Real Property Flashcards
What is the hallmark of a concurrent estate
right to enjoy and possess the whole
What are the three forms of concurrent ownership?
Joint tenancy, tenancy by the entirety, and tenancy in common
What are the 3 distinguishing characteristics of the joint tenancy?
1) Right of survivorship
2) Alienability intervivos
3) Not descendable (w/o will) or devisable (w/ will)
What is required to create a joint tenancy?
The Four Unities (T-TIP)
T- At the same time
T - by the same title (ie by the same deed will or other doc)
I - identical and equal interests
P - rights to Possess the whole
+ a Clear expression of a right of survivorship (otherwise presumed to be a tenancy in common)
Do Tenants in common have to have equal intersts?
No (but equal interests are presumed)
What are the ways for a joint tenancy to become a tenancy in common?
Sale/conveyance - the transferee takes as a tenant in common (but the remaining joint tenants continue in a joint tenancy). But if the joint tenants convey together in equal parts, the joint interests are not severed but the transferee takes as a tenant in common.
Unilateral sale/conveyance severs. Severance happens when the contract of sale is signed (not when legal title passes)
Severance and partition - can be by voluntary agreement, by judicial action calling for partition in kind (physical division if in best interest of all parties - usually when acreage and easily divisible), or by judicial action calling for forced sale (best when not easily divisible like a house)
Will a mortgage on a joint tenant’s interest sever the joint tenancy?
No (severs only on foreclosure sale - majority lien theory states)
Yes (in title theory states - minority view is that granting mortgage actually transfers the grantor’s title to the mortgagee)
One joint tenant kills another, what is the effect?
The joint tenant’s joint property becomes a tenancy in common
What is a tenancy by the entirety?
a martial estate between married spouses who take a fictitious single person with right of survivorship
How is a tenancy by the entirety created?
In the states that recognize it, it arises presumptively in any conveyance to the married spouses unless the language of the grant clearly indicates otherwise. Clear indication of a joint tenancy means no tenancy by the entirety is created
What is the hallmark of the tenancy by the entirety?
creditors of one spouse cannot touch this tenancy for satisfaction of a debt, and one spouse acting alone cannot defeat the right of survivorship by unilaterally conveying to a third party, a deed/mortgage executed by one spouse is ineffective
When is a tenancy by the entirety severed?
1) Death
2) divorce (but not legal separation
3) mutual agreement
4) execution by a joint creditor of both spouses
Transforms into a tenancy in common
What is distinctive about the tenancy in common?
- No right of survivorship
- Joint grantees are presumed to be tenants in common
- Interests devisable, descendable, and alienable
- Unequal shares are ok
What are the damages for an ouster?
If one of two concurrent owners ousts the other, the ousted concurrent owner can recover 1/2 of the fair rental value of the property (ie can recover their share of the fair rental value)
Do profits from a co-tenant’s personal enjoyment of exclusive possession need to be shared?
No (e.g. one co-tenant leaves voluntarily and the other lives there alone)
Do profits generated from third parties need to be shared?
YEs, a co-tenant who leases all or part of the premises must account to their co-tenants with a fair share of the income
Co-tenants must also share the profits from exploitations of the land such as mining
Is it possible for one co-tenant to adversely possess theater?
No - because each co-tenant has a right to possess the whole, cannot adversely possess unless their is an ouster
What are the co-tenant responsibilities as to the carrying costs of the property? What are carrying costs?
carrying costs = taxes and mortgage payments
Must be split according to % ownership
What repairs can be split among co-tenants according to their % ownership? What must be done first?
What’s the vocab word here?
“right to contribution” for necessary repairs provided that they gave NOTICE to other co-tenants of the need for repairs
Must unilateral improvements made by one co-tenant without approval be divided among other co-tenants?
No - no right to contribution for unilateral unapproved improvements, but at partition, the party that made the change will have their share increased by any increase in value from the improvements and decreased in value by any decrease in value
What are the three types of waste? What types of waste are actionable?
Voluntary waste - willful destruction (or “improvement” that decreases value)
Permissive waste - neglect
Ameliorative waste - unilateral change that increase value
All three types are actionable even if there is no decrease in value
Can co-tenants limit their right to partition?
