Ownership

Question 1

What is an estate in land?

Answer 1

It is an interest in real property that is presently or may become possessory.

Question 2

What are the three types of ownership?

Answer 2

1. Present
2. Concurrent Ownership
3. Future

Question 3

What are the three types of present (possessory) estates?

Answer 3

1. Fee Simple
2. Life
3. Term

Question 4

What is and what are the three types of Fee Simple estates?

Answer 4

1. Absolute
2. Defeasible
3. Tail

Oklahoma RP Distinction - In Oklahoma, every estate in land that is granted or conveyed by deed is deemed an estate in fee simple, unless limited by express words.

Question 5

What is a fee simple absolute?

Answer 5

It is the largest possible estate in land, denoting the aggregate of all possible rights to that land. Generally, it denotes all of the rights of use and possession to the land for an indefinite duration.

Question 6

How is a fee simple absolute created?

Answer 6

At common law, the words “to A and his heirs” created a fee simple absolute.

Under modern law, a fee simple absolute is generally presumed when the words “to A” are used.

Question 7

What are the defeasible estates?

Answer 7

They are an estate that may terminate before its maximum duration has run, usually by some happening or event.

1. Fee Simple Determinable
2. Fee Simple Subject to a Condition Subsequent
3. Fee Simple Subject to Executory Interest
4. Fee Tail

Question 8

What is a Fee Simple Determinable?

Answer 8

It is an estate that terminates automatically on the happening of a named future event.

Question 9

How is a Fee Simple Determinable created?

Answer 9

It is created by “durational” language. For example, “for so long as”, “while”, “until”, etc.

Question 10

What happens after the named future event for a Fee Simple Determinable?

Answer 10

This estate terminates automatically on the happening of the named future event. It contains the possibility of reverter. It reverts back to the grantor automatically without some affirmative action by grantor.

Question 11

What is a Fee Simple Subject to a Condition Subsequent?

Answer 11

It is an estate that may be terminated by the grantor on the happening of a named future event.

Question 12

How is a Fee Simple Subject to a Condition Subsequent created?

Answer 12

It is created with “conditional” language AND an express reservation of the power of termination. For example, “provided”, “however if”, “but if”, “on condition that”, “in the event of”, “may retake”, “right to reenter”, etc.

Question 13

What happens after the named future event for a Fee Simple Subject to a Condition Subsequent?

Answer 13

This estates creates a power of termination, which gives the grantor the right to retake the estate. It does not automatically terminate the estate. Grantor must take affirmative action to retake.

Question 14

What is a Fee Simple Subject to Executory Interest?

Answer 14

It is an estate that is terminated in favor of a third person on the happening of a named future event.

Question 15

How is a Fee Simple Subject to Executory Interest created?

Answer 15

It can be created by “conditional” or “durational” language, stating that it will pass to a third person, not the grantor.

Question 16

What happens after the named future event for a Fee Simple Subject to Executory Interest?

Answer 16

The estate will automatically terminate and pass to the named third person. This is a possibility of reverter.

Question 17

What is a fee tail?

Answer 17

It is an estate that descends to the grantee’s lineal descendants.

Question 18

How is a fee tail created?

Answer 18

Traditionally, the use of the words “to A and the heirs of his body” create a fee tail.

Modern law disfavors a fee tail. The majority jurisdictions say that a fee simple absolute is created. Some jurisdictions say a life estate is created.

Oklahoma RP Distinction - The fee tail has been abolished by statute in Oklahoma; the grantee of an attempted fee tail conveyance receives a fee simple, and if no valid remainder is limited thereon, a fee simple absolute.

Question 19

What is a Life Estate?

Answer 19

It is an estate that lasts the duration of the grantee’s life.

A life estate pur autre vie is an estate that lasts the duration of another’s life.

Question 20

How is a life estate created?

Answer 20

Language expressing the duration of the estate. For example, “to A for life”, “to A for B’s life”, etc.

Question 21

What are the Duties of a Life Estate?

Answer 21

1. Duty to Repair - A life tenant has a duty to maintain the property in a reasonable state of repair, ordinary wear and tear excepted. This is limited to the income or reasonable rental value of the land.
2. Mortgages - The life tenant has a duty to pay the interest on a mortgage to the extent of profits derived from the property. A tenant for years or periodic does not. Commercial leases do require taxes, mortgage, and specific repairs.
3. Taxes - The life tenant must pay all ordinary taxes, to the extent of profits derived from the property. A tenant for years or periodic does not unless 1. lease is perpetual or has an option, 2. tenant holds without obligation to pay rent.
4. tenant has erected improvements for his own beneift.
5. Special Assessments - The life tenant must pay the full cost of special assessments if the improvement is less than the duration of the life tenant’s estate. Equitable apportionment if longer. A tenant for years/periodic does not.

