Other MEE Rules Flashcards
Constructive eviction
When a landlord substantially interferes with the tenant’s use and enjoyment of the property by breaching a duty to the tenant, the tenant’s obligation to pay rent may be excused under the theory of constructive eviction. In order to end a lease before the end of its term by constructive eviction:
(i) the landlord must have breached a duty, causing the loss of the substantial use and enjoyment of the premises
(ii) the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and
(iii) the tenant must vacate the property within a reasonable period of time.
Not every interference with the use and enjoyment of the premises amounts to a constructive eviction. Temporary or de minimis acts generally do not amount to constructive eviction.
Covenant of quiet enjoyment (landlord-tenant)
The covenant of quiet enjoyment is breached when the landlord, someone claiming through the landlord, or someone with superior title disrupts the possession of the tenant.
Landlord’s duty to make repairs
Residential: The majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant.
Commercial: In contrast, courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability does not apply in commercial leases.
Termination of a lease
Termination of a lease occurs automatically upon the expiration of the term. Termination may also occur before the expiration of the term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold. When a tenant abandons the leasehold without justification, the landlord may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises.
Damages for breach of covenant against encumbrances
A breach of the covenant against encumbrances occurs when a property is encumbered by a mortgage, lease, easement, or covenant not specified in the deed. In most states, a breach occurs even if the grantee is aware of the encumbrance. However, some states do not recognize a breach if the grantee had knowledge of the encumbrance, if it was visible, or if it benefitted the land. A buyer can recover for breach of the covenant against encumbrances the lesser of the difference in value between title with and without the defect, or the cost of removing the encumbrance.
Easements: enforceability against BFPs
An easement is in gross if it was granted to benefit a particular person (as opposed to the land). An express easement by grant arises when it is affirmatively created by the parties in a writing that satisfies the requirements for a deed. If a written easement is granted but not recorded against the servient estate, then the easement is not enforceable against a bona fide purchaser (i.e., purchaser with no notice of the easement). Otherwise, the burden of an easement in gross is transferred automatically with the transfer of the servient estate.
Implied easement by implication
If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment (as distinguished from an easement by necessity, which requires strict necessity).
Tenancy in common
A tenancy in common exists when two or more co-owners have an equal right to possess property, but do not have a right of survivorship. In that case, each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest. Each tenant can unilaterally transfer, devise, mortgage, or lease his interest to a third party, without affecting the interest of the other tenants.
Duties of co-tenants
A co-tenant must account to other co-tenants for rent received from third parties, but can deduct operating expenses, including necessary repairs, when calculating net proceeds. Third-party rents are divided based on the ownership interest of each tenant.
What happens to a lease granted by a joint tenant when the joint tenant dies?
At death, a joint tenant’s property passes automatically to the remaining joint tenants due to the right of survivorship.
When the joint tenant who leased his interest dies, the lease would terminate and the remaining property would pass automatically to the other joint tenant.
