Property Flashcards
Three forms of concurrent ownership?
- Joint tenancy
- tenancy by the entirety
- tenancy in common
What is Tenancy by the Entirety
a protected marital interest bwteen spouses with the right of survivorship
What is Joint Tenancy
two or more own with the RIGHT OF SURVIVORSHIP
It is not devisable or descendible, , because it passes to the other joint tenant (right of survivorship), can’t dispose of property by will, it becomes void
It is transferable (alienable inter vivos)
What is Tenancy in Common
two or more own WITHOUT the right of survivorship
co-tenant owns individual part + right to possess whole
devisable, descendible, alienable
What does devisable and descendible mean?
Devisable: passing by will
Descendible: passing to heir
How do you create a joint tenancy?
T-TIP
T: at the same time
T: by the same title (meaning in the same deed, will, or other document of title)
I: identical, equal interests, AND
P: right to possess the whole
HAVE to clearly express right of survivorship or its a TIC (to A & B as JT with the right of survivorship)
*JT have to be equal. Everyone has equal shares and can use the whole. (e.g. if theres three, each get equal 1/3 share
How are shares in a tenancy in common split up?
Equal shares are presumed but not required, the shares may be split in anyway
Phoebe, Ross, and Monica are joint tenants. Phoebe sells her interest to Chandler, whats the result?
What about if Ross dies and leaves his share to Rachel? What happens?
Chandler is a tenant in common
Ross can’t leave his share to his heir, Monica gets his share because of the right of survivorship
Monica and Chandler become TIC
Liens in a joint tenancy
If a JT has an execution/lien of a mortgage on her share won’t sever the tenancy in the vast majority of states.
Majority (lien theory): no severance
Minority (title theory): severance
What happens if one JT murders another?
when a beneficiary unlawfully and intentionally kills a JT, any joint property is transformed into a tenancy in common
How is a tenancy by the entirety created?
Only some states recognize it. It arises presumptively in any conveyance to married partners who become one entity with the right of survivorship.
Creditors of only one spouse can’t touch this tenancy for satisfaction of the debt
Can one person transfer their share in a tenancy by the entirety?
No unilateral transfer or encumbrance.
What happens in a divorce, death, or execution of a lien in a tenancy by the entirety
Divorce & Death: will sever it and it becomes a tenancy in common
Execution of lien by BOTH spouses: will sever it.
When a co-tenant rents?
One co-tenant is not liable to the other for rent
BUT
if they lease their part or all the premises to a third party, they must provide their co-tenants with their fair share of the rental income (depending on what share they own)
Ouster
actionable wrong
when one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part
Can a co-tenant adversely possess another co-tenant’s share
No unless ouster is present
Repairs, carrying costs, and unilateral improvements for co-tenants
Carrying costs (taxes, mortgage, interest payments): pays their fair share
Repairs: contributions for reasonable, necessary repairs with notice
UNLESS there is unilateral improvements, then no contribution is required but gets a credit at partition or a debit if they caused any decrease in value
Co-tenancy and Partition
Co-tenants have the right to bring an action for partition.
Three types:
voluntary agreement
partition in kind (court ordered)
forced sale
but restraints on partition are valid, provided they are limited to a reasonable time
Waste in co-tenancy
Must not commit waste. co-tenants can bring action against other co-tenants for waste during the life of the co-tenancy
- Voluntary: willful destruction
2: Permissive: neglect - Ameliorative: unilateral change that increases value
which forms of waste exists if co-tenant Randall unilaterally converted part of the cabin into a chemistry lab, eliminating the premises’ game room in the process?
Voluntary or Ameliorative
Survivorship when there is three or more joint tenants
If one joint tenant conveys to someone else, only their interest is destroyed. the remaining joint tenants continue to hold joint tenancy as between themselves.
