Property Flashcards
Forms of concurrent ownership (joint tenancy)
Two or more own with the right of survivorship (deceased JT’s share goes automatically to surviving JT).
-Alienable inter vivos (transferable during its holder’s lifetime)? Yes.
-Devisable (capable of being passed by will)? No.
-Descendible (capable of being passed to heirs through statutes of intestacy)? No.
Creation of JT:
T - at same time (watch out for a party having had an earlier interest)
T - by same title (in same legal instrument)
I - identical equal interests
P - right to possess whole
Severance of JT:
-(1) Sale: JT sells/transfers during lifetime. May transfer interest secretly (even w/o other JTs’ knowledge/consent). But that sale disrupts the joint tenancy and the buyer of the interest will be a tenant in common (b/c taking outside of the “four unities”). The other JTs still hold the remainder of the tenancy as JTs.
-If the JTs convey an interest jointly, their JT remains intact. If one JT unilaterally transfers an interest, the JT is dissolved.
-(2) Partition (dissolution of the relationship): voluntary - amicable end; judicial - in kind (physical division, e.g. of land; preferred by courts because presumed easier to achieve but will allow forced sale if it seems feasible) or forced sale (division of proceeds).
-(3) Mortgage (i.e. JT’s execution of a mortgage on her share of JT):
-Majority of states (lien theory): no severance. If JT dies, the mortgage does not pass to the surviving JT. If JT mortgages interest in JT but keeps making the monthly mortgage payments, the JT remains intact.
-Minority of states (title theory): severance (as to that encumbered share). Lender is considered the owner of the mortgaged property until the mortgage debt is fully satisfied. This means lender can take possession/lease out the property, but is liable to the original borrower for any waste that that the lender commits during foreclosure proceedings.
Forms of concurrent ownership (tenancy by the entirety)
Specially protected marital interest, can only exist b/w spouses; also accompanied by right of survivorship. Pretty much untouchable - e.g. no unilateral transfer or encumbrance (of tenant’s share on behalf of a creditor) permitted. Cannot be terminated by involuntary partition.
Severance:
-Divorce (becomes tenancy in common); death; execution on a lien by a joint creditor of BOTH spouses.
Forms of concurrent ownership (tenancy in common)
Two or more own with no right of survivorship. Co-tenant owns individual part + right to possess whole (no matter how small each co-tenant’s individual share. Can have unequal shares (unlike JT!).
-Alienable? Yes.
-Devisable? Yes.
-Descendible? Yes.
Rights and duties of co-tenants:
-Possession: no ouster (wrongful exclusion from part/whole).
-Rents and profits: a co-tenant in exclusive possession is not liable to the others for rent unless there has been an ouster; fair share given to all co-tenants if leased to third party.
-Adverse possession: not permitted unless ouster (checks off the hostility element).
-Carrying costs (taxes and mortgage interest payments): each pays fair share.
-Repairs: contributions for reasonable, necessary repairs with notice.
-Unilateral improvements: no contribution (credit at partition) owed when improvements made w/o the advice and consent of the other co-tenant. But upon partition, the improver gets a credit equal to any value increase he caused. Likewise, the improver suffers a debit equal to any diminution in value he caused.
Waste (can hold co-tenant liable):
-Voluntary: willful destruction –> e.g. co-tenant hangs up paintings and hammers 100 holes in the wall and wall is basically destroyed.
-Permissive: neglect –> e.g. forget to close windows and a storm floods the premises.
-Ameliorative: unilateral change increasing value –> e.g. tear down entire cabin to build more valuable building. Still held liable (e.g. for sentimental losses).
Can seek partition.
Leasehold interests
(1) Tenancy for years:
-Known, fixed period of time (doesn’t have to be literally years)
-Termination automatic (on end date)
-No notice needed to terminate
-Writing typically needed if >1 year
(2) Periodic tenancy
-Continues for successive intervals until properly terminated (by Landlord or Tenant with proper notice).
-Creation:
-Express (“L to T from month to month”)
-By implication: no mention of duration but rent at
set intervals; oral term of years violating SOF
(automatically becomes period tenancy); holdover
tenant after lease ends.
-Termination (by notice):
-Common law: at least equal to length of period.
