Bar Exam — MBE (Multistate Bar Exam)Real PropertyHard
A tenant rented an apartment under a two-year lease. Six months into the lease, the tenant decided to move to another city and assigned the lease to a new tenant. The landlord approved the assignment. The new tenant paid rent for three months, but then defaulted. The landlord sued the original tenant for the unpaid rent. What is the most likely outcome?
- AThe original tenant is not liable because the landlord approved the assignment, releasing the original tenant.
- BThe original tenant is liable only if the assignment was made without the landlord's consent.
- CThe original tenant remains liable to the landlord based on privity of contract.
- DThe original tenant is not liable because the assignment created a new tenancy with the new tenant.
Show answer & explanationAnswer & explanation
Correct answer: C. The original tenant remains liable to the landlord based on privity of contract.
Upon assignment, privity of estate between the landlord and original tenant is extinguished, but privity of contract generally remains unless the landlord expressly releases the original tenant. The original tenant is thus secondarily liable for rent.
Why the other options are wrong
- A. Landlord approval of an assignment, by itself, does not automatically release the original tenant from contractual liability. An express release or novation is required.
- B. The landlord's consent to the assignment is usually a condition of the lease but does not, by itself, determine the original tenant's continuing liability. The issue is whether a release occurred.
- D. While a new privity of estate is created between the landlord and assignee, the original tenant's contractual obligations typically persist unless released.
Assignment of Lease (Original Tenant Liability)
When a tenant assigns a lease, the original tenant typically remains secondarily liable to the landlord for rent and other lease obligations based on privity of contract, unless expressly released by the landlord.
- Assignee becomes primarily liable to landlord (privity of estate).
- Original tenant remains secondarily liable (privity of contract).
- Landlord's consent to assignment does not automatically release original tenant.
- Express release or novation is required to discharge original tenant's liability.
Memory trick: Assign All Rights, Sublease Some Still Stay.