Property Flashcards
What are the elements of adverse possession
COAH: Continuous, Open and Notorious, Actual, and Hostile
The elements are gauged objectively. The possessor’s subjective state of mind is irrelevant. It does not matter, for example, that the possessor actually thought that he was on his own land or knew that he was encroaching on another’s land
What is tacking?
One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is privity between the possessors
How do disabilities affect adverse possession?
The statute of limitations will not run against a true owner who is affected by a disability at the inception of adverse possession
If the true owner acquires the disability after adverse possession began, then the disability exception does not apply
Common disabilities include insanity, incompetency, infancy, or imprisonment
What are the three forms of concurrent ownership?
The joint tenancy - two or more own with the right of survivorship
The tenancy by the entirety - a protected marital interest between spouses with the right of survivorship
The tenancy in common - two or more own without the right of survivorship
What are the four unities required to create the joint tenancy?
T-TIP
T - at the same time
T - by the same title
- Meaning in the same instrument (i.e. a deed)
I - with identical interests (interests must be equal)
P - right to possess the whole
The grantor must clearly express the right of survivorship to create a joint tenancy (i.e. To A and B, as joint tenants, with the right of survivorship)
Which actions sever a joint tenancy?
SPAM - Sale, Partition, and Mortgage
Severance and Sale - a joint tenant may sell or transfer her interest during her lifetime. One joint tenant’s sale severs the joint tenancy because it disrupts the four unities. The buyer then becomes a tenant-in-common with the remaining tenant(s)
- A joint tenant may do the conveyance secretly without authorization from the other tenant(s)
- If there are more than two joint tenants, the surviving joint tenants remain joint tenants while the new tenant(s) has an interest as a tenancy-in-common
- Because of the doctrine of equitable conversion, the mere act of entering into a contract for the sale of a share will sever the joint tenancy as to the contracting party’s interest
Severance and Partition
- By voluntary agreement - an allowable and peaceful way to end the relationship
- By partition in kind - a judicial action for a physical division of property, if in the best interest of all parties (such as sprawling acreage with multiple owners)
- By forced sale - a judicial action, when, in the best interest of all parties, the land is sold and the sale proceeds are divided up proportionately (such as selling a home or single building; when the property is difficult to divide in-kind)
Severance and Mortgage - One joint tenant’s execution of a mortgage or a lien on his or her share will sever the joint tenancy as to that now-encumbered share only in minority of states that follow the title theory of mortgages
- The title theory of mortgages is that giving a creditor a lien is the equivalent of transferring title to the encumbered share and therefore severs title
- The majority of states follow the lien theory of mortgages, whereby a joint tenant’s execution of a mortgage on his or her interest will not sever the joint tenancy. This is the majority view because it is in line with reasonable expectations.
How is a tenancy by the entirety created?
In the states that recognize the tenancy by the entirety, it arises presumptively in any conveyance to married partners. In other states, the grantor must clearly specify that the conveyance is to A and B, as married partners, as tenants by the entirety
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 third party. The conveyance is void
What are the characteristics of a tenancy-in-common?
Each co-tenant owns an individual part, and each has a right to possess the whole
Each interest is devisable, descendible, and alienable
When in doubt, the presumption favors TIC because joint tenancies are disfavored
Is one co-tenant in exclusive possession required to pay rent to the other co-tenants?
No. Absent ouster, a co-tenant in exclusive possession is not liable for rent
What is the rule for renting a co-tenancy property to third parties?
A co-tenant who leases all or part of the premises to a third party must account to his co-tenants, providing them their fair share of the rental income based on their ownership interest (i.e. A owns 90% and B owns 10%; A is entitled to 90% rental and B is entitled to 10% rental)
What are the co-tenants responsible carrying costs of a property?
Each co-tenant must pay her fair share of carrying costs based on her undivided interest of the whole (i.e. 90% ownership is responsible for 90% of the costs)
What is the right of contribution?
As long as the repairs were reasonable and necessary, and the repairing party gave notice to the other co-tenants, then the repairing party has a right of contribution for the repairs
What are the responsibilities for improvements on the co-tenancy?
Co-tenants are not responsible for improvements on the property. One co-tenant’s improvements could be a burden on the other in the form of waste (voluntary, permissive, ameliorative). The improver gets no affirmative right of contribution
At partition (sale), however, the improver gets a credit for any increase in value he caused, or suffers a debit for any drop in value he caused
A joint tenant or tenant in common has a right to bring an action for partition
What are the rules for waste in a co-tenancy?
A co-tenant must not commit waste. During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant
What are the four leasehold estates?
Tenancy for years
Periodic tenancy
Tenancy at will
Tenancy at sufferance
What is the tenancy for years?
A lease for a fixed, determined period of time. That period could be as short as one week or as long as 50 years
Also known as the estate for years or term of years
How much notice is needed to terminate a term of years?
None, because a term of years tells you the termination date
A term of years greater than one year must be in writing to satisfy the statute of frauds
What is the periodic tenancy?