-Month-to-month: 1 month notice.
-Week-to-week: 1 week notice.
-Year-to-year+: 1 month under Restatement (6
months under common law).
-Holdover tenant: if residential tenant, locked into a month-to-month periodic tenancy. If commercial tenant, locked into a year-to-year periodic tenancy. Can’t exceed one year b/c of SOF. While the rent (as well as other terms) of the new tenancy will generally be the same as the old tenancy, there is an exception when the landlord has told the tenant of a future higher rent and that notification came before the expiration of the old lease. In that event, the landlord can impose the higher rent in the new periodic tenancy.
(3) Tenancy at will
-No fixed duration.
-Terminable at will of either party (“To T for as long as L or T desires”)
-Must be explicitly created and intended.
(4) Tenancy at sufferance
-Creation: T wrongfully holds over past lease expiration –> L proceeds to recover rent.
-Termination: when L moves to evict or holds T new tenancy.
T’s duty to repair if lease silent
-Maintain premises
-Make routine repairs
-Not responsible for ordinary wear & tear repairs (i.e. if caused by normal passage of time)
-Don’t commit waste. Exception: ameliorative waste permitted whenever the tenant is a long-term tenant and changes she’s making are reasonable b/c they reflect the changes to the neighborhood overall.
T’s duty to repair with express covenant
-Maintain in good repair/condition.
-Majority view: T may terminate lease if premises destroyed without T’s fault (e.g. natural disaster).
T’s duty to pay rent
If T breaches and remains on premises:
-Evict
-Continue relationship and sue for rent
-No self-help (e.g. changing locks)!!
If T breaches and is out of possession:
-Surrender - L treats action as T voluntarily giving up lease
-Ignore - do nothing (hold T liable for rent)
-Relet - new lease (hold T liable for deficiency)
L’s duty to deliver possession
-Majority rule: duty to place T in actual, physical possession. L has breached and new T gets damages if at the start of lease, the old tenant is still on the premises.
L’s implied covenant of quiet enjoyment
T has right to quiet use & enjoyment w/o interference from L (residential & commercial).
L can breach by wrongful eviction or constructive eviction.
-Wrongful eviction: exclusion from whole or part of premises. Even though the tenant continues in possession of the remainder of the premises, partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises rather than for only the portion of the premises from which he was evicted. In contrast, partial eviction by a paramount title holder results in an apportionment of rent; i.e., it relieves the tenant of the obligation to pay rent NOT for the entire premises, but only for the portion of the premises from which he was evicted. The tenant remains liable for the reasonable rental value of the portion that he continues to possess.
-Constructive eviction: L renders premises unsuitable for occupancy (e.g. every time it rains, apt. gets flooded). T can terminate lease and seek damages if:
(1) substantial interference (chronic/permanent
problem)
(2) notice (T must notify L of the problem and L must
fail to fix it)
(3) goodbye/get out (T must vacate within a
reasonable time after L fails to remediate)
L must prevent nuisance-like activity on/near the premises. L must also take care of common areas.
L’s implied warranty of habitability
-Applies to residential leases only
-Premises be fit for basic human habitation
-Standard: case law and local housing code
-Non-waivable
-Examples: no running water; no heat in winter.
T’s options if L breaches:
-Move (but doesn’t have to!)
-Repair & deduct
-Reduce or withhold rent
-Remain & seek damages
Covenant of quiet enjoyment: T must vacate
Warranty of habitability: T may (but doesn’t have to) vacate
Retaliatory eviction
L can’t terminate/penalize T in retaliation for T’s exercise of legal rights (e.g. by raising rent, harassing tenant).
Anti-discrimination laws
Civil Rights Law: bars ethnic or racial discrimination in the sale or rental of all property.
Fair Housing Act: no housing discrimination on basis race, color, religion, sex, disability, familial status, national origin. Exemptions:
-Owner-occupied buildings w/ 4 or fewer units
-Single-family homes if owner has no more than 3
Prohibited actions:
-Refusing to negotiate, rent, or sell housing, or give mortgage
-Providing different terms for sale/rental
-Falsely representing dwelling unavailable
-Reasonable accommodations for tenants w/ disabilities. Tenant makes those accommodations at her own expense, but L is going to have to make the reasonable accommodations in the rules that apply to the units in the building, the policies, the services available.
