Real Property Flashcards
What is co-ownership?
Two or more owners of an estate in land, all of whom have the right to enjoyment and possession of the land.
What are the three forms of co-ownership? (concurrent estates)
- Joint tenancy – two or more own with the right of survivorship
- Tenancy by the entirety – protected marital interest between spouses with a right of survivorship
- Tenancy in common – two or more own without the right of survivorship
What is a joint tenancy? Is it alienable, devisable, or descendible?
Key feature is right of survivorship. The deceased JT’s share goes automatically to the surviving JT.
It is alienable inter vivos (transferable during holder’s lifetime), but it is not devisable (cannot pass by will), and it is not descendible (cannot pass to heirs by statutes of intestacy).
How is a joint tenancy created?
The “four unities” – Joint tenants must take their interests:
(T) – At the same time
(T) – By the same title
(I) – Identical equal interests
(P) – Right to possess the whole
Grantor must clearly express right of survivorship → otherwise, presumed to be a tenancy in common.
How is a joint tenancy severed?
(1) Sale – JT may sell or transfer interest during his lifetime. Does not need knowledge or consent of other JT. Buyer becomes tenant in common. If initially more than two JTs, JT remains intact between those tenants.
(2) Partition – three types:
(i) Voluntary agreement – allowable and peaceable way to end relationship
(ii) Judicial: Partition-in-kind – action for physical division of property
(iii) Judicial: Forced sale – land is sold and proceeds divided proportionately
(3) Mortgages – two theories:
(i) Lien theory (majority) – JT’s execution of a mortgage on her share won’t sever the JT; only if mortgage foreclosed and property sold. Other JTs not subject to mortgage should they take title to JT’s portion.
(ii) Title theory (minority) – JT’s execution of a mortgage does sever JT; giving creditor a lien is equivalent to transferring title. Heirs inherit portion subject to mortgage; other initial JT gets their portion not subject to mortgage.
What is a tenancy by the entirety?
Between married partners only. Arises presumptively in any conveyance to married partners, unless grant clearly expresses otherwise.
Very protected form of ownership: (1) Creditors of only one spouse cannot touch this tenancy; (2) One spouse alone cannot defeat right of survivorship by unilaterally conveying to third party.
How is a tenancy by the entirety severed?
Only by divorce, death, mutual agreement, or mutual execution of a lien.
In the event of divorce, it becomes a tenancy in common.
What is a tenancy in common? Is it alienable, devisable, or descendible?
No right of survivorship. Co-tenant owns individual part and the right to possess the whole.
A tenancy in common is devisable, descendible, and alienable.
Rights and duties of co-tenants: Possession
Neither co-tenant has the right to exclusive possession of any part of the property.
Prohibits ouster – wrongful exclusion from part or the whole.
Rights and duties of co-tenants: Rents and profits
(1) None from a co-tenant in exclusive possession. Unless there has been ouster, co-tenant in exclusive possession is not liable to other co-tenants for rent.
(2) Fair share if leased to a third party. A co-tenant who leases all or part of the property must account to their co-tenants.
Rights and duties of co-tenants: Adverse Possession
No AP against co-tenants unless there has been ouster. The hostility element is absent.
Rights and duties of co-tenants: Carrying costs
Each co-tenant pays his fair share. Includes: taxes, mortgage, interest payments
Rights and duties of co-tenants: Repairs
Each owes contributions for reasonable, necessary repairs with notice. Owe in proportion to ownership.
Rights and duties of co-tenants: Unilateral improvements
No contribution owed if. made without advice and consent of other co-tenants.
Credit at partition – equal to any value increase. Improver also suffers a debit equal to any diminution in value he caused.
Rights and duties of co-tenants: Waste
A co-tenant must not commit waste. Three kinds:
(1) Voluntary – willful destruction
(2) Permissive – neglect
(3) Ameliorative – unilateral change that increases value
Rights and duties of co-tenants: Partition
Co-tenants have a right to partition – seeking dissolution of the tenancy.
Three types: voluntary, partition-in-kind, forced sale.
Any restraint or restriction on a party’s right to seek partition must be reasonable in nature and duration.
What is a tenancy for years?
- Known, fixed period of time – could be any length, key is a set end date
- Termination is automatic (on end date); no notice required
- Writing typically needed if longer than one year (SoF)
What is a periodic tenancy?
