Modules 1-11 Flashcards
1
Q
JTWROS
A
alienable inter vivos; not descendible or devisable
2
Q
4 unities of JTWROS
A
- Time - created at the same time
- Title - conveyed by the same title
- Identical - tenants have identical interests
- Possession - both tenants have right to possess the whole
3
Q
Severance of JTWROS
A
SAP (sale and partition)
can sell during lifetime
3 types of partition
1. voluntary agreement
2. partition in kind - physical division of the property
3. forced sale - land is sold and sale proceeds are divided proportionately
4
Q
transactions that do not result in severance of joint tenancy
A
Mortgages, effect of one joint tenant murdering another (forms tenancy in common), testamentary disposition has no effect (will does not work)
5
Q
lien theory (majority)
A
lien on title does not sever joint tenancy; severance only occurs if the mortgage is foreclosed and the property is sold
6
Q
title theory (minority)
A
severs joint tenancy; giving creditor lien on one’s share is the equivalent of transferring title to that creditor
7
Q
tenancy by the entirety
A
created only between marital partners; creditors of one spouse cannot touch the tenancy; one spouse acting alone cannot defeat the right of survivorship by unilaterally conveying to a third party
sever by divorce, mutual agreement, or execution of joint creditor of BOTH spouses
8
Q
tenancy by the entirety and divorce
A
becomes tenancy in common
9
Q
tenancy in common
A
no right of survivorship; each co-tenant owns individual part and each haas a right to possess the whole; interest is devisable, descendible, and alienable
10
Q
one co-tenant cannot exclude other co-tenants until what?
A
they have committed ouster
11
Q
rents and profits of co-tenant in exclusive possession
A
dont need to share profits with non-possession co-tenants absent ouster or agreement to contrary
co-tenant who leases property to third party must share profits to the percentage of each co-tenant’s ownership interest
12
Q
repairs of property by co-tenants
A
entitled to reimbursement for reasonable, necessary repairs if they have notified other co-tenants about it
13
Q
Does a co-tenant have entitlement to contribution for improvements?
A
NO
14
Q
Co-tenants cannot commit _____________.
A
waste
15
Q
voluntary waste
A
willful destruction
16
Q
permissive waste
A
neglect
17
Q
ameliorative waste/affirmative waste
A
unilateral change that increases the value; co-tenants must be reimbursed if there was sentimental value that was destroyed and it can be quantified
18
Q
tenancy for years - “I can see your end date”
A
fixed, determined period of time; ends automatically act its termination date
19
Q
termination of tenancy for years upon breach of lease covenant
A
landlord reserves the right of entry, which allows them to terminate the lease if the tenant breaks any lease covenants
20
Q
tenant’s duty to repair if the lease is silent
A
- maintain premises
- make routine repairs
- no ordinary wear and tear repairs
21
Q
periodic tenancy - “the lease goes on and on and on and on”
A
continues for successive intervals until either the landlord or the tenant gives proper notice of termination
22
Q
creation of periodic tenancy
A
can be express or implied (no mention of duration, but payments made on monthly basis)
23
Q
termination of periodic tenancy
A
notice (usually written) must be given; at least equal to the length of the period itself, unless otherwise agreed
24
Q
notice required for month-to-month lease
A
1 month
25
notice required for week-to-week lease
1 week
26
notice required fro year-to-year or greater
6 months at common law; 1 month under restatement
27
tenancy at will - "as long as you love (lease) me"
no fixed period or duration; terminates at the will of either the landlord or the tenant
"to T for was long was L or T desires"
28
creation of tenancy at will
must be created by express agreement; payment of regular rent will cause a court to treat the tenancy asa an implied periodic tenancy
29
tenancy at sufferance - "you say you wont let go"
created when tenant wrongfully holds over; remains in possession past the expiration of the lease
30
termination of tenancy at sufferance
only until the landlord either evicts the tenant or elects to hold the tenant to a new lease; no notice required
31
holdover tenancy retains character of ________________ based on previous payments
original lease agreement
32
exceptions to holdover doctrine
1. tenant remains in possession only a few hours after the termination or leaves a few articles of personal property
2. the delay is not the tenant's fault
33
options to purchase
separate k supported by consideration; contained within the lease itself, consideration for the lease supports the option
34
exercise of option
