Real Property Flashcards
Joint tenancy
Two or more own with right of survivorship.
Interest alienable inter vivos. Not descendible or devisable. Joint tenant may sell or transfer her interest during her lifetime. A voluntary conveyance by a joint tenant of their interest destroys the joint tenancy and transferee takes as a tenant in common.
Created by four unities. Grantor must clearly express right of survivorship
- Take at the same time
- By the same title (same deed, will, or other document)
- Equal/identical interests
- Rights to possess the whole
Tenancy by the entirety
Marital interest between spouses with the right of survivorship. Arises presumptively in any conveyance to married partners, unless language of grant clearly indicates otherwise.
Creditors of only one spouse cannot touch this tenancy for satisfaction of the debt. One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party. Individual spouse cannot encumber the tenancy and a deed or mortgage executed by only one spouse is ineffective.
Only death, divorce, mutual agreement, or execution by a joint creditor of both spouses can sever a tenancy by the entirety. On divorce it becomes a tenancy in common.
Tenancy in common
Two or more own without right of survivorship. Each co-tenant owns an individual party and each has a right to possess the whole. Each interest is devisable, descendible, and alienable.
Co-tenant in exclusive possession has right to retain profits from their use of the property (don’t have to share). A co-tenant who leases all or part of the premises to a third party must account to their co-tenant and provide fair share of rental income.
Each pays fair share of carrying costs. Repairing co-tenant enjoys a right to contribution during the life of the co-tenancy for reasonable, necessary repairs, provided they gave notice to other co-tenants. No right to contribution for “improvements” made unilaterally.
Can be terminated by partition.
Partition
By voluntary agreement
By judicial action- partition in kind physically divides the property
By judicial action- forced sale and sale proceeds divided proportionally
Ouster
One co-tenant wrongfully excludes another co-tenant from possession of the whoel or any party.
Unless you’ve ousted your co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant
Co-tenant action for waste
Co-tenant cannot commit waste. Co-tenant can bring an action for waste against another tenant.
Voluntary waste- willful destruction
Permissive waste- neglect
Ameliorative waste- unilateral change that increases value
tenancy for years
Lease for a fixed, determined period of time.
Ends automatically at its termination. No notice is required to terminate. Note can also terminate if tenant breaches any of the lease’s covenants or if the tenant surrenders the tenancy and the landlord accepts.
Usually created by written leases. A term of years greater than one year must be in writing (SOF).
Right of entry
Landlord reserves a right of entry which allows them to terminate the lease if the tenant breaches covenants.
Periodic tenancy
A lease which continues for successive intervals (i.e. month to month) until either the landlord or tenant gives proper notice of termination. Lease is continuous until properly terminated.
Can be created expressly or arise by implication:
- land leased with no mention of duration but provision is made for payment of rent at set intervals
- oral term of years in violation of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered
- landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered.
Notice, usually written, must be given. Notice must be at least equal to the length of the period itself
Tenancy at will
Tenancy of no fixed period of duration. Terminable at will of either the landlord or tenant. “To T for as long as L or T desires.”
Created by express agreement that the lease can be terminated at any time. Can be terminated by any party at any time, but notice and reasonable time to quit are quired to terminate. Can be terminated by operation of law (death, commission of waste).
Tenancy at sufferance
When a tenant wrongfully holds over and remain in possession past the expiration of the lease.
Lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy. No notice of termiantion required.
Hold over doctrine
If a tenant continues in posession after their right to possession has ended, the landlord may
(1) evict the tenant or
(2) bind the tenant to a new periodic tenancy
Length generally depends on the way the rent was computer under the lease that has ended. If rent computer monthly, month-to-month periodic tenancy created. Maximum is year to year tenancy. Various promises made by the landlord and tenant in original lease become part of the tenancy for the additional term.
Commercial tenants may be held to a new year-to-year periodic tenancy if the original lease term was for one year or more. Residential tenants are generally held to a new month-to-month tenancy regardless of the original term. If landlord notified of a rent increase before the hold over, the tenant held to the new terms.
If delay only a few hours, or left a few items of personal property, or the delay due to illness the landlord cannot bind the tenant to a new tenancy.
Tenant’s duty to repair
Lease silent- tenant only has to maintain the premises. Make routine repairs
Cannot damage/ commit waste on the premises.
- Voluntary- overt conduct damages the premises
- permissive- tenant fails to take reasonable steps to protect the premises from damages from the elements
- ameliorative waste- tenant unilaterally alters the leased property increasing its value (but can do so if a long-term tenant and change reflects changes in the neighborhood)
Express covenant in lease- if residential tenant covenants to repair, landlord remains obligated to repair under nonwaivable implied warranty of habitability. non-residential tenant’s covenant to repair is enforceable
Tenant’s duty to pay rent
If tenant is on the premises and fails to pay rent, the landlord can evict through the courts or continue the relationship and sue for rent due.
Landlord cannot engage in self-help like changing the locks, forcibly removing the tenant, or removing their possessions.
If tenant wrongfully vacates with time left on a term of years lease the landlord can
- treat as an offer of surrender and end the lease
- ignore abandonment and hold tenant responsible for unpaid rent until natural end of the lease (minority of states)
- re-let premises on wrongdoer tenant’s behalf and hold the previous tenant liable for any deficiency
Under majority rule, landlord must at least try to re-let.
Landlord’s duty to deliver possession
Majority rule requires that the landlord put the tenant in actual physical possession of the premises at the beginning of the leasehold term.
Implied covenant of quiet enjoyment
Arises by implication in every residential and commercial lease. Tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder.
Landlord not liable for wrongful acts of other tenants but they have a duty to abate a nuisance on site and must control the common areas.
Implied covenant of quiet enjoyment- actual eviction
landlord, paramount title holder, or hold-over tenant excludes the tenant from the entire leased premises. Actual eviction terminates the tenant’s obligation to pay rent.
Implied covenant of quiet enjoyment- partial eviction
tenant is physically excluded from only part of the leased premises. Partial evicition by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder.
Implied covenant of quiet enjoyment- constructive eviction
Occurs when the landlord’s breach of duty renders the premises unsuitable for occupancy. Three elements:
Substantial interference
Notice
Vacate the property
Tenant who has been constructively evicted may terminate the lease and may also seek damages.
Implied warranty of habitability
Nonwaivable covenant implied in residential leases. Provides that the premises must be fit for basic human habitation. If breached remember tenants options are
- move out and terminate lease
- repair and deduct cost from rent
- reduce rent or withhold rent until court determines fair rental value
- remain in possession, pay full rent, and affirmatively seek money damages
Civil Rights Act
Bars racial or ethnic discrimination in the sale or rental of all property.
Fair Housing Act
Protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability as well as familial status. Disabled tenants must be permitted to make reasonable modifications to existing premises to accommodate their disabilities at the tenants’ own expense.
Exemptions- (1) owner-occupied buildings with four or fewer units where people live independently of each other, (2) single family homes sold or rented by an owner who owns no more than three single-family homes
Assignment of lease
Transfers entire remaining term of lease. Assignee stands in the shoes of the original tenant in a direct relationship with the landlord. Each liable to the other on all covenants in the lease that run with the land (i.e. rent, paying taxes, repair). Original tenant remains liable on the original contract obligations such as to pay rent.
If an assignee fails to pay rent, the landlord can sue the original tenant. However, if assignee assigns again, landlord cannot go after them because they are no longer in privity of estate and they were never in privity of contract.
Sublease
tenant retains some part of remaining term other than a right to reenter upon breach. Sublesee usually pays rent to the original lessee who then pays the landlord. A sublessee is not personally liable to the landlord for rent or for the permance of any of the covenants in the main lease unless the sublessee expressly assumes the covenants.
