Estates in Land

Question 1

Transferability of Right of Entry

Answer 1

In Tx, a right of entry after a condition is BROKEN is transferable

Question 2

Life Estates by Marital Right

Answer 2

Texas is a CP state

Question 3

Statutory Reforms of RAP

Answer 3

Tx has adopted the cy pres approach by providing that any interest in real or personal property that would violate RAP will be reformed or construed w/in the limits of the RAP to give effect to the general intent of the creator of the interest whenever that interest can be ascertained

Applies only to inter vivos instruments and wills

Question 4

Joint Tenancy

Answer 4

CL joint tenancy w/ ROS has been abolished by Tx Trust Code

Default concurrent ownership = tenancy in common

By using specific language a ROS can be created by agreement. The language must clearly indicate a ROS and cannot simply refer to the relationship as JT

These type of agreements must follow certain statutory restrictions when undertaken b/w a H/W

Question 5

Tenancy by the Entirety

Answer 5

This CL estate is unknown and not recognized in Tx b/c of statutory CP laws

Question 6

Tenancies for Years

Answer 6

Tx does not restrict the # of years for which a leasehold estate may be created

Question 7

Tenancies at Will

Answer 7

No required advanced notice to terminate a tenancy at will in Tx - but 3 days written notice is required to evict the T

Question 8

Hold-Over Doctrine

Answer 8

LL must provide a hold-over T w/ at least 3 days’ written notice to vacate the premises before filing a forcible detainer suit

Only issue to be determined in the suit is who is entitled to possess the property

Question 9

*Forcible Detainer Actions

Answer 9

Forcible detainer suits are filed in the justice court of the precinct where the property is located

To be eligible to recover atty’s fees, the LL must give the hold-over T a written demand to vacate the premises. The demand must state that if the T does not vacate before the 11th day after receipt of notice the LL may recover fees if a suit is filed. The demand must be sent by registered or certified mail, return receipt requested, at least 10 days prior to filing suit

A forcible detainer suit can be joined w/ actions for damages, waste, or rent related to the tenancy, provided they are w/in the jurisdictional limits of the justice court

Question 10

Double Rent Jeopardy

Answer 10

Double Rent Jeopardy

Question 11

T’s Duty to Repair (Doctrine of Waste)

Answer 11

In Tx, the T has the duty to keep the premises in good repair unless the lease provides otherwise

Question 12

*Destruction of Premises w/o Fault

Answer 12

The period for repair of a condition on the premises, resulting from an insured casualty loss (e.g., fire, smoke, hail, explosion) does not begin until the LL receives the insurance proceeds

If the premises are TOTALLY untenantable and the casualty did not result from the T’s negligence, either the LL or the T may terminate the lease by giving written notice to the other at any time prior to completion of the repairs

Termination of the lease entitles the T only to a pro rata refund of rent from the date the T moves out and to a refund of any security deposit

Question 13

Partial Destruction of the Premises w/o Fault

Answer 13

If the premises are partially untenantable and the casualty did NOT result from T’s negligence, absent an express agreement to the contrary in the lease, a county or district court may award T a reduction in rent to the extent the premises are unusable b/c of the casualty

Question 14

Rent Deposits

Answer 14

A LL may deduct from his T’s security deposit any damages and charges:

(1) for which is is liable under the lease, or
(2) resulting from her breach

He must return the balance to the T and may NOT retain any amount for ordinary wear and tear

LL must provide a written description of itemized list of all deductions if:

(1) T does not owe rent when she surrenders the premises, or
(2) there is a controversy re: the amount owed

Question 15

Timing of Refund or Accounting for Rent Deposits

Answer 15

COMMERCIAL LL must return the security deposit or provide the description and list of deductions to T w/in 60 days after T surrenders possession, and failure to do so raises a presumption of bad faith

For a RESIDENTIAL LL, the time frame is w/in 30 days after T surrenders the premises.