- Continues for successive intervals until properly terminated
- Created: (1) expressly; or (2) by implication (no mention of duration, rent set at intervals; oral term of years violating SoF; or holdover tenant after lease ends)
- Terminated with notice, usually must be written
What is the minimum notice requirement for termination of a periodic tenancy?
- Common law – at least equal to length of the period itself
- Month-to-month – one month
- Week-to-week – one week
- Year-to-year – one month under Restatement (6 months at CL)
Note: Parties may lengthen or shorten these provisions by private agreement.
What is a tenancy at will?
- No fixed duration
- Terminable at will of either party (most states require reasonable demand to vacate)
- Generally requires express agreement
What is a tenancy at sufferance?
- When a tenant wrongfully holds over past the lease expiration
- Landlord proceeds to cover rent
- Terminates when landlord moves to evict, or holds tenant to a new tenancy
What are the tenant’s two primary duties?
(1) To repair; and (2) to pay rent.
Tenant’s duty to repair if lease silent
Only needs to maintain the premises. Make routine repairs other than those due to ordinary wear and tear.
Must not commit waste:
(1) Voluntary – tenant’s overt conduct damages premises
(2) Permissive – tenant fails to protect premises from damage from the elements
(3) Ameliorative – unilaterally alters the leased property, increasing the value. Tenant generally liable for cost of restoration, unless a long-term tenant and the reasonable changes reflect changes in the neighborhood.
Tenant’s duty to repair when express covenant in lease
Tenant must maintain in good condition or repair for the duration of the lease.
T may end the lease if premises are destroyed without T’s fault. L is obligated to repair (except for damages caused by T) under implied warranty of habitability.
Tenant’s duty to pay rent – breaches and in possession of premises
Landlord can evict (unlawful detainer statute), or continue relationship and sue for rent due.
L must not engage in self-help – cannot change locks, or forcibly remove tenant or his possessions
Tenant’s duty to pay rent – breaches but is out of possession
Landlord has three options:
(1) Surrender – T shows by words or conduct that she wants to give up lease; landlord accepts
(2) Ignore – Do nothing; hold T accountable for rent each month as if still present
(3) Relet – Find a new lessor; hold T liable for any deficiency. L must at least try to relet.
Rent deposits
- Most states restrict security deposits to one month’s rent, and require Ls to pay interest
- L can retain SD only for damages actually suffered to premises as consequence of T’s wrongdoing
Landlord’s duty to deliver possession
Landlord must place tenant in actual, physical possession at start of the lease
If prior holdover T is still on site, L has breached → new T gets damages
Implied covenant of quiet enjoyment
T has the right to quiet use and enjoyment of the premises without interference from L
Arises by implication in every residential and commercial lease
Breach of implied covenant of quiet enjoyment
(two types)
- (1) Wrongful eviction – landlord wrongfully evicts T without cause
- Actual eviction – excludes T from entire premises; terminates T’s obligation to pay any rent
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Partial eviction – excludes T from part of premises; terminates T’s obligation to pay any rent (even though T i possession of remainder)
- Note: Partial eviction by paramount title holder (not L) results in apportionment of rent (T liable for reasonable rental value of portion he continues to possess)
- (2) Constructive eviction – L renders premises unsuitable for occupancy
- (i) Substantial Interference – chronic or permanent problem due to L’s actions or failures
- (ii) Notice – T must notify L
- (ii) Goodbye – T must vacate
- If i-iii (“SING”) satisfied, T may terminate the lease and seek damages
Is a landlord liable for the acts of other tenants?
Generally, no.
Two exceptions:
(1) L has a duty to abate a nuisance on site
(2) L must control common areas
Implied warranty of habitability
The premises must be fit for basic human habitation. Standard discerned from case law and local housing code.
Arises in residential leases only. Nonwaivable.
Breach of implied warranty of habitability
What are T’s entitlements?
MR3
Move – Move out and terminate the lease; but T does not have to
Repair – Make necessary repairs and deduct cost from future rent
Reduce – Reduce or withhold rent until court can determine fair rental value in light of defects; typically must put withheld rental sums in escrow (good faith)
Remain – Remain in possession, pay full rent, and affirmatively seek money damages
Covenant of quiet enjoyment vs. Implied warranty of habitability
How do T’s rights differ if there’s breach?
