Real Prop Flashcards
When is a Tenancy in Common formed?
The default estate created by a conveyance/bequest of real property to two or more people, unless:
1. There is express language stating that the parties have survivorship rights (joint tenancy); OR
2. If the conveyance stated “as husband and wife” (creating a tenancy by the entirety).
When is a co-tenant entitled to reimbursement from their co-tenants?
- A co-tenant is entitled to reimbursement from other co-tenants for the costs of necessary repairs that the co-tenant paid for, UNLESS there has been a wrongful ouster.
- Generally, a co-tenant is NOT entitled to reimbursement from other co-tenants for improvements made to the property, unless a separate agreement states as such. HOWEVER, only the improving co-tenant is entitled to increase in value if the property appreciated due to the improvements.
What are the Four Types of Leaseholds and when do they terminate?
- A TENANCY FOR YEARS is a lease for a fixed, determined period of time. To be enforceable, a tenancy for years for a term greater than one year must be in writing. The leasehold estate terminates (a) automatically at its termination date or (b) upon a landlord exercising their right of entry should the tenant breach the lease’s convenants (e.g. failing to pay rent).
- A PERIODIC TENANCY is a lease that continues for successive intervals until the landlord or the tenant gives proper notice of termination (at common law, notice presumptively equal to length of period). A periodic tenancy may be created: (a) expressly; (b) by implication (no duration mentioned in lease; oral term of years violates Statute of Frauds; landlord elects to hold over tenant past end of original lease).
- A TENANCY AT WILL is a tenancy of no fixed period of duration and is terminable at the will of either the landlord or the tenant. Generally, it must be created by express agreement. If only the landlord is given the right to terminate, a similar right will be implied in favor of the tenant. However, if only the tenant is given a right to terminate, no right will be implied for the landlord. Today, notice and reasonable time to quite (vacate) are required to terminate, or the tenancy can be terminated by operation of law (e.g., due to death or commission of waste).
- A TENANCY AT SUFFERANCE is created when a tenant wrongfully holds over, remaining in possession past a lease’s expiration. This wrongdoer is given a leasehold estate (the tenancy at sufferance) to permit the landlord to recover rent.
What are the requirements of Adverse Possession?
Adverse possession ripens into title (ownership) when a person’s possession of property is:
1. Continuous: The statutory perios is generally twenty years without color of title. Constant use is not required as long as possession is what the usual owner would make. Further, an adverse possessor can tack her own possession onto periods of adverse possession of predecessors in privity.
2. Hostile: The hostility requirement is satisfied if the possessor enters without the owner’s permission. (NOTE: Possession by one co-tenant is not adverse to other co-tenants voluntarily out of possession because each co-tenant has the right to possession of all the property. A co-tenant must oust others or make an explicit declaration claiming exclusive dominion to create adverse possession.)
3. Actual: “Actual” acts of possession are those consistent with how a reasonable owner would use it if in possession.
4. Open and notorious: To be “open and notorious,” acts of possession are those that would have put an owner on notice of adverse possession had they inspected the land.
5. Sole (Exclusive): Exclusive possession means that the possessor is not sharing with the true owner or the public.
In some jurisdictions, the adverse possessor must also pay the property taxes during the possession.
What are Landlord’s options if a tenant holds over?
If a tenant continues in possession after their right to possession has ended, the landlord may:
1. Evict the tenant, OR
2. Bind the tenant to a new periodic tenancy. (by holding the tenant over, an implied month-to-month tenancy is created).
Commercial tenants may be held to a new year-to-year periodic tenancy if the original lease term was for one year or more.
What is the Warranty of Habitability?
Tenant’s remedies upon breach?
Implicit in EVERY residential lease is the requirement that the Landlord provide a place to live that is habitable, that is, reasonably suitable for human needs.
If breached, the Tenant may:
1. Move out and terminate the lease;
2. Withhold or reduce rent;
3. Repair the issue and deduct the cost from the rent; OR
4. Remain on the premises and sue for damages.
When does Constructive Eviction occur?
