Property Flashcards
What are the three forms of concurrent ownership?
Joint tenancy, tenancy by the entirety, tenancy in common
What is a joint tenancy, and what are its distinguishing characteristics?
Two or more own with the right of survivorship
Shares automatically go to surviving joint tenants, alienable inter vivos, neither descendible or devisable.
How do you create a joint tenancy?
- Four unities (time, title, possession, identical interest) AND
- Clear expression of right of survivorship (otherwise it’s a tenancy in common)
How can you sever a joint tenancy?
SAP: Sale and Partition
Severance and Sale - voluntary conveyance destroys the joint tenancy and the transferee takes as a tenant in common
Severance and Partition - voluntary agreement or judicial action (partition in kind or forced sale).
What is tenancy by the entirety?
A protected marital interest between spouses with right of survivorship. Only created between married partners, who take as a fictitious “one person”
**Very protected form - creditors of only one spouse can’t touch, unilateral conveyance is unenforceable
How do you create a tenancy by entirety?
In states that recognize it, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise.
How do you sever a tenancy by the entirety?
Only death, divorce, mutual agreement, or execution by a joint creditor of both spouses
On divorce, property becomes tenancy in common
What is a tenancy in common, and what are its primary features?
A concurrent estate with no right of survivorship. Multiple grantees are presumed to take as tenants in common.
Each co-tenant owns an individual part with right to possess the whole and each interest is devisable, descendible, and alienable.
What are the rights and duties of co-tenants?
-Possession: each co-tenant has the right to possess all portions of the property (exclusion from any part amounts to ouster)
-Rents and Profits (not from co-tenant in exclusive possession, but entitled to fair share from third parties)
-No acquisition of whole through adverse possession
-Carrying costs: each pays his fair share of taxes and mortgage interest payments
-Repairs: repairing co-tenant has right to contribution for reasonable, necessary repairs upon notice, but no right to contribution for improvements
-Waste: must not commit waste and can bring actions against each other
-Partition: right to bring action
-Encumbrance: may encumber their own interest, but not the interests of co-tenants.
-Duty of Fair Dealing
What are the three types of waste?
- Voluntary (willful destruction)
- Permissive (neglect)
- Ameliorative (unilateral change that increases value)
What is a leasehold, and what are the four types of leasehold estates?
Estate in land under which tenant has a present possessory interest and landlord has future interest.
Types:
1. Tenancy for years
2. Periodic tenancy
3. Tenancy at will
4. Tenancy at sufferance
What is the tenancy for years, and when does it terminate?
Lease for a fixed, determined period of time (you can see the end date). It ends automatically at its termination date with no notice required.
If for a term greater than one year, must be in writing because of the Statute of Frauds
What is a periodic tenancy?
A lease which continues for successive intervals until either the landlord or the tenant gives proper notice of termination.
How is a periodic tenancy created?
-Expressly; or
-Implied/by operation of law (where there is no mention of duration but rent is paid at set intervals or oral term of years in violation of SoF)
How is a periodic tenancy terminated?
Written notice must be given
-Common law: notice equal to length of period itself, six months for tenancy that is year to year or greater
-Restatement: one month for tenancy year-to-year or greater (preferred by bar examiners)
What is a tenancy at will, and how is it created and terminated?
Tenancy of no fixed duration that is terminable at the will of the landlord or the tenant.
Must be created by express agreement, most states require notice and a reasonable time to vacate.
What is the tenancy at sufferance? How is it created and terminated?
A tenancy at sufferance is created when a tenant wrongfully holds over (remaining in possession past the expiration of the lease). A leasehold is created so the landlord can recover rent.
Lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy.
What are the tenant’s two primary duties?
- To repair (when lease is silent, they must maintain and make routine repairs but not make repairs occasioned by ordinary wear and tear & cannot commit waste)
- To pay rent
Also: not to use premises for illegal purpose
Who is responsible when the premises are destroyed (landlord/tenant)?
Common law: tenant responsible for any loss, including loss attributable to force of nature
Modern majority view: T may end lease when premises are destroyed without T’s fault
What are the landlord’s options when a tenant breaches duty to pay rent and is in possession of premises?
-Evict or continue the relationship and sue for rent
-Must not engage in self-help!
What are the landlord’s options when the tenant breaches but is out of possession?
SIR:
-Surrender (treat tenant’s abandonment as implicit offer of surrender and accept, thereby ending the lease)
-Ignore the abandonment and hold the tenant responsible for unpaid rent until natural end of lease
-Re-let the premises and hold the wrongdoer-tenant liable for any deficiency
*The majority rule requires the landlord to at least try to re-let to mitigate damages.
