Divided and Shared Property Interests Flashcards
1
Q
What are the types of tenancy?
A
- Term of years (specified period)
- Periodic Tenancy (renews automatically)
- Tenancy at will (periodic can be ended at will)
- Tenancy at sufferance (tenant improperly there)
2
Q
What are the rights and duties of tenants?
A
- Right to receive possession of the premises at the beginning of the lease
- Right of Quiet Enjoyment (implied)
- Right to Habitable Premises (implied)
- Right to receive visitors (Cannot be waived)
- Right to live with spouse/partner and any children (No right to have pets)
- Duty to pay rent
- Duty to give back possession at the end of the lease
- Duty to repair premises/ duty not to create waste (must leave the property in basically the same condition they received it in, normal wear and tear excluded)
- Duty to give reasonable consent (cannot unreasonably withhold consent from the landlord to enter the premises)
- Duty not to be a nuisance
3
Q
What are the rights and duties of landlords?
A
- Right to receive rent.
- Right to gain/ retake possession of the premises at the end of the lease
- Right to receive the premises in the same condition as they were at the start of the lease, minus normal wear and tear
- Right to access the premises to: (1) Inspect, (2) Repair, (3) Make Improvements, (4) Show the Unit, (5) Supply Services
- The landlord must give two days notice of entry, unless there is an emergency
- Duty to deliver the premises at the start of the lease
- The landlord must deliver actual possession of the premises
- The landlord is in breach if he doesn’t evict the hold-over tenant by the beginning of the new tenant’s term
- If the landlord doesn’t deliver actual possession, the tenant may be entitled to damages
- Duty to enforce the (a) right of quiet enjoyment and (b) right of habitability
4
Q
What is waste?
A
- Tennant has an obligation to leave the property in basically the same condition minus normal wear and tear
- Anything beyond that is waste
- Three types:
- -Voluntary: waste caused by deliberate, affirmative acts of the person in possession of the property
- -Permissive: waste caused by neglect, apathy, or ignorance - when the possessor lets the property deteriorate from natural causes
- -Ameliorative: non-permissible improving or adding to the property - when the value of the property is enhanced, but the improvement is still prohibited
5
Q
What is an assignment?
A
- A way for a tenant to transfer the lease
- Conveyance of the entire property
- Covenants go along with the property to the new tenant including duty to pay rent, and T2 comes into privity with the landlord so landlord can sue for rent
6
Q
What is a sublet?
A
- A way for a tenant to transfer the lease
- Landlord can’t go against T2 for rent (unless third party beneficiary theory) because:
- -No contract with T2 (contract is with T1)
- -No privity of estate with T2 (remains with T1)
7
Q
What is rent?
A
- A contractual term and a covenant that runs with the land
- Failure to pay rent is a material breach that terminates the lease
8
Q
What is Eviction and what are the types of Eviction?
A
- Eviction is allowed if a tenant violates a material provision of the lease
- Non-renewal is generally allowed, except where limited by statute or public policy, or if motivated by retaliation or discrimination
- Actual Eviction: when the landlord excludes the tenant from the leased premises. (e.g. changing locks on doors)
- -This terminates the tenants duty to pay rent.
- Constructive Eviction: if the premises are not habitable/ there is no quiet enjoyment then the tenant does not have to pay rent
- -Damages: duration of the constructive eviction x the amount of use impaired.
- Retaliatory Eviction: eviction motivated by a desire to punish a tenant for permissible acts
9
Q
What is a holdover tenant?
A
- A tenant that stays past the lease but continues to pay rent
- Landlord may accept payment as renewal
- Automatic with acceptance of rent depending on jurisdiction
10
Q
What is tenancy in common?
A
- Each tenant may have different interests
- Right to posses the entire parcel (even if you don’t use it)
- Right to have your interest inherited upon death
- No right of survivorship
- Right to transfer/ lease
- Leases generally survive after the death of a tenant in common.
- If the language is ambiguous, Tenancy in Common is the default
11
Q
What is joint tenancy?
A
- Need Four Unities:
- -Time: the interests of the joint tenants must have been created at the same time
- -Title: the interests must have been created by the same instrument or title
- -Interest: each tenant must own an equal interest in the property, which is undivided
- -Possession: all tenants must have a right to possession of the entire parcel
- If one of the unities is broken the joint tenancy is broken, becomes TinC
- Four Unities applies to original tenants
- Encumbrances don’t survive death
- Divided among surviving owners upon death
- Requires magic words like “with right of survivorship”
- Can’t have JT alone
- Lease can sever JT by taking away one of the four unities
12
Q
What is tenancy by the entirety?
A
- Basically the same as Joint tenancy, except only for married couples
- Can be severed by divorce, death, and agreement of both spouses, or partition, but NOT sale
13
Q
What is right of survivorship?
A
- When a tenant dies his property interest is immediately transferred the other joint tenants
- Right to encumber your interest
14
Q
What is Partition?
A
- A way of severing a tenancy
- Two kinds:
- -Partition in kind: putting a wall or divide up
- -Partition by sale: sell and divide profits
15
Q
What is Ouster?
A
- A way of severing a tenancy
- Forcibly keeping the other co-owners/ tenants out of the property (e.g. changing the locks)
- Constructive Ouster: occurs when it is impracticable or impossible for all co-owners to occupy the same land (effectively exclusion)
- The ouster must pay the other co-owners rent, unless the expenses > rent value, then they have to contribute
