Real Property Flashcards
What are the rights and duties of co-tenants (in TIC, Joint Tenancy, or Tenancy by Entirety)?
Possession
(1) Each co-tenant is entitled to possess the whole property
Profits
(1) If a profit is produced by one of the co-tenant’s efforts, then the other co-tenants have no right to share in those profits (unless they’ve been ousted from the property)
(2) If a profit is generated by a third party (e.g., rent), then all co-tenants are entitled to a proportionate share of the profits
Expenses
(1) Taxes/Mortgage Payments: Each co-tenant must pay a proportionate share
(2) Repairs: No direct duty of repair imposed on any co-tenant; however, a co-tenant who makes repairs to the property may be compensated for the amount of the repair by a set-off against any third-party rents received or from proceeds in a partition action
(3) Improvements: Generally, there is no duty imposed on any co-tenant to improve the property. If one co-tenant chooses to improve the property, they cannot get contribution from the other co-tenants
(a) Exception: If the property is sold, any amount attributable to the improvement goes to the tenant who made the improvement
What are the types of leases that a landlord and tenant may enter into?
1) Term of years - a lease that has a definite beginning and end date;
2) Periodic Tenancy - a lease with a set beginning date and continues from period to period without a set end date, until proper notice is given.
3) Tenancy at-will
4) Tenancy at Sufferance (holdover tenant)
How is a Term of Years Lease created and terminated?
1) Creation: Express agreement between the LL and the tenant for a term specified in the lease. If the duration is for longer than a year, the agreement must be in writing.
2) Termination: Automatically at the end of the period; no notice is required
How is a Periodic Tenancy Lease created and terminated?
1) Creation: Expressly or by implication with a holdover tenant
2) Termination: The LL or the tenant must give appropriate notice of intent to terminate
(a) Rule: appropriate notice must be:
(i) In writing, if the lease/state statute so specifies, otherwise it can be oral; and
(ii) Equal to the rental period, up to a maximum of six months (i.e., one-year tenancy –> six-months’ notice)
(b) Timing of Notice
(i) Common law: Notice had to be given at the start of the rental period
(ii) Modern law: Notice is good whenever given but does not take effect until the start of the next rental period
How is a Tenancy At-Will Lease created and terminated?
1) Creation: Generally, express agreement of the parties
2) Termination: This is a very fragile tenancy, it terminates:
(a) Freely as soon as either party decides (no notice requirement);
(b) If either the LL or the tenant dies; OR
(c) If either party attempts to transfer their interest
How is a Tenancy at Sufferance created and terminated?
1) Creation: A holdover situation (e.g., The tenant does not move out at the end of the agreed upon tenancy)
2) A holdover tenant becomes either a periodic tenant or a tenant at sufferance
(a) The determining factor is the LL:
(i) If the LL wants the tenant to remain on the land, the tenant
become a periodic tenant
(ii) If the LL does not want the tenant to remain on the land,
the tenant becomes a tenant at sufferance until the LL can
get the tenant off the property
(b) Crucial factor: Acceptance of rent from the tenant
(i) If the LL accepts rent from the tenant, this is evidence that
the LL wants the tenant to stay on the land
What are the three types of waste and who has standing to sue for them?
Doctrine of waste: Owner of less than a fee estate cannot commit waste (e.g., harm the property at the expense of the person who will hold it after them)
(1) Voluntary Waste = Life tenants cannot intentionally or negligently damage property. If they do, they are liable for the damage
(2) Permissive Waste = A life tenant must take reasonable steps to avoid damage. Failure to do so constitutes permissive waste, and the life tenant will be liable
(3) Ameliorative Waste = A life tenant makes improvements to the land
STANDING:
A remainderman has standing to sue for past or future waste.
(a) Vested Remainderman: CAN sue for damages OR an injunction to stop the waste from occurring
(b) Contingent Remainderman: Cannot sue for damages; CAN ONLY sue for an injunction to stop the waste from occurring
What are the common disputes between landlords and tenants?
1) fights over rent
a) How much the LL can sue for depends on the type of lease and the amount owed
b) Tenant’s defenses:
i) failure to deliver possession [of
property to tenant]
ii) tenant has been evicted
(A) actual eviction (physical removal from all or part of the property)
(B) Constructive eviction (LL has allowed the premises to deteriorate so much that the use & enjoyment of the property is being substantially interfered with). Total –> no rent owed; partial (only part of the property) –> reduction in rent.
