a) in the absence of a lease provision to the contrary, a tenant is not relieved from the obligation to pay rent despite the total destruction of the leased premises
ii. Two Exceptions
a) when only a portion of the bldg is leased, total destruction of the building relieves the tenant of the obligation to pay rent -- bargained for use of the bldg and not the land underneath
b) impossibility of performance
i) Where a contract relates to specific property the existence of which is necessary to the carrying out of the purpose of the agreement, the condition is implied by law that the impossibility of performance or the frustration of purpose arising from the destruction of the property without fault of either party shall end all contractual obligations relating to the thing destroyed
a) lease seen as a conveyance -- therefore even if the bldg was destroyed the land is still there and therefore rent still has to be paid
b. Modern Trend?
i. duty to pay rent is now dependant upon performance of the landlord's obligations if the premises are residential. If the LL does not preform, the tenant can terminate the lease and move out, withhold rent, or receive a rent abatement
ii. lease now seen as a contract with mutual obligations by the lessor and lessee -- dependant convenants
iii. bldg was part of what was conveyed and the LL is no longer providing what was bargained for
c. Allocating loss among innocent parties?
i. who can most effectively bear the loss -- least cost avoider?
a) who has control of the risk creating activity?
i) change activity level -- tenant
ii) buy insurance? LL?
iii) spread the risk amog all of the tenants? Does this work with only one tenant?