If, at the time the lease is entered into, the landlord knows of a dangerous condition that the tenant could not discover upon reasonable inspection…
…the landlord has a duty to disclose the dangerous condition. Failure to disclose the information about the condition results in liability for any injury resulting from the condition.
Assignment
Transfer of entire remaining term of lease.
Assignee T2 in privity of estate (based on possessory interest in land) w/ L –> liable for covenants that run with land. E.g. the promise to pay rent, taxes, covenant of quiet enjoyment runs with the land. T1 no longer in privity of estate w/ L because T1 is out of possession.
Original T in privity of contract (but not estate) w/ L –> they remain [secondarily] liable for original lease obligations. E.g. if T2 can’t make rent, T1 is liable.
Sublease
Transfer of part of remaining term of lease.
T2 has no privity (estate or contract) with L –> T1 and T2 are responsible to each other.
Relationship b/w L and T1 remains fully intact. E.g. if T2 fails to pay rent, L proceeds directly against T1 who in turn has to make it her business to proceed against T2. Even if we’re looking at violations of implied warranties, T2 takes up with T1, not L.
Caveat lessee (tenant beware)
L has no duty to make premises safe, except if:
-Common areas (hallways, stairwells, elevators)
-Latent defects (L must warn if he knows or should know). In the context of torts, duty is to WARN, not to repair.
-Assumption of repairs (L liable if makes repairs negligently). Once L undertakes repairs, he does have to complete them with reasonable care.
-Public use rule: short-term lease (e.g. a museum for a convention/prom/wedding) and premises have significant defect.
-Short-term lease of furnished dwelling.
If L leases property to T, and L subsequently assigns L’s interest to L2, T may hold…
L or L2 liable when X, a paramount title holder, ejects T. A landlord may assign the rents and reversion interest that he owns. The assignee is liable to the tenants for performance of all covenants made by the original landlord in the lease, provided that those covenants run with the land. The original landlord also remains liable on all of the covenants he made in the lease. X’s evicting T from the entire leased premises breaches the covenant of quiet enjoyment, which runs with the land. Thus, L and L2 are personally liable to T.
Covenants against assignment or sublease
If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers.
Restraints on alienation are traditionally strictly construed. Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa.
Liability after sale of leased premises
A landlord’s promise in a lease to maintain the property does not terminate because the property is sold. Although no longer in privity of estate, the original landlord and tenant remain in privity of contract, and the original landlord remains liable on the covenant unless there is a novation.
When leased property is sold, the purchaser may be liable for his predecessor’s promises if the promise runs with the land. A covenant in a lease runs with the land if the parties to the lease so intend and the covenant touches and concerns the land. Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land.
Easement
Grant of nonpossessory property interest entitling holder to use/enjoyment of another’s land.
Affirmative: right to go on to and do something on another’s land (servient land).
Negative: right to prevent landowner from doing something (light, air, support, stream water from artificial flow). E.g. prevent someone from building taller than x b/c it would obstruct sunlight into my property.
-Can be created only expressly in a writing signed by the grantor!
Easement appurtenant
Benefits holder in use/enjoyment of own land. Must implicate two parcels of land because the dominant tenement is getting the benefit thanks to the easement and enhanced right of use or enjoyment of the easement holder’s own land. The servient tenement owner is suffering the brunt/burden of the given easement.
Two parcels:
-Dominant: derives benefit
-Servient: bears burden
-Transfers automatically with the dominant tenement (i.e. the one enjoying the easement), regardless of whether it’s even mentioned in the conveyance.
-The burden also transfers automatically with the servient tenement unless the new owner happens to be a bona fide purchaser w/o notice of the easement.
Easement in gross
-Confers upon its holder only some personal or financial, commercial, pecuniary advantage not linked to the easement holder’s use and enjoyment of any of the easement holder’s own land.
-Servient land burdened
-No benefited/dominant tenement
E.g. the right to place a billboard on another’s lot; the right to swim in another’s pond; the right of electricity company to lay wire on your property. Common thread: servient land is burdened, but there is no dominant parcel.
