Property Flashcards
What are the three types of concurrent estates?
Joint Tenancy with a Right of Survivorship: A tenancy between two or more tenants in which the surviving interest goes to the surviving tenants. Joint tenants must take their interest (1) at the same time, (2) by the same title, (3) with identical, equal interests, and (4) with rights to possess the whole. A JTWROS is not descendible or devisable, but it is alienable inter vivos. Conveyance turns the JTWROS into a TIC, but a mortgage does not sever a JTWROS. If joint tenant’s convey part of their interest together, this does not sever the JTWROS. The grantees take the conveyed interest as tenants in common.
Tenancy by the Entirety: A tenancy created by the conveyance to married partners. Creditors cannot come after the tenancy to satisfy a debt and one spouse cannot unilaterally convey the tenancy to a third party.
Tenancy in Common: A tenancy in which each co-tenant owns an individual part with the right to possess the whole. Each interest is devisable, descendible, and alienable inter vivos.
How can a joint tenancy and a tenancy for entirety be severed?
Joint Tenancy: A joint tenancy can be severed if (1) the second-to-last joint tenant dies, (2) one of the joint tenants unilaterally conveys the property inter vivos, (3) the court orders a final partition degree, (4) one joint tenant mortgages their interest in a title theory jurisdiction (minority rule), or (5) one joint tenant intentionally kills another joint tenant.
Tenancy in Entirety: This tenancy can only be severed by death, divorce, mutual agreement, or execution by a joint creditor of both spouses.
A joint tenant’s mortgage on their interest does not sever the joint tenancy in a lien theory jurisdiction, and a multilateral inter vivos transfer of the interest by all joint tenant does not sever the joint tenancy.
What are the four leasehold estates?
Tenancy for Years: A lease for a fixed, determinable period. The tenancy automatically ends at its termination date.
Periodic Tenancy: A lease which continues for successive intervals (e.g., month to month) until either the landlord or the tenant gives proper notice of termination. The tenancy may arise by implication if the land is leased for the payment of rent at set intervals, an oral term of years violates the Statute of Frauds but the tenant pays rent, or rent is paid by a holdover tenant. Written notice is required to terminate a periodic tenancy. Notice is equal to the length of the lease interval unless the tenancy is year-to-year, which requires 6 months notice at common law and 1 months notice under the restatement.
Tenancy at Will: A lease with no fixed duration. The tenancy is terminable at the will of either party, unless the lease only give the tenant the right to terminate. Such an agreement is usually written, otherwise a periodic tenancy is presumed based on rent payments. Today, most states requires notice and a reasonable time to quit before termination takes effect.
Tenancy at Sufferance: A lease created when a tenant remains in possession of the property past the expiration of the lease. The tenancy lasts until the landlord evicts the tenant or elects to hold the tenant to a new tenancy. No notice of termination is required. If the landlord holds the tenant to a new lease, a commercial tenant will generally be subject to a year-to-year lease (assuming the original lease term was for one year or more) and a residential tenant will generally be subject to a month-to-month lease, with rent paid and computed based on the previous lease. However, if the landlord is allowed to hold a tenant to a higher rent if the landlord notified the tenant of the higher lease before the previous lease expired.
What are the tenant’s main duties?
Duty to Repair: A tenant has a duty to to maintain the premises by making routine repairs.
Duty Not to Commit Waste: There are three types of waste: (1) voluntary waste, waste attributable to willful destruction; (2) permissive waste, waste attributable to negligence; (3) ameliorative waste, waste that increases the value of the property.
Duty to Pay Rent: If a tenant fails to pay rent, the landlord can evict or sue, but the landlord cannot engage in self-help.
What can a landlord do if a tenant breaches but is out of possession?
Surrender: The landlord could choose to treat the tenant’s abandonment as an implicit offer of surrender, which the landlord accepts, thereby ending the lease.
Ignore: Do nothing and hold the tenant responsible for the unpaid rent until the natural end of the lease.
Re-Let (Majority Rule): Re-let the premises on the wrongdoer-tenant’s behalf, and hold the wrongdoer-tenant liable for any deficiency.
What are the landlord’s duties to tenants?
