for Procedural Reform in Landlord-Tenant Law, 67 Geo. L.J. 1385, 1389 (1979); Greenfield & Margolies, An Implied Warranty of Fitness in Nonresidential Leases, 45 Albany L. Rev. 855 (1981); Levinson & Silver, Do Commercial Property Tenants Possess Warranties of Habitability ?, 14 Real Estate L.J. 59 (1985); Note, Landlord-Tenant — Should a Warranty of Fitness be Implied in Commercial Leases ?, 13 Rutgers L.J. 91 (1981); see also Restatement (Second) of Property ? 5.1 at 176 (1977).

[5] Id. citing See Four Seas Investment Corp. v. International Hotel Tenants’ Association, 81 Cal.App.3d 604, 146 Cal.Rptr. 531, 535 (1978); Golden v. Conway, 55 Cal.App.3d 948, 128 Cal.Rptr. 69, 78 (1976); Vermes v. American District Telegraph Co., 312 Minn. 33, 251 N.W.2d 101, 105 (1977); Hodgson v. Chin, 168 N.J. Super. 549, 403 A.2d 942, 945 (App. Div. 1979); Demirci v. Burns, 124 N.J. Super. 274, 306 A.2d 468, 469 (App. Div. 1973); Westrich v. McBride, 204 N.J. Super. 550, 499 A.2d 546, 548-49 (Law Div. 1984); 40 Associates, Inc. v. Katz, 112 Misc.2d 215, 446 N.Y.S.2d 844, 845 (Civ.Ct. 1981); Teodori v. Werner, 490 Pa. 58, 415 A.2d 31, 34 (1980); Olson v. Scholes, 17 Wash. App. 383, 563 P.2d 1275, 1281 (1977); see also Klatman v. Barnett, 458 So.2d 806, 807 (Fla.Dist.Ct.App. 1984) (Glickstein, J., concurring); McArdle v. Courson, 82 Ill.App.3d 123, 402 N.E.2d 292, 297, 37 Ill. Dec. 402 (1980) (Craven, J., dissenting).

A tenancy at sufferance as it is defined in most jurisdiction arises in narrow circumstances and is “as illusory as the rings of Saturn viewed edge-on”.[1] The tenancy at sufferance arises when a tenant under one of the other types of tenancy wrongfully holds over.  The definition varies by statute in some jurisdictions.[2]

Litigation may arise from a tenant leaving a few belongings behind, holding over for a short time while in the process of moving, or not vacating due to a serious medical condition.

The parties may create a new tenancy by express or implied agreement.  This may arise when the landlord accepts rent, though at least one reported opinion held the tenant was still a tenant at sufferance where the landlord accepted rent during ultimately unsuccessful negotiations for a new lease.  In most jurisdictions if the landlord accepts rent the periodic tenancy, though some courts have found a tenancy for years.

[2] See, for example, Washington statute RCW 59.04.050.

If a lease is terminable at the will of only one party courts have interpreted the agreement variously as terminable by either party, a life estate, or even a fee simple title. 

A tenancy at will may be created by agreement.   There is a  preference at common law for finding a periodic tenancy, but a tenancy at will is created by implication when the parties agree to possession but set no term or rental period or otherwise agree to terms  from which an intended duration can be determined.   Also, while in most states a lease that does not conform to the statute of frauds results in a periodic tenancy in some states by statute such a situation results in a tenancy at will. 

Legislation in several jurisdictions affect the common law rules concerning tenancies at will.  In some, the tenancy at will can only be created by a written instrument while in others any tenancy not created by a written instrument is a tenancy at will.

Also, in some states statutes require formal written notice to terminate a tenancy at will, while others have done away with notice requirements for such tenancies altogether. In states requiring formal notice it is not always clear if this is the only way to terminate such a tenancy, or whether the common law rule that such a tenancy terminates upon death of either party still operates.

Robert S. Schonshinski, American Law of Landlord and Tenant, §§2:16-2:19 (1980) and Cumulative Supplement (2008).

The terminology for the types of tenancies and their defining characteristics vary by jurisdiction.  Thus a periodic tenancy in one jurisdiction may be referred to as a tenancy at will in some jurisdictions.  Beyond semantics, a tenant at sufferance is usually defined to mean a “holdover” tenant, while in some jurisdictions it is defined as one who entered without the permission of the owner.[1]

Each type of tenancy is described in more detail elsewhere in linked notes.

1.                  Tenancy at Will

2.                  Tenancy for Years

3.                  Periodic Tenancy

4.                  Tenancy at Sufferance