Not transferable unless it is for commercial purposes.
Creation of affirmative easement
-Prescription: continuous; open and notorious (visible and discoverable upon a reasonable inspection of the subject premises); actual (but doesn’t have to be exclusive); hostile (use w/o servient owner’s consent).
-Permission always defeats acquisition of an
easement by prescription!
-Implication: preexisting use/quasi-easement (functions as exception to writing requirement). Previous use had to have been rather apparent/visible and continuous AND parties have to have reasonably expected that that prior apparent use would continue.
-Necessity: will be implied whenever a landowner conveys part of her land w/ no way out except over some portion of that grantor’s remaining land. The owner of the servient parcel gets to pick where that easement arising out of necessity by implication will be located.
-Grant: must be signed by writing (deed of easement) by the holder of the servient tenement, unless the duration of the easement is so brief as to be outside of SOF (<1 year).
Scope of easement
Set by the terms of the grant or conditions that created it.
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. However, when an easement’s scope has been set out only in general language, courts will interpret it to accommodate the holder’s present and future reasonable needs. In either event, if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged. The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.
Terminating an easement
Estoppel - servient owner materially changes positions in reliance on the easement holder’s assurances that the easement will no longer be enforced. E.g. A tells B she will no longer be using the path on A’s property to cross from B’s property to the road. In reasonable reliance on that assurance, A builds pool on the path. B is estopped from later enforcing the easement.
Necessity - termination when need for easement ends UNLESS that easement was reduced to an express writing.
Destruction - of servient land; must be involuntary (e.g. fire or flood).
Condemnation - of servient land.
Release - by holder to servient owner. Must ID the parties, words of transfer, describe the nature of the easement, and be signed by easement holder.
Abandonment - easement holder has to show physical action demonstrating the intent to never make use of the easement again. E.g. easement holder building structure on their land that prevents access to easement. Mere lack of use is not enough.
Merger - easement and servient land held by same person. E.g. one party buys the other’s land on which there was an easement.
Prescription - by servient owner.
License
Mere privilege to enter another’s land for narrow/delineated purpose. Unlike easement, NOT considered an interest in land - easily revocable. If it looks like an easement but doesn’t meet all the requirements of easement creation, it’s a license.
Creation of license:
-No writing required b/c not subject to SOF.
-Freely revocable at will of licensor (unless estoppel applies).
Two common examples:
-A ticket (e.g. to a Broadway show)
-Two neighbors talking across the fence and one says the other can have the right of path across his yard –> no writing (most easements presumed to be >1 year), no easement!
When will estoppel bar revocation? Only when licensee has invested substantial money or labor or both in reasonable reliance on the expectation that the license would continue.
Profit
Entitles holder to enter servient land and take some resource (e.g. mineral, game).
Same rules apply to profits as to easements. In addition, a profit may be extinguished/terminated through a surcharge - a misuse that overtly and wrongfully burdens the servient estate.
Covenants
Promise to do or not do something.
Most covenants are negative/restrictive: refrain from doing something (“I promise not to build for commercial purpose,” “I promise not to have pets in my condo unit”).
Affirmative: do something related to land (“I promise to maintain our shared fence”)
If P is seeking money damages –> construe as covenant at law.
If P is seeking injunction –> construe in equity as equitable servitude.
Does covenant run with the land? Two parts of analysis (burden and benefit):
Requirements for burden to run (i.e. from burdened party A to successor A1):
-Original promise must have been in writing
-Intent for it to run
-Touch & concern (pertains to the burdened land/related to use of land)
-Horizontal & vertical privity. horizontal = requires that A and B shared succession of estate, i.e. shared some other relationship regarding land (e.g. landlord/tenant, mortgagor/mortgagee, grantor/grantee) in addition to or apart from making the covenant vis-a-vis each other; vertical [much easier to establish] = nexus b/w successor and original covenanting party (non-hostile). E.g. will, deed, contract.
-The new party must have had notice of the promise/burden.
Requirements for benefit to run (easier):
-Writing
-Intent that the benefit would run
-Touch & concern
-Vertical privity, i.e. a non-hostile nexus between B and B1