Duty to Deliver Possession of Premises: Most states follow the British Rule and require the landlord to put the tenant in actual possession of the premises at the beginning of the lease term. Under this view, the landlord is in breach if he has not evicted a holdover tenant at the beginning of the new tenant’s lease. A minority of states follow the American Rule under which the landlord’s obligation is merely to give the tenant the legal right to possession. Under this view, the new tenant must bring eviction proceedings against the holdover tenant.
Implied Covenant of Quiet Enjoyment: A tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder. This covenant can be breached through actual, partial, or constructive eviction. Constructive eviction occurs if (1) there is a substantial interference with the premises based on the landlord’s actions or failures, (2) the tenant notifies the landlord of the problem, and (3) the tenant vacates the premises within a reasonable time after the landlord fails to remediate. A tenant does not have to pay rent if he is actually or partially evicted, but a tenant can only terminate the lease and recover damages if he is constructively evicted. Think CLAPS.
Implied Warranty of Habitability: The premises must be fit for basic human habitation. This only applies to residential leases. If this covenant is breached, a tenant can (1) move out and terminate the lease, (2) repair the defect and deduct the costs from future rent, (3) reduce or withhold rent until a court determines fair rental value, and (4) remain in possession, pay rent, and seek money damages.
Exceptions to Caveat Lessee - Under the doctrine of caveat lessee, a landlord was under no duty to make the premises safe. However, there are several exceptions to this rule. A landlord has a duty to (1) maintain common areas, (2) warn tenants of hidden latent defects, (3) complete repairs it assumes to make, (4) repair defects for short-term leases in public spaces, and (5) repair any defects for short-term leases of furnished dwellings.
Duty of Reasonable Care - Under the modern trend, landlords owe residential tenants a duty of reasonable care. Landlords are liable for injuries in tort resulting from ordinary negligence if the landlord had notice of a defect and an opportunity to repair it.
What are the difference between an assignment and a sublease?
An assignment is a transfer of the entire remaining term of the lease. After the assignment, the assignor remains in privity of contract with the landlord, but the assignee is now in privity of estate with the landlord.
A sublease is a transfer of the lease in which the lessor retains some part of the remaining term of the lease. After the sublease, the sublessor remains in privity of contract with the landlord, but the sublessee is now in privity of estate with the subleasor.
A landlord can prohibit a tenant from assigning or subletting without the landlord’s prior written approval. However, a landlord waives this right if he consents to one transfer by a tenant, unless the landlord expressly reserves this right.
What are the types of easements?
An easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land. An easement can be affirmative or negative. An affirmative easement is a right to go onto and do something on servient land, while an negative easement prevents the servient landowner from doing something otherwise permissable. Negative easements are recognized in light, air, support, and a stream of water from an artificial flow and can only be created expressly.
Easement Appurtenant: An easement appurtenant benefits the dominant tenement at the expense of the servient tenement. This type of easement passes automatically to transfers of the dominant and servient estates, regardless of whether it is mentioned in the conveyance. However, it does not automatically pass to a servient estate if the new owner is a bona fide purchaser without notice of the easement.
Easement in Gross: An easement in gross only burdens the servient tenement. An easement in gross is not transferrable unless it is for commercial purposes.
What are the different ways of creating an easement?
Prescription: An easement by prescription must satisfy the elements of adverse possession: (1) continuous and uninterrupted use for the given statute’s period, (2) open and notorious use (that is, it’s discoverable upon inspection), (3) actual use that need not be exclusive, (4) hostile use (meaning, use without the servient owner’s consent).
Implication: An easement by implication can arise from a preexising use and without any existing use. To find an easement by implication based on a preexisting use (1) the previous (prior to division) use on the servient part must be apparent and continuous AND (2) the parties must have expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment. To find an easement without any preexisting use, the easement must be part of a subdivision plat (i.e., streets to houses) or a profit a prendre (i.e., a right to enter servient land and extract resources).
Necessity: An easement by 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.
Grant: An easement by grant must be memorialized in writing and signed by the holder of the servient tenement unless the duration is for less than 1 year.
What are the ways to terminate an easement?
Estoppel: The servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations (such as that the easement will no longer be enforced).
Necessity: Easements by necessity expire as soon as the necessity ends, unless the easement was reduced to an express grant.
Destruction: Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement.
Condemnation: Condemnation of the servient estate by governmental eminent domain power will terminate the easement.
Release: A release given by the easement holder to the servient landowner will terminate the easement.
