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PROPERTY > Concurrent Estates and Landlord/Tenant Law/Four Leaseholds > Flashcards

Concurrent Estates and Landlord/Tenant Law/Four Leaseholds Flashcards

1
Q

what are concurrent estates in land?

A
  • three forms of concurrent ownership: joint tenancy, tenancy by entirety, tenancy in common
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2
Q

joint tenancy (3 main features)

A
  • right of survivorship (when one JT dies, her share goes to surviving JT automatically) - need to be a CLEAR expression of right of survivorship or else it’s presumed to be tenancy in common
  • JT’s interest is alienable/transferrable during holder’s lifetime but NOT devisable due to right of survivorship
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3
Q

how is JT created?
T-TIP

A

When JTs take their interest, these gotta exist at the same time
1. TIME - JTs must take their interests at the same time
2. TITLE - JTs must receive conveyance through same instrument (in same deed, will, etc)
3. IDENTICAL - equal interests
4. POSSESS - JTs must have equal possessory rights
ALL interests in a JT must be EQUAL SHARES (if there are 3 JTs, each owns an undivided 1/3 interest)

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4
Q

severance of JT (SAP)

A

JT can be severed (ended) under certain circumstances and a tenancy in common results

a. Severance and Sale: a JT can sell or transfer her interest during her lifetime - destroys JT b/c it disrupts 4 unities –> transferee takes as a tenant in common

*if we started with 2+ JTs in the first place, the JT remains intact as b/w the other, non-transferring JTs

NOTE: once JT has been severed, it can’t be re-established until 4 unities have been met

b. Severance & Partition
3 main types:
- voluntary agreement: peaceful way to end relationship
- partition in kind: judicial action for a physical division of property (best when it’s a large tract)
- forced sale: land is sold and proceeds divided up proportionally (best when it’s a single building and physical division is hard)

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5
Q

What does not result in severance

A

mortgages
- lien theory (majority): JT can take a mortgage on her interest without severing the JT (b/c no title passes to the lender)
- title theory (minority): mortgage by one JT transfers title of JT to the lender; severs JT

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6
Q

tenancy by entirety

A
  • a marital estate akin to a joint tenancy (can be created ONLY B/W MARRIED PARTNERS - who take as a fictitious “one person” with right of survivorship)
  • arises presumptively in any conveyance to married partners where four unities are present (TTIP)
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7
Q

very protected form of co-ownership
Can’t Touch This!

A
  • creditors of only one spouse cannot touch this tenancy for satisfiaction of debt (only creditors of couple can reach tenancy by entirety)
  • one spouse cannot unilaterally convey or partition her interest
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8
Q

how can a tenancy by entirety be severed?

A
  • only death (of one co-tenant), divorce, mutual agreement, OR execution of a joint creditor can sever tenancy by entirety
  • on divorce, the tenancy by entirety becomes a tenancy in common
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9
Q

tenancy in common (default concurrent estate)

A
  • concurrent estate with no right of survivorship; e.g., to A and B, to A and B concurrently
  • CAN BE TERMINATED by PARTITION
  • 2 features:

(1) each co-T owns an INDIVIDUAL PART and each has a right to possess the WHOLE

(2) each interest is devisable, descendible, and alienable

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10
Q

rights and duties of co-tenants
possession

A
  • each co-T has right to possess ALL portions of the property
  • if one co-T wrongfully excludes another co-T from possession of whole or any part, they’ve committed ouster
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11
Q

rights/duties of co-tenants
rents and rental income

A
  • a co-T in exclusive possession (your co-tenant left on a trip for 2 months) has the right to retain PROFIT from their PERSONAL use of property (they don’t need to share profits with other co-tenants absent ouster)
  • a co-T who leases all or part of premises to THIRD PARTY must account to their co-tenants (give them their share of rental INCOME)
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12
Q

if one co-tenant wrongfully ousts another co-T from possession

A

ousted co-T is entitled to get their share of fair rental value of property for time she was wrongfully deprived of possession

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13
Q

rights/duties of co-tenants
adverse possession

A

co-T in exclusive possession for statutory adverse possession period CANNOT acquire title to the WHOLE—hostility element absent

UNLESS they have committed ouster of other co-tenant (changed the locks, etc.)

