co tenancies Flashcards
tenancy in common
Each tenant in common owns a separate, undivided share of interest in a property and
has a right to the whole.
no right of survivorship
not liable for rent unless ouster or agreement
ouster =“Not allowing the other tenant in common to have access after requesting that they get
out, pay, or want access.”
Joint Tenancy:
Joint tenants that are together regarded as the single owner of a property. Yes, they do have the
right of survivorship. Each tenant owns the undivided whole of the property.
words traditionally required as joint tenants and not as tenants in common, with full
right of survivorship.”
joint tenancy requirements
(1) Time Interest must be acquired at the same time;
(2) Title All joint tenants must acquire title by the same instrument or adverse possession, never
by intestate possession;
(3) Interest Equal undivided shares & identical interest measured by duration; and
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(4) Possession Everyone must have the right to possession of the whole; but after creation, 1 joint
tenant can give exclusive possession to others.
joint tenancy conveyance
if convey then new tenant and tenant are co tenants
if convey 3 parties new co tenant other two still joint
leases joint repair joint accounting
courts are split whether a leases breaks joint
The common law approach (still followed in some states) does not allow such contribution.
o Under the modern trend, contribution may be compelled for necessary repairs, if they were
requested and refused.
improvements applies to both
There is no general right to an accounting or contribution for improvements made to co-tenancy
property.
o However, if an improvement increases the value of the property the improver may be
compensated for that increased value in accounting for rent and profits
Partition:
generally right to partition those with possession
+Voluntary Partition Voluntary partition is usually accomplished by an exchange of mutual
deeds among co-tenants or by sale of the property and division of the proceeds.
+ Involuntary Partition Involuntary (judicial) partition is by court action, usually at the
instance of one but not all of the co-tenants.
+ Owelty When partition cannot produce equal shares, the party receiving the larger portion
makes a cash payment to the other party.
Partition in Kind:
Property is divided among co-owners; the individual interests of the owners in a property are
severed in a way that each owner can enjoy their share of the property free from others and can
dispose of their share without any obstruction from others.
improved to improve if doesn’t negatively affect co tenants
If Partition in Kind cannot be made in a manner that gives the Improver the improved section,
the court may order physical partition and order the non-improving co-tenant to pay owlet to the
improver
partition by sale
Partition by Sale should occur ONLY IF a partition in kind is impractical.
Involves a forced sale of land in the sense that not all parties may be willing to sell.
Conducted only when a property cannot be physically divided into separate parts.
done when not profitable to divide land
must be best for all interest of land
improver gets value added
joint bank accounts
“True” Joint Tenancy Bank
o During the joint lives of the owners of a joint bank account, each joint tenant holds a present
right in the sums deposited in the joint bank account.
“Payable on Death” Bank Account
o The party who created the account (“the owner”) has the present right to all sums deposited in
the account.
o The other party has survivorship rights only.
“Convenience (Power-of-Attorney) Bank Account
same as payable but The other party may draw on the account presently to pay the owner’s bills, but has no
survivorship rights.
Tenancy by the Entirety:
same requirements as joint plus marriage requirement
can’t act alone for partition
types of tenancies lease
periodic
term of years
at will tenancy
tenant at sufferance
term of years
writing required for sof over one year
An estate that lasts for some fixed period of time or for a period computable by a formula that
results in a fixing calendar dates for beginning and ending, once the term is created or becomes
possessory.
notice to terminate not required
could end before period under some event or condition
Taxes and Mortgages:
A co-tenant who pays a mortgage or taxes may seek contribution or may recover in an accounting or
partition suit (but there is no separate action to compel contribution.
However, the co-tenant in sole possession will receive reimbursement only to the extent that his
payment exceeds the market value of the property.
periodic tenancies
Tenancy: Continues from period to period, without a set termination date.
lasts until notice of termination from landlord or tenant
period extended unless notice
look at notice chart pg28
at will tenancy
A tenancy of no fixed period that endures so long as both landlord & tenant desire.