Yes as long as they are limited to a reasonable time
What is a key implication of the duty of fair dealing among co-tenants?
if one co-tenant acquires an outstanding title or lien that may affect the estate, the acquisition is deemed to be for the benefit of all other co-tenants as well
What interest does the landlord have when a leasehold estate has been given?
a reversion
What are the 4 types of leasehold estates?
What is another term for non leasehold estate?
1) tenancy for years
2) periodic tenancy
3) Tenancy at will
4) tenancy at sufferance
Nonfreehold estate
How can you identify a tenancy for years?
Spot the end date of the lease (could be short or long term)
What kind of notice is needed to terminate a tenancy for years?
None - tenancy terminates automatically at the end of the lease
What is a right of reentry?
If a lease covenant is broken by the tenant, it allows the landlord to terminate the lease
failure to pay rent is breaking a lease covenant (and a right of reentry is often implied for failure to pay rent, even if it is not provided for in the lease)
I’m drafting a tenancy for years lease for a one year lease, what do I need to remember?
Leases of GREATER THAN ONE YEAR must be in writing (SOF Compliant)
What is a hallmark of a periodic tenancy?
It renews automatically at set intervals until either landlord or tenant gives notice of termination
How can you create a periodic tenancy?
1) Expressly (“month to month” type language)
2) By Implication/Operation of Law either by
A) no mention of duration but rent paid at intervals
B) Oral term of years in violation of SOF with periodic rent payments
C) in a residential lease when the landlord elects to holdover (by accepting rent) a tenant who has stayed past the end of the original lease (implied periodic tenancy based on frequency of rent payments)
How much notice must be given to terminate a periodic tenancy?
At common law at least the length of one period unless otherwise agreed, and notice must be timed to terminate the lease at the end of a period
BUT for leases where the period is one year
under common law 6 mo notice required
under the restatement one month of notice is required (bar exam follow Rst)
What is the hallmark of a tenancy at will?
no fixed period or term - lasts until either landlord or tenant terminates
How is a tenancy at will created?
usually must be express (“to T for as long as L or T desires”)
Absent express agreement, if there is a periodic payment of rent, a periodic tenancy will be created
If the lease only gives the landlord the right to terminate, a similar right will be implied for the tenant. (but reverse does not apply to benefit the landlord)
How can you terminate a tenancy at will?
Either party can end (but most states require notice and a reasonable time to “quit” (ie vacate))
Can also be terminated by operation of law (if death of one party or commission of waste)
How is a tenancy at sufferance created?
when a tenant wrongfully holds over (ie they assert possession past the expiration of their lease)
A tenancy at sufferance is given to this tenant so that the landlord can recover rent for the period of the holdover
How does a tenancy at sufferance end?
If the landlord accepts rent, then a periodic tenancy is created by implication.
If the landlord evicts the tenant, that also works
What are the landlord’s two options in dealing with a holdover tenant?
1) Evict the tenant
2) bind the tenant to a new periodic tenancy (the various promises in the original lease become part of the new tenancy for the additional term.)
If RESIDENTIAL tenant: usually month to month regardless of original lease term
If COMMERCIAL tenant: can be held to a new year to year periodic tenancy if the original lease term was for one year or more. If the original term was < 1 year, it’s usually a month to month
Can a landlord increase the rent on a holdover tenant?
If the landlord notifies the tenant BEFORE the lease expires that occupancy after termination will be at an increased rent, then a holdover tenant is deemed to have agreed to the increased rent
What are some exceptions to the holdover doctrine where the landlord cannot bind the tenant to a new tenancy?
1) if the tenant remains in possession only for a few hours or only leaves a few articles of personal property OR
2) the delay is not the tenants fault (e.g. severe illness)
What is the common law rule about the covenants in leases?
What is the modern rule?
They were independent of each other (if one party breached by failing to pay rent or repair) then the other party could recover damages but obligations persisted
LL can terminate for nonpayment of rent and T can terminate for breach of covenant of quiet enjoyment or implied warranty of habitability
What are the three things to know about options to purchase attached to leases?
1) as long as option is contained in the lease, the consideration for the lease supports the option
2) if the option is silent as to duration, the option lasts for the duration of the lease
3) RAP does not apply to options attached to leases (but does apply to options generally)
What are the tenants 3 main duties?