lasts as long as the lease; party granting the option may keep the consideration regardless of whether the option is exercised
35
If a ____________ title holder takes possession of an unused barn on leased premises, the tenant must still pay rent if farm equipment is stored in the barn
paramount title holder; if landlord breached covenant of quiet enjoyment, tenant would not have to pay rent at all
36
majority view of destruction of premises
tenant not liable if it was not their fault
37
landlord must not engage in self-help
cannot change the locks, forcibly remove the tenant, or remove any of the tenant's belongings
38
tenant breaches covenant w/time still left on lease, but is out of possession - SIR
1. surrender - tenant's words/conduct indicate that they no longer wish to have the lease
2. ignore the abandonment - hold the tenant responsible for unpaid rent until natural end of the lease as if tenant was still there
3. re-let the premises - must do to mitigate damages
39
condemnation of leaseholds
if entire leasehold is taken by eminent domain, the tenant's liability for rend is extinguished; lessee entitled to compensation
if taking is temporary/partial, tenant is not discharged but is entitled to compensation
40
majority rule of landlords duty to deliver possession
actual physical possession of the premises at the beginning of the leasehold term; holdover = lease breached and tenant gets damages
41
implied covenant of quiet enjoyment
arises by implication in every residential and commercial lease; tenant has a right to quiet use and enjoyment of the premises without interference from the landlord or paramount title holder
42
actual eviction
landlord, paramount title holder, or hold-over excludes the tenant from the entire premises; terminates the tenant's duty to pay rent
43
partial eviction
tenant is physically excluded from only part of the leased premises; if by landlord, relieves tenant of the duty to pay rent for the ENTIRE premises
44
constructive eviction
landlord's breach of duty renders the premises unsuitable for occupancy
SING
1. substantial interference;
2. landlord was on notice; and
3. (goodbye) - tenant vacated
45
acts of other tenants as constructive eviction
landlord must:
1. abate a nuisance on site; and
2. control common areas
46
implied warranty of habitability
residential leases only; nonwaivable
premises must be fit for basic human habitation (bare living requirements must be met)
47
tenants entitlements when implied warranty of habitability is breached (MR3)
1. move out and terminate
2. repair and deduct
3. reduce rent or withhold all
4. remain in possession, pay full rent, and affirmatively seek money damages
48
retaliatory eviction
landlord may not terminate a lease or otherwise penalize a tenant in retaliation for a tenant's exercise of their legal rights
most statutes presume retaliation if landlord acts within 90-180 days of tenant exercising their rights; landlord can overcome by showing valid, nonretailitory reason for their actions
49
Civil Rights Act
bars racial or ethnic discrimination in the sale or rental of all property
50
Fair Housing Act
protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status
51
FHA does not apply to...
1. owner-occupied buildings with FOUR OR FEWER units in which persons live INDEPENDENTLY of each other; and
2. single-family homes sold or rented by an owner who owns NO MORE THAN THREE single-family homes
52
prohibited actions under FHA
1. refusing to negotiate, rent, or sell housing or make available a mortgage loan or other financial assistance
2. providing different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assistance
3. falsely representing that a dwelling is not available for inspection, sale, or rental
53
reasonable accommodations for disabled people
landlord must allow upon request at tenant's expense
54
assignment of leasehold
transfer of the entire remaining term of a lease
55
sublease of leasehold
part transfer of the remaining term of the lease; tenant has retained some part of the remaining term, other than the right to reenter upon breach
56
privity of estate and assignment
assignee stands in the shoes of the original tenant in a direct relationship with the landlord (privity of estate); assignee and landlord are liable to each other for all covenants of the lease that run with the land
57
privity of contract and assignment
original tenant is still on the hook b/c of the contract that they signed; still liable on original contractual obligations, such as to pay rent
58
example of assignment
1 year into 5 year lease, T transfers his interest to "T2 for 4 years, however, if T2 breaches original lease terms, T may reenter and take premises"
59
Who does subleasee pay rent to?