iii) Tenant surrenders premises to LL (no more rent owed)
iv) Destruction (except intentional or negligent by tenant)
v) warranty of habitability (see p. 88 of MBE quicksheets)
2) Condition of the Premises (see p. 88)
i) LL’s obligations
ii) Tenant’s obligations (avoid waste)
iii) fight over possession –> LL can retake property if material breach of lease by tenant
iv) Dispute over improvements (fixtures have to stay unless won’t effect the premises)
3) Assignment & subletting
i) LL entitled to rent no matter what
ii) Liability of parties:
(A) Assignment: assignee comes into privity of estate with LL; tenant remains in privity of contract with LL –> both assignee and tenant are liable to LL for rent unless there is a contract novation (assignee can re-assign to a new person & will no longer be liable)
(B) Sublease: sublessee comes into privity of estate AND contract with TENANT. Tenant is solely liable for all rents owed to LL.
iii) Transfer of interest in leases: generally, leases are fully transferable –> to prohibit each, lease must explicitly state that assignment and sublease are prohibited.
What is privity?
Horizontal Privity = The relationship between the original covenantor and covenantee
(a) Requires privity of contract in connection with the land (e.g.,
Landlord/tenant, grantor/ grantee, mortgagor/mortgagee)
Vertical Privity = The relationship between an original party and the successor
in interest to the original party (privity of estate)
(i) In order for the burden to run, privity of estate will only exist when the holder of
the servient estate transfers all of his interest in the servient estate to the new
owner
What are the types of covenants that run with the land and how are they terminated?
1) Covenants (mnemonic: PINT)
2) Equitable Servitudes (mnemonic: TIN)
3) Implied Reciprocal Servitude
- Creation: look for a filed declaration containing the restrictions (CC&R’s). NEGATIVE RESTRICTIONS ONLY; implied by a COMMON SCHEME OR PLAN (no writing!).
Ways to Terminate a Covenant or Equitable Servitude:
(1) written release;
(2) merger of the dominant and servient estates;
(3) abandonment;
(4) estoppel, or
(5) changed circumstances so that the reason behind the restriction is no longer valid
What are the types of easements and how are they created?
1) Easement Appurtenant = benefits a parcel of land; the dominant estate
2) Easement in Gross = benefits a person or entity rather than a piece of land (no dominant estate; only servient)
Creation of Easements: Can be created (i) expressly, (ii) by implication (3 types), or (iii) by prescription
i) Expressly – A writing must satisfy the Statue of Frauds
ii) By Implication:
(A) Easement Implied by Prior Use (four requirements):
(1) Severance of title to land held in common ownership; (2) The use giving rise to the easement was in existence at the time of the severance; (3) The use was apparent and could be discovered upon a reasonable inspection; and (4) At the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract
(B) Easement by Necessity (two requirements):
(1) Common ownership of the dominant and the servient estate, then severance; and (2) Strict necessity for the easement at the time of severance
(C) Easement by Plat: A buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks in the subdivision
iii) By Prescription (Adverse Possession)
(1) If someone actually, openly, notoriously, and exclusively uses land with hostile intent for the statutory period
What are the types of zoning changes?
1) Rezoning: (a) of a particular piece of land is quasi-judicial and requires procedural due process; (b) of a broader portion of land is legislative. If rezoning is inconsistent with a comprehensive plan for the area, it must be based on a change of conditions in the land, neighborhood, or public opinion.
2) Nonconforming use: a use permitted by zoning statutes or ordinance TO CONTINUE, notwithstanding the fact that similar uses are generally not permitted in the area. (Typically cannot alter or expand the use if applicable.)
3) Variances: permission by the local zoning authorities to use property in a manner FORBIDDEN BY zoning ordinances to alleviate conditions particular to a parcel of property. (A) AREA and (B) USE restrictions apply (practical difficulties for landowner to get up to code and absent variance, undue hardship in having a viable use of the property).
4) Special use permits: required for uses in an area not zoned for those uses but which would be beneficial to public welfare (e.g., hospital in residential area)
5) conditional use permits: same as special use permits BUT the applicant must agree to additional conditions re: the use or property
6) spot zoning: a parcel, or small area, may be zoned for a use or structure that is inconsistent with the rationale of the overall plan or ordinance - must serve SOME PUBLIC INTEREST (e.g., public parks on part of commercial land)
7) Exactions: an approval of use in exchange for money or a dedication of land. Requires: (a) essential nexus between increased public need for the exaction and the owner’s use; and (b) the amount exacted has a rough proportionality to the public cost of the use.
What is the doctrine of equitable conversion?
Definition: When a land-sale contract is formed, at that point there is a bifurcation of title
i) Equitable title passes to the buyer
ii) Legal title remains with the seller until the deal closes
Majority Rule: The risk of loss is deemed to follow equitable title; therefore, the risk of loss is on the buyer
Uniform Vendor and Purchaser Act (Minority Rule): The risk of loss remains with the seller until the legal title or possession of the property passes to the buyer
