Property Hot Topics Flashcards
Three Concurrent Estates
Joint tenancy
Tenancy in Entirety
Tenancy in Common
How do you create a joint tenancy?
The four unities:
Time, Title, Interest, Possession
All joint tenants must have equal shares and there must be a clear expression of right of survivorship
How do you sever a joint tenancy?
Sale and Partitions
Sale - you sell the conveyance and the joint tenancy is severed and you have a tenancy in common with remaining tenant(s) (if more than one they keep their joint tenancy with right of survivorship)
Judicial partitions
Force sale and divide proceeds
Partition in kind – physically divide the land
When does a mortgage sever a joint tenancy?
Title Theory states where a mortgage is the equivalent of transferring title
What is the majority rule for mortgages?
A Lien theory state is the majority and there a mortgage does not sever unless there’s a foreclosure and the property sold
Description of a Tenancy in Common
Concurrent estate but with no right of survivorship, meaning it is alienable, descendible, and divisible
this is the presumed concurrent estate
But each grantee may possess the whole
Rights of Co-tenants
Possession – equal right to possess the whole or any party
Rents and Profits – no collecting rent from co-tenants unless they ousted their co-tenants
If rented to a third party, each co-tenant get a fair share of profit based on the size of their share
Adverse possession
- cannot adverse possess property unless they oust their co-tenants
Obligations of co-tenants
Carrying costs – pay fairshare of carrying costs
Repairs – right to contribution for reasonable, necessary repairs provided they give notice and the contribution is based on fair share
Improvements – no obligation to contribute, but at partition you may get a debit or credit based on if the improvement improved the value
Do not commit waste
Waste Types
Voluntary – purposeful destruction or damage
Permissive – neglectful damage
Ameliorative waste – changes that increase value, recoverable for damages but may get a credit at partition
How do you tell a tenancy in years from a periodic tenancy?
A tenancy in years has a specific end date and can be any length. Period tenancies do not have specific end dates
Notice requirement for termination of a tenancy in years
No notice requirement because the end date is known
When does a tenancy in years terminate?
On the date of the lease OR if there’s a breach of the lease covenants like a failure to pay rent
Also a tenancy of years ends upon surrender of the tenancy and the landlord accepts
What is required to make a tenancy in years?
Must be in writing if it is more than a year to satisfy the statute of frauds
Periodic Tenancy Description
A periodic tenancy is a tenancy whose lease continues in successive intervals
How do you create a periodic tenancy?
Express it in a written lease OR
by implication or operation of law
Periodic tenancy by implication or operation of law
A lease that makes no mention of duration but provides rent on a certain basis will become the periods
Oral term of years become a periodic tenancy in the way the rent is tendered
Hold overs become periodic tenancies
Termination of a Periodic Tenancy
Automatically renewed unless there’s proper notice.
Unless the contract says otherwise, the notice requirement is based on the period
Month to month requires 1 month
week to week requires 1 week
Year to year or greater requires 6 month
Hold Over Doctrine
If a tenant continues in possession after the lease the landlord can
1) Evict the tenant OR
2) bind the tenant into a new periodic tenancy
Estoppel by Deed Doctrine
A grantor that does not have title at the time who gives a warranty deed to her grantee and later gets title to the property, that title springs through the grantor and vests in the grantee by operation of law.
A quitclaim deed does not do this.
What terms constitute the periodic tenancy created by the hold over doctrine?
The same rental terms for rent UNLESS you provided notice before the lease terminated that they would be different.
Length of a commercial periodic tenancy created by the Hold Over Doctrine
If the original term was for one year or more, it can be a new year to year tenancy
Length of a residential periodic tenancy created by the Hold Over Doctrine
Month to month regardless of original term
Exceptions to the Hold Over Doctrine
Not triggered if
1) tenant remains in possession for only a few hours or leaves a few personal property items behind after the lease expires
2) delay not caused by the tenant’s fault
Landlord’s remedy when Tenant Fails to Pay Rent and is in possession
Evict or sue for rent (but not self help)
