Property Flashcards
Tenancy for years
Leasehold estate for a fixed period of time, which automatically terms at the end of the lease period. A lease longer than a year requires a writing per the SOF
Assignment
assignments occur when a Tenant transfers all of their remaining interests to a 3rd party.
Leases are freely assignable unless specified impermissible in the lease agreement.
A I waives that right to enforce the provision prohibiting assignment if they accept rent from assignee
Assignee is liable to the I for rent and all other covenants that run with the land.
Assignor also remains liable based on privity of K.
Assignment clauses
Clauses are valid but narrowly construed against I if they know of and dont object, they effectively waive the clause
Real Covenant def
a nonpossesory interest in a land that obligates the holder to either do something or refrain from doing something on the land. Breach of this is money damages
To enforce the benefit of a RC
Requires
1) writing that satisfies the SOF
2) intent for the covenant to run
3) VP
4) covenant must touch and concern the land
To enforce the burden of a RC
Requires
1) writing that satisfies the SOF
2) intent for the covenant to run
3) VP
4) covenant must touch and concern the land
5) HP
6) notice
Notice to enforce the burden of a RC can be
Actual, Inquiry (revealed during inspection) or Constructive (as evidenced via proper recording).
Equitable servitudes
covenant enforced by injunction. Enforcement of the benefit requires 1) a writing; 2) intent; and 3) it must touch and concern the land. To enforce a burden, you require all of the above plus notice.
Easement
is a non-possessory interest (dominant) in land, for the use of someone else’s land (servient), which must be in writing to satisfy the statute of frauds. An easement is either in gross or appurtenant. Easements pass to subsequent owners as long as the new owner has notice.
Gross easements
benefit a specific owner’s enjoyment and use of the land, but they are not attached to the land.
Appurtenant Easement
easements benefit any owner’s enjoyment and use of the land and do attach to the land.
To create an easement what are the 4 ways?
1) express grant; 2) prescription; 3) implication; or 4) necessity.
Express grant (Easement)
express grant when it is in writing, signed by the grantor, identifies the land and parties involved, and indicates intent to convey. This writing must comply with the statute of frauds.
Easement by Prescription
created in a similar manner as an adverse possession (less exclusivity), where the possessor’s use is open and notorious, continuous, hostile, and for the duration of the statutory period.
Easement by Implication
created when a single tract of land is divided and the previous owner established use, the easement was intended to be permanent, the use affects the value of the land and is reasonably necessary for the new owner’s use and enjoyment of the land.
Easement by necessity
An easement by necessity is created when a single owner subdivides their property and the access the easement provides is essential to the use of the property.
Termination of an easement (END CRAMPS)
Estoppel
Necessity Ends
Destruction
Condemnation
Release
Abandonment
Merger
Prescription - servitude owner continuous interruperation for the use of the prescription period
Stated conditions terminate the easement
Transfer of an easement
An easement appurtenant is transferred with the land to which it relates. The burden and benefit convey as well, but subject to the recording statute.
Touch and concern means
it makes the land more useful or valuable
Restraint on alienation
When a grantor attempts to forbid the sale of land that is being conveyed. Generally, a restraint is void, and the line item will be struck from the conveyance.
Marketable tile
Implied in every land sales contract is an implied warranty that at closing the seller will give the buyer marketable title that is reasonably free of defects regardless of the type of deed contemplated in the contract. It need not be perfect, but it should be free from unreasonable risks of litigation involving the property.
Purchasers have a duty to
report defects
Marketability challenges as it relates to unmarketable title must be made
before deed transfer, otherwise they will merge into the deed.
Tenants in common
concurrent estate held with no right to survivorship. Tenants can hold different interests in the property, but each is entitled to possession of the whole. Interests are alienable, devisable and inheritable.
CO-tenancy repairs
Each co-tenant is responsible for their fair share of carrying costs (taxes, mortgage interest payments) based upon the undivided share that they hold. A co-tenant that makes repairs is entitled to contribution for reasonable and necessary repairs repairs provided they notified the others of the need.
