Category Archives: Landlord Tenant

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When bringing an action against a party, an important consideration is where to file the lawsuit.  A lawsuit will only be heard if it has been filed in the proper venue, or county.

Mississippi statute regarding proper venue provides that “Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant [1] resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.”  Miss.Code Ann. § 11-11-3(1)(a)(i) (Rev.2004).  In interpreting the venue statute, Mississippi Courts “specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” Hedgepeth v. Johnson, 975 So.2d 235 (Miss. 2008) citing Medical Assurance Co. of Mississippi v. Myers, 956 So.2d 213 (Miss. 2007).

 

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In a joint and several liability Mississippi civil action action based on fault, including a medical malpractice action, each tortfeasor or wrongdoer is liable only for damages allocated to them in direct proportion to their percentage of fault. Miss. Code Ann. § 85-5-7 (Westlaw 2007). Fault must be assigned to absent tortfeasors who contributed to the injury (such as persons who have settled or were not sued) and those with immunity. Id.; Blailock v. Hubbs, 919 So. 2d 126 (Miss. 2005).  This rule does not apply to acts committed with specific wrongful intent or as part of a common plan to commit a tortious act. § 85-5-7(1) and (4).

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A sublease is a lease agreement wherein the Lessee transfers less than all of his rights to a sub-lessee to use and enjoy the premises while retaining the right to re-enter or re-take the premises. For example, when a lessee “sub-lets” a portion of the premises to a “sub-lessee”, the “master tenant” retains the right to retake the property under certain conditions.  However, the master tenant remains obligated to pay rent to the landlord as provided for in the lease agreement.  The master tenant is also responsible for the sub-lessee’s acts as tenant that may breach the lease agreement.

An assignment is the transfer of all remaining interests in the lease to a third party, called the “assignee”.  For a landlord, an assignment usually entails giving your right to receive rent from your tenant to the assignee, typically a creditor.

Many leases bar tenants from assigning or subleasing the lease.  This is due primarily to landlords wanting to maintain control over who occupies and makes rent payments. Some leases allow assignments and subleases only when the landlord consents.

In most instances, the landlord can’t enforce the lease provisions against the assignee or subtenant unless the subtenant or assignee agrees through an assignment or sublease agreement or some other separate agreement, to assume the assigning tenant’s obligations under the original lease.

It is important to remember, that an assumption agreement does not release the assigning tenant from his or her obligations under the master lease unless the original landlord expressly agrees to such a release.  Preferably in writing.

Under any residential lease, the tenant has the obligation to pay lease payments. After a sublease or assignment is made, the tenant remains obligated, even if there was an assumption agreement. If the landlord releases the tenant, the landlord cannot then look to the tenant for rent payments if the subtenant or assignee fails to pay the lease payments.

 A landlord should obtain an assumption by the assignee/subtenant.  Generally, an assignment of a lease results in the assignee assuming the responsibilities of the original tenant. The original tenant surrenders the right to occupy the premises.  The assignee and the landlord are bound by the lease covenants or promises that run with land, i.e., covenants that benefit the land, such as the covenants to pay lease payments and to make repairs.

Typically, the assignee may not avoid its responsibilities under the lease by assigning the lease to another party. Further, the assigning tenant is liable on the lease, including payment of lease payments, unless he or she was released from those obligations by the landlord

In a sublease, unless the subtenant assumes the obligations of the master lease, there’s no legal relationship between the subtenant and the landlord, and so the subtenant doesn’t have to pay the landlord lease payments and the landlord doesn’t have to respond to the subtenant’s request or demand for repairs.

The landlord-tenant relationship is actually between the original tenant and the subtenant. The original tenant remains liable for rent: the subtenant pays the original tenant, who then pays the landlord. The original lessee must perform all other covenants under the lease.

The sublease should detail how issues reported by the subtenant are handled.   If the subtenant discovers a problem on the premises, the landlord is not obligated to repair it unless the subtenant assumed the lease. In that scenario, the subtenant would notify the original tenant, who would then have to fix the problem or enforce the landlord’s obligation to do so.

Of course, all of the above described agreements should be in writing.  Many problems are avoided when all parties understand what their respective obligations are.

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Mississippi law provides landlords with the right to terminate any tenancy by following the applicable statutes. The most common reasons for termination are failure to pay rent and other breaches of the lease provisions. It is important to remember that landlords may not remove their tenants without following the evictions process.

