real property Flashcards
tenancy in common
default estate created when land is conveyed to two or more people
each owner owns undivided interest in the property and has right to use and enjoy entire property. interest passes by bequest or intestacy - no right of survivorship
joint tenancy
created when 4 unities are present –> time, title (same instrument), interest and possