property pt2 Flashcards
holdover doctrine
- when a tenant continues in possession after their right to possession has ended, the landlord may
- evict
- bind the tenant to a new periodic tenancy
- new tenancy is dictated by previous tenant based on the original lease
- commercial tenants are held to a new year-to-year periodic tenancy if the original was for a year or more
- residential tenants are generally held to a new month-to-month, regardless of original term
tenancy for years
measured by a fixed and ascertainble amount of time, so it has a predetermined termination date
creation language:
- to tenant for x amount of years
no auto renewal
terminates:
- time expires
periodic tenancy
is a repetitive, ongoing estate measured by a set period of time with no predetermined termination date
creation language:
- “Month to month”
- “rent due on x of the month”
auto-renewal
termination
- depends on duration (typically 1 month)
- 6mon for 1year lease (common law)
- terminates through notice from one party at least equal to the length of time period –> ex: if tenant gives notice in middle of month the lease will end on; they will get additional month.
tenancy at will
no duration expressed; tenant is there at the discretion of landlord
creation language:
- to tenant for the duration and pleasure of landlord
no auto-renewal
termination:
- when landlord evicts; state requires 30-day notice
- death of one party will terminate lease
tenancy at sufferance
tenant wrongfully holds over after termination of the tenancy
creation language:
- lease expires, but continues to occupy the premises
no auto-renewal
terminates:
landlord evicts tenants or elects to hold tenants to another term
license
- license is a grant of permission to enter property by an owner to a non-owner
- owner controls grantees access and can revoke permission
- non owner has a very limited interest and can usually be excluded from property at will of owner
lease
includes rights to possess and is a larger more significant property interest
including
- privity of estate
- privity of contract
statute of frauds
terms
- rent, term, duties, breach and right to termination
security deposits
- typically dictated by law
co-tenant relationships
- who owns what?
subleasing
- is it permitted?
assignment
complete transfer of tenants remaining lease to third party with no right of re entry
merely consenting to an assignment does not release the original tenant from his/her rights or obligations under the lease; no longer in privity of estate, but in privity of contract
ex:
- original tenant
- transfer his entire interest to a subsequent tenant (t-2)
- t-2 is in privity of estate w/landlord
- t-2 obligated on all covenants of the lease; landlord can directly sue t-2 for lost rent and other damages
for both an assignment and sublease, absent a release or novation, the original tenant remains liable to the landlord for all covenants in the lease
sublease
transfer of less than the tenants remaining lease, and has the right of re entry
ex:
- sublease - (t-1) transfers only part of his interest to t-2 and t-1 retians some portion of the estate
- sublease (t-2) is not directly liable to the landlord for rent or other economic damages
for both an assignment and sublease, absent a release or novation, the original tenant remains liable to the landlord for all covenants in the lease
delivering possession
ex: you arrive to apartment and it is occupied by previous tenant
landlord has duty to deliver possession to tenant
tenant options
- terminate lease and seek compensatory damages for losses incurred
or
- affirm the lease and be compensated for any damages such as they difference between contract for rent and higher temporary rent
fair housing act
- prohibits discrimination in housing based on
- race
- color
- national origin
- religion
- sex orientation
- familial status
- disability
implied warranty of habitability
cannot be waived!
does not apply to commercial building!
- landlords are generally responsible to provide a minimum baseline of health, safety, and functionality, in rental properties where tenants and their families live
- complement local housing codes
- landlords must ensure their property is in compliance with local housing codes and make serious repairs to address health and safety concerns
IF landlord has breached the implied warrant of habitability the tenant has a duty to notify the landlord and give a reasonable opportunity to cure before
- withholding rent
- remedying defect & deduct cost from rent
covenant of quiet enjoyment
constructive eviction
covenant of quiet enjoyment and constructive eviction
- both commercial and residential leases include an implied covenant of quiet enjoyment
- if landlords action or inaction cause substantial interference with use and enjoyment of the leasehold, then a tenant has been constructively evicted
- when a landlord breaches a duty to tenant that substaintially interferes with the tenants use and enjoyment of the leasehold. rent is excused if the tenants privdes notice of the interference and time to cure it, then vacates property.
fixtures
any fixture permanently attached to building belongs to landlord
any fixture not permanently attached belongs to tenant
a fixture is
- an item of personal property that is permanently attached to a building or land
- become a part of he underlying property to which they are affixes
- ex: built-in bookcase
- ownerships transfers to landlord
- non moveable ex: bookshelf
- ownership remains with tenant
COMMERCIAL RULE
absent an agreement to the contrary, a commercial tenant can remove a trade fixture that the tenant has attached to the leased property if:**
- leased property can be and is restored to its former condition after the removal and
- removal and restoration are made within a reasonable time
eviction
- legal process landlords use to recover possession of the leased property by requiring a tenant to vacate
actual, constructive, retaliatory
- retailitory eviction (does no apply to commercial tenants)
landlord cannot evict a residential tenant or refuse to renew a periodic tenancy as retailiation against the tenant for: - making a goof faith complaint with reaosnable cause about a housing code violation
- reufisng to pay rent when the landlord breaches the warranty of habitality
tenants eviction defense
- tenants have defense against eviction if the landlord is seeking to dispossess the tenant in retaliation for asserting their rights the implied warranty of habitability or complaining about property
- landlord must produce evidence of nonreatilitory reason fro eviction - if landlord can’t do so there is a presumption of retailitory eviction
self-help
- landlord changing locks
nuisance
an (1) intentional, (2) unreasonable, (3) substantial interference with another persons use and enjoyment of her property**
(Nuisance law will not provide relief where the complaining property owner is engaged in what is considered a hypersensitive use)
to find a nusiance the court has to find that the gravity of the harm outweighs the utility of conduct
evaluating gravity of harm
- extent of the harm involved
- character of the harm involved
- social value that the law attaches to the type of use of enjoyment invaded**
- the suitability of the particular use of enjoyment invaded to the character of the locality
- burden on person harmed or avoiding the harm
evaluating utilty of conduct
- social value that the law attaches to the primary purpose of the conduct
- suitability of the conduct to the character of the locality
- impractiablity of preventing or avoiding the invade
- to find a nusiance the court has to find that the gravity of the harm outweighs the utility of conduct
social/public policy
typically deals with neighbor conflicts
- nuisance is the default that governs neighbor relationshsips uses in the absence of an agreement
- balances landowner (a) right to use property vs the neighbor (b) right to have quiet enjoyment (competing property interest)
physical invasion is not required for nuisance, differs from trespass
remedy for nuisance
- plaintiff will want the offending conduct to stop
- traditionally damages are restricted to the loss of property rights and do not extend to things like punitive damages
- in residental context may extend to lost rental value-difference in the fair market rental value of the property and without the nusiance
- loss profits may be available in commercial context
zoning
restricts use to regulate and should harmonize conflicting uses and balance the interests of the public with private properties
goals of zoning
- separate incompatible uses and prevent nuisance before it occurs
- certainty that preserves property values
- - essential purpose to zoning is to stabilize property uses
- ease in administration
legal authority for zoning comes from the 10th amendment which explains the powers not specifically delegated to the federal government are reserved to the states or to the
people.
- states have power to regulate the protect the public health, safety and welfare (police powers) - basis for zoning and land use regulation**
difference between planning and zoning
- planning is a guide;
- process that creates a vision for a community and guides the orderly development of real estate
- zoning refers to dividing a municipalities into different zones to regulate land use
- zoning decisions are often legally required to be consistent with the comprehensive plan
zoning process
- zoning ordinance law is designed to implement comprehensive plan developed by planning committee that gets passed by legislative body
- local governments update comprehensive plan and conduct comprehensive rezoning at the same time
- original or comprehensive zoning may be changed by a subsequent comprehensive zoning or by a subsequent piecemeal zoning
spot zoning
- singles out a small parcel of land for use of classification totally different from that of the surrounding area for the benefit of the owner of such property and to the detriment of the other owners
- the issue is that is highly suggestive of special treatment, either preferential or detrimental and inconsistent with comprehensive plan
- when considering spot zoning, courts will generally determine whether:
- compatibility of the zoning of surrounding uses ,
- the size of parcel
- degree of which the public benefit
- consistent w the municipality comprehensive plan
size, compatibility with what is around it, consistency with comprehensive plan, and for public good**
contract zoning
- quid pro quo (you give me money, and i will approve your contract)
- where rezoning is exchanged for a quid pro quo is generally invalid as either an illegal delegation of police power or an attempt to influence the rezoning process itself
- contract zoning could allow municipalities to have more control over development by passing along cost and conditions to the developers
we don’t want local governments contracting away police powers
variances
- allows for a use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations
variances provide flexibility in the application of zoning law and afford the landowner opportunity to apply for administrative relief.
applicant must show the following:
- unnecessary hardship would result from the strict application of the ordinance
- hardship results from conditions that are peculiar to property
- hardship is not a self-created hardship
- request is the minimum necessary to afford relief
servitutudes
- enables private agreements among owners that regulate either the way property is used by an owner or access to another’s property for a specific purpose
- non-possessory interest in land
- propertly formed, these agreements can bind the property and run with the land (binds successive owners)
two servitudes include
- coveneant
- easement
covenant
- covenant is an agreement among owners that a parcel or multiple parcels will be used in a certain way (real covenants and equitable servants)
- covenants different from contracts because convenants become attached to the property and flow to whoever owns the land in the future (THEY DO NOT RUN WITH THE LAND)
- regulate how an owner may use his or her own property
- typically negative
- covenants on the part of the tenants not to assign or sublease are strictly construed against the landlord; covenant prohibiting subleasing does not prevent assignment and vice versa
easement
- grants right to use another’s property in a specific way
- typically positive
expressed easements:
- affirmatively created by the parties in writing that satisfies the requirements for a deed
- the terms of an easement determine its scope and any use of the servient property within that scope is permitted
- only if terms are ambiguous will courts look to the parties intent - as demonstrated by their postcreation conduct - and what is reasonable considering the easements purpose
requirements:
- signed by grantor
writing that satisfies requirements for deed-ie:
- identify grantor, grantee, and easement created
- indicate present intent to create easement
- reasonably describes property and;
- is signed by grantor
- why easement is granted, dimensions for easements
grant v. reservation
grant
- occurs when a owner of the property gives or sells an easement to a grantee
reservation
- an owner of land transfer part of the land and retains part and then in same transaction creates an easement in the land just transferred out
3 requirements for the burden of an express easement to attached to land flow to subsequent owners (run with the land
writing
- looking for language of specificity by reading easements
- only if terms are ambiguous will courts look to the parties intent - as demonstrated by their postcreation conduct - and what is reasonable considering the easements purpose
- satisfies statute of frauds
intent to run
- words showing intent - “is intended to run with the land to successor owners” or “is intended to bind all heirs and assigns” (pg560-561)
- implied by circumstances and nature of the easement, ex. ingress or egress
notice to servient estate holder
- actual knowledge,
- inquiry notice from the visible appearance of the easement of land, or
- record notice form the fact that the document creating the easement is recorded in public records
- buying comes with obligations
- seeing tire tracks, puts you on inquiry notice
- physical evdience (tire tracks)
- record inquiry
- expected to examine public records)
- for an appurtenant easement, when the dominant parcel is transferred, the benefit of the easement passes with the land regardless of whether the easement is mentioned in the conveyance
- if the servient parcel is transferred, its new owner takes its subject to the burden of the easement, unless she is a bona fide purchaser with no notice of the easement.
remedy to spot zoning
argument is:
small parcel of land has to be in harmony with the comprehensive plan and is done for public good to serve more purpose of enabling statute, and thus bears the substantial relationship to public healthy, safety and general welfare which may be valid
rezoning
-
if someone is asking for zoning outside of comprehensive plan; must explain piecemail zoning
- then discuss what spot zoning is; and whether or not it is
cost life tenants are responsible
pay taxes, interest on the mortgage,, and make repairs
trespass elements
intentional
unprivileged intrusion
onto property
for criminal
- non owner had notice against trespass
marital property
all property acquired after the date of marriage until the end of the relationship is divisible based on what is equitable evaluating the factors:
- length of marriage
- spouse contributions
- age
- health
- earning potential
community property
all assesst acquired through marraige is split 50/50
seperate (non-marital property)
property acquired before marriage, by git, or by inheritence to one spouse
gifts
conditional: engagement rings
testimary: gift given through a will
intervivous - gifts given the lifetime
causa mortis - gift given by imminent death
public accomodations laws
- is the buisness covered by the law
(civil rights act- hotels, resturants, theaters) - did the business discriminate
- is the plaintiff a member of protected class
- do any exceptions apply?
(private club, religious org)
waste
affirmative
- voluntary over conduct to decrease property value
permissive
- allowing property to deteriorate by not making repairs
ameliorative
- cannot make changes that would lower or increase property value
types of gift delivery
actual delivery
constructive delivery
symbolic delivery