A lease which continues for successive intervals until the tenant (T) or landlord (L) gives proper notice of termination; continuous until properly terminated
What are the ways to create a periodic tenancy?
Express - created by written language (i.e. Taylor conveys to Calvin from month-to-month, or year-to-year, or week-to-week)
Implication
- (1) land is leased with no mention of duration, but provision is made for the payment of rent at set intervals (i.e. nothing is said about duration but tenant pays rent each month, which creates an implied month-to-month periodic tenancy)
- (2) an oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered (i.e. month to month or year to year)
- (3) in a residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered (i.e. T holds over after the expiration of her one-year lease but sends another month’s rent; creates an implied month-to-month periodic tenancy)
How is a periodic tenancy terminated?
Notice, usually written
At common law, the required notice is at least equal to the length of the period itself, unless otherwise agreed or dictated by statute
By private agreement, the parties may lengthen or shorten these common-law prescribed notice provisions; based in freedom of contract
What is the tenancy at will?
A tenancy of no fixed period of duration. For example, “To T for as long as L or T desires”
How do you create a tenancy at will?
Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy
How do you terminate a tenancy at will?
By a reasonable demand to vacate the premises that can be made by either party at any time
What is a tenancy at sufferance and how is it created?
It is created when T wrongfully held over, past the expiration of the lease. The leasehold estate is known as a tenancy at sufferance to permit L to recover rent
How is a tenancy at sufferance terminated?
It lasts only until L either evicts T or L elects to hold T to a new term
If L elects to hold T to a new term, then a tenancy at years, periodic tenancy, or a tenancy at will is created (tenancy at sufferance is short-lived)
What are T’s liability to third parties?
This is tort law in which T is responsible for keeping the premises in reasonably good repair. In tort, T is liable for injuries sustained by third parties she invited, even when L has expressly promised to make all repairs
- But T can seek indemnification from L if the responsibility to repair should have been on L
What is T’s duty to repair?
T need only maintain the premises, which means T must make routine repairs other than those due to ordinary wear and tear (maintenance)
T has a duty not to commit waste
What is the Law of Fixtures?
A fixture is a once-moveable chattel that, by virtue of its attachment or annexation to realty, objectively shows the intent to permanently improve the realty
It is related to waste because when a tenant removes a fixture she commits voluntary waste
Fixtures pass with ownership of the land unless otherwise agreed
T may end the lease when the premises is destroyed without fault to T (i.e. hurricane)
How can you know when a tenant installation qualifies as a fixture?
Express agreement - controls over default rule; any agreement between L and T is binding (usually in advance of installation; freedom of contract)
Default - T may remove a chattel she installed as long as removal will not substantially harm the premises
- If removal will cause substantial damage to the premises, then in objective judgment T has shown the intention to install a fixture. Therefore, it passes with ownership of the land. Subjective intentions of T are irrelevant
What is T’s duty to pay rent?
T has a duty to pay rent based on the terms of the lease
If T breaches the duty and is in possession, L’s options are: (1) evict through the courts, or (2) continue the relationship and sue for rent due
If the landlord evicts, she is still entitled to rent
- By virtue of eviction, by default the tenant is now a tenant at sufferance
What are landlord’s options upon breach of the duty to pay rent?
SIR
Surrender - treat T’s abandonment as an implicit offer of surrender. T can abandon by showing, by words or conduct, that she wants to give up the lease
- If the unexpired term is greater than one year, then must be in writing
Ignore the abandonment and hold T responsible for the unpaid rent, as if T was still there. Only available in a minority of states
Re-let the premises on the wrongdoer-tenant’s behalf and hold the tenant liable for any deficiency
- The majority rule is that L must try to re-let as a mitigation principal. L must make a good faith effort to re-let
What are the rules of self-help for landlord?
L must not engage in self-help, such as by changing the locks, forcibly removing the tenant, or removing tenant’s possessions
Self help is punishable by civil and criminal penalties
What is the duty to deliver possession?
This majority rule requires that L put T in actual physical possession of the premises. Thus, if at the start of T’s lease, a prior holdover T is still in possession, then L has breached and the new T gets damages
What is the implied covenant of quiet enjoyment (very likely to be tested)?
A duty that arises by implication that T has a right to quiet enjoyment of the premises without interference from L. L implicitly promises this in every lease, whether commercial or residential
L can breach this covenant by wrongful or constructive eviction
What is the breach by wrongful eviction and breach by constructive eviction?
Wrongful - when L wrongfully evicts T or excludes T from the premises
Constructive (more likely to be tested) - occurs by meeting three elements (SING)
- Substantial Interference - chronic or permanent problem due to L’s actions or failures to act (chronic = recurring)
- Notice - T must give L notice of the problem, and L must fail to respond meaningfully
-
Goodbye (vacate) - T must vacate within a reasonable time after L fails to fix the problem
- The aggrieved tenant cannot remain onsite and still plead she has been constructively evicted
What is the implied warranty of habitability (commonly tested)?
