Leasehhold estates (Landlord/tenant) Flashcards
Usufruct
When a lease is less than 5 years; tenant only has possession and use and ownership remains with the landlord
Estate for years
When a lease is more than 5 years. Tenant is the owner
How is a usufruct created?
- Created by lease agreement between landlord tenant
- Parties can create a usufruct with a longer term by mutual agreement
- Statute of Frauds requires a writing if term exceeds one year
Termination of a Usufruct
- Ends automatically at the term
- Notice of termination is not required
- A tenant may terminate before the end of the term by surrender
- Either party may terminate if the other has breached a material convenant
To terminate a tenancy at will, how many days’ notice is a landlord required to give?
60 days
To terminate a tenancy at will, how many days’ notice is a tenant required to give?
30 days
A landlord’s consent to a tenant remaining on the property converts a tenancy at sufferance to a ___________
tenancy at will
Three duties of tenant:
- Pay rent
- Do not commit waste
- Do not unjustifiably abandon the premises
When is a tenant not required to pay rent?
When the premises is destroyed or the landlord is in material breach of the lease agreement
In the event of unjust abandonment, a landlord may choose to:
- Terminate the lease
- Re-lease the premises; or
- Let the property remain vacant while collecting the agreed rent
T or F: A tenant may not cut down growing trees on the land absent the landlord’s consent
True
T or F: A tenant may not remove permanent fixtures on the land absent the landlord’s consent
True
T or F: A tenant may not use dead timber for firewood absent the landlord’s consent
False
T or F: A tenant may not let cattle graze on the land absent the landlord’s consent
False
When the landlord requires a deposit, what two options do they have?
- Place in an escrow account
- Keep a surety bond with the superior court clerk in the county where the property is located
How long does a landlord have to give the tenant a list of damages when the lease term is over?
Within 3 business days after the tenant vacates. Then the tenant has 5 business days to inspect the premises and dispute any of the claimed damages
T or F: The landlord can keep a deposit for ordinary wear and tear
False
When may a landlord keep a deposit:
- Abandonment
- Failure to pay rent
- Actual damages from the tenant’s breach of the lease agreement
What is a tenant entitled if a landlord retains the deposit as a result of a bona fide error?
The landlord is liable to the tenant only for the amount of the deposit
What is a tenant entitled if a landlord intentionally retains the deposit wrongfully?
The landlord is liable for triple the amount of the deposit, plus attorney’s fees
A tenant can make repairs and seek either:
- Reimbursement; or
- Deduct from the future rent
Elements of Adverse Possession
- Hostile
- Open & Notorious
- Continuous
- Exclusive
Statutory period for adverse possession in Georgia
20 years
Continuous: The period is ____ years when possession is under written evidence of title (i.e. color of title)
Seven
Does payment of taxes, itself, establish adverse possession?
No
What type of hostility does GA require?
Good-faith belief that the adverse possessor actually owned the property
Implied warranty of fitness or suitability
The seller makes an implied warranty of workman-like construction.
Applies in the construction of a new home
As a caveat emptor (buyer beware) state, Georgia generally does not imply a warranty as to the condition of a new home
What defects can a buyer recover in the construction of a home they’ve purchased?
Latent defects (i.e. those defects that would have had no reason to know about, but the seller did know or reasonably could have known)
Liquidated damages
If a buyer breaches the contract, the seller can collect the liquidated damages unless the seller suffered no loss from the breach
The seller of a home cannot connect liquidated damages unless:
- The injury caused by the breach is difficult or impossible to estimate
- The parties intend the damages to be compensatory and not punitive
- The amount of liquidated damages is reasonable
Lien Theory Rule on Mortgages
Generally, in a lien theory state, the borrower is the owner, and the bank has a lien on the property
Exception to the lien theory state rule
If the homeowner grants a security deed instead of a mortgage, the bank owns legal title
- The bank must re-convey the property when the debt is satisfied
- Generally, title reverts back automatically seven years after the debt matures
T or F: Georgia has a statutory right of redemption after a foreclosure sale
False
When can the mortgagee-bank bring a deficiency action?
When the sale is reported to the superior court of the county in which the land is located within 30 days of the sale
Execution of deed (witnesses) general rule
the grantor’s signature on the deed need not be witnesses or notarized
Unless a deed is going to be recorded electronically, you must have either:
- one witness and one legal official (notary public, judge, clerk) OR
- Acknowledgment by the grantor in the presence of a legal official
What is required for personal property to be considered a fixture?
The intent that the tangible personal property remain permanently with the property
Ademption in Georgia
If the decedent exchanged the devised property for property that is similar in it character and use, there is a presumption that the decedent intended for the beneficiary to take the new property
Does a beneficiary who takes property subject to a mortgage, liable to pay the remaining balance?
No, unless the will provides otherwise