Repair, not commit waste, and pay rent
What is the tenant’s duty to repair when the lease is silent?
T must maintain the premises by making routine repairs. Does not have to fix ordinary wear and tear
What is the tenant’s duty not to commit waste? What are the 3 types of waste?
Voluntary Waste (overt deliberate destruction) Permissive Waste (when tenant fails to take reasonable steps to protect premises from damage) Ameliorative Waste (if T unilaterally alters the property, T is liable for cost to restore it to original condition even if the changes increased value - modern exception if T is long term, value does not decrease, and change reflects substantial and changes in the neighborhood that deprives the property of its original use)
What is the tenants duty to repair when there is an express covenant in the lease imposing the duty to repair on T?
Destruction of property and generally
If Property destroyed, at common law, T was responsible for the loss even if not at fault. Under majority view, tenant may end the lease if premises destroyed without T’s fault
If residential -> LL still obligated to repair under nonwaivable implied warranty of habitability
if nonresidential -> T obligated to repair including ordinary wear and tear (absent typical contractual modification)
What are LL’s options if T refuses to pay rent and retains possession?
evict (still entitled to rent due)
continue the relationship and sue for rent due
Self help is a bad idea (civil and criminal liability)
What are LL’s options if T refuses to pay rent and is no longer in possession?
SIR
LL can treat as implicit offer of SURRENDER which if LL accepts, ends the lease
IGNORE the abandonment and continue to charge rent (few states allow this)
RE-LET the premises on the vacating tenant’s behalf and hold them liable for any deficiency
Under the majority rule, LL must at least try to relet
What are the typical restrictions on security deposits
1) usually limited to one month’s rent
2) usually require LL to pay interest on the deposit
3) usually allow statutory or punitive damages for improper refusal to return a security deposit
What happens to a LL-T relationship if the entire leasehold is taken by eminent domain (ie condemned)
What if only part is condemned?
If fully condemned -> T’s liability for rent is extinguished and lessee is entitled to compensation
If taking is temporary or partial-> tenant must continue to pay rent but is entitled to compensation from the taking
Tenant is using the premises for illegal purposes, what can LL do?
terminate the lease or obtain damages and injunctive relief
What are the landlord’s 3 main obligations?
1) Duty to deliver possession
2) Implied covenant of quiet enjoyment
3) Implied warranty of habitability
What happens if there is still a holdover tenant when LL is supposed to deliver possession to a new tenant?
the LL has breach the duty to deliver possession and T is entitled to damages
When does the implied covenant of quiet enjoyment apply? What does it provide?
It is implied into every residential and commercial lease
Provides the right to use the premises without interference from the landlord or a paramount title holder (e.g. a prior mortgagee that forecloses)
What are the two ways that a LL can breach the covenant of quiet enjoyment by wrongful eviction?
Can be actual or constructive eviction, as for actual eviction…
1) actual eviction (LL/paramount title holder/holdover tenant excluding tenant from the entire leased premises - terminates the obligation to pay rent)
2) partial eviction (excluded from part of the premises - if by the LL, then relieves T of obligation to pay any rent - if by paramount title holder then relieves T of obligation to pay rent for part of the premises)
How can LL breach the covenant of quiet enjoyment by constructive eviction?
What’s the remedy
Constructive eviction is when landlord’d breach of duty renders the premises unsuitable for occupancy
SING
Substantial Interference (by LL’s actions or failures or LL’s agent)
Notice (of the problem given to LL and fail to fix)
Goodbye (vacate)
Terminate the lease and seek damages
Is the LL responsible under the implied covenant of quiet enjoyment for the actions of other tenants?
Generally No BUT
- LL must abate a nuisance on the site
- LL must control the common areas
When does the implied warranty of habitability apply?
What is provided?
That’s the key difference from constructive eviction
Most jurisdiction imply it not residential leases (NOT commercial) and it is not waivable.
Provides that the premises be fit for basic human habitation (standard set by case law and housing code)
There is no requirement to move out for breach of implied warranty of habitability, but must move out to claim constructive eviction!
What can T do when the implied warranty of habitability is breached?