usually to the original tenant, who then pays the landlord
60
relationship between subleasee and landlord
NEITHER privity of estate nor contract; T2 is responsible for T1, and vice versa
subleasee is not personally liable to the landlord for rent or for the performance of any of the covenants in the painless unless the subleasee EXPRESSLY AGREES to it
61
rights of subleasee
cannot enforce any covenants made by landlord in mail ease; might be able to enforce covenant of habitability against landlord
62
covenants against assignment or sublease
landlord can prohibit without the landlord's prior written approval; once landlord consents to one transfer by a tenant, landlord waives the right to object to future transfers by that tenant UNLESS the landlord expressly reserves themselves the right to do so
63
T/F - a covenant prohibiting an assignment also prohibits subleases
FALSE
64
assignments by landlords
tenant's consent is not required; landlords can generally do this
65
liabilities of assignee to tenants
burden of landlord's covenants that touch and concern the land run with the landlord's estate to the assignee; original landlord ALSO REMAINS LIABLE for all covenants they made in the lease
66
common law of caveat lessee
"let the tenant beware"; landlord was under no duty to make the premises safe
67
exceptions to caveat lessee - CLAPS
1. Common areas
2. Latent defects
3. Assumption of repairs
4. Pubic use rule
5. Short-term lease of furnished dwelling
68
common areas
landlord has duty of reasonable care in maintaining all common areas
69
latent defects
landlord must warn a tenant of hidden defects that tenant couldnt discover by reasonable inspection when landlord has knowledge or reason to know
NO DUTY TO REPAIR
70
assumption of repairs
once landlord makes repairs or undertakes the duty to make repairs, the landlord must complete them with reasonable care
71
public use rule
leases public space; landlord should know b/c of the significant nature of the defect and the short length of the lease that tenant WILL NOT REPAIR; landlord liable for defects on premises that cause injury to members of the general public
72
short-term lease of furnished dwelling
responsible for any defective condition which proximately injures the tenant, whether they know it or not
tenant does not have time/resources/experience to make repairs themselves
73
Modern Trend - Duty of Reasonable Care
landlord owes a general duty of reasonable care towards residential tenants, and will be held liable for injuries in tort resulting from ORDINARY NEGLIGENCE if the landlord HAD NOTICE of a defect and an opportunity to fix it
74
Modern trend - defects arising AFTER tenant takes possession
landlord is generally held to have notice of defects existing before tenant took possession, BUT NOT AFTER unless the landlord knew or should have known about it
75
modern trend - legal duty to repair
if landlord has statutory duty to repair, they are liable in tort for injuries resulting from landlord's failure to repair or negligence in making repairs
76
modern trend - security
some courts hold landlords liable for injuries arising from criminal acts of third parties that occur on the premises
77
item is a fixture if...