What are the landlord’s duties?
- Deliver possession
- Implied covenant of good enjoyment (commercial & residential)
- Implied warranty of habitability (residential)
How can the landlord breach the implied covenant of quiet enjoyment?
- Wrongful Eviction
-Actual eviction - landlord excludes from entire leased premises, terminates tenant’s obligation to pay rent
-Partial eviction - tenant is physically excluded from part of leased premises, relieves tenant of obligation to pay rent for the entire premises - Constructive Eviction (renders premises unsuitable for occupancy, requires SING: substantial interference, notice, goodbye)
What is the standard for the implied warranty of habitability? What are the tenant’s options when it is breached?
It is a nonwaivable warranty providing that the premises must be fit for basic human habitation.
If the warranty is breached, the tenant’s options are MR3:
-Move out and terminate the lease
-Repair and deduct cost from future rent
-Reduce rent or withhold rent until the court determines fair rental value
-Remain in possession, pay full rent, and seek money damages
What are the main anti-discrimination legislative acts? Are there exemptions?
-Civil Rights Act bars racial or ethnic discrimination in the sale or rental of all property
-Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, disability, or family status (exceptions: senior housing, owner-occupied buildings with four or fewer units, single-family homes sold or rented by owner who owns no more than 3 single-family homes)
What is the difference between an assignment and a sublease?
An assignment is a transfer of interest in the entire remaining term of a lease, while a sublease is when the tenant retains some part of the remaining term.
What is the implication of an assignment?
Assignee stands in shoes of original tenant.
-Privity of estate: assignee and landlord, for all covenants that run with the land
-Privity of contract: original tenant and landlord, so original tenant remains secondarily liable for original contractual obligations
What are the implications of a sublease?
Sublease is a relationship between the original tenant and the new tenant, so T2 is responsible to T1 and vice versa. The sublessee is not personally liable to the landlord for rent or any covenants unless they expressly assume them.
Can the landlord include covenants against assignment or sublease in the lease?
Yes, can prohibit without prior written approval, but they are strictly construed (so a prohibition on assignment does not prohibit subleasing).
Once a landlord consents to a transfer, they waive the right to object to future transfers by that tenant unless they expressly reserve the right.
Can the landlord be liable in tort?
Yes, the common law norm is caveat lessee, but there are five exceptions (CLAPS):
1. Common areas (reasonable care)
2. Latent defects (must warn)
3. Assumption of repairs (must complete with reasonable care once undertaken)
4. Public use rule (liable for defects when leasing public space and should know that tenant will not make repair)
5. Short-term lease of furnished dwelling (responsible for any defective condition which proximately injures a tenant)
The modern trend is a general duty of reasonable care, liable only for injuries resulting from ordinary negligence if landlord had notice and opportunity to repair.
What is an easement?
A grant of a nonpossessory 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.
What is the difference between an affirmative and negative easement?
Affirmative - the right to go onto and do something on servient land
Negative - entitles holder to prevent the servient landowner from doing something that would otherwise be permissible. Can ONLY be created expressly by a writing signed by the grantor.
-4 categories (LASS): Light, Air, Support, Stream water from artificial flow (& scenic view in a minority of states).
What is an easement appurtenant?
When an easement benefits its holder in his physical use or enjoyment of his own land. There must be two parcels involved:
-dominant tenement, which derives the benefit
-servient tenement, which bears the burden
What is an easement in gross?
If it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. Servient land is burdened, but there is no dominant tenement.
Are easements transferable?
Easement appurtenant - passes automatically with transfers of the dominant tenement (even if not mentioned in the conveyance). Burden passes automatically with servient estate unless the new owner is a BFP without notice.
Easement in gross - not transferable unless it is for commercial purposes.
How do you create an easement?
PING:
1. Prescription - Acquired by analogy to adverse possession
2. Implication - Created by operation of law. Can be implied from preexisting use (quasi-easement) if the previous use was apparent and continuous AND the parties that the use would survive division because it is reasonably necessary to dominant tenement’s use and enjoyment
3. Necessity - Implied when a landowner conveys a portion of her land with no way out except over some portion of the grantor’s remaining land (owner of servient parcel has right to choose location)
4. Grant - memorialized in writing and signed unless of a brief enough duration to fall outside the SoF
**Can also be expressly reserved by grantor of land, but not for the benefit of a third party
How do you terminate an easement?
