Property Flashcards
Joint tenancy with the right of survivorship
Characteristics
- Alienable intervivos
- not descendible or devisable
4 unities - TTIP
- same time
- same title
- identical equal interests
- right to possess the whole
Common law - created when four unities
Modern - need clear expression of right of survivorship otherwise presumed tenancy in common
Severance - SAP
- sale and partition
by voluntary agreement, judicial action for partition in kind, or judicial action for forced sale
Mortgages
- lien theory - does not sever unless foreclose
- title theory
Tenancy by the entirety
Martial estate - right of survivorship
presumed when conveyed to married partners
Can’t touch this
- creditors of only one spouse
- unilateral conveyance or encumbrance
Severance
- death, divorce, mutual agreement, execution by a joint creditor of both spouses
- divorce makes it a tenancy in common
Tenancy in common
No right of survivorship
presumed
do not have to be equal shares, but right to possess the whole
- ouster - wrongly excluding from possession of the whole or any part
devisable, descendible, alienable
Waste
Voluntary - willful destruction/decrease in value
Permissive - neglect
Ameliorative - change that increases value
Rights and duties of co-tenants
No rent for exclusive possession
proportional rent from third parties
not adverse possession unless ouster
Fair share of carrying costs - taxes, mortgage interest
fair share of reasonably necessary repairs - must notify of need
No right to contribution for improvements, but gets credit at sale for inc in value
No waste
Right to partition - restraints for reasonable time are valid
Four leasehold interests
Tenancy for years
Periodic Tenancy
Tenancy at will
Tenancy at sufferance
3 concurrent tenancies
Joint tenancy
tenancy by the entirety
tenancy in common
Tenancy for years
fixed, determined period of time
know the termination date
terminates automatically, no notice needed
can terminate by surrender or breach of lease covenants
Periodic tenancy
Continues for successive intervals until proper notice of termination
Creation
- express
- implication - no mention of duration and payment of rent at intervals, oral term of years in violation of SOF, holdover tenant
Automatic renewal until termination notice
notice equal to one period, timed to terminate at end of period
- month to month - one month
- week to week - one week
- year to year - 6 mo at common law, 1 mo modernly
Tenancy at will
No fixed period - terminable at the will of either LL or T
Must be express agreement
If right only given to landlord, implied for tenant but not vice versa.
Termination - most states required notice and reasonable time to vacate, or by operation of law
Tenancy at sufferance
Wrongfully holds over
lasts until LL evicts or elects to hold a new tenancy
Tenant’s duties
Repair and pay rent
Repair
- maintain premises - routine repairs other than ordinary wear and tear
no waste
- exception to ameliorative - if T is a long term T and the change reflects changes in the neighborhood
Destruction
- Common law - any loss T responsible
- modern - t may terminate if premises is destroyed without T’s fault
No self help for failure to pay rent
Breach but out of possession - SIR
surrender, ignore (minority, relet (majority)
Landlord’s duties
Duty to deliver possession
- actual physical possession
Implied Covenant of quiet enjoyment
- residential and commercial
- right to quiet use and enjoyment without interference from the landlord or paramount titleholder
-wrongful eviction = breach
Acts of other tenant
- only to abate a nuisance on site and to control common areas
Implied warranty of habitability
- only residential leases and nonwaivable
- do not need to vacate
- premises must be fit for basic human habitation - case law and housing code
- remedies:
move out and terminate
reapire and deduct
reduce rent or withhold
remain in possession and seek damages
No retaliatory eviction
- rebuttably presumed if acts within 90-180 days after T exercises rights
Wrongful eviction - breach of implied covenant of quiet enjoyment
actual
- excludes tenant from entire lease - terminates obligation to pay
Partial
- partial eviction by LANDLORD relieves T for obligation to pay for entire premises
Constructive
- LL breach renders premises unsuitable for occupancy - SING
- substantial interference, notice, goodbye
-MUST vacate
Assignment v Sublease
Assignment - transfer of entire remaining term
Assignee and LL = Privity of estate (covenants that run with the land)
LL and T = Privity of contract (original contract covenants)
Sublease - tenant has retained some part of the remaining term other than a right to reenter
LL and assignee - no PE or PK
LL and T - PE and PK
Once LL consent to one transfer, waives right to object to future transfers unless expressly reserve right
if covenant against transfer by LL was aware and did not object - waived
Caveat lessee - common law
Modern - general duty of reasonable care
Common law:
Let the tenant beware
LL under no duty to make premises safe under tort law
Exception - CLAPS
- common areas
- latent defect - warn T of hidden defects - T could not discover with reasonable inspection and LL knows or has reason to know
- assumption of repairs - no duty to repair, but once do, must complete with reasonable care
- public use rule - liable for any defects that cause injury to member of the public for leases of public spaces
- short term lease of furnished dwellings - responsble for any defective condition which proximately injures T whether of not they knew of the defect
Easement
grant of a nonpossessory property interest that entitles holder to some form of use or enjoyment of another’s land
Affirmative and negative
Negative Easement
prevent servient landowner from doing something that would otherwise be permissible - LASS
- light
- air
- support
- stream water from an artificial flow
minority - scenic view
Only created expressly
Affirmative Easement
right to go onto and do something on servient land
Easement appurenant or in gross
Appurtenant
- benefits its holder in his physical use or enjoyment of own land
- two parcels - dominant tenement that derives the benefit and servient tenement that bears the burden
-passes automatically with transfer of dominant even if no notice
- passes with servient unless BFP with no notice of easement
In gross
- confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of the land
- not transferrable unless it is for a commerical purpose
Creating an easement
PING
- prescription
- implication
- necessity
- grant
Prescription
- COAH - like adverse possession
- continuou
- open and notorious
- actual
- hostile
Implication
- preexisting use/quasi easement - prev owner prior to division used apparently and continuously, and parties expected it to survive division because necessary to dominant use and enjoyment
Necessity
- no way out except over servient land
- owner of servient has right to locate the easement
Grant
-in writing and signed by holder of servient unless outside SOF
- deed of easement