Ownership of real property - Possession and rent

Learning Outcomes

After reading this article, you will be able to identify who has the right to possess real property, determine when rent is owed, and explain the consequences of non-payment. You will understand the legal duties of landlords and tenants regarding possession and rent, and apply these principles to MBE-style scenarios.

MBE Syllabus

For MBE, you are required to understand the rules governing possession and rent in real property law. This includes:

  • Recognizing the right to possession under different types of estates and tenancies.
  • Identifying when rent is due and the consequences of non-payment.
  • Explaining the remedies available to landlords and tenants for possession and rent disputes.
  • Distinguishing between actual, legal, and constructive possession.
  • Understanding the impact of abandonment, surrender, and eviction on rent liability.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is generally required for a tenant to be liable for rent?
    1. The tenant has actual possession of the premises.
    2. The tenant has legal right to possession, regardless of actual entry.
    3. The landlord has delivered actual possession to the tenant.
    4. The tenant has paid a security deposit.
  2. If a tenant abandons the leased premises before the end of the term, the landlord’s duty to mitigate damages means:
    1. The landlord must accept the abandonment and terminate the lease.
    2. The landlord must make reasonable efforts to relet the premises.
    3. The landlord can ignore the abandonment and sue for all future rent.
    4. The tenant is automatically released from all rent liability.
  3. When is a landlord entitled to recover possession of leased property?
    1. Only after the tenant voluntarily surrenders the lease.
    2. After a valid notice to quit and, if necessary, a court order.
    3. Whenever the landlord wishes, without notice.
    4. Only if the tenant fails to pay rent for at least six months.

Introduction

Possession and rent are central issues in real property law, especially in landlord-tenant relationships. The right to possess property determines who may occupy or control land, while rent is the payment made by a tenant to a landlord for that right. Understanding when possession passes, when rent is due, and the remedies for non-payment is essential for MBE success.

Types of Possession

Possession can be actual (physical occupation) or legal (the right to occupy). In most leases, the tenant is entitled to both. However, disputes may arise if the landlord fails to deliver possession, or if a prior tenant holds over.

Key Term: Actual Possession
Physical occupation or control of real property by a person.

Key Term: Legal Possession
The right to occupy or control property, even if not physically present.

Delivery of Possession

Landlords are generally required to deliver actual possession to the tenant at the start of the lease. If a holdover tenant remains, the new tenant may be excused from paying rent until possession is delivered.

Rent Liability

Rent is typically due as specified in the lease. If the lease is silent, rent is due at the end of the term, but most leases require monthly payments in advance. Rent liability usually begins when the tenant has the legal right to possession, even if the tenant has not moved in.

Key Term: Rent
The agreed payment from a tenant to a landlord for the use and possession of real property.

Consequences of Non-Payment

If a tenant fails to pay rent, the landlord may have several remedies:

  • Terminate the lease and seek possession (eviction).
  • Sue for unpaid rent.
  • In some jurisdictions, use a statutory lien on the tenant’s property.

A landlord must follow statutory procedures for eviction, including notice and, if necessary, a court order.

Abandonment and Surrender

If a tenant abandons the premises before the lease ends, the landlord may:

  • Accept the surrender, ending rent liability.
  • Reject the surrender and seek to relet, with the tenant liable for any rent shortfall.
  • In most states, the landlord must make reasonable efforts to mitigate damages by attempting to relet.

Key Term: Surrender
The tenant’s offer to end the lease before the term expires, which the landlord may accept or reject.

Constructive Eviction

If the landlord’s actions or inactions make the premises uninhabitable, the tenant may claim constructive eviction, vacate the property, and stop paying rent.

Key Term: Constructive Eviction
When a landlord’s conduct substantially interferes with the tenant’s use, justifying the tenant’s departure and ending rent liability.

Remedies for Possession and Rent

Landlords may use summary proceedings (unlawful detainer) to recover possession. Tenants may defend by showing payment, improper notice, or constructive eviction.

Worked Example 1.1

A tenant signs a one-year lease for an apartment, with rent due monthly in advance. On the start date, the prior tenant is still in possession. The new tenant cannot move in for two weeks. Is the new tenant liable for rent during the period of non-possession?

Answer: No. If the landlord fails to deliver actual possession at the start of the lease, the new tenant is generally excused from paying rent until possession is delivered.

Worked Example 1.2

A tenant abandons a commercial property six months into a two-year lease. The landlord does nothing to relet the premises for the remaining term. Can the landlord recover the full remaining rent from the tenant?

Answer: No. In most states, the landlord must make reasonable efforts to mitigate damages by attempting to relet. The tenant is liable only for the rent shortfall, if any.

Exam Warning

On the MBE, watch for questions where the landlord fails to deliver actual possession at lease commencement. In most jurisdictions, the tenant is not liable for rent until possession is delivered.

Revision Tip

Remember: Rent liability usually begins when the tenant has the legal right to possession, not necessarily when the tenant physically moves in.

Key Point Checklist

This article has covered the following key knowledge points:

  • Possession can be actual (physical) or legal (right to occupy).
  • Landlords must deliver actual possession at lease start; failure excuses rent.
  • Rent is due as specified in the lease; if silent, at the end of the term.
  • Tenant’s rent liability begins when legal possession is available.
  • Non-payment of rent allows landlord to terminate the lease and seek possession.
  • Landlords must follow statutory procedures for eviction.
  • If a tenant abandons, the landlord must mitigate damages by reletting.
  • Surrender ends rent liability if accepted by the landlord.
  • Constructive eviction allows the tenant to vacate and stop paying rent.
  • Landlords may use summary proceedings to recover possession.

Key Terms and Concepts

  • Actual Possession
  • Legal Possession
  • Rent
  • Surrender
  • Constructive Eviction
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