To evict tenants in Mississippi, landlords must initiate the process by providing the tenant with a “notice of termination”.  While not required by statute, manner of delivery should be by U.S. Mail certified and attaching notice to the door of the property.  This will protect the landlord from lack of notice defenses.

 For month-to-month tenancies, one week notice by the landlord is required informing the tenant that the tenancy is being terminated. For longer-term tenancies, such as one year or two year, the landlord must provide notice in accordance with the provisions of the lease agreement.  The notice should identify which lease provision(s) were breached and under what provision the tenant is being evicted.

Miss. Code Ann § 89-8-13(1)-(3)).allows for the following types of written termination notices:

Notice to quit: 30-day notice provided by the landlord for breach of any lease provision other than the failure to pay rent. If the tenant is able to remedy the breach within 30 days, the tenancy will not be terminated

(Miss. Code Ann § 89-7-27).

Notice to pay rent or quit: 3-day notice that requires the tenant to pay rent within 3 days or leave the property.  Upon tenants failure to pay amounts owed, the landlord may then initiate eviction proceedings in the appropriate court.  What court in which to file your petition depends on the amounts owed.  If the tenant owes $4,000.00 or less the landlord will file an action in Justice Court..  If more than $4,000.00, the landlord will need to file a petition in county court or circuit court.  If filing in Circuit court and county court, the landlord should retain counsel.  The process is much more complicated and time consuming than most landlords care to manage themselves.

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In many landlord-tenant disputes, the issue of accord and satisfaction may be raised by the tenant as a way of being relieved of the terms of the lease.  This is particularly true when the tenant has either fallen behind with the lease payments or is in some way dissatisfied with the premises.  When trying to get out of the lease a tenant may submit a check to the landlord for an amount less than is owed with language on the check stating “this check is payment in full and in full and final satisfaction of all claims.”  What the tenant may be attempting is called an “accord and satisfaction.” This article explains the issues surrounding accord and satisfaction under Mississippi law.

Accord and satisfaction is an informal method of dispute resolution. An “accord and satisfaction” is an assertion that a dispute has been settled and that full performance under the settlement agreement has been made. It usually presupposes the existence of a prior contract and a legitimate dispute over the amount owed. The “accord” is the settlement agreed upon by the parties, while the “satisfaction” is performance of the settlement. Unlike a setoff, an accord and satisfaction is a contract, which must include the elements of offer, acceptance and consideration. If a party has made a payment which is claimed to be in full settlement of the disputed amount, then accord and satisfaction can be used as an affirmative defense in any subsequent action.

Under Mississippi law, in order to establish the defense of accord and satisfaction a debtor has to prove four elements: 1. Something of value offered in full satisfaction of demand; 2. Accompanied by acts and declaration as amount to a condition that if the thing offered is accepted, it is accepted in satisfaction; 3. The party offering the thing of value is bound to understand that if he takes it, he takes subject to such conditions; and 4. The party actually does accept the item. Lovorn v. Iron Woods Products Corp., 362 So.2d 196, 197 (Miss.1978).

Put differently, if a tenant tenders a check to a landlord “in full satisfaction of amounts owed” there must be language on the check (or accompanying documentation) indicating the agreed upon amount; that acceptance of the agreement and payment finalizes the same; the landlord understands the agreement and actually does accept the payment.  A landlord should not accept any payment instrument if he does not agree with the amount and has not agree that it is a full and final payment of amounts owed.

As a protection against possible accord and satisfaction defenses, I advise rental property owners to include a provision in the lease addressing surrender and acceptance of the property.  The provision reads that no action of the landlord or its agents during the lease term shall be “deemed an acceptance of a surrender of the Demise[d] Premises, and no agreement to accept a surrender of the Demised Premises shall be valid unless the same be made in writing and subscribed to by the Landlord.”  The “Surrender” provision protects the property owner from being held to an accord and satisfaction agreement.

In conclusion, in order to have an accord and satisfaction there must be accompanying language that the check is being tendered as full and final payment and a full understanding by the landlord that acceptance of the check finalizes the agreement. Verbal accord and satisfaction agreements are typically not upheld when the matter reaches the litigation stage.  From a tenant’s point of view, comprehensive language accompanying the payment strengthens his accord and satisfaction defense.