T can pick one of MR3
Move out and terminate lease
Repair and deduct
Reduce rent or withhold all rent until the court determines a fair rental value (place in escrow to show good faith)
Remain in possession, pay full rent, and affirmatively seek damages
What is a retaliatory eviction?
LL may not terminate a lease or otherwise penalize a tenant for tenant’s exercise of their legal rights (e.g. reporting housing code violation).
Rebuttable presumption of retaliatory motive if landlord acts within 90-180 days of tenant exercising their rights
What are the two main anti-discrimination statutes for housing?
Civil Rights Act (bar racial and ethnic discrimination in the sale or rental of all property)
Fair Housing Act (protects tenants and potential tenants from discrimination baed on race, color, religion, national origin, sex, disability as well as familial status)
What are the two key exceptions from the fair housing act?
1) owner occupied buildings with four or fewer units in which persons live independently of each other
2) single family homes sold or rented by an owner who owns no more than three single family homes
What is the fair housing act’s regulation of advertising?
FHA prevents making, printing, or publishing any notice or ad that indicates a preference or limitation base don a protected category. Applies to both the advertiser and the publisher - the exemptions for owner occupied and single family do not apply
What is required for disabled tenants under the fair housing act?
Must permit disabled tenants to make reasonable modifications to their premises and make reasonable accommodations to their rules, policies, and services to afford the disabled person an equal opportunity to use the dwelling
What is the difference in an assignment and an sublease?
Assignment = T transfers entire remaining term Sublease = T transfers part of the remaining term
Can a landlord prohibit assignment or subleasing?
How are these clauses construed?
Yes, can require prior written approval, but consent to one transfer is considered as a waiver of future right to approve unless the landlord expressly reserves that right.
If LL was aware of assignment and did not objection (e.g. by accepting rent from assignee), approval deemed waived
Prohibitions on one of either assignment or subleasing are not construed to apply to the other
What is the legal relationship created by assignment?
Assignee stands in the shoes of the original Tenant. In privity of estate with LL and each is liable for the covenants in the lease that run with the land. Not in privity of contract. Assignee owes rent DIRECTLY to LL.
Assignor is no longer in privity of estate with LL but is still in privity of contract and is bound by it. Assignor still secondarily obligated to pay rent (or for any other covenant violation).
Need either privity of contract or privity of estate to enforce a covenant against someone
Can a tenant assign a tenancy at will?
No - attempted assignment of a tenancy at will will terminate the tenancy at will by operation of law
When does a covenant run with the land [LL/Tenant context]?
What are the implications of this for assignees/sublessees paying rent
If the original parties so intend and the covenant touches and concerns the land
Assignee owes rent DIRECTLY to LL. Sublessee does not (must go through sublessor)
What is the legal relationship created by a sublease?
Sublessee pays rent to sublessor who then pays to LL
LL and subleasee are neither in privity of contract or privity of estate.Sublessee is not liable to LL for any of the covenants (inc rent) unless sublessee expressly assumes the covenants.
LL and sublessor relationship remains fully in tact
What happens to a sublease if the LL terminates the main lease (for nonpayment of rent or otherwise)?
sublease terminates automatically
Can a subleasee enforce covenants made by the LL in the main lease?
Generally no except a residential subleasee may be able to enforce the implied warranty of habitability against the landlord
What happens if a tenant assigns or sublets in violation of a lease provision?
LL may terminate the lease or sue for damages but the transfer is not void
Is tenant’s consent required for LL to assign their rents or reversion interest?
How is such an assignment done?
No - tenant consent not required
LL usually assigns as part of the deed when LL conveys a building to a new owner
If LL assigns to buyer, what rights does buyer have against tenant?
Once tenants are given notice, they must recognize and pay rent to the new owner as their LL. Benefit of all tenant covenants (inc rent) run with the land to Buyer
If LL assigns to buyer, what is buyer’s liability to tenants?
What is LL’s continued liability
Buyer is liable to tenant for the performance of all covenants that run with the land. (privity of estate)
LL remains liable for all of the covenants that they made in the lease (privity of contract)
Is the landlord under any duty to make premises safe?
