Graded Quiz #1

The average score was 25.6. Scores ranged from 14 to 33.

Model Answers for Questions 8 and 9

Question 8

T is entitled to the benefit of L’s covenant of quiet enjoyment, which is implied into every lease.
By virtue of this covenant, L agreed that neither L, L’s agent, nor anyone holding paramount title
with interfere with T’s actual possession of the premises. If the covenant is breached, T may
terminate the lease and be excused from paying rent that would have accrued under the lease in
the future.

The covenant of quiet enjoyment does not protect T against interferences by third parties that are
not attributable to the landlord, such as trespassers who are not acting at L’s direction. If Smith is
trespassing, as it appears, then T has a possessory remedy against Smith and T has no right to
look to L to take action on T’s behalf, unless either (a) the lease between L and T explicitly
agreed that L would be responsible for acting against trespassers (the facts do not state this, and
it would be unlikely L would have so agreed), or (b) there is a state law or local ordinance that
would require the landlord to change the locks after each tenant.

If there was such a law or ordinance, L’s failure to comply would make L culpable for Smith’s
intrusion, and L would have thus partially evicted T, breaching the covenant of quiet enjoyment
and justifying T in terminating the lease. If not, evicting Smith is T’s responsibility, there is no
breach of the covenant of quiet enjoyment by L, and T cannot terminate the lease. [Because
Smith’s lease from L ended more than two years ago, Smith does not still have a right to
possession and thus does not have paramount title.]

Question 9

The judge’s ruling here depends on two questions. The first question is how the court will
construe the clause “Tenant may not assign or sublet the premises.” This transfer to Smith was
a sublease (T did not transfer possession for the full term of T’s lease), but it is only a “partial”
sublease in that it covers only part of the premises, not all of it. Because no-transfer clauses are
restraints on alienation, courts tend to construe them narrowly in favor of the tenant. Some courts
have held that a clause that restricts T from transferring “the premises” only restricts a transfer of
the entire premises, not a transfer of only a portion of it. If the court takes this view, T’s partial
sublease would not have required L’s consent (as the tenant’s leasehold estate is otherwise
presumptively transferable), so T would have acted within T’s rights in subleasing to Smith. [For
this reason, no transfer clauses often say Tenant may not assign or sublease the premises or any
portion thereof without Landlord’s prior consent, to be explicit.]
If the court instead concludes that L’s consent was required, the result depends on whether the
state follows the traditional rule or the modern trend regarding L’s withholding of consent under
a “silent” consent clause like this one. Under the traditional rule, L could withhold consent for
any reason, and T’s sublease without L’s consent was a breach. Under the modern trend, L can
only withhhold consent on commercially reasonable grounds. Under this view, the case is similar
to Julian, so the court is likely to find L’s unwillingness to consent unreasonable (Smith’s
proposed use is appropriate and L had previously leased it to Smith for this purpose), unless L
can show some objective reason for considering Smith unworthy (e.g., Smith had done physical
damage to the apartment during his previous tenancy) that is not contained in the given facts.

Even if the court holds that L had the right to withhold consent and thus that T breached by
subleasing without L’s consent, that does not mean L can terminate T’s lease. Under the doctrine
of independence of lease covenants, T’s breach of the lease will not excuse L’s performance
unless the lease specifically gives L the right to terminate the lease for breach. If it does not, then
L’s remedy is damages due to the sublease (if he can prove any). If the lease does give L the
right to terminate the lease in case of a breach by T, then L could terminate the lease based on
T’s breach.