Leaseholds or nonfreehold estates
a leasehold is an estate in land, under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion)
- tenancy for years
- periodic tenancy
- tenancy at will
- tenancy at sufference
Tenancy for years
Leasehold
-known, fixed period of time
-termination automatic (on end date, needs an end date)
-no notice needed to terminate
-writing typically needed if more than 1 year
Terminating a tenancy for years
Right of Entry: landlord reserves a right of entry-which allows them to terminate the lease if the tenant breaches any of the leases covenants
Landlords Acceptance of Tenants Surrender: if unexpired term exceeds one year, surrender must be in writing
Creating a periodic tenancy
Successive intervals until either the landlord or tenant gives proper notice of termination
-Express (L to T from month to month)
-By implication
* no mention of duration but rent at set intervals
*oral term of years violating statute of frauds (more than a year, becomes an implied periodic tenancy with the intervals based on how rent is tendered)
*holdover tenant after lease ends (if landlord lets tenant stay past conclusion of og lease, an implied periodic tendancy arises measured by the way rent is now tendered)
Terminating a periodic tenancy
-CL: at least equal to length of period
-month-to-month: 1 month
-week-to-week: 1 week
-year-to-year: 1 month under the restatement (bar preferred approach)
Tenancy at Will
no fixed duration
terminable at will of either party (T to T for as long as L or T desires)
must be created by an express agreement that the lease can be terminated at any time. If not it will be a tenancy as an implied period tenancy
Termination of tenancy at will
At any time, but a reasonable notice to quit is required in most states
Can also be terminated by operation of law (death or waste)
Tenancy at sufferance
Tenant wrongfully holds over past lease expiration and landlord proceeds to recover rent
Terminates when landlord moves to evict or holds T to new tenancy
Two primary duties of a tenant and remedies/responsibilities for each
- to repair AND
-if lease is silent on repair must maintain premises, make routine repairs, not ordinary wear and tear repairs
-not to make voluntary waste
-may terminate if premises destroyed w/o T’s fault (natural disasters) - to pay rent
-failure to pay=L evicts & sues for rent
-L can’‘t engage in self-help (changing locks, forcibly removing tenant)
-If T breaches and is out of possession
*surrender: end lease
*I-do nothing (hold T liable for rent; MINORITY)
*Relet: new lease (hold T liable for deficiency)
Landlord’s Duty to deliver possession
duty to place tenant in actual, physical possession (makes sure that old tenant isn’t still there)
if breached, new tenant can get damages
Implied covenant of quiet enjoyment
Tenant has right to quiet use and enjoyment without interference from landlord (residential and commercial)
How to show constructive eviction
SING
Substantial Interference (chronic/permanent problem)
Notice (T must notify L)
Goodbye (T must vacate)
They may sue for damages
2 types of eviction under the implied covenant of quiet enjoyment
Breaches by wrongful eviction or constructive eviction
-Wrongful: evicts from whole/part of premises without cause (actual and partial eviction)
Constructive: landlord’s breach of duty renders the premises unsuitable for occupancy (T can terminate and seek damages)
Is a landlord liable to a tenant for the wrongful acts of other tenants?
No, but two exceptions in which a landlord will be liable
- duty to abate a nuisance on site
- control common areas
Implied warranty of habitability
most jurisdictions-residential leases only; nonwaivable
premises must be fit for basic human habitation. Bare living requirements must be met.
(e.g. no working plumbing, no heat, no running water etc.)
Tenants options when implied warranty of habitability is breached?
MR3
-Move out and terminate the lease
-Repair and deduct (reasonable)
-Reduce rent or withhold all rent until court determines fair rental value
-Remain in possession, pay full rent, and affirmatively seek money damages
constructive eviction and implied warranty of habitability
QE: residential and commercial
tenants MUST vacate
IWOH: tenant could vacate but doesn’t have to; residential only
Retaliatory Eviction
L can’t terminate/penalize T in retaliation for T’s exercise of legal rights
Fair Housing Act: Prohibited actions and exemptions
Exemptions (does not apply)
-owner occupied buildings w/ 4 or fewer units
-single family homes if owner has no more than 3
Prohibited Actions (applies) based on a persons race color, religion, sex, disability, familial status, or national origin:
-refusing to negotiate, rent, or sell housing, or give mortgage
-providing different terms for sale/rental
-falsely representing dwelling unavailable
MUST have reasonable accommodations for tenants w/ disabilities
Actual partial eviction
If the tenant is evicted from any part of the premises, the rent obligation stops entirely until he or she repossesses the entire property. In addition, the tenant can stay in possession of the rest of the property without paying rent.