Sublessee cannot enforce any covenants made by the landlord in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.
Covenants that run with the land (leaseholds)
A covenant runs wth the land if the original parties to the lease so intend and if the covenant touches and concerns the land (benefits the landlord and burdens the tenant or vice versa) with respect to their interests in the property.
Covenants against assignment or sublease
Landlord can prohibit a tenant from assigning or subletting without the landlord’s prior written approval.
A valid covenatn against assignment is considered waived if the landlord was aware of the assignment and did not object. Once the landlord consents to one transfer, they waive the right to object to future transfers by that tenant unless they expressly reserve the right.
Assignments by landlords
Landlord can assign the rents and reversion interest they own. Usually done by deed when landlord conveys a building to a new owner. Tenant consent not required.
Once tenants are given reasonable notice, they must recognize and pay rent to the new owner as their landlord. New owner liable on all covenants that run with the land. Original landlord remains liable on all of the covenants they made in the lease.
Caveat lessee
Common law norm is tenant beware. Landlord has no duty to make premises safe. Exceptions:
Common areas
Latent defects- dangerous conditions tenant could not discover by reasonable inspection of which the landlord has knowledge or reasont o know
Assumption of repairs- once repairs are undertaken, landlord must complete with reasonable care
Public use rule- ex: short term lease of a public space like convention hall or museum
Short-term lease of furnished dwelling
Many courts now hold that landlord owes general duty of reasonable care toward residential tenants, and will be held liabel in torts resulting from ordinary negligence if the landlord had notice of a defect and opportunity to repair.
Easement
Grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land. Holder has the right to use another’s tract of land for a specified prupose, but has no right to possess or enjoy that land.
Affirmative easement
Right to go onto and do something on servient land
Negative easement
Entitles its holder to prevent the servient landlowner form doing something that would otherwise be permissible. Generally recognized in four categories:
- light
- air
- support
- stream water from an artificial flow
- sometimes scenic view (minority of states)
Can only be created expressly in a writing signed by the grantor.
Easement appurtenant
Benefits its holder in physical use of enjoyment of his own land. Involves two parcles of land. Dominant tenement dervies the benefit. Servient tenement bears the burden.
Passes automatically with transfers of the dominant tenement, regardless of whether its mentioned in the conveyance. Burden of the easement also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice.
Easement in gross
Confers on holder some personal or pecuniary advantage not related to their use or enjoyment of their own land. Servient land is burdered but there is no benefited or dominant tenement becuase the easement benefits the holder rather than another parcel. (ex: placing billboard on another’s lot, swim in someone’s pond, laying power lines)
Not transferable unless for commercial purposes.
Creating an easement
Prescription
Implication
Necessity
Grant
Creating an easement by grant
Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state’s SOF.
Easements by implication
Created by operation of law.
easement implied from pre-existing use- previous use on servient part was apparent and continuous AND parties expected use would survive the division because it is reasonably necessary to the dominant tenement’s use and enjoyment.
Lots sold in subdivision with reference to recorded plat or map that shows streets leading to lots, buyers of lots have implied easements to use the streets to access.
Holder of profit a prendre has implied easement to pass over surface of servient land to extract what it needs to extract from the servient property.
Easement by necessity
When landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land. Servient parcel owner has right to locate the easement.
Easement by prescription (adverse possession)
Requirements:
- continuous and uninterrupted use for the given statute’s period
- open and notorious use (discoverable on inspection)
- actual use that does not have to be exclusive
- hostile use (without servient owner’s consent)
Overuse of an easement
Scope assumed to intened to meet both present and future needs of dominant tenement. But if dominant tenement is subdivided, you cannot overburden the easement.
Remember, easement does not get extinguished if it is overburdened. Remedy is an injunction against the misuse.
Terminating an easement
- Estoppel
- Necessity
- Destruction
- Condemnation
- Release
- Abandonment
- Merger
- Prescription
- under conditions stated in original easement