Under common law: No - caveat leasee, but there are 5 exceptions: CLAPS Common areas Latent defects Assumption of Repairs Public use rule Short-term lease of furnished dwelling
Under modern rule, LL owes a duty of reasonable care towards residential tenants and is liable in tort for injuries from ordinary negligence if the LL had notice of a defect and an opportunity to repair
What are the details of the latent defects exception to caveat leasee
LL must warn of latent defects that LL knows or should have known otherwise LL will be liable for resulting injuries. If T is warned and accepts premises anyway LL is off the hook + no duty to repair
What are the details of the assumption of repairs exception to caveat leasee?
LL is under no duty to repair under tort law, but once repairs are undertaken, LL must complete them with reasonable care
What are the details of the public use exception to caveat leasee?
IF (1) a LL leases a public space (e.g. convention hall or museum) and (2)should know because of the significant nature of the defect and the short length of the lease that the tenant will not repair
THEN LL is liable for any defects on the premises that cause injury to members of the public
What are the details of the short term lease of a furnished dwelling exception to caveat leasee?
LL who rents a fully furnished premises for a short period (like a summer cottage) is responsible for ANY defective condition that proximately injures a tenant (regardless if they knew of the defect)
What is the modern rule’s approach to LL tort liability for defects arising after tenant takes possession?
LL held to have notice of defects existing before the tenant took possession, but is not liable in tort for defects arising after T takes possession unless LL knew or should have known of them
What is the modern rule’s approach to LL tort liability if LL has a statutory duty to repair?
if LL has a statutory duty to repair and does not, then LL is liable in tort for injuries resulting from failure to repair or negligence in making repair
What is the modern rule’s approach to LL tort liability, what is LL’s responsibility for security?
If LL failed to comply with housing code provisions dealing with security, maintain ordinary security measures or provide advertised security measures, then LL lis liable in tort for criminal acts of third parties
What is a fixture?
A fixture is chattel that is so affixed to the land that it has ceased being personal property and becomes part of the realty. A fixture passes with the ownership of the land.
Chattel is fixture when it is either:
1) so incorporated into the realty that it loses its identity
2) affixed to the realty such that its removal would cause considerable damage to the premises
What is a common ownership case (fixtures context)
Person who brings the chattel to the land owns the chattel and the realty.
Property becomes a fixture if the owner intended it. Intent is judged by: 1) nature of the article 2) manner of attachment 3) amount of damage that would be caused by its removal 4) adaptation of the item to the use of the realty
What is a divided ownership case (fixtures context).
What is the key vocabulary word here?
What is the trade fixtures doctrine?
What are the implications in the LL-T context and life tenant and remainder man context?
What about licensee case? Trespasser case?
chattel is owned and brought by someone other than the owner of the realty.
Accession describes the annex’s intent to make the chattel a permanent part of the realty (including all structural additions)
Trade Fixtures Doctrine says Commercial tenants can remove all trade fixtures before the expiration of the lease
Agreement between landlord and tenant controls on determination of if something is a fixture. Absent an agreement, T is deemed to lack intent to annex and can remove unless removal would substantially damage the premises or destroy the chattel. Annexed chattel must be removed by the end of the lease otherwise the tenant is responsible for the cost of restoring to original condition
Same rules apply for life tenant and remainderman and licensees
Trespassers normally lose their annexations but some courts allow a good faith trespasser to recover the value added to the realty (not construction costs)
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 presumed duration of an easement?
Perpetual (unless the grant specifically limits the interest
What are the two types of easement?
Affirmative (most common) - right to go on to another’s land and do something
Negative (limited to certain circumstances) - entitles the holder to prevent the servient landowner from doing something that would otherwise be permissible
What are the 4 types of permissible negative easements?
LASS
Light, Air, Support, Stream water from artificial flow
Minority of states allow negative easements for scenic view
How can you create a negative easement?
Only expressly in a writing signed by the grantor - not natural or automatic right to a negative easement
What are the two different relationships between burdened and benefitted in easement context?
Appurtenant - benefits the holder in use/enjoyment of land (need two parcels - dominant and servient)
In Gross - confers benefit to a holder for a personal or pecuniary advantage unrelated to use of land (only servient parcel)
What are common types of easements in gross?
Right to place a billboard on another’s lot, right to swim in another’s pond, utility company’s right to lay power lines
When does the benefit of an easement appurtenant pass on with transfer of the dominant tenement?