1. incorporated into the realty so that they lose their identity
2. removal would cause considerable damage to realty
plumbing, heating ducts, furnace
78
common ownership and fixtures
person who brings the chattel to the land owns both the chattel and the land; item is a fixture if the party who made the annexation objectively intended to make the item a part of the reality
1. nature of the article
2. nature of attachment
3. amount of damage caused by removal
4. adaptation of the item to the use of the realty
79
divided ownership
chattel is owned and brought to the realty by someone other than the landowner; accession describes the annex's intent to make the chattel a permanent part of the real estate
80
divided ownership - landlord/tenant
agreement - controls on whether an annexed chattel is a fixture
no agreement - tenant is deemed to lack intent to permanently improve the property; may remove if no substantial damage caused by removal (tenant responsible for fixing damaged caused)
81
divided ownership - life tenant and remainderman
same rules as landlord/tenant; life tenant's representative may remove annexations within a reasonable time after the life tenant's death
82
divided ownership - licensee or trespasser and landowner
licensees are treated like tenants; trespassers normally lose their annexations
adverse possessor or good-faith trespasser cannot remove fixtures
some courts allow good-faith trespasser recovery managed by value added to the land
83
easement
grant of non-possessory property interest that entitles its holder to some form of use or enjoyment of another's land; presumed to be of perpetual duration unless the grant specifically limits the interest
84
affirmative easements - PING
1. Prescription (use that is continuous, open and notorious, actual, and hostile for statutory period)
2. Implication (implied from prior use at the time land is severed)
3. Necessity (division of tract deprives one lot of means of access)
4. Grant (writing signed by grantor)
85
affirmative easements
the right to go onto and do something on servient land; land that is imposed upon by easement
86
negative easements - LASS
1. Light
2. Air
3. Support
4. Streamwater
87
negative easements
entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible; created expressly in a signed writing, signed by grantor
88
easement appurtenant (affirmative)
benefits its holder in his physical use and enjoyment of his own land
transferred automatically with dominant estate
2 PARCELS OF LAND - DOMINANT (derives benefit) AND SERVIENT (derives burden)
89
easement in gross (affirmative)
confers upon is holder only some personal or pecuniary advantage that is NOT RELATED to their use or enjoyment of the land; no benefit to the dominant estate
not transferable unless it is for COMMERCIAL PURPOSES
1 PARCEL OF LAND (SERVIENT ESTATE BURDENED)
90
scope of easement
determined by terms of the grant/conditions made; if an easement is created but not specifically located on the servient tenement, an easement of sufficient width, height, and direction for the intended use will be implied
91
if the scope of an easement is exceeded, what happens
the easement is SURCHARGED
92
termination of easements - END CRAMP
1. estoppel
2. necessity
3. destruction
4. condemnation
5. release
6. abandonment
7. merger
8. prescription
93
termination of easement - estoppel
oral expression of intent to abandon wont terminate unless it is also IN WRITING or accompanied by some action
if servient owner MATERIALLY CHANGES POSITION in REASONABLE RELIANCE on the easement holder's assurances or representations, the easement TERMINATES through estoppel
94
termination of easement - necessity
expires as soon as the necessity ends UNLESS the easement was reduced to an express grant (in writing)
95
termination of easement - destruction
terminates if not caused by the servient owner
96
termination of easement - condemnation
terminates easement
97
termination of easement - release
given by easement holder to servient landowner must be in writing to terminate
98
termination of easement - abandonment
must show by physical action that there is an intent to never use then easement again
99
termination of easement - prescription
same elements of adverse possession (COAH)
100
license
mere privilege to enter another's land for some delineated purpose; revocable at will of licensor, personal to licensee (inalienable)
not subject to SOF, so writing is not needed
estoppel can bar revocation as well as if the license is coupled with an interest (irrevocable for as long as the interest lasts)
101
profit
entitles its holder to enter the servient estate and take resources
all of the rules governing creation, alienability, and termination of easements is applicable to profits
can be extinguished through surcharge (misuse that overly burdens the servient estate)
102
restrictive covenants
contractual limitation or promise regarding land
102
negative covenants
promise to refrain from doing something that relates to the land
ex. "No pets"
103
affirmative covenants
promise to do something related to the land
ex. maintain land
104
covenant vs. equitable servitude
if plaintiff wants money damages = COVENANT
if plaintiff wants injunction = EQUITABLE SERVITUDE
105
covenants running with the land?
1. Does the burden of A's promise to B run from A to A-1?
2. Does the benefit of A's promise run from B to B-1?
requirements: (1) WITHN (burden) [writing, intent, touch and concern, horizontal AND vertical privity, notice]; (2)WITV (benefit) [writing, intent, touch and concern, vertical privity]
106
horizontal privity
nexus between the original parties (A and B); requires that they be in succession of estate (grantor-grantee or landlord-tenant or mortgagor-mortgagee) when covenant was created
must have had some shared interest in the property when covenant created
107
vertical privity
nexus between successor in interest (A-1) and the originally covenanting party (A); requires some non-hostile nexus, such as a contract, devise, or descent
the only time this will be absent is if the successor acquired their interest through AP
108
what happens when horizontal privity is lacking?
