Property Flashcards
Joint Tenancy
Alienable?
Devisable?
Descendible?
Two or more own with the right of survivorship -> JT’s have equal shares
Yes it is Alienable
No it is no devisable
No it is descendible
How to create a Joint Tenancy?
TTIP
- T – At same time
- T – By same title (same deed, will, or other document of title)
- I – Identical equal interests
- P – Right to possess whole
Tenancy by Entirety
Between married partners only with right of survivorship
CAN’T TOUCH THIS
Creditors of one spouse cannot touch this tenancy for satisfaction of the debt
One spouse acting alone cannot defeat the right of survivorship by unilaterally conveying to a 3rd party
Severance of Tenancy by the Entirety?
CAN ONLY BE SEVERED BY:
Divorce -> On the event of divorce, tenancy by the entirety becomes a tenancy in common
Death
Mutual Agreement
Execution by a joint creditor of both spouses can sever a tenancy by the entirety
Tenancy in Common
NO RIGHT OF SURVIVORSHIP
Co-tenant owns individual part + right to possess whole
Each interest is Devisable, descendible, alienable *****
Voluntary Waste?
Permissive Waste?
Ameliorative Waste?
Voluntary = willful destruction
Permissive = neglect
Ameliorative = unilateral change increasing value
Three Partition Methods?
Joint Tenants or Tenants in Common can partition to sever
- Voluntary -> Amicable end
- Judicial action “In Kind” (physical division)
- Works best -> When Blackacre is sprawling acreage like a farm or
vineyard … Courts prefer this method - Judicial Action Forced sale (division of proceeds)
- In the best interest of all parties, land is sold, and the sale
proceeds are divided up proportionately
- Works best -> When Blackacre is a single building … home or
commercial building
Tenancy for Years
Most common run of the mill apartment lease
For a known, fixed period time
“To T for 10 years”
Termination is automatic (on end date)
Landlord can terminate if tenant breaches any lease’s covenants
No writing needed to terminate
Writing typically needed for greater than 1 year
Periodic Tenancy
Continues for successive intervals (ex. month to month) UNTIL properly terminated
“To T from month to month” OR “to T, with rent payable on the first day of every month”
Terminates by notice from one notice at least equal to the length of the time period
-> month to month (one month notice) week to week (one week notice)
HOWEVER - year to year? one month notice
Tenancy at Will
No fixed duration - terminable at the will of either the landlord or tenant
“To T for as long as L or T desires”
Terminates after 1 party displays intention that it should come to an end or by operation of law (death)
Tenancy at Sufferance
Created when a tenant wrongfully holds over, meaning they remain in possession past the expiration of the lease
T’s lease expires, but T continues to occupy the premises
Terminates when landlord evicts tenant or elects to hold tenant to another term
Hold-Over Doctrine
If a tenant continues in possession after their right to possession has ended, the landlord may: (1) evict the tenant, (2) bind the tenant to a new periodic tenancy
Exceptions
(1) Tenant remains in possession for only a few hours after termination or leaves a few articles of personal property OR
(2) the delay is not the tenant’s fault (ex. Severe illness)
^^ In these cases, the landlord CANNOT bind the tenant to a new
tenancy
Tenant’s Duties?
Repair AND to pay rent!
Tenant’s Duty to repair when lease is silent?
- Maintain premises
- Make routine repairs
- Not ordinary wear and tear repairs
- Do not commit waste
Landlord’s Duties?
Actual physical possession to the Tenant at the start of the lease
- If at the start of the tenant’s lease, a prior holdover tenant is still in possession -> L has breached, and new T gets damages
Implied Covenant of Quiet Enjoyment
T has right to quiet use and enjoyment without interference from L
Applies in residential and commercial leases
Constructive Eviction
Occurs when L renders the premises unsuitable for occupancy
T has claim to constructive eviction if three elements are met:
SNG
S - Substantial Interference
N - Notice to L
G - Get OUT/vacate
Implied Warranty of Habitability
Premises must be fit for basic human habitation
- Ex. -> Running water, electricity, heat during winter
RESIDENTIAL LEASES ONLY
Non-waivable
Tenant’s entitlements when Implied Warranty of Habitability is breached?