Partial eviction by a paramount title holder
Tenant has an apportionment of rent, doesn’t have to pay portion of the premises from which he was evicted
Assignment
transfer of entire remaining term of lease
Assignee tenant in privity of ESTATE with landlord
-liable on covenants (promises) that run with land (original lease)
original tenant in privity of CONTRACT (not estate) with landlord
-liable for original lease obligations
Sublease
transfer of part of remaining term of lease
t2 has no privity with L, but t1 and t2 responsible to each other and L and t1’s relationship remains fully intact
L leases blackacre to T1, T1 assigns to T2, T2 assigns to t3, t3 then engages in flagrant abuse to the premises.
Who can L proceed against?
t1 and t3
t3-privity of estate
t1-privity of contract
not t2 bc no longer privity of estate and no privity of contract
When does a covenant run with the land?
If the original parties to the lease so intend and if the covenant “touches and concerns” the land
Rights of sublessee
a sublessee can’t enforce any covenants made by the landlord on the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability
Covenants against assignment or sublease
a L can prohibit a T from assigning or subleting w/o L’s prior written approval.
But a valid covenant against assignment is waived if L was aware of the assignment and did not object. Once a L consents to one transfer, they waive the right to object to future transfers unless they expressly reserves the right
CL of caveat lessee
a landlord has no duty to make premises safe EXCEPTIONS
-Common areas (hallways, stairs, elevators)
-Latent defects (must warn of anything landlord knows or has reason to know, duty to WARN not repair)
-Assumption of repairs(no duty to start but once they do, must complete them w/ reasonable care)
-Public use rule- (public space like a convention hall, liable for defects that cause injury to members of the public)
-Short term lease of furnished dwelling (responsible for ANY defective condition which injures a tenant, whether they knew or not)
Modern Trend-General Duty of Reasonable Care
Majority: landlord owes a general duty of reasonable care towards RESIDENTIAL tenants and will be held liable for injuries resulting from ordinary negligence if the landlord had notice of a defect and had an opportunity to repair it
liable for defects before T took possession, liable after T took possession if they knew or should have known
Easement
grant of nonpossessory property interest entitling holder to use/enjoyment of another’s land
Types of easements
Easement in Gross-Can’t be shared unless for commercial activity
Easement Appurtenant-Can be shared if there can be a showing that it was meant to be continuous/shared
How to get an easement?
- Easement by Grant
-signed and described - Easement by prescription
-Similar to AP (open and notorious, actual, continuous, hostile) - Easement by necessity
- Easement by implication
-Prior easement
-Can be shown that it was meant to be permanent
-The use of easement effects the value and the owner uses it for their use and enjoyment
-When a single tract of land is divided
How is an easement cancelled
- Estoppel
-when it can be shown that the easement won’t be enforced - Actual Abandonment
- Involuntary Destruction of servient land
- Condemnation of all of servient land
- Merging
- Prescription-adversely possessing an existing easement by interfering with the use in an open and notorious way
- Written Cancellation
- Termination of the necessity
How are easements transferred?
Easement appurtenant:
-automatically (doesn’t have to be mentioned in conveyance)
-passes automatically to servient land unless the new owner is a BFP w/o notice of the easement
Easement in Gross: can’t be transferred unless its commercial
If an easement is said to be surcharged, this means:
The easement’s legal scope was exceeded
The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern.
What is a license?
A mere privilege to enter another’s land for a narrow/delineated purpose
How to create a license?
There is no writing required (statute of frauds does NOT apply)
freely revocable at will of licensor
-unless estoppel applies (when licensee has invested substantial money or labor or both in reasonable reliance o nthe license’s continuation)
Two common ways in which license cases show up that are not enforceable.