Constructive eviction occurs when all of the following are established:
1. Landlord breached a duty to the tenant;
2. Landlord’s breach caused loss of substantial use and enjoyment of premises;
3. Tenant gave landlord notice of the condition;
4. Landlord failed to remedy in reasonable time after notice was given; AND
5. Tenant vacated the premises.
Assignment of Lease vs. Sublease
An assignment of a lease occurs when the assignor transfers ALL of his remaining interest in a lease to a third-party assignee. BOTH the assignee and the assignor remain liable to the landlord for rent and any covenant that runs with the land.
A sublease occurs when a sublessor transfer SOME, but NOT ALL, of his remaining interest in a lease to a third party sublessee. The sublessee is NOT liable to the landlord for rent and any covenant that runs with the land.
How do state courts assess “Silent Consent Clauses”?
Under the majority rule, a silent consent clause gives the landlord the right to withhold consent to an assignment or sublease even if doing so is arbitrary and unreasonable. Under the minority rule, the landlord must have a reasonable basis to withhold consent.
What is abandonment? What are a landlord’s remedies for it?
A tenant “abandons” the premises when he:
1. vacates the leased premises before the end of the term;
2. Has no intent to return; AND
3. Defaults in payment of rent.
At common law, if a tenant abandoned the premises, a landlord could:
1. Accept surrender (landlord-tenant agreement to end lease early) of the premises. This would extinguish tenant’s duty to pay rent due after the ACCEPTANCE of surrender;
2. Re-let or attempt to re-let on the tenant’s behalf and recover damages based on difference between what tenant owed for rent and what landlord collected;
3. Do nothing and sue the tenant for unpaid rent.
What is a fixture?
At common law, a fixture is:
1. Personal property
2. That is attached to the land or a building, AND
3. Regarded as an irremovable part of the real property.
Courts determine whether an item is a fixture by assessing the objective intent of the person who attached the item and considering actors such as:
1. The nature of the item
2. The manner in which it’s attached
3. The damage that would result if removed, AND
4. The extent to which the item is adapted to the property.
However, there is an exception for trade fixtures, items attached to the property for use in the tenant’s business. These items are NOT fixtures unless removal would cause substantial damage.
What are the requirements of Adverse Possession?
Adverse possession ripens into title (ownership) when a person’s possession of property is:
1. Continuous: The statutory perios is generally twenty years without color of title. Constant use is not required as long as possession is what the usual owner would make. Further, an adverse possessor can tack her own possession onto periods of adverse possession of predecessors in privity.
2. Hostile: The hostility requirement is satisfied if the possessor enters without the owner’s permission. (NOTE: Possession by one co-tenant is not adverse to other co-tenants voluntarily out of possession because each co-tenant has the right to possession of all the property. A co-tenant must oust others or make an explicit declaration claiming exclusive dominion to create adverse possession.)
3. Actual: “Actual” acts of possession are those consistent with how a reasonable owner would use it if in possession.
4. Open and notorious: To be “open and notorious,” acts of possession are those that would have put an owner on notice of adverse possession had they inspected the land.
5. Sole (Exclusive): Exclusive possession means that the possessor is not sharing with the true owner or the public.
In some jurisdictions, the adverse possessor must also pay the property taxes during the possession.
What is a Real Covenant and what are the requirements for the burden and benefit to run with the land?
A real covenant is a non-possessory interest in land obligating its holder to do something or to not do something with the land. Unlike equitable servitudes, real covenants are remedied via damages.
To enforce the benefit of the real covenant to run, there must be:
1. A writing that satisfies the statute of frauds;
2. Intent that the covenant runs with the land;
3. Vertical privity between succeeding parties; AND
4. The covenant must touch and concern the land.
To enforce the burden of the real covenant to run, there must be:
1. ALL of the above;
2. Horizontal privity between the original parties; AND
3. New owner must have notice of the covenant (actual, constructive, or inquiry).
What is the doctrine of “constructive adverse possession”?
Under the doctrine of constructive adverse possession, if a possessor enters under color of title and the possessor takes possession of only a portion of the land described in the instrument, the possessor’s possession is deemed to constructively extend to the portion of the described land.
Fee Simple Absolute
The fee simple absolute is a present estate that does not terminate, unless the owner dies intestate without heirs, in which case the property escheats to the state, and gives a person all property rights, including unimpeded rights to (1) sell or convey all or part, (2) devise. A fee simple absolute is freely alienable by the owner during life, and upon death, devisable and descendible.