MRRR
M - Move out and terminate lease
R - Repair and deduct
R - Reduce or withhold rent - until court determines fair value
R- Remain (pay rent) and seek damages
Fair Housing Act (FHA) with 2 exceptions
Protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability
EXCEPTIONS
o Owner occupied buildings with 4 or fewer units
o Single-family homes if owner has no more than 3 single family
homes
PROHIBITED ACTIONS
o Refusing to negotiate, rent, or sell housing, or give mortgage
o Providing different for sale/rental
o Falsely representing dwelling unavailable
*** Reasonable accommodations for tenants with disabilities
o L’s must also make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use dwelling
Assignment
Transfer of entire remaining term of lease
Assignee T in privity of estate with L (but not privity of contract!)
o Liable on covenants that run with land
Examples -> Promise to pay rent, pay taxes, repair or paint premise
Original T in privity of contract (but not estate) with L
o Liable for original lease obligations
Example -> T2 cannot pay rent? T1 is liable
* T2 betrays any promises in OG lease? T1 is liable as secondary matter
A covenant prohibiting assignment does not prohibit subleasing and vice versa
Sublease
A sublease arises when T1, the OG tenant, transfers less than her entire interest to T2
T2 has no privity (estate or contract) with L
o T1 & T2 responsible to each other
Relationship between L and T1 remains intact
o Ex. If T2 fails to pay rent, L proceeds against T1, T1 in turn proceeds
to T2
o L breaches implied warranties with T2? -> T2 sues T1 and then T1
impleads L
A covenant prohibiting sublease does not prohibit assignment and vice versa
Landlord’s Tort Liability under Caveat Lessee and the 5 exceptions
“TENANT BEWARE”
Under common law, L was under not duty to make premises safe EXCEPT for:
CLAPS
C - Common Areas
L - Latent defects
A - Assumption of repairs
P - Public use rule
S - Short term lease of furnished dwelling
Landlord’s Tort Liability under Modern Statutes
General duty of reasonable care and will be held liable for injuries resulting from ordinary negligence if the L had notice of a defect and opportunity to repair it
Easement
Grant of nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land
Affirmative Easement
Right to go on to and do something on another’s land
Negative Easement
Right to prevent landowner from doing something - expressly created by a writing signed by the grantor
LASS
L - Light
A - Air
S - Support
S - Stream water from an artificial flow
Easement Appurtenant
Benefits holder in use/enjoyment of own land - ALWAYS 2 PARCELS INVOLVED
Two parcels
o Dominant -> Derives benefit
o Servient -> Bears burden
Automatically transfers of dominant tenement (dom parcel is sold), regardless of being mentioned in the conveyance
Automatically transfers of servient estate (servient parcel is sold) UNLESS the new owner is BFP without notice of easement
Easement in Gross
An easement is 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
Holder has personal/commercial advantage unrelated to use/enjoyment of land
- Servient land burdened
- NO benefited/dominant tenement
Examples
o The right to place a billboard on another’s lot (commercial)
o The right to swim in another’s pond (not commercial)
o The utility company’s right to lay power lines on another’s lot (commercial)
Not transferable unless it is for commercial purposes
Creation of an Easement - 4 ways
PING
P - Prescription
I - Implication
N - Necessity
G - Grant
PRESCRIPTION
- COAH -> Continuous and uninterrupted; Open and notorious; Actual use (need not be exclusive); Hostile
Permission defeats this
IMPLICATION
- Created by operation of law; they’re exception to the SoF
- Preexisting use -> previous use on the servient part was apparent and continuous AND parties expected easement to run bc it is reasonably necessary to dom’s use and enjoyment
NECESSITY
- Will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land
o Owner has servient parcel has the right to locate the easement
GRANT
- in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of SoF
Express Reservation Easement
When a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose
Easement can only be reserved for the GRANTOR
Grantor CANNOT reserve for anyone else = void!!
Termination of an Easement - 8 ways
END CRAMP
E - Estoppel (servient owner materially changes positions in reliance)
N - Necessity (when the needs, UNLESS it is in writing!)
D - Destruction (of servient land…cannot be voluntary -> fire, flood, etc.)
C - Condemnation (of servient land like Eminent Domain)
R - Release (by holder to servient owner in writing)
A - Abandonment (physical action demonstrating intent to not use
easement again like building a structure across the easement)
M - Merger (Owner of easement & Servient land held by same person)
P - Prescription (COAH -> adverse possession elements)