Ticket cases
Neighbors talking by the fence
The profit?
Entitles its holder to enter the servient land and take from it some resources or some product of the property. (oil, fish, etc.) May be extinguished through surcharge (misuse that overly burdens the servient estate). Also rules governing creation, alienation and termination are applicable.
What is a covenant? Negative/Restrictive and Affirmative covenants?
a formal agreement or promise, usually included in a contract or deed, to do or not do a particular act
Negative/Restrictive: Refrain from doing something (“I promise not to build for commercial purposes”)
Affirmative: Do something related to land (“I promise to maintain our shared fence”)
Covenant v. Equitable Servitude
Basis of remedy the P seeks
Covenant: If P wants money damages, maybe covenant
Equitable Servitude: If P wants injunction, maybe ES
When does a burden with a covenant run with the land?
Also analyze burden side first
Will be bound if WITHN
- Writing
-Original Promise must have been in writing - Intent
-Original covenanting parties must have intended that the covenant would run - Touch and Concern
-Restrictive: If they restrict the burdened parcel owner in her USE OF THAT PARCEL of land.
-Affirmative: if they require the holder of the servient estate to do something that increases her obligation in connection with the land
*covenants to pay money like HOA fees do not touch/concern - Horizontal and Vertical privity (NEED BOTH)
-Horizontal: Burden between first parties (A&B), the two must have shared some interest in the land independent of the covenant (landlord-tenant etc.), hard to prove so burdens usually don’t run
-Vertical: nexus between successor (A1) and original party (A). Requires some non-hostile nexus like contract, devise etc. NOT adverse possession - Notice
-Successor must have had notice of the promise when she took it
How to enforce a benefit and burden of a covenant?
- writing that satisfies statute of frauds
- intent that the covenant run with the land
- vertical privity
- covenant must touch and concern the land
BURDEN:
1. all four above and horizontal privity
How can a covenant or equitable servitude be terminated? And the difference between the two
- A written release
- Merger of the benefited and burdened estates; or
- condemnation of the BURDENED property
Covenant: enforced by damages; ES: enforced by injunction and privity isn’t required for enforcement
How to enforce a burden and benefit of equitable servitude?
Benefit:
1. Writing that satisfies statute of frauds
2. intent for the servitude to be enforceable
3. must touch and concern the land
Burden:
All the above plus new owner must have notice of servitude
Common/General Scheme Doctrine
EX: A subdivides her land into 50 slots. She sells lots 1 through 45 through deeds that contain covenants restricting use to residential purposes. A then sells one of the remaining lots to a commercial entity, B, by deed containing no such covenant. B now seeks to build a convenience store on his lot. Can he be enjoined from doing so?
Exception for an equitable servitude having to be in a writing.
YES – if the two elements of the general or common scheme doctrine apply. Under common scheme, the court will imply a reciprocal negative servitude (implied equitable servitude) to hold the unrestricted lot holder to the restrictive covenant.
When the sales begin, B:
(A): Scheme of development when sales began
(B): B had notice of promise when they took
-actual notice
-inquiry notice (neighborhood seems to conform to the common restriction)
-Record notice
When will a court not enforce an equitable servitude?
- Neighborhood conditions have changed so significantly that enforcement would be inequitable. (entire area/subdivision has to change significantly)
- Person seeking enforcement is violating a similar restriction on his own lands (unclean hands)
- A benefited party acquiesced in a violation f the servitude by a burdened party.
- Benefited party acted in such a way that a reasonable person would believe the covenant was abandoned/waived (estoppel)
- Benefited party fails to bring suit against the violator within a reasonable time (laches)
Elements of adverse possession
- actual
- open and notorious
- exclusive
-if coming under color of title, she is in constructive possession of land - hostile
- continuous
Color of title
invalid deed, for one reason or another, the document evidencing title (a deed, for example) is invalid. Color of title is also known as “apparent title” since the document gives off an appearance of a valid title, but in reality, it is defective and invalid.