Contribution for taxes paid
A co-tenant who pays more than his share of necessary property related expenses (e.g., property taxes, mortgage payments), generally can compel the other co-tenants to contribute based on the ownership interest of each co-tenant. However, a co-tenant in sole possession of the property can collect only to the extent that those expenses exceed the rental value of the property.
Sharing of rental fees by co-tenants
co-tenant must account to other co-tenants for rent received from third parties, but can deduct expenses, including necessary repairs, when calculating net proceeds. Net proceeds from a third party rental of the property are divided among the co-tenants based on the ownership interest of each co-tenant.
Joint tenancy
is a conveyance of real property to two or more persons, which includes a right of survivorship. Requires four unities, 1) time; 2) title; 3) interest; and 4) possession. (Think T-TIP)
Joint tenancy severance
A JT can be servered through a devise, sale or gift without approval or even notice from other joint tenants. A JT cannot be severed at death since title automatically passes to the other JT through right of survivorship
If a joint tenant takes out a mortgage, in a lien theory jurisdiction the joint tenancy remains
inact
If a joint tenant takes out a mortgage, in a title theory jurisdiction the joint tenancy
is severed and a TIC results
Tenants in the entirety
is a joint tenancy held by a married couple with the right of survivorship. It is only severable by divorce, death, a creditor of both spouses or mutual agreement. Neither spouse alone can convey or encumber this real property interest.
Legal possesion - American rule
landlord only has the duty to deliver legal possession, not actual possession.
Legal possesion - English rule
actual possession is required. The English Rule allows a lessee to terminate the lease and recover damages for the breach.
Leaseholds
provides the tenant with a present possessory interest in real property.
Periodic tenancy
tenancy that continues for a specified time until terminated by proper notice is a periodic tenancy. Can be created by express agreement, or by implication if rent is paid at specific periods, or by law. Requires notice of a full period, excepting a year to year tenant who only requires a 6-month notice.
Tenancy at will
A tenancy at will is a tenancy that continues until either party terminates. Requires notice of termination and reasonable time to quit the premises.
Tenancy at sufferance
occurs when a tenant has wrongfully held over past the expiration of the lease. The tenancy only lasts until eviction or landlord elects to hold the tenant to a new tenancy.
Tenant Duties
A tenant must: 1) pay rent; 2) not commit waste; and 3) not use the property for illegality. A landlord can terminate the lease or seek injunctive relief in the case of illegality by tenants.
Ouster
tenant in common or joint tenant who is denied access to their property has been subjected to ouster. A tenant in common cannot adversely possess an interest in a tenant in common absent an ouster. A co-tenant in exclusive possession of the property who merely rejects a demand by another co-tenant that the co-tenant in possession either pay rent or vacate a portion of the premises has not committed ouster. For an ouster to occur, the co-tenant in possession must refuse a demand by another co-tenant to use the property.
Sublease
transfer of less than the full amount of the lease term to another. A sub-lessee is only in privity with the sub-lessor and is not personally liable to the landlord for rent or for the performance of any of the covenants in the main lease unless the sub-lessee expressly assumes the covenants. Someone who leases cannot sublease for longer than their own lease – if they do, the tenant can be ejected.
Sublease from T does what for privity
Tenant 2 is not in privity of estate or privity of contract with the owner.
Implied warranty of habitability
– Implied in every residential (not commercial) lease, requires the landlord provide a place to live that is reasonably suitable for human needs, including heat, running water and sewage disposal. If breached, the tenant may move out and terminate the lease, withhold or reduce the rent, repair and deduct from the rent, or remain and sue for damages.
Constructive Eviction
A breach of the lease’s implied covenant of quiet enjoyment, enjoyment, a constructive eviction occurs when 1) the landlord breached a duty to the tenant; 2) the breach caused a loss of substantial use and enjoyment of the premises; 3) the landlord was given notice and failed to remedy; and 4) the tenant vacated the premises.
