You open your Real Property outline to the landlord-tenant section and immediately feel your eyes glaze over. Lease types, delivery rules, constructive eviction, implied warranties—it all blurs together. Then you hit an MBE question about a tenant who abandoned the property after the roof leaked, and you freeze. Did the landlord breach? Does the tenant still owe rent? What even is constructive eviction?
Landlord-tenant law appears on roughly 6-9 questions per MBE, and those questions love testing the boundaries between different lease types, the interplay of duties, and the remedies available when things go wrong. The good news: this is one of the more rule-driven areas of Real Property. Master the framework, and you can methodically work through even the trickiest fact patterns.
The Four Lease Types You Must Know Cold
The MBE tests whether you can identify which tenancy exists based on the facts. Each type has different creation requirements and termination rules.
Tenancy for years (also called a term of years) is a lease for a fixed period with a definite beginning and end date. “Landlord leases to Tenant for two years beginning January 1, 2025” creates a tenancy for years. The critical detail: it terminates automatically at the end of the term with no notice required. If the term exceeds one year, the Statute of Frauds requires a written lease.
Periodic tenancy continues for successive periods—month-to-month, year-to-year—until one party gives proper notice. You can create it expressly (“month-to-month lease”) or by implication. If a tenant pays rent monthly under an invalid lease, courts infer a periodic tenancy. Termination requires notice equal to the length of the period, but capped at six months for year-to-year leases. That notice must be effective at the end of a period, not mid-cycle.
Tenancy at will can be terminated at any time by either landlord or tenant. It terminates automatically by operation of law if either party dies, the landlord transfers the property, or the tenant commits waste. Most states require reasonable notice before termination, even though it’s theoretically terminable “at will.”
Tenancy at sufferance isn’t really a tenancy—it’s a legal placeholder. It arises when a tenant wrongfully holds over after the lease expires. The landlord can either evict or bind the tenant to a new periodic tenancy under the holdover doctrine. This prevents the tenant from being labeled a trespasser while the landlord decides what to do.
MBE trap: A question gives you a one-year lease. The tenant stays for two extra weeks after expiration while looking for a new apartment. The landlord accepts one month’s rent. What tenancy exists now? The landlord’s acceptance of rent likely creates a new periodic tenancy (probably month-to-month based on the rent payment interval), not a continuation of the term of years.
Tenant Duties: What the Tenant Owes
The tenant’s two core duties are straightforward, but the MBE tests the consequences when they’re breached.
The duty to pay rent is the tenant’s primary obligation. If the tenant fails to pay, the landlord may sue for rent due or pursue eviction through judicial process. Self-help evictions—changing locks, removing belongings—are generally prohibited and can expose the landlord to liability.
Here’s where it gets tested: What if the tenant abandons the property mid-lease? At common law, the landlord could let the property sit vacant and sue for the full rent. But the majority rule now requires the landlord to make reasonable efforts to mitigate damages by re-letting the property. If the landlord re-lets for less than the original rent, the breaching tenant owes the difference.
The duty not to commit waste prohibits the tenant from damaging the property. Voluntary waste is intentional or negligent damage. Permissive waste is the failure to make ordinary repairs or pay property taxes. Ameliorative waste involves changes that increase value—modern courts often excuse this if it reflects changed neighborhood conditions. The tenant must make ordinary repairs but isn’t responsible for structural issues or damage from natural disasters (absent negligence).
Landlord Duties: Delivery, Quiet Enjoyment, and Habitability
Landlords have three major duties, and two of them are implied in every lease even if the lease agreement says nothing.
The duty to deliver possession splits jurisdictions. Under the majority (English) rule, the landlord must deliver actual physical possession at the start of the lease term. If a holdover tenant from a prior lease is still occupying the property, the landlord breaches. Under the minority (American) rule, the landlord need only deliver the legal right to possession—the new tenant must take action against the holdover themselves.
The covenant of quiet enjoyment is implied in every lease. The landlord promises the tenant won’t be disturbed in possession by the landlord or anyone with paramount (superior) title. Breach occurs through actual eviction (complete physical exclusion), partial eviction (exclusion from part of the premises), or constructive eviction.
Constructive eviction is heavily tested. The elements: (1) the landlord’s act or failure to act, (2) causes a substantial interference with the tenant’s use and enjoyment, (3) the tenant gives notice and a reasonable time to repair, and (4) the tenant actually vacates within a reasonable time. All four elements are required. If the tenant stays in possession despite the interference, there’s no constructive eviction and rent remains due.
Typical MBE scenario: The roof leaks badly, making two rooms unusable. The tenant notifies the landlord, who does nothing. Three months later, the tenant moves out and stops paying rent. The landlord sues for rent. Result: The tenant likely has a constructive eviction defense if the interference was substantial enough and the tenant vacated within a reasonable time after giving notice.