Question 22

What are the non-freehold estates?

Answer 22

A term estate is an estate that is limited in duration. This is a leasehold estate. This is a landlord-tenant relationship.

Question 23

What are the Future (possessory) Estates?

Answer 23

To the Grantor:

1. Possibility of Reverter
2. Power of Termination
3. Reversion

To a Third Party:

1. Executory Interest
2. Remainder

Question 24

What is a Possibility of Reverter?

Answer 24

This is a future interest in the grantor that follows a determinable estate.

Question 25

How is a Possibility of Reverter created?

Answer 25

It is automatically created in the grantor. No specific, express language is necessary.

Question 26

What happens upon the happening of the event if there is a Possibility of Reverter?

Answer 26

It automatically kicks in and the land goes back to the grantor.

Question 27

What are the rights to a Possibility of Reverter?

Answer 27

At common law, a possibility of reverter is not freely transferable. It could be descended through intestacy or will but not devised or transferred inter vivos.

Under modern law, a possibility of reverter is transferable, devisable, and descendible.

Question 28

What is a power of termination?

Answer 28

A future interest that can be created in the grantor when he attempts to create a fee simple or life estate subject to a condition subsequent.

Question 29

How is a power of termination created?

Answer 29

It is not automatic, and it has to be expressly stated in the conveyance.

Question 30

What happens upon the happening of the event if there is a power of termination?

Answer 30

The property is not automatically reverted to the grantor. He must exercise the right of reentry and something affirmative to retake the property.

Question 31

What are the rights to a power of termination?

Answer 31

At common law, a power of termination could descend through intestacy or will, but could not be devised or transferred inter vivos.

Under modern law, a power of termination is descendible and devisable but many jurisdictions still limit inter vivos transfers.

Question 32

What about Unclear Grants of estates?

Answer 32

If the words of the Grant are not clear:

1. Courts prefer covenant (contractual promise) over a defeasible estate, and
2. A fee simple subject to a condition subsequent is preferred over a fee simple determinable.

Question 33

What is a Reversion?

Answer 33

A reversionary interest is a future interest retained by the grantor when the grantor transfers less than a fee interest to a third person.

Question 34

What are the rights of a reversion?

Answer 34

It is transferable, devisable, and descendible.

At common law, a reversion could not be transferred through inter vivos.

Under modern law, it can.

Question 35

What is a Remainder?

Answer 35

It is a future interest created in a third person which is intended to take after the natural termination of the preceding estate.

Question 36

What is a Contingent Remainder?

Answer 36

A remainder is contingent if:

1. the takers are ascertained, OR
2. the interest is subject to a condition subsequent and, therefore, doe not fall in automatically on the natural termination of the previous estate.

Question 37

What are the rights of a Contingent Remainder?

Answer 37

At common law, a contingent remainder could descend and be devised, but could not be transferred inter vivos.

Under modern law, a contingent remainder is transferable, descendible, and devisable.

Question 38

What is a Vested Remainder?

Answer 38

A remainder is vested at the point that it is:

1. created in an ascertainable person; and
2. not subject to any condition precedent other than the termination of the preceding estate.

Question 39

What are the special types of Vested Remainders?

Answer 39

1. Vested remainder subject to total divestment - Presently vested but may be terminated on the happening of a future event.
2. Vested remainder subject to open (partial divestment) - a remainder that has been made to a class and as at least one member who is ascertainable who has satified any conditions precedent to vesting, but may have other members join the class later.

Question 40

When is a Class Open?

Answer 40

For inter vivos conveyances, a class opens at the time of the conveyance.

For testamentary conveyance, a class opens at the death of the testator.

Question 41

When is a Class Close?

Answer 41

Rule of Convenence - A class closes as soon as one member of the class becomes entitled to immediate possession of the property.

Question 42

What is an Executory Interest?

Answer 42

It is a future interest in a third person that cuts short the previous estate before it would have naturally terminated.

Question 43

What are the two types of executory interest?