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14
Q

rights/duties of co-tenants
repairs and improvements

A
  • repairs: repairing co-tenant enjoys right to contribution during life of cotenancy for necessary repairs – just have to provide notice to other co-T
  • improvements: no right to contribution for improvements made by one co-T
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15
Q

rights/duties of co-tenants
partition

A

joint tenant or tenant in common have a right to bring action for partition (restraints on partition by co-Ts are valid - only for a reasonable time)

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16
Q

3 types of waste

A
  1. voluntary - willful destruction (e.g., removing fixtures)
  2. permissive waste - neglect (e.g., forget to close windows)
  3. ameliorative waste - unilateral change that increases value

co-T must not commit waste/damage the leased premises

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17
Q

life tenant and waste

A

life tenant can’t commit acts that constitute unreasonable use of land/injured interests of future interest holder

  • affirmative/voluntary waste: can’t exploit natural resources on land except if land was used for exploitation before the grant (exception: if exploitation occurred before life estate, life tenant can extract from already-open mines)
  • permissive waste: life tenant obligated to preserve land and pay certain carrying charges (such as mortgage interest and taxes); if LT fails to do so, he’s committed permissive waste
  • amelieroative waste: LT can even alter or demolish existing buildings if market value of the future interests is not diminished
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18
Q

4 leasehold estates

A
  • tenant has present possessory interest in leased premises and the landlord has a future interest (reversion)
  • four leasehold estates: tenancy for years; periodic tenancy; tenancy at will; tenancy at sufferance
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19
Q

tenancy for years

A
  • this lease is for a FIXED, determined period of time (WATCH FOR TERMINATION DATE), ends automatically at its termination date
  • usually created by written leases (term of years greater than one year must be in writing per SoF)
20
Q

periodic tenancy

A
  • tenancy for some fixed period that continues for succeeding periods until either party gives notice of termination (e.g., to T from month to month)
21
Q

how is a periodic tenancy created (2 main ways)

A
  • expressly (month to month or week to week)
  • by implication/by operation of law

Implication/operation of law:

(1) land is leased with no mention of duration but T pays rent each month
(2) oral term of years in violation of SoF creates implied periodic tenancy, measured by way rent is offered
(3) if landlord holds over tenant

22
Q

how is a periodic tenancy terminated

A
  • terminates by NOTICE from one party (usually written) b/c it’s automatically renewed until proper notice of termination is given
  • how much notice is needed to end a periodic tenancy? at least equal to the length of the period itself (exception: only one month’s notice (six months’ at CL!) is required to terminate a year-to-year tenancy)

e.g., in a month to month periodic tenancy, one month is required

23
Q

tenancy at will

A
  • no fixed period of duration (either party can end lease at any time at will)
    “To T for as long as L or T desires”
  • created by express agreement that lease can be terminated at any time
  • termination: can be terminated by either party at any time; can be terminated by operation of law (death of a party, etc)
24
Q

tenancy at sufferance

A
  • created when tenant wrongfully HOLDS OVER (they remain in possession past the expiration of lease)
  • termination: lasts only until landlord (1) evicts or (2) elects to hold tenant to a new periodic tenancy

rent of new tenancy will be same as old tenancy (exception: when LL has told tenant of a future higher rent and that notification came BEFORE expiration of old lease)

25
Q

holdover commercial tenants

A

commercial tenants may be held to a new year-to-year periodic tenancy if original lease term was for ONE YEAR OR MORE

26
Q

tenant duties

A

1) repair
2) pay rent

27
Q

duty to repair (2 situations)

A

1) tenant’s duty to repair when lease is silent
- tenant need only maintain premises; obligated to make routine repairs

2) tenant’s duty to repair when the tenant has expressly covenanted in the lease to maintain property
- if RESIDENTIAL tenant covenants to repair: LL usually remains obligated to repair under implied warranty of habitability
- NONRESIDENTIAL tenant’s covenant: enforceable and LL can be awarded damages for breach based on property’s condition when lease ends (covenant to repair usually INCLUDES ordinary wear and tear repairs)

28
Q

duty to pay rent-what if tenant breaches?

A

1) tenant breaches and is in possession of premises (2 OPTIONS)
- evict (if landlord moves to evict, they are still entitled to rent until tenant vacates) or sue for rent
- LL can’t engage in self-help

2) tenant breaches but is out of possession (tenant vacates with time left on term of years lease) - SIR

LL options:
- surrender - LL could choose to treat tenant’s abandonment as implicit offer of surrender, which LL accepts and ends lease (surrender: T shows that she wants to give up the lease!)
- ignore abandonment - LL holds tenant responsible for unpaid rent until end of lease (as if tenant was still there)
- relet - LL leases premises to new tenants and hold breaching tenant liable for any losses

29
Q

condemnation of leaseholds

A

if entire leasehold is taken by eminent domain, tenant’s liability for rent is extinguished (no longer a leasehold estate!)

BUT if taking is TEMPORARY or PARTIAL, tenant is NOT discharged from rent obligation!