The implied warranty of habitability is a modern doctrine (not recognized at common law) that applies to residential leases. The landlord impliedly warrants that the premises are fit for human habitation—no serious defects in plumbing, heating, electricity, or structural integrity. This is a non-waivable warranty in most jurisdictions.
Unlike constructive eviction, the tenant does not need to vacate to assert breach of the implied warranty of habitability. The tenant can remain in possession and pursue remedies: withhold rent, repair and deduct, or sue for damages. The tenant must give notice and a reasonable opportunity to repair.
Key distinction for the MBE: Constructive eviction requires the tenant to move out. Implied warranty of habitability does not. If a question asks about a tenant who stayed in a defective apartment and withheld rent, you’re likely dealing with implied warranty of habitability, not constructive eviction.
Tenant’s Duty to Repair and the Destruction Problem
At common law, a tenant’s duty to pay rent was independent of the landlord’s duties. Even if the building burned down through no one’s fault, the tenant still owed rent under the lease. This harsh rule has been widely modified.
Modern statutes and case law often excuse the tenant from rent if the premises are destroyed without the tenant’s fault, especially in residential leases. But on the MBE, be alert to whether the question specifies “common law” or references a modern trend or statute.
If the lease is silent and the question doesn’t indicate a statutory change, apply the traditional rule: destruction doesn’t terminate the lease or excuse rent unless the lease was for the building itself (not just part of a larger structure).
Assignments and Subleases: Who Owes What?
When a tenant transfers their leasehold interest, the rights and obligations depend on whether it’s an assignment or a sublease.
An assignment occurs when the tenant transfers the entire remaining lease term to a third party (the assignee). The assignee comes into privity of estate with the landlord and is liable for rent and covenants that run with the land. The original tenant remains in privity of contract with the landlord and remains secondarily liable if the assignee defaults.
A sublease occurs when the tenant transfers less than the entire remaining term or retains a right of reentry. The subtenant has no direct relationship with the landlord—privity exists only between the original tenant and subtenant. The original tenant remains primarily liable to the landlord for all rent and covenants.
MBE distinction: Tenant has two years left on a lease and transfers possession to another person for 23 months. Assignment or sublease? Sublease—the tenant retained one month, so it’s not the entire remaining term.
Unless the lease prohibits assignment or sublease, the tenant may freely transfer. If the lease requires “landlord’s consent,” most courts imply a reasonableness standard—the landlord cannot withhold consent arbitrarily.
Security Deposits and the Landlord’s Remedies
When a tenant breaches, the landlord has several remedies depending on the circumstances.
If the tenant fails to pay rent but remains in possession, the landlord may sue for the unpaid rent or pursue eviction. Self-help is prohibited in nearly all jurisdictions.
If the tenant abandons the property, the majority rule requires the landlord to mitigate by attempting to re-let. The landlord can sue for the difference between the original rent and what was actually collected (or could have been collected with reasonable efforts).
Security deposits are regulated by statute in most states. The landlord may retain the deposit only to the extent of actual damages—unpaid rent, repair costs beyond ordinary wear and tear. The landlord typically must return the deposit (or provide an itemized list of deductions) within a statutory period, often 30 days.
What to Memorize for Test Day
Landlord-tenant law is one of the more mechanical topics in Real Property. You’re not navigating abstract policy debates—you’re applying concrete rules to fact patterns. Here’s your checklist:
Lease types: Know how each is created and terminated. Tenancy for years ends automatically. Periodic tenancy requires notice. Tenancy at will terminates on death or transfer. Tenancy at sufferance is the holdover situation.
Constructive eviction: Requires substantial interference + notice + reasonable time + actual vacation. If the tenant stays, no constructive eviction.
Implied warranty of habitability: Residential leases only. Non-waivable. Tenant does not need to vacate. Remedies include withholding rent, repair and deduct, or damages.
Assignment vs. sublease: Assignment = entire remaining term transferred. Sublease = anything less. Assignee is liable to landlord. Subtenant is not.
Mitigation: Majority rule requires landlord to mitigate after abandonment.
Holdover doctrine: Landlord can evict or bind the tenant to a new periodic tenancy. If the original lease was one year or more, the new tenancy is year-to-year.
If you want all 111 Real Property rules organized for active recall—including every element of constructive eviction, implied warranty of habitability, and the distinctions between lease types—FlashTables covers this in a structured two-column format designed for memorization under pressure. The product was created by a practicing attorney who used this exact method to pass the bar, and it’s built specifically for the way MBE questions test these rules.
Landlord-tenant law rewards precision. You don’t need to write an essay on housing policy. You need to spot whether the tenant vacated (constructive eviction) or stayed (implied warranty of habitability). You need to know whether two years minus 23 months is an assignment (it’s not). Nail the black-letter rules, and these questions become points in the bank.