Answer 43

Shifting executory interest - It passes from grantee to grantee. Most common.

Springing executory interest - It transfers from grantor to grantee or grantee to grantee.

Question 44

What is the Doctrine of Destructibility of Contingent Remainders?

Answer 44

At common law, a contingent remainder is destroyed by any of the following:

1. if it fails to vest by the natural termination of the prior vested estate,
2. the doctrine of merger, or
3. if the holder of the present possessory estate surrenders his interest before the contingent remainder vests.

Under modern law, there is no doctrine of destructibility of contingent remainders. If the contingent remainder has not vested at the natural termination of the prior vested estate, the contingent remainder will become an executory interest, subject to RAP.

Oklahoma RP Distinction - Oklahoma follows the modern law in this regard.

Question 45

What is Doctrine of Merger?

Answer 45

Merger occurs, and the holder of the present and future interest takes a fee simple absolute, when one party who possesses a present or future interest in the realty obtains all outstanding present and vested estates in that property.

Question 46

What is the Rule in Shelley’s Case?

Answer 46

This is the rule against remainders in grantee’s heirs.

For applicability,

1. A must get a freehold estate,
2. A’s heirs must get a remainder in fee,
3. the same instrument must create both A’s and A’s heirs’ interests, and
4. both estates must be legal or both must be equitable

If the requirements are met:

1. A gets both a life estate and a remainder, and
2. by merger, A gets a fee simple and thus A’s heirs take nothing by virtue of the grant itself.

Oklahoma RP Distinction - Oklahoma has abolished the Rule in Shelley’s Case by statute.

Question 47

What is Doctrine of Worthier Title?

Answer 47

This is the rule against remainders in grantor’s heirs.

For applicability,

1. A must receive an estate less than a fee simple,
2. O’s heirs must receive a remainder,
3. both interests must be created in the same instrument, and
4. both interests must be legal or both must be equitable.

This creates a rebuttable presumption of O creating a reversion.

Under modern law, this only applies to inter vivos transfers only, not to tesatmentary branch of the doctrine.

Oklahoma RP Distinction - Oklahoma follows the modern law in this regard.

Question 48

What is waste?

Answer 48

Anytime a grantee has less than a fee estate, they cannot do harm to the property at the expense of the person who will hold it after them, meaning they cannot commit waste.

Voluntary waste - Voluntary commission of an act that has more than a trivial injurious effect on or change in the property.

Permissive waste - Permitting the premises to fall into disrepair.

Ameliorative waste - An act that increases the value of the premises by permanently altering it. At common law, this was not allowed. Under modern law, it is allowed if:

1. the market value of the interest is not impaired, and
   either: 2. it is permitted by the remainderman, or 3. a substantial and permanent change in the neighborhood has deprived the property of a reasonable current value.

Oklahoma RP Distinction - Under Oklahoma’s Residential Landlord and Tenant Act, the tenant shall: 1. keep the premises safe, clean, and sanitary; 2. dispose of trash in a safe, clean, and sanitary manner; 3. keep all plumbing fixtures clean and sanitary; 4. use in a safe and nondestructive manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances; 5. not deliberately or negligently damage or destroy any part of the premises; 6. not engage in conduct that will disturb the quiet and peaceful enjoyment of the premises by other tenants; 7. comply with all applicable covenants, rules, and regulations; and 8. not engage in criminal activity that threatens the health, safety, or right of peaceful enjoyment of the premises by other tenants or is a danger to the premises.

Question 49

Who may sue for past or future waste?

Answer 49

A vested remainderman can sue for damages or injunction to stop waste from occurring.

A contingent remainderman cannot sue for damages and can only sue for an injunction to stop the waste from occurring.

Question 50

What is the Rule Against Perpetuities?

Answer 50

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

Question 51

Which estates does the RAP apply?

Answer 51

It does not apply to present estates.

It applies to:

1. executory interest;
2. contingent remainder,
3. vested remainder subject to open,
4. purchase option, and
5. right of first refusal.

Question 52

If the RAP wipes out an interest, what happens?

Answer 52

The RAP strikes the specific interest that violates it. Then the conveyance is determined without that interest.

Oklahoma RP Distinction - Oklahoma statutory law decrees that any interest in real property that would violate the RAP shall be reformed, or construed within the limits of the Rule, to give effect to the general intent of the creator of that interest whenever that general intent can be ascertained. Furthermore, if part of an instrument violates the Rule, the provisions that do not offend the Rule will be enforced, and those provisions that do violate, or might violate the Rule will be subject to reformation or construction under the doctrine of cy pres.