Covenant of quiet enjoyment – T must vacate to plead constructive eviction
Implied warranty of habitability – T could vacate, but does not have to
Retaliatory eviction
L can’t terminate lease or penalize T in retaliation for T’s exercise of legal rights. Ex: raising rent, harassment.
Presumption of retaliation if L acts within a certain window – usually 90-180 days. L must show valid, non-retaliatory reason for actions.
Civil Rights Act
Bars racial or ethnic discrimination in the sale or rental of all property
Fair Housing Act
No housing discrimination based on race, color, religion, sex, disability, familial status, or national origin.
Must allow reasonable accommodations or modifications for Ts with disabilities. T makes at own expense, but L must allow.
Fair Housing Act – Exemptions
(1) Doesn’t apply to owner-occupied buildings with four or fewer units.
(2) Doesn’t apply to single-family homes sold or rented by an owner who owns no more than three single-family homes.
Fair Housing Act – Prohibited Actions
(1) Refusing to negotiate, rent, sell housing, or give a mortgage.
(2) Providing different terms or conditions for sale or rental.
(3) Falsely representing dwelling as unavailable.
Transfers of leasehold interest – two kinds
Absent some prohibition against it in the lease, T can transfer interest in the lease.
(1) Assignment – transfer of entire remaining term of lease
(2) Sublease – transfer of part of the remaining term of lease
Prohibition on transfer
All jurisdictions permit covenants against assignment or sublease. A covenant against assignment does not prevent sublease.
If T transfers her interest in violation of a covenant, the transfer is not void. However, L may terminate the lease or sue for damages.
If L consents to one transfer that violates a covenant in the lease, he waives his right to avoid future transfers. He may reserve the right to avoid future transfers, but must happen explicitly at time of granting consent.
Assignment
Assignee’s privity? Original T’s privity? Liability?
Assignee stands in shoes of original tenant in direct relationship with L. Assignee is in privity of estate with L. Liable on covenants that run with the land.
Original T in privity of contract with L. Liable for original lease obligations. Remains secondarily liable to assignee; if A cannot pay, T is liable.
Sublease
Sublessee’s privity? Original T’s? Liability?
Sublessee and L have no privity. Sublessee is responsible to original T.
Relationship between L and T remains fully intact.
If S breaches, L proceeds immediately against T (primarily liable). T then proceeds against S.
If L breaches, S proceeds against T. T then proceeds against L.
Landlord’s tort liability
Caveat lessee – “tenant beware”
At common law, the landlord is under no duty to make the premises safe. Five exceptions.
Exceptions to caveat lessee (landlord’s limited tort liability)
- Common areas – ex: hallways, stairs, elevators
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Latent defects – landlord has duty to warn tenant, not a duty to repair
- Latent defect = dangerous condition T couldn’t discover by reasonable inspection
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Assumption of repairs – once L undertakes repairs, must complete with reasonable care
- L liable if negligent
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Public use rule – lease for public space (ex: convention hall) and L should know (significant nature of defect + short nature of lease) that T won’t repair
- L liable for any defects that cause injury to members of the public
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Short-term lease of furnished dwelling – ex: furnished summer cottage for a few weeks
- L responsible for any defective condition that injures T
“CLAPS”
Easement
The grant of a non-possessory property interest. Entitles holders to use or enjoyment of another’s land.
Affirmative easement
The right to go onto another’s land (the servient parcel) and do something.
The most common type of easement.
Negative easement
The right to prevent the servient landowner from doing something that would otherwise be permissible. These can only be created expressly, signed writing by grantor.
Four categories: (1) Light; (2) Air; (3) Support; (4) Stream water from artificial slow; minority of states also allow for scenic view.
Easement appurtenant
Benefits its holder in his physical use or enjoyment of his own land.
Requires two parcels be involved:
Dominant tenement – derives benefit
Servient tenement – bears burden
Easement in gross
Confers upon its holder some personal or pecuniary advantage unrelated to the use or enjoyment of their land.
Servient land is burdened; however – no benefitted or dominant tenement.
Examples: Right to place a billboard on another’s lot, right to swim in another’s pond, utility company’s right to lay power lines
