Concurrent Estates

Question 1

How can you create a joint tenancy with the right of survivorship?

Answer 1

Requires the 4 unities:

• JTs must take at the SAME TIME
• By the SAME TITLE
• Possess IDENTICAL INTERESTS
• With IDENTICAL RIGHTS to possess the whole

Question 2

How can a person sever a joint tenancy?

Answer 2

Sale of their interest (even secretly)

Partition of the land (by voluntary agreement, partition in kind, or forced sale)

Mortgage: (1) Lien theory = not sever
(2) Title theory = will sever

Question 3

What are the general rules for tenants in common?

Answer 3

Two or more people hold the property without the right to survivorship

Each tenant owns an individual part and each has the right to possess the whole

Their interest is divisible, descendible and alienable

Question 4

When must a co-tenant contribute towards the cost of repairs?

Answer 4

They must receive NOTICE

Repairs must also have been reasonable and necessary

Question 5

Can a co-tenant recover from the other costs of improvement works?

Answer 5

No. At partition of the land, the improver can get the increased value as a result of the value they added.

Question 6

What is a tenancy for years?

Answer 6

Lease for a fixed, determined period of time. The lease will state the date on which it ends. Therefore no notice is required to terminate it because it’s clear from when it starts.

Question 7

If a tenancy for years has a duration of more than one year, what must the parties do?

Answer 7

Commit this to writing to ensure it satisfies the SoFs.

Question 8

What is a periodic tenancy?

Answer 8

A lease which continues in successive intervals (year-to-year or week-to-week) until a party gives notice of termination. Otherwise it’s continuous.

Question 9

If land is leased without mention of the duration, what type of tenancy can usually be assumed?

Answer 9

A periodic tenancy

Question 10

How much notice does a party need to give to terminate a periodic tenancy?

Answer 10

Notice equal to the period of tenancy.

Unless it’s a year-to-year tenancy = 6 month’s notice

Question 11

What is a tenancy at will?

Answer 11

It does not have a fixed duration, but it must be expressly stated as one

Question 12

When might a tenancy at sufferance occur?

Answer 12

This happens when the T wrongfully remains in possession of the property after the expiration of their lease.

Question 13

If a visitor injuries themselves whilst visiting a T’s home, is the tenant or landlord liable under tort?

Answer 13

T liable to the injured party, but may be able to seek indemnification from L.

Question 14

What repairs must the tenant carry out during their tenancy?

Answer 14

Basic maintenance and routine repairs, other than those due to ordinary wear and tear.

Question 15

If a tenant instals a fixture on the property, can be remove it when his tenancy is up?

Answer 15

T can remove a chattel as long as removable won’t substantially harm the premises, otherwise he will be liable for voluntary waste.

Question 16

When can a tenant remove trade fixtures?

Answer 16

If the fittings are not an integral part of the premises and the T pays for any damages caused by removal. Usually if T uses the chattels as part of their business, it usually means they don’t intend to permanently improve the property.

Question 17

What rights does the L have to remove a T from the property if they fail to pay rent?

Answer 17

Evict through the courts (and L is entitled to rent until T leaves)

Consider T as a trespasser and sue for rent and possession.

Impose a new periodic tenancy.

Question 18

If the Landlord wants to impose a new periodic tenancy on the T, he can do so under what conditions?

Answer 18

Needs to give the T NOTICE before the lease expires.

Commercial leases = year-to-year tenancy with higher rent figure

Residential lease = month-to-month with higher rent figure

Question 19

What options does the L have if T vacates the property and stops paying rent?

Answer 19

Surrender

Ignore (and hold T liable for unpaid rent)

Re-let (must make good faith attempt)

Question 20

When might T be able to show constructive eviction by the L and what steps must they take to claim?

Answer 20

Substantial inference (chronic or permanent problem that L failed to fix.

Notice - T must give L notice of problem and L fails to meaningfully response

Goodbye - T must vacate within a reasonable time if L fails to fix the problem

Question 21

What is the implied covenant of quiet title and possession?

Answer 21

Each lease contains an implied covenant that the L or someone with paramount title will not interfere with the T’s use and enjoyment of the premises. If they do, covenant is breached and T is totally or partially evicted.

Question 22

If the landlord partially evicts the T, is the tenant relieved of their obligation to pay rent, and for all or part of the premises?

Answer 22

Relieved of paying ALL rent, even though T continues in possession.

Question 23

If a T is partially evicted by a paramount title holder, are they relieved of their obligation to pay rent and for all or part of the property?

Answer 23

Relieved of their obligation to pay rent, but only for the portion from which they’ve been evicted.

Question 24

What is the implied warranty of habitability?

Answer 24

An implied warranty

Applies to residential leases only

Cannot be waived

Requires the premises to be fit for basic human dwelling.

Question 25

If a T’s implied warranty of habitability is breached, what are their rights?

Answer 25

1. Move out and end the lease (BUT T is not required to leave)
2. Repair and deduct from rent
3. Reduce or withhold rent until the court determines fair rental value in light of the problem (must place funds in escrow)

OR

4. Remain in possession, pay rent, and sue for damages.

Question 26

If the T1 assigns their lease to T2, with whom is the landlord in privity of contract and privity of estate? Who is liable for rent?

Answer 26

T1 = privity of contract

T2 = privity of estate (L + T2 liable for covenants under original lease)

Both T1 and T2 are jointly and severally liable for rent.

Question 27

When does a sublease arise?

Answer 27

When T1 transfers LESS than their entire interest to T2.

Question 28

In a sublease, who is liable to whom?

Answer 28

T2 is on neither privity of estate nor privity of contract with L, so liable to T1 and vice versa.

Question 29

In which 5 circumstances is the landlord liable to make the premises safe?

Remember: C L AP S

Answer 29

Common areas

Latest defect

Assumption of repairs (if L chooses to carry out repairs, he/she must do so to a reasonable standard)

Public use premises

Short-teen lease (furnished) — L liable even if they didn’t know or have reason to know of defects. It’s L’s responsibility.