Question 53

What is Restraints on Alienation?

Answer 53

It is a condition placed on the ownership of real property that restricts the free conveyance of that property.

Question 54

What rules govern a total restraint?

Answer 54

For fee estates, a total restraint is generally void.

For non-fee estates, a total restrain is only upheld if it is reasonable.

Oklahoma RP Distinction - Oklahoma law forbids the suspension of the absolute power of alienation for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition plus 21 years. One exception is where a contingent remainder in fee is created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of 21 years, or upon any other contingency by which the estate of such persons may be determined before they attain majority.

Question 55

What rules govern a forfeiture restraint?

Answer 55

Forfeiture restraint is valid for life estates and future interest, but are not enforceable for fee simple estates.

Question 56

What rules govern a promissory restraint?

Answer 56

They are valid for life estates and future interests, but are not enforceable for fee simple estates.

Question 57

What rules govern a partial restraint?

Answer 57

They may be enforced, if they are reasonable.

Question 58

What are the Conflicts of Law Related to Real Property?

Answer 58

If a property interest is involved, it must be characterized as either movable or immovable.

If an interest is closely connected with land, it is immovable. If it is not, it is movable.

The law of situs govern all rights in land and other immovables:

1. Validity and effect of a conveyance are governed by the law of the situs.
2. Mortgages, their creation, validity, and foreclosure are governed by the law of the situs.
3. The underlying contract or note is governed by law or the place of its making.
4. Liens are governed by the law of the situs.

Question 59

What is a tenancy in common?

Answer 59

A form of concurrent ownership where each co-tenant owns an undivided interest in the whole of the property with no right of survivorship.

Question 60

How is a tenancy in common created?

Answer 60

Under modern law, it is the presumed form of co-tenancy.

Tenancy in common requires the unity of possession only. The unity of possession is that each tenant in common has the right to possess the whole of the property.

Question 61

How may a tenant in common transfer his interest?

Answer 61

A tenant in common may transfer his interest inter vivos:

1. Voluntarily, or
2. Involuntarily.

A tenant in common may devise his interest or it may be descended through intestacy.

Question 62

What is a joint tenancy?

Answer 62

A Form of concurrent ownership where each co-tenant owns an undivided interest in the whole of the property has a right of survivorship.

Question 63

What is the right of survivorship?

Answer 63

At common law, property that is joint owned and one of the co-tenants dies, the other co-tenant receives the deceased’s interest.

This right takes precedent over a will or inheritance.

Question 64

How is a joint tenancy created?

Answer 64

One must use express words stating that the co-tenants are joint tenants with a right of survivorship.

A joint tenancy must have four unities:

1. Unity of time - acquired at the same time.
2. Unity of title - acquired in the same instrument.
3. Unity of interest - equal shares.
4. Unity of possession - each has the right to possess the whole.

Some jurisdictions do not require the unities of time and title.

Oklahoma RP Distinction - An instrument that expressly incorporates the words “as joint tenants with right of survivorship” or similar language demonstrates the conveying party’s intent, and the effect of such language overcomes statutory or common law presumptions of tenancies in common. Absent express language, a joint tenancy may also be found to exist if the intentions of the grantor may be shown to clearly indicate an intention to create the essential elements of joint ownership and survivorship.

Oklahoma permits the creation of a joint tenancy without the use of a straw man to complete the conveyance.

Question 65

What is a tenancy by the entirety?

Answer 65

A form of concurrent ownership reserved for married couples, which gives each spouse an undivided interest in the whole of the property and a right of survivorship.

Oklahoma RP Distinction - In Oklahoma a tenancy by the entirety may only be held jointly by a married couple. A grantor may elect whether an interest conveyed to a carried couple creates a joint tenancy or a tenancy by the entirety.Fad

Question 66

When is a tenancy by the entirety severed?

Answer 66

It cannot be terminated by a unilateral act:

1. by a joint conveyance of both spouses,
2. by a conveyance of one spouse to the other of the property, or
3. divorce.

Question 67

When is a joint tenancy severed?

Answer 67

It can be terminated by a unilateral act.

A joint tenancy is severed by a voluntary or involuntary conveyance.

A joint tenancy becomes a tenancy in common after severance.