The premises must be fit for basic human dwelling; bare living requirements must be met (modest standard, not a high bar)
An implied promise that applies only to residential leases. It is non-waivable because waiver is a violation of public policy
Usually discerned by the local housing code or by case law
General problems include no heat in winter, no plumbing, no running water
Tenant does not need to vacate to bring an action
What are T’s entitlements when the implied warranty of habitability is breached?
MR3
Move - move out and end the lease (but not required to do so)
Repair and deduct cost from rental rate
Reduce or withhold rent until the court determines fair rental value
- Typically, T must place withheld rent into an escrow account to show good faith
Remain in possession, pay rent, and sue for money damages
Exam Tip - remember the difference between the covenant of quiet enjoyment (where to plead constructive eviction T must vacate) and the implied warranty of habitability (where T could vacate but is not required to do so).
What is the doctrine of retaliatory eviction and the rules surrounding it?
L cannot penalize T if T lawfully reports housing code violations, such as by raising the rent, ending the lease, harassing the tenant, or any other retaliatory action
The purpose is to encourage good-faith whistleblowing
May a tenant transfer her leasehold?
Yes, in the absence of some prohibition in the lease prohibiting transfer, the tenant may freely transfer his or her interest in whole (assignment) or in part (a sublease)
In the lease, L can prohibit T from assigning or subletting without L’s prior written approval
What is the difference from an assignment and a sublease?
Assignment transfers the lease in whole (the entire interest), while a sublease transfers the lease in part (less than the entire interest)
Once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L expressly reserves the right
What is meant by privity of estate?
When L and T2 are in privity of estate, L and T2 are liable for each other in all covenants of the lease that run with the land
I.e. promise to pay rent, promise to improve or repair, promise to pay taxes
What is meant by privity of contract?
L and T2 are not in privity of contract because they never exchanged the original promissory words of contract
But L and T1 remain in privity of contract because they exchanged the original promissory words of contract, meaning L and T1 are secondarily liable to each other
If T2, or the direct wrongdoer, cannot pay or is unavailable, then T1 is liable
If T2 assigns to T3, then L can proceed against T3 because they are in privity of estate (T3 is in possession). L can also proceed against T1 because they remain in privity of contract, but cannot proceed against T2 because they are neither in privity of contract or privity of estate.
What are the rules for privity of estate and privity of contract under a sublease?
L and T2 are neither in privity of estate or privity of contract.
The relationship between L and T1 remains fully intact because T1 transferred less than the entire interest to T2.
If T2 fails to pay rent, L proceeds against T1 and T1 proceeds against T2. If L violates the implied warranty of habitability, T2 proceeds against T1 and T1 proceeds against L.
What are the five exceptions of landlord’s tort liability (one or two often tested)?
CLAPS
Common Areas - L must maintain all common areas
Latent Defects - L must warn T of hidden defects that L knows about or should know about; this is a duty to warn not a duty to repair
Assumption of Repairs - While under no duty to make repairs, once undertaken, L must complete them with reasonable care, meaning L is liable if he makes the repairs negligent
Public Use Rule - L who leases public space (e.g. a convention hall or museum) and who should know, because of the significant nature of the defect and the short length of the lease that T will not repair, is liable for any defects on the premises (T does not have the time or expertise to make the needed repairs)
Short Term Lease of Furnished Dwelling - L is responsible for any defective condition which proximately injures T, because T has neither the time or ability to make repairs himself
What is an easement?
A grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land
What is the difference from an affirmative easement and a negative easement?
Affirmative - the right to do something on servient land
Negative - entitles its holder to prevent the servient landholder from doing something
- Generally recognized by only four categories: LASS (light, air, support, stream water from artificial flow) (Negative easement for light commonly tested)
- A minority of states also allow a negative easement for scenic view
- A negative easement can only be created expressly, by writing signed by the grantor. No natural or automatic right to a negative easement
What is an easement appurtenant?
An easement that benefits its holder (the dominant tenement) in his physical use or enjoyment of his property
Two properties are involved - the dominant tenement (the estate with the benefit) and the servient tenement (the estate with the burden).
What is an easement in gross?
An easement that confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land
- Examples: the right to place a billboard on another’s lot; the right to lay power lines on another’s lot; the right to fish or swim
Servient land is burdened, but there is no dominant land
What are the rules of transferability for easements?
The benefit of the easement appurtenant passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance
The burden of the easement appurtenant also passes automatically with the servient tenement unless the new owner is a bona fide purchaser without notice of the easement
An easement in gross is not transferable unless it is for commercial purposes
How can you create an affirmative easement?
PING
Prescription - acquired by analogy to adverse possession
- COAH; continuous use for the statutory period; open and notorious (visible); actual use that need not be exclusive (differs from adverse possession); hostile without the servient owner’s consent (no permission)
Implication - an easement implied from existing use
- Previous use must be apparent; the parties expected it to survive division; it is reasonably necessary to the dominant land’s use and enjoyment
Necessity - when the grantor conveys part of his land with no way out except over some part of the grantor’s remaining land (landlocked land)
Grant - by express language; an easement to endure for more than one year must be in writing to satisfy the statute of frauds (the writing is known as the deed of easement)