END CRAMP:
Estoppel - servient owner materially changes positions in reliance
Necessity - as soon as necessity ends UNLESS it was reduced to an express grant
Destruction - of servient land
Condemnation - of servient estate by eminent domain
Release - given by easement holder to servient land owner IN WRITING
Abandonment - physical action by easement holder
Merger - when title to easement and to servient land become vested in the same person
Prescription - servient owner interferes with it in accordance with elements of adverse possession
What is a license?
A mere privilege to enter another’s land for some delineated purpose. It is inalienable since it is personal to the licensee.
How do you create a license?
Need not be in writing because it is not subject to SoF. Failed attempt to create an easement creates a license.
Are licenses revocable?
Yes, unlike easements, they are freely revocable at the will of the licensor unless estoppel applies to bar revocation. Estoppel applies only when the licensee has invested substantial money/labor in reasonable reliance on license’s continuation.
Classic examples: tickets, neighbors talking by fence
What is the profit? What are the rules for creation and termination?
Profit entitles its holder to enter servient land and take from it resources or the product of the property.
Easement rules are applicable, and profits may be additionally extinguished through surcharge (misuse that overly burdens the servient estate).
What is a covenant?
A written promise to do or not do something related to the land. It is NOT the grant of a property interest (that’s an easement); rather, it is a contractual limitation or promise regarding land.
What is the difference between negative and affirmative covenants?
Negative - restrictive covenants that are promises to refrain from doing something related to the land
Affirmative - promise to do something related to the land
How do you tell the difference between a covenant and an equitable servitude on the exam?
On the basis of the remedy that the plaintiff seeks
Money damages = covenant
Injunction = equitable servitude
When does the burden run to successors in the burdened estate?
WITHN:
Writing - original promise must be in writing
Intent - original parties must have intended that covenant would bind successors
Touch and concern - promise must affect parties’ legal relations as landowners, not just as members of the community
Horizonal Privity - original parties must be in succession of estate (they must have some shared interest in the land independent of the covenant)
Vertical Privity - there must be a non-hostile nexus between the successor in interest and the original covenanting party
Notice - successor must have notice of promise when she took.
What are the requirements for the benefit to run?
WITV:
Writing
Intent
Touch and concern
Vertical Privity (between original promisee and successor in interest)
*It is easier for the benefit to run because there is no horizontal privity requirement.
How may a covenant or an equitable servitude be terminated?
Written release, merger of benefitted and burdened estates, condemnation of burdened property
What is an equitable servitude?
A promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law UNLESS successor is a BFP
How is an equitable servitude created?
Created by promises contained in a writing that satisfies the Statute of Frauds: WITNES
-Writing
-Intent (original parties intended promise would be enforceable by and for successors)
-Touch and concern (original promise affected parties as landowners)
-Notice (subsequent purchasers of land had actual, inquiry, or record notice of covenant when they acquired the land)
-ES = Equitable Servitude
*NOTE that no privity of estate is required
How does an implied equitable servitude arise?
It is an exception to the requirement that the original promise be in writing. The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise under the common scheme doctrine.
What are the elements of the common scheme doctrine?
- When sales began, the subdivider had a general scheme of residential development which included the defendant’s lot
- The defendant lot-holder had notice of the promise contained in those prior deeds when it took
Does not apply if the scheme arose after some lots were already sold - those previously sold lots can’t have the scheme enforced against them.
What are the three forms of notice?
AIR:
Actual - literal knowledge
Inquiry - the lay of the land
Record - publicly recorded documents (in the deed)
What are the equitable defenses to enforcement?
-Changed conditions in neighborhood (so significant that enforcement would be inequitable)
-Unclean hands (person seeking enforcement is violating similar restriction on his own land)
-Benefited party acquiesced in a violation of the servitude by a burdened party
-Estoppel (benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned or waived)
-Laches (benefitted party failed to bring suit within a reasonable time)
What is adverse possession, and what are the elements?
Possession for a statutorily prescribed amount of time can ripen into title to real property if owner does not take action to eject a possessor.
COAH:
-Continuous - throughout statutory period (intermittent periods not sufficient unless that is the type of possession a usual owner would make)
-Open and notorious - visual/visible
-Actual and exclusive - literal occupation by possessor exclusive of the true owner and general public (usually only the land that they actually possess, unless they enter under color of title)
-Hostile - defeated by permission (state of mind is irrelevant)
Do most states require the adverse possessor to pay taxes on the property?
No, but such payment is good evidence of a claim of right.
What is tacking?
One adverse possessor may tack on his time with the land his predecessor’s time, so long as there is privity (any non-hostile nexus) between parties.