In lien theory states, a mortgage alone does not affect the joint tenancy. In title theory states, a mortgage does sever a joint tenancy.

Oklahoma RP Distinction - Oklahoma is a lien theory state.

Question 68

What is a Partition?

Answer 68

This is a equitable division of the property. Each co-tenant can seek a partition.

Voluntary partition is usually done by exchange of deeds or selling the property and dividing the proceeds.

Involuntary partition is the result of a partition action filed in court.

Question 69

What are the Rights and Duties of Co-Tenants?

Answer 69

1. Each co-tenant has a right to possess the whole property. If denied, there can be a cause of action for damages and ejectment.
2. Profits - If produced by one of the co-tenant’s efforts, then no right to share, unless ouster. If generated by third person on the proper, then all co-tenants are entitled to a proportionate share of that rent.
3. Expenses - Each co-tenant must pay share of taxes, mortgage payments. No duty to repair, but if a co-tenant repairs, they may be permitted to set-off their expenses. No duty to improve, but if a co-tenant does improve, no right to contribution, but if the property is sold, any amount attributable to improvement should go to the tenant who made improvements.

Question 70

What is the approach to a landlord-tenant question?

Answer 70

1. ID the type of tenancy involved.
2. Which of the four basic disputes might be involved: rent, conditions, possession, or improvements.
3. Has landlord or tenant transferred their interest.

Question 71

How is a landlord-tenant relationship created?

Answer 71

A lease can be oral or in writing. A writing is required for a lease term longer than one year.

An implied lease may occur through conduct of the parties.

Question 72

What are the types of leases?

Answer 72

1. Term of years
2. Periodic tenancy
3. Tenancy at will
4. Tenancy at sufferance

Question 73

What is a term of years?

Answer 73

Term of years - A term with a definite beginning and ending. It does not have to be for years, just a fixed term.

Creation - Express agreement. It can be oral unless its duration is longer than a year.

Term - any, it is specified in the agreement

Termination - It terminates automatically at the end of the period. No notice is required to terminate a lease for a term of years.

Question 74

What is a periodic tenancy?

Answer 74

A periodic tenancy has a set beginning and continues from period to period without a set termination date until proper notice is given. It is renewing.

Creation - Express agreement or by implication with a holdover tenant.

Termination - Landlord or tenant must give appropriate notice of intent to terminate. Appropriate notice must be in writing if required by lease or statute or oral, and the notice must be equal to the rental period up to a maximum of six months.

Timing of notice - At common law, notice had to be given at the start of the rental period or it would not be good notice. Under modern law, notice is good whenever it is given but does not take effect until the start of the next rental period.

Oklahoma RP Distinction - Under Oklahoma’s Residential Landlord and Tenant Act, unless the rental agreement fixes a definite term in writing, the tenancy is week-to-week in the case of a boarder who pays weekly rent and in all other cases month-to-month.

Question 75

What is a tenancy at-will?

Answer 75

An at-will lease has no fixed duration and lasts only as long as the landlord and tenant desire.

Creation - Express agreement. There is a way to create by implication if there is an invalid agreement.

Termination - It terminates if either party ides, the tenant commits waste, tenant attempts to assign his interest, landlord transfer his interest, or the landlord transfers the premises to a third party for a term of years.

Question 76

What is a tenancy at sufferance?

Answer 76

A tenancy at sufferance occurs when a tenant remains in possession of the leased premises, or holds over, after the end of the lease term.

A holdover tenant will become a period tenant or a tenant at sufferance. To determine which one, look at the landlord. If the landlord wants the tenant to remain , the holdover tenant becomes a periodic tenant. If the landlord does not want the tenant to remain, the holdover tenant becomes a tenant at sufferance. The crucial factor is whether the landlord accepts rent.

If the holdover tenant becomes a periodic tenant, the majority of jurisdictions will treat the period as the period for which rent is reserved. At common law, the period was the length of the expired lease up to a year.

Question 77

How much rent is a tenancy for years liable for?

Answer 77

A tenant is liable for all of the unpaid rent in the lease.

This claim arises under the contract law of anticipatory repudiation.

The landlord has a duty to mitigate; that is, he must make reasonable efforts to rent the property on behalf of the tenant in order to mitigate the unpaid rent that he will owe.

Question 78

How much rent is periodic tenant liable for?

Answer 78

Whatever the rental obligation is up until notice is given to terminate the lease.