The LL’s obligation does not arise in either case until the T provides a written statement of her forwarding address

Question 16

*Tenant on Premises but Fails to Pay Rent - Lockout

Answer 16

A LL (or his agent) may intentionally prevent a T who is delinquent in paying rent from entering the leased premises by changing the locks

Rights and liabilities of the parties differ based on the type of lease

Question 17

*Tenant on Premises but Fails to Pay Rent - Commercial Lease

Answer 17

LL must place a written notice on T’s front door stating the name and address or telephone number of the individual or company from which the new key may be obtained. The key need only be made available during the T’s regular business hours, and only if T pays the delinquent rent

Commercial T who has been locked out of the leased premises in violation of the statute may either:

(1) recover possession of the premises, or
(2) terminate the lease AND recover from LL:
- an amount equal to the sum of T’s actual damages, one month’s rent, or $500, whichever is greater
- reasonably attorney’s fees
- court costs, less any delinquent rents or other sums for which T is liable to LL

Question 18

Tenant on Premises but Fails to Pay Rent - Residential Lease

Answer 18

Residential has such a right only if it is EXPRESSLY PROVIDED FOR in the lease AND T is delinquent in paying all of part of the rent

At least 3 days before LL may change the locks, she must provide T w/ notice of:

(i) earliest date LL proposes to change the locks
(ii) amount of rent T must pay to prevent changing of locks
(iii) name and address of the individual to whom or company at which the delinquent rent may be discussed or paid during the LL’s normal business hours; and
(iv) in underlined or bold print, T’s right to receive a new key at any hour, regardless of whether the T pays the delinquent rent

LL does not have the right to change the locks or otherwise prevent a T from entering the common areas

A residential T who has been locked out of the leased premises in violation of the statute may either:

(i) recover possession of the premises, or
(ii) terminate the lease and recover from the LL (less any delinquent rent or sums for which T is liable to LL):
- one month’s rent + $1k
- actual damages
- reasonable atty’s fees
- court costs

Question 19

• Tenant on Premises but Fails to Pay Rent - LL’s Lien

Answer 19

Commencing on the lease’s start date and during every subsequent 12-month period, a COMMERCIAL LL has an automatic preference lien on T’s and any sub-T’s property on the premises for rent already due and rent that is to become due during the balance of that 12-month period

Lien exists while T occupies the building and for one month following T’s abandonment.

A LL may apply for a distress warrant to enforce a statutory lien only if T:

(1) owes rent
(2) is about to abandon the building
(3) is about to remove T’s property from building

To enforce a lien for rent that is more than 6 months past due, LL must file a verified lien statement w/ county clerk in the county in which the leased premises are located

Question 20

Tenant Abandons - Do Nothing or Repossess

Answer 20

In Tx, if a T abandons the premises in violation of the lease, the LL must mitigate damages

This duty may not be waived in the lease

Question 21

• Implied Warranty of Habitability

Answer 21

LL in RESIDENTIAL rental agreements have a statutory duty to repair certain conditions that materially affect the physical health and safety of an ordinary T

Conditions are not covered unless T:

(1) has notified LL of the condition in a notice to the person to whom, or to the place where, rent is normally paid, and
(2) is not delinquent in rent at the time of notice

Statutory LL duties and T remedies apply in lieu of existing law re: the LL’s warranties or duties of maintenance, repair, security, habitability, and non-retaliation, as well as T’s remedies for violation of any such duty

Question 22

Implied Warranty of Suitability

Answer 22

SC of Tx also recognizes an implied warranty of suitability in COMMERCIAL leases

Intended to cover latent defects in the essential facilities of the leased premises

Lessor is excepted from responsibility for repairs that the lessee willingly accepts as part of the bargain

May be waived by agreement of the parties

Question 23

*Remedies for Residential Tenant for Breach of Statutory Duty to Repair by LL

Answer 23

A residential T to whom a LL is liable under the statute may:

(1) Terminate the lease;
(2) Repair the condition and deduct the cost from subsequent rent payment only under certain stated conditions; or
(3) If not repaired or remedied w/in 7 days of notice of intent to repair, seek certain judicial remedies as set out in the statute

Question 24

Availability of Repair and Deduct Remedy

Answer 24

A T may exercise the repair and deduct remedy only if:

(1) the LL has a statutory duty to repair that was not waived in the lease,
(2) the T has given a descriptive notice of her intention to repair or remedy the condition, and
(3) either
(i) the condition involves the back up of raw sewage,
(ii) the LL expressly agreed to furnish portable water, and the water service has totally ceased, or
(iii) the LL has been notified that the condition materially affects the T’s health or safety

Question 25

*Judicial Remedies for LL’s Failure to Repair

Answer 25

If the LL does not remedy the condition w/in 7 days, T can obtain:

(i) an order directing the LL to do so;
(ii) an order reducing the T’s rent; and
(iii) j’m for one month’s rent + $500, actual damages, and court costs and atty’s fees

A T who elects to terminate the lease is entitled to:
(i) a pro rata refund of rent from the date of termination or the date T moves out, whichever is later; and
(ii) deduct the T’s security deposit from the rent w/o the necessity of lawsuit or obtain a refund of the security deposit according to law;
but is not entitled to the other repair and deduct remedies or judicial remedies

Question 26

• Security Devices

Answer 26

Residential dwellings must be equipped w/ security devices such as window latches, door locks, and door viewers at the LL’s expense, w/o waiting for the T’s request

LL must, w/in a reasonable time after T’s request, repair or replace security devices that are broken or in need or replacement

T is not required to pay for repair or replacement unless this is caused by damage or misuse during the tenancy

Once installed, security devices become fixtures, which the T cannot alter w/o LL’s permission

Question 27

• Smoke Alarms and Fire Extinguishers

Answer 27

LLs must ensure that every bedroom and every floor of their residential dwelling units contain functioning smoke alarms

LL must determine that each alarm is in good working order at the beginning of tenancy, and must inspect or repair an alarm w/in a reasonable time after T’s request

Same inspect-or-repair rule applies if LL has chosen to install a fire extinguisher on premises

Question 28

Assignments and Subleases

Answer 28

A T may not sublease or assign leased premises w/o first obtaining LL’s consent

Statutory prohibition may be avoided only by a clear expression of such intent

Question 29

Public Use

Answer 29

Public use exception is not recognized in Tx

Issue of liability depends upon who controls the property involved at the time of injury, and not whether it is intended for public use

Exceptions, however, are similar (i.e., duty to disclose concealed dangers, duty of care as to common areas where LL retains possession, and duty to complete agreed-upon repairs w/ care)

Question 30

Furnished Short-Term Lease

Answer 30

There is no special rule for furnished short-term residences in Tx

Question 31

• Security

Answer 31

Generally in Tx, the crim conduct of a 3P is a superseding cause relieving the negligent premises owner or occupier of liability

Exception exists if the crim conduct was reasonably foreseeable result of the owner or occupiers’ negligence

Question 32

Fixtures

Answer 32

In Tx, a LL cannot remove a fixture from a leased premise unless the removal is for bona fide repair or replacement

LL who does so is liable for a civil penalty of one month’s rent plus $1,000

T can also seek actual damages, atty’s fees, and court costs

Question 33

*What must life estates do to avoid permissive waste?

Answer 33

Repair: Life tenant must keep property in repair, but is only responsible for ordinary repairs, not improvements or replacement.

Taxes: Life tenant pays all taxes on the property.

Interest on a Mortgage on the entire property: Life tenant pays any interest on any mortgage that encumbers the entire fee simple. Future interest holder is responsible for paying the principal on the mortgage.

Insurance? Not required.

Limitation on life tenant’s liability: For all three above, life tenant’s obligation is limited to the amount of income received from the land, or, if the life tenant is personally using the property, the reasonable rental value of the land.

Question 34

*Is there a duty to repair for implied warranty of habitability if the tenant breaks the lease?

Answer 34

No, if the premises are uninhabitable because of health or safety reasons, the landlord must fix if the proper procedure is followed (notice by T + not delinquent in rent)

obviously there IWH still must be met for new tenant that moves in

Question 35

• Can landlord change locks when tenant surrenders lease?

Answer 35

Landlord accepts surrender of a property when he releases a tenant from a lease and takes back possession of the property and relets it to a subsequent tenant.

Once landlord accepts tenant’s surrender of the lease, landlord can re-let the property change the locks on the doors.

Question 36

*If a house that has a life tenant and someone with future interests is rented, who gets to keep the rent?

Answer 36

the life tenant gets to keep the rent.

BUT, if there are tenants in common, the rent is split

Question 37

*If a property with mortgage is not properly conveyed to someone (e.g. life estate, fee simple absolute), who must pay the mortgage?

Answer 37

the person who took out the mortgage since the other people did not assume it.

Question 38

*If there are tenants in common what must they do to convey, encumber, covenant, etc.?

Answer 38

they must all consent to the conveyance, encumbrance, etc.

Question 39

*Tenant in common

Answer 39

may sell any amount of her own interest in the property