Promisee B's successor (B-1) can enforce the covenant against the original promisor (A), but not against the promisor's successor (A-1); benefit will run, but not the burden
109
termination of covenant
1. written release
2. merger of the benefitted and burdened estates
3. condemnation of the burdened property
110
equitable servitude
promise that equity will enforce against successors of the burdened land REGARDLESS of whether it runs with he land at law, unless the purchaser is a BFP; promise to not seek money damages
111
what is a bona fide purchaser
subsequent purchaser for value without notice of the covenant
112
creation of equitable servitude - WITNES
1. writing
2. intent
3. touch and concern
4. notice (actual, inquiry, record notice)
5. ES - equitable servitude
113
No _______________ is required for an equitable servitude to be enforceable by and against assignees.
privity of estate
114
implied equitable servitude - common scheme doctrine
1. when sales began, subdivider had general scheme of residential development which included defendant's lot; and
2. defendant lot-holder had notice of the promise contained in those prior deeds when it took (AIR [actual, inquiry, record])
115
equitable defenses to enforcement of equitable servitudes
1. neighborhood conditions have changed
2. unclean hands
3. benefitted party acquiesced in violation of the servitude
4. benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned/waived (estoppel)
5. benefitted party fails to bring suit against the violator within a reasonable time (laches)
116
termination of equitable servitude
1. written release from benefit holder
2. merger of benefitted and burdened estates
3. condemnation of the burdened property
117
land sale contracts - inaccurate descriptions of land on deed (example)
B enters into k to purchase farm. K recites that the farm is 100 acres. When B has a survey done on the land, B learns that the farm is actually 98 acres. What is B's remedy?
Specific performance with pro rata reduction in price
118
Doctrine of Part Performance - exception to SOF and land sale contracts
allows buyer to enforce oral real estate k by specific performance if:
1. oral k is certain and clear; and
2. acts of partial performance clearly prove the existence of the contract
AND --> 2 of the following 3 things
1. part or full payment
2. buyer takes possession
3. buyer makes substantial improvements
119
Doctrine of Equitable Conversion - land sale k
once k is signed, equity regards the buyer as the owner of the real property (buyer has equitable title)
if destroyed by neither party's fault, risk of loss is on buyer unless k says otherwise
120
2 promises implied in EVERY land sale k
1. seller will provide marketable title (no defects in record chain of title [AP], encumbrances [mortgages, liens], zoning violations)
2. seller will not make false statements of material fact (failure to disclose)
121
failure to disclose
1. seller must know or have reason to know of defect to premises or title
2. seller must realize that the buyer is unlikely to discover defect
3. defect must be serious enough that buyer would probably reconsider purchasing
122
when must title be marketable?
on the day of closing
123
remedies for unmarketable title
buyer must notify seller and give seller reasonable time to fix it
if seller fails, buyer can rescind the k, damages, SP with abatement, quiet title
but if the closing occurs, seller's liability on implied contractual covenant disappears
124
exceptions to no implied warranty of habitability/of fitness
1. New home construction
2. negligence of builder
125
tender of performance of land sale k
buyer's obligation to pay and seller's obligation to convey are concurrent conditions
neither party is in breach until one of the parties fails to perform
if neither party performs, closing date is extended until one of them performs
126
party's tender excused for land sale k
excused if other party has repudiated or performance is impossible (unmarketable title that cannot be cured)
127
remedies for breach of land sale k
nonbreaching party - damages (difference between k price and FMV on date of breach, plus incidentals); if land is unique, specific performance
128
liquidated damages for breach of land sale k
if k requires buyer to deposit earnest money and buyer defaults, seller may retain the money as liquidated damages