Question 79

How much rent is a tenant at-will liable for?

Answer 79

Whatever the rent that is fixed in the agreement that is already owed, usually it is not money that is owed with this type of tenancy.

Question 80

How much rent is a tenant at sufferance liable for?

Answer 80

Reasonable rental value of the property.

If classified as a periodic tenant, then he will be liable for the rent in the expired lease.

Question 81

What are the tenant’s defenses to having to pay rent?

Answer 81

1. Landlord fails to deliver possession
2. Tenant has been evicted
3. Tenant surrenders the premises
4. The premises are destroyed

Question 82

What are the rules governing Landlord’s obligation to deliver possession.

Answer 82

English Rule (majority) - Landlord must deliver actual possession.

American Rule (minority) - Landlord only has to deliver the legal right to possession, not actual possession.

Question 83

What are the rules governing when a Tenant is evicted?

Answer 83

Actual eviction - The Landlord or agent of the landlord has physically removed or prevented the tenant from all or part of the property. A partial, actual eviction excuses the tenant from paying any rent.

Constructive eviction - The landlord has allowed the premises to deteriorate to the point that the tenant is essentially being forced out. Additionally, the tenant must move out within a reasonable time following substantial interference. If the constructive eviction occurs by a third party, then the landlord must know or should have known that the third party’s interference.

A total constructive eviction, there is the defense to the payment of rent.

A partial constructive eviction, there is only an abatement of the payment of rent.

Oklahoma RP Distinction - Under Oklahoma’s Residential Landlord and Tenant Act, if the dwelling unit is damaged or destroyed not by the fault of the tenant, the tenant may:

1. vacate the premises and notify the landlord in writing within one week thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or
2. if continued occupancy is possible, vacate any part of the dwelling unit rendered unusable, in which case the tenant’s liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.

Question 84

What rules govern the Surrender by the Tenant?

Answer 84

For this to be a defense, the landlord has to accept the surrender and retake possession of the premises. Additionally, the landlord must mitigate damages by finding a new tenant.

Question 85

What rules govern the Destruction of the premises?

Answer 85

At common law, destruction of the leased premises generally did not excuse payment.

Under modern law, destruction will be defense to payment of rent unless the tenant intentionally or negligently causes the destruction.

Question 86

What will allow a tenant to offset the duty to pay rent?

Answer 86

The Warranty of Habitability. Under modern law, the landlord is deemed to have impliedly warranted that the residential premises are fit for habitation, and guarantees that the landlord will deliver and maintain premises that are safe, clean, and fit for human habitation.

The tenant moving out for a violation of the warranty of habitability could be viewed as a constructive eviction.

If there is a violation but the tenant is not forced to move out, the tenant must notify the landlord and give the landlord a reasonable period of time to fix it. If it is not done, the tenant may do what is necessary and offset the cost the repairs against the rent.

To prove a breach of implied warranty of habitability, the tenant must: 1. provide landlord with notice, and 2. allow landlord reasonable time to repair it.

Oklahoma’s RP Distinction - A general duty of care is imposed upon landlords to maintain the leased premises, including areas under the tenant’s exclusive control or use, in a reasonably safe condition. This includes a landlord’s duty to make all repairs and do whatever is necessary to put and keep the tenant’s dwelling unit and premises in a fit and habitable condition.

Question 87

What are some other defenses to having to pay rent?

Answer 87

The usual contract defenses apply, such as impossibility, impracticability, and frustration. Or the violation of quiet use and enjoyment of the property.

Question 88

What is the Covenant of Quiet Enjoyment?

Answer 88

Every lease contains this. The landlord promises that the tenant will not be disturbed by the landlord or agent thereof, during his possession of the premises. See Actual and Constructive Eviction.

Question 89

What are the obligations to maintain the condition of the premises?

Answer 89

Landlord’s Obligations:

At common law, absent an express promise in the lease, the landlord had no obligation to maintain or repair the leased premises.

Under modern law, the landlord must adhere to the implied warranty of habitability.

There are other tort/negligence issues that can arise.

Tenant’s Obligations:

At common law, absent an express promise in the lease, the tenant had no obligation to maintain or repair the leased premises.

The tenant has a duty to avoid waste. This includes voluntary, permissive (duty to repair), and ameliorative waste.

Question 90

What are security deposits?

Answer 90

There are three types:
1. A true security deposit - Tenant deposits a sum against any default or damages; otherwise it must be returned.