A unilateral power to terminate a lease can be engrafted (inserted) on a term of years or a periodic
tenancy.
terminates parties want to party dies voluntary waste etc
notice required to terminate
tenant at sufferance
A tenancy at sufferance is created when the tenant refuses to vacate the premises after his lease has terminated. This situation creates a temporary tenancy, where the terms of the prior lease control, until:
landlord could evict and damages
or consent to new tenancy
assignments
An assignment occurs when the lessee transfers to a third person all of her right, title
and interest in the leased premises
assignee comes with privity of estate with the lessor
if the rent is not paid, the lessor may sue the assignee, so long as the assignee remains on the premises
if the assignee transfers to third party can’t sue for rent unless assumed it
sublease
A sublease occurs when the lessee transfers to a third person less than all of her right,
title and interest in the leased premises.
no privity of estate
lessor can’t sue assignee unless assumption
but assignor could sue assignee
privity of contract
original contract original tenant and landlord (benefit of original lease then subject to) for assignees . never for sublease
if assignee subleases then he still in privity of estate
lesses duties
pay rent
even if destroyed unless lessors fault
duties assigned by statute keep clean
repairs=
must make repairs or it becomes waste
duty not to commit waste
Landlord no repairs
tenant minor repairs wind tight water
keep clean
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Lessor’s Remedies for Lessee’s Breach of Duty:
material breach= evict or recover damages
Abandonment: If the lessee abandons the premises, the lessor may:
Retake the premises when the lessee abandons;
Ignore an abandonment and continue to hold the tenant liable for rent; or
Reenter and re-let the premises for the lessee.
Lessor’s Remedies & Security Devices:
Termination of the Lease for Non-Payment of Rent: terminate and sue
the lessor may not sue
for rent due for the unexpired term of the lease. if terminated
Suit to Recover Rent Past Due:t
sue for unexpired rent if not terminated
the lessor may have a duty to mitigate damages in
respect to future rent.
Anticipatory Repudiation: must prove The breaching party has unequivocally stated that he or she will not perform on the due date; and The contract is still executory on both sides.
if stays on premises hard to use anticipatory
Rent Acceleration Clause or Statute:
A rent acceleration clause states that the full amount of rent due under the lease
will be due and payable immediately on the lessee’s failure to pay rent currently
due.
may immediately sue but not take premises
Lessors duties
1delivery of possession
2Statutory Duties heat water)
3Covenant of Quiet Enjoyment The lessor must not engage in any activity the causes the
lessee to be evicted constructively from the premises.(A lessee may treat the lease as terminated and withhold rent if the covenant of quiet
enjoyment has been breached by an actual or a constructive eviction.)
4Implied Warranty of Habitability Under the modern trend, the lessor is deemed to have
warranted impliedly that residential premises are fit for habitation.(safe and clean) need not leave premises recover damages
-maintain premises that are safe clean and for human habitation.
- no commercial leases
- for claim must provide notice of defect and give landlord time to repair
PG 34 graph
actual and constructive eviction
actually evicted = If a lessee is actually evicted from part of the premises, under the majority rule, the lessee is relieved of all liability even if remains
To assert a claim of constructive eviction for brea, the lessee must move out of the premises.
◦ To constitute constructive eviction, the lessor’s act must substantially and permanently
interfere with the lessee’s use and enjoyment of the premises
If a lessee is constructively evicted from part of
the premises, under the majority rule, the lessee may receive a rent abatement but
is not relieved of all liability for rent.
Caveat Lessee:
“Let the Tenant Beware.”
o The Landlord has no duty/obligation regarding the condition of the leasehold agreement.
o The Landlord's only obligation was to provide the legal right to possession to the premises (the
keys), regardless of the condition.
o The Tenant had to pay rent as long as the Tenant held the premises.
premises liability
A lessor is not liable to lessee, or others on the premises with the consent of the lessee, for injuries
caused by a condition of the premises, except in the following situations.
o Undisclosed dangerous condition exists that is known or should have been known to the lessor
but is unknown to the lessee.
o A condition exists that is dangerous to persons outside of the premises.
o Premises leased for admission to the public.
o Parts of the land retained in the lessor’s control but are available for use by the lessee.
o Lessor has contracted to repair.
o Lessor has been negligent in making repairs
lesses remedies
common law remains duties even of ll breached
some statutes withhold rent
breached for quiet enjoyment through constructive or actual eviction
-lease must vacate premises
-traditionally sue for damaged but could not withhold
rent and terminate
- now could
warrant of habitually
sue for damages need not vacate
-tenant must show defect whether patent or latent
-residential not commercial
-common law uninhabitable for a reasonable person
-housing codes
- need notice of defect and reasonable time to repair
remedies for warrant of habitat
-treat lease canceled no rent
- money damages warranted value -premises received
pg 34 graph