Abandonment: An easement holder takes a physical action that demonstrates an intent to never use the easement again.
Merger: An easement is extinguished when title to the easement and title to the servent land become vested in the same person. The duration of the servient estate must be equal to or longer than the duration of the dominant estate (and therefore the easement).
Perscription: A servient owner can extinguish an easement by interfering with it in accordance with the elements of adverse possession. All of the elements are the same, but exclusive use is not required.
Note: Misuse of an easement does not terminate the easement. Damages or an injunction are the appropriate remedy.
What is a license?
A license is a mere privilege to enter another’s land for some delineated purpose. A license is revocable at the will of the licensor. No writing is required. Common examples include cases involving tickets and neighbors talking by the fence.
What are the rules for restrictive covenants and equitable servitudes?
A covenant is a written promise to do (affirmative) or not do (restrictive) something related to land. Restrictive covenants are only applicable if the plaintiff is seeking money damages.
Burdens to Run in Covenants: For the burdens of a covenant to run, there must be (1) a writing, (2) an intent for the covenant to run, (3) the covenant must touch and concern the land, (4) horizantal and vertical privity, and (5) notice of the promise (actual, inquiry, or record notice).
Touch and Concern: Restrictive covenants touch and concern the land if they restrict the burdened parcel owner in her use of that parcel of land. Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something that increases her obligations in connection with the land.
Horizonal Privity: Horizontal privity refers to the nexus between the original promising parties (A and B). It requires that they be in succession of estate, meaning that they were in a grantor-grantee or landlord-tenant or mortgagor-mortgagee relationship when the covenant was created.
Vertical Privity: Vertical privity refers to the nexus between the successor in interest (A-1) and the originally covenanting party (A). It simply requires some non-hostile nexus, such as contract, devise, or descent.
Benefits to Run for Covenants: The requirements for benefits to run are the same as those required for the burdens to run with the exception of horizontal privity and notice.
Touch and Concern: The benefit of a covenant touches and concerns the land if the promised performance benefits the promisee and her successors in their use and enjoyment of the benefited land.
An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser.
For an equitable servitude to bind successors, there must be (1) a writing, (2) an intent that the promise be enforceable by and against successors, and (3) notice (only applies to successors burdened by the servitude)
What is the Common Scheme Doctrine?
Under the common scheme doctrine, the court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise. There are two elements: (1) the subdivider had a general scheme of residential development which included the defendant’s lot and (2) the defendant had notice of the promise contained in those prior deeds when it took.
What are the defenses to enforcing an equitable servitude?
Defenses to enforcing an equitable servitude include (1) significant changes in neighborhood conditions, (2) unclean hands, (3) acquiescence by the benefited party, (4) estoppel, and (5) latches.
What are the rules for adverse possession?
Adverse possession is met where there is (1) continuous use throughout the statutory period (use must be of a type the usual owner would make; tacking is allowed), (2) open and notorious possession (i.e., use must be sufficiently apparent to put the true owner on notice that the trespass is occurring), (3) actual and exclusive possession (constructive possession allowed if taken under color of title), and (4) hostile possession (i.e., without the owner’s permission).
Continuous Use: An adverse claimant’s possession must be continuous throughout the statutory period. Continuous use only requires a degree of occupancy and use that the average owner would make of the property. The statutory period can be met if there is privity between multiple possessor. However, intermittent periods of occupancy are not sufficient.
Open and Notorious: The adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that the trespass is occurring.
Actual and Exclusive: An adverse possessor will gain title only to the land he actually and exclusively occupies. However, if the adverse possessor enters a property under color of title (i.e., an invalid deed), he is deemed to be in constructive possession of all the land that the deed describes so long as he is in actual possession of a reasonable portion of that land.
Hostile: The adverse possessor occupies the property in a hostile manner if he enters the property without the owner’s permission. The possessor’s state of mind is irrelevant. Adverse possession is not created between co-tenants unless one co-tenant ousts the other or makes an explicit declaration of exclusive dominion. Additionally, a possessor that enters the property under an invalid deed is in hostile possession. However, if a grantor stays in possession of land after it is conveyed, the grantor is presumed to be there with the permission of the grantee (the same applies for a holdover tenant).
The statute of limitations does not run against a true owner who is afflicted with a disability at the inception of the adverse possession.
