Real Prop Flashcards
Joint tenancy formation:
A conveyance of real property to two or more persons creates a joint tenancy when the four unities are present: (1) unity of time (all interests were received at the same time); (2) unity of title (all interests were acquired by the same instrument); (3) unity of interest (all ownership interests are equal); AND (4) unity of possession (all interests have equal rights of possession).
There MUST be clear express intent to create a joint tenancy, which may be satisfied by including such terms as “joint tenants”.
A right of survivorship means that when one joint tenant dies his interest in the land is automatically transferred to the other joint tenant(s).
Joint tenancy severance:
Generally, when one joint tenant unilaterally transfers his ownership interest in the real property, the joint tenancy is severed and the tenants will then hold the property as tenants in common.
Multiple tenants: If there are more than two joint tenants, the joint tenancy remains, but only among the other joint tenants.
Mortgage interests: in title theory jurisdiction only, the mortgage will sever the joint tenancy.
Leasehold Interests:
lease provides tenant with present possessory interest in real property, subject to terms and conditions, and gives the landlord a future interest. The statute of frauds requires a lease of more than one year to be in writing.
- Tenancy for Years: lasts for a fixed period of time (there is a specified beginning and end date), as agreed by the parties, which cannot be terminated unless covenants violated.
- Periodic Tenancy: continues for a specific period until it is terminated by proper notice from either party.
Creation: (a) expressly by agreement; (b) by implication if rent is paid at specific periods (i.e. every week or month); OR (c) by law when a tenant-for years remains after termination of the period or when a lease agreement is invalid.
Termination: only (1) at the end of a natural lease period, AND (2) requires written notice at least a full period in advance.
- A Tenancy at Will: continues until either party terminates it, and is usually created by an express agreement. In most states termination of a tenancy at will requires giving: (1) notice of termination; AND (2) a reasonable time to quit the premises. In a minority of states, termination does not require notice to the tenant.
Implied Warranty of Habitability:
implied in every residential lease, and requires that the landlord provide a place to live (apartment, home) that is habitable. A property is deemed habitable if it’s reasonably suitable for human needs (the local housing or public safety code must be considered for specifics – but usually adequate heat, running water, electricity, structurally sound).
Upon a breach of the warranty of habitability, the tenant may: (a) move out and terminate the lease; (b) withhold or reduce the rent; (c) repair the issue and deduct the cost from the rent; OR (d) remain on the premises and sue for damages.
Constructive Eviction:
Every lease includes an implied covenant of quiet enjoyment, which prevents a landlord from interfering with the tenant’s quiet enjoyment and possession of the property. This covenant is breached if the tenant is constructively evicted.
Constructive eviction occurs when: (1) the landlord breached a duty to the tenant; (2) the landlord’s breach caused a loss of the substantial use and enjoyment of the premises; (3) the tenant gave the landlord notice of the condition; (4) the landlord failed to remedy the condition within a reasonable time after notice was given; AND (5) the tenant vacated the premises.
Upon being constructively evicted, the tenant may terminate the lease and seek damages.
Assignment of Lease:
A lease may be freely assigned UNLESS a provision in the lease states otherwise. However, an assignment can never be for a longer period of time than the lessor’s r__emaining lease term.
An assignment occurs when a tenant (the assignor) transfers ALL of his remaining interest in a lease to a third-party (the assignee). The assignee is liable to the landlord for rent and all other covenants that run with the land because privity of estate arises between the assignee and the landlord. The assignor also remains liable to the landlord for any rent not paid by the assignee because privity of contract continues to exist with the landlord.
A landlord may be deemed to waive his right to enforce a provision prohibiting assignments if he accepts rent from the assignee.
Real Covenants (generally):
A real covenant is a non-possessory interest in land that obligates the holder to either do something or refrain from doing something to the land. It differs from equitable servitudes in that the remedy is damages (rather than injunctive relief).
- Real covenant (benefit):
To enforce the benefit of a covenant 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 (exists when the successor holds the entire interest held by the predecessor); AND (4) the covenant must touch and concern the land (make the land more useful or valuable to the benefitted party).
Don’t need notice or horizontal privity.
- Real covenant (burden):
(1) a writing that satisfies the statute of frauds; (2) intent that the covenant runs with the land; (3) vertical privity between succeeding parties (exists when the successor holds the entire interest held by the predecessor); (4) horizontal privity between the original parties (exists when the two parties shared some interest in the land independent of the covenant); (5) the covenant must touch and concern the land (make the land more useful or valuable to the benefitted party); AND (6) the new owner must have notice of the covenant.
Types of Notice:
Notice may be: (a) actual; (b) constructive (the covenant is recorded in previous conveyances); OR (c) by inquiry (a reasonable inspection of the land would revealed the encumbrance based on facts or circumstances of property).
Easements (generally):
An easement is a non-possessory interest in the use of someone else’s land. Easements are either in gross or appurtenant.
Easement in gross: benefits a specific owner’s enjoyment and use of the land and DOES NOT attach to the land (unless the easement is for commercial activity). It DOES NOT pass to subsequent landowners.
Easement appurtenant: benefits any owner’s enjoyment and use of the land and DOES attach to the land. It DOES pass to subsequent landowners so long as the new owner has notice.
Easement by grant:
express agreement by the grantor allowing the easement, and must: (1) be in a writing signed by the grantor that satisfies the statute of frauds (if the duration is more than one year); (2) identify the land and parties involved; AND (3) indicate the grantor’s intent to convey the easement.
Easement by prescription:
created when the possessor’s use of the land is: (1) open and notorious; (2) continuous; (3) hostile (without permission from the owner of the land); AND (4) for the statutory period.
Distinction with adverse possession: does not need to be actual (as owner would possess) or exclusive.
Easement by implication:
(1) a single tract of land is divided by a common owner; (2) a preexisting use by the grantor is established prior to the division of the land; (3) a continuous and obvious indication that the use was intended to be permanent; (4) the use affects the value of the land conveyed; AND (5) such use is reasonably necessary for the owner’s use and enjoyment of the land conveyed (the easement is important or highly convenient).
Easement by necessity:
(1) the original piece of land owned by one owner is subdivided; AND (2) the access the easement provides is essential to the use of the property because there is no other ingress or egress available (i.e. no viable road to access property).