Can the easement be transferred separately from the land?
automatically - REGARDLESS if it is mentioned in the conveyance
No - unless it is a conveyance to the owner of the servient tenement to extinguish the easement. An attempted transfer fails but does not terminate the easement
When does the burden of an easement appurtenant pass on with transfer of the servient tenement?
automatically - UNLESS the new owner is a BFP without notice of the easement
When is the benefit of an easement in gross transferrable?
Only for commercial purposes
e.g. if easement in gross to swim in pond, that easement can’t be transferred because it’s for pleasure not commercial use
What are the 4 methods of creating an easement?
PINGE Prescription Implication Necessity Grant Express Reservation
What is required to create an easement by grant?
must be in writing signed by the holder of the servient tenement unless its term is <1 year (removing it from SOF)
the writing must also comply with all of the requirements of a deed (the writing is actually called a deed of easement)
What are the methods of creating an easement by implication?
Created by operation of law (so exception from SoF)
Can be implied from preexisting use or without any listing use
What is required to create an easement by implication from preexisting use?
This is called a “quasi-easement”
2 Elements:
1) the previous use on the servient part was apparent and continuous AND
2) the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment
What is required to create an easement by implication without preexisting use?
2 Routes
Route 1: Subdivision Plat
When lots sold in a subdivision with reference to a plat or map showing streets leading to lots, buyers of those lots have implied easements to use the streets to access their lots
Route 2: Profit a Pendre
Holder of a profit a prendre has an implied easement to pass over servient land to use it to extract the products under the profit
What is required to create an easement by necessity?
Landowner conveys a portion of their land with no way out except over some part of the grantor’s remaining land - owner of the servient parcel has the right to locate the easement
What is required to create an easement by prescription?
COAH
Continuous and uninterrupted use for the statutory period
Open and notorious
Actual use (need not be exclusive)
Hostile (w/o servient owner’s permission)
*generally cannot be acquired over public land
What is required to create an easement by express reservation?
An easement by reservation arises when a grantor conveys title to land by reserves the right to continue to use the tract for a special purpose - Grantor can ONLY RESERVE AN EASEMENT FOR THEMSELVES (not for a third party) an attempt to reserve for a third party is void
What determines the scope of an easement?
The terms of the grant or the conditions that created it.
if no terms in the grant, then courts assume the easement is intended to meet present and future needs, but if the dominant parcel is subdivided (or additional abutting/adjacent tracts that are folded in), owners will not succeed to the easement if that would unreasonably burden the servient estate. (if overburden, then the remedy is an injunction against overuse, not termination of the easement)
Who bears the cost of making repairs to an easement?
If the dominant parcel is the only one to use the easement, then the dominant parcel must pay alll repairs, but if both dominant and servient parcel use the easement, then they apportion the costs
What are the eight ways of terminating an easement
END CRAMPS Estoppel Necessity Destruction Condemnation Release Abandonment Merger Prescription Stated Conditions
How does an easement terminate under stated conditions?
Not all easements are perpetual, it may terminate under its own terms
How does an easement terminate under Estoppel?
An oral expression of intent is usually ineffective (because SOF), but of servient owner materially changes position in reasonable reliance on easement holder’s assurances/representations, the easement terminates through estoppel
How does an easement terminate under Necessity?
Easements created by necessity disappear when the necessity disappears UNLESS the easement was reduced to an express easement
How does an easement terminate under Destruction?
Destruction of the SERVIENT land (other than through willful conduct of the servient owner) terminates the easement
How does an easement terminate under Condemnation?
Condemnation of the SERVIENT land by govt eminent domain will terminate the easement - courts are split as to if the easement holders are entitled to compensation
How does an easement terminate under Release?
A release given by the easement holder to the servient landowner is effective IF IN WRITING (SOF Compliant)(works for appurtenant or in gross easements)
How does an easement terminate under Abandonment?
There must be PHYSICAL ACTION indicating an intent to never use the easement again (like building a fence) - mere non use or verbal indication of intent to abandon is not enough
How does an easement terminate under Merger?
if the title to the easement and the servient estate are owned by the same person, the easement disappears - to recreate, must start from scratch
How does an easement terminate under Prescription?
Must meet the elements of adverse possession (COAH)
Continuous interference for the statutory period
Open and notorious
Actual
Hostile