30
Q

landlord’s duties
duty to deliver possession

A

LL must put tenant in actual physical possession of premises at start of leasehold term

31
Q

implied covenant of quiet enjoyment

A

tenant has right to quiet use of the premises without interference from LL or title holder (e.g., a prior mortgagee who forecloses)

32
Q

how can LL breach implied cov of quiet enjoyment - 2 ways
1) wrongful eviction

A

1) actual eviction: LL excludes tenant from ENTIRE leased premises (actual eviction terminates tenant’s obligation to pay rent)
2) partial eviction: when tenant is physically excluded from only PART of leased premises (relieves tenant of duty to pay rent for entire premises)

33
Q

2) breach by constructive eviction

A
  • occurs when LL’s breach of duty makes premises unsuitable for occupancy (e.g., every time it rains, Doug’s apt floods)
  • elements (SINGoodbye)
    1) substantial interference: major problems are caused by LL’s wrongful conduct
    2 notice: tenant has to let LL know and give him a chance to repair, and LL has to fail to act meaningfully
    3) vacate: tenant must leave within reasonable period after LL doesn’t repair
  • tenant who has been constructively evicted can end lease and seek damages
34
Q

implied warranty of habitability

A
  • applies to residential leases only; nonwaivable
  • premises must be fit for basic human habitation
35
Q

what can tenant do when implied warranty of habitability is breached (4 OPTIONS)

A

M R 3
1. move out and end lease
2. repair and deduct cost from future rent
3. reduce rent or withhold all rent
4. remain in possession, pay full rent and seek money damages

NOTE that the tenant could vacate but is NOT REQUIRED TO unlike constructive eviction

36
Q

anti-discrim legislation

A
  • civil rights act: bars racial/ethnic discrim in sale or rental of all prop
  • fair housing act: protects tenants and possible tenants from discrim based on disability, race, color, national origin (except in senior housing)

Fair Housing Act applies to advertisements completely

37
Q

transfers of leaseholds
assignment v. sublease

A

tenant may freely transfer their interest in whole (assignment – transfer of remaining term of a lease) OR in part (sublease – tenant has retained some part of remaining term, other than right to reenter upon breach)

38
Q

assignment by tenant

A
  • assignee stands in direct relationship w/ landlord (they are in privity of estate - asignee is liable to LL on all covenants in lease that run w land) and pays rent directly to LL
  • original tenant remains liable on original K obligations such as to pay rent and all other covenants in lease (privity of contract) - unless LL releases the tenant

note: watch for situation where assignee reassigns leasehold interest; his privity of estate with LL ends and generally isn’t liable for subsequent assignee’s failure to pay rent (unless he promised the LL)

39
Q

sublease

A
  • sublessee is tenant of original tenant and usually pays rent to original tenant, who then pays LL
  • sublessee also can’t enforce LL’s covenants/no obligation to LL
  • relationship b/w original tenant and LL remain fully intact (privity of K: original tenant is liable for rent and all other covenants in the lease & can enforce LL’s covenants)
40
Q

LL remedies re: sublease

A
  • LL can end main lease for nonpayment of rent by sublessee or breach of other covenants (and sublease would automatically end with it)
41
Q

covenants against assignments or sublease

A
  • in lease, LL CAN bar tenant from assigning or subletting without LL’s prior written sign off but lease covenants restricting assignment and sublease are strictly construed AGAINST LL

NOTE: LL can bar tenant from assigning or subletting without landlord’s prior written approval BUT once LL consents to one transfer by tenant, LL waives right to object to future transfers by tenant unless LL expressly reserves the right

42
Q

assignment by landlords

A

LL can assign rents and reversion interest they own (usually done by deed when LL conveys building to new owner); tenant consent not needed

  • original LL and tenant remain in privity of K (liable on all covenants they made in lease); assignee/new LL and tenant are in privity of estate
  • tenant pays the new assignee/new LL
43
Q

LL’s tort liability

A

LL may be liable to tenant for injuries occurring on leased property

CLAPS
1. common areas - LL has to maintain common areas (hallways, etc)
2. latent defects - LL must warn tenant of hidden defects (or else, LL will be liable for any injuries resulting from condition)
3. assumption of repairs - once repairs taken, LL must complete them with reasonable care
4. public use rule - LL is LIABLE for known defects if he knows the prop is for public use and tenant is not likely to repair (concert hall)
5. short term lease of furnished dwelling - LL who rents fully furnished premises for short period like a summer cottage are LIABLE for any defective condition which proximately injures tenant regardless if LL knew of defect

44
Q

fixtures

A
  • a chattel that has been so affixed to land that it is part of the realty
  • PASSES WITH OWNERSHIP of the land and must STAY PUT

e.g., heating ducts, plumbing

45
Q

common ownership / fixtures

A
  • person who brings chattel to land owns both (1) the land and (2) chattel (e.g., X installs furnace in his home)
  • item is a fixture if person objectively intended to make item part of the realty
46
Q

divided ownership cases / fixtures

A

person installs a chandelier onto leased premises ceiling -> how to tell that it’s a fixture and must stay put:

(1) an AGREEMENT b/w LL and tenant is controlling on whether the annexed chattel = fixture
(2) absent agreement, tenant generally (1) LACKS INTENT to improve property and can (2) remove it if it doesn’t damage the premises or destroy chattel (must be removed by end of lease term)

PROPERTY (6 decks)

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