2. a deposit to be forfeited in the event of default.
3. a deposit denominated as advance rent for the last period of the lease.

Oklahoma RP Distinction - Under Oklahoma’s Residential Landlord and Tenant Act, a landlord requiring a security deposit must place it in an escrow account used only for that purpose. Misappropriation of such funds may be punishable by a jail term of up to six months and a fine of up to twice the amount misappropriated.

Question 91

What rules govern a Fight over Possession?

Answer 91

The tenant has the possessory right to the property.

A landlord may only retake the property if the tenant has committed a material breach of the lease.

At common law, landlords were entitled to use reasonable force to retake possession.

Under modern law, reasonable force is no longer allowed, and landlords must resort to legal (judicial) process. Generally, the landlord must give notice to the tenant to either cure or vacate. And a hearing will likely be held.

Retaliatory evictions are not upheld.

Question 92

What rules govern a dispute over improvements?

Answer 92

At common law, anything that was affixed to the land became part of the land and must stay. A trade fixture is any item used in the course of the tenant’s trade or business. It could be removed unless removal would cause substantial damage to the property.

Under modern law, there is no distinction between fixtures and trade fixtures. Today, the tenant is entitled to remove the fixture before leaving the premises unless removal would leave the premises in substantially the same condition.

The fixture must be removed before the expiration of the lease unless the tenant did not know of when the tenancy would be terminated. In that case, a tenant will have a reasonable amount of time.

Generally, there is a presumption that structural changes cannot be removed.

Question 93

What happens if a landlord transfers his interest?

Answer 93

A landlord can transfer his interest at any time. Whoever is the landlord of record on the date rent is due is entitled to that rent.

Question 94

What happens if a tenant transfers his interest?

Answer 94

There are two transfers that can occur:

1. An assignment is a transfer of all rights, title, and interest to a new party.
2. A sublease is a transfer of less than all rights, title, and interest to a new party.

Question 95

What is the liability of the parties under an assignment and sublease?

Answer 95

In an assignment, the assignee comes into privity of estate with the landlord, while the tenant remains in privity of contract with the landlord.

Tenant is still liable for rent unless there is a novation. The assignee is also liable for rent unless he further assigns his interest to another.

In a sublease, the sublessee comes into privity of estate and privity of contract with the tenant.

Tenant is still liable for rent, while the sublessee is only liable to the tenant for rent.

For a landlord to enforce against a new tenant, they must be in vertical privity. An assignee is in privity of estate with the landlord, but not with a sublessee.

Question 96

What rules govern the transfer of interest in leases?

Answer 96

Interests under a lease are fully and freely transferable.

A prohibition will be narrowly construed. Therefore, a prohibition must specifically state that both an assignment and sublease are prohibited. If consent is required, the landlord must act reasonably and in good faith.

Question 97

What is the Rule in Dumper’s Case?

Answer 97

If there is an express prohibition against an assignment in a lease, and the landlord either expressly or impliedly waives tat restriction, once waived it is deemed waived for the remainder of the lease except if specifically stated otherwise.

Question 98

What happens if a tenant abandons the leased premises?

Answer 98

At common law, if a tenant abandons the property, the landlord has no duty to mitigate by attempting to relet the premises.

Under modern law, a landlord has a duty to mitigate.

Oklahoma RP Distinction - Under Oklahoma’s Residential Landlord and Tenant Act, if the tenant wrongfully abandons the dwelling unit during the term of the tenancy, the landlord shall make reasonable efforts to re-rent the dwelling unit. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the rental agreement terminates as of the commencement date of the new tenancy. If reasonable efforts to re-rent the dwelling unit are unsuccessful, the tenant is liable for the rent for the remainder of the term.

Question 99

What are the Tenant’s Remedies for Landlord’s Breach of Duty?

Answer 99

A tenant may seek money damages for the landlord’s breach of the lease. Statutes in many jurisdictions provide the tenant with the following statutory remedies:

1. withholding rent; or
2. repairing the premises and deducting the cost of repair from subsequent rent payments.

Oklahoma RP Distinction - Under Oklahoma’s Residential Landlord and Tenant Act, if there is material noncompliance by the landlord with the terms of the rental agreement or a noncompliance which materially affects health or safety, the tenant may notify the landlord that if the breach is not remedied within 14 days, the rental agreement will terminate not less than 30 days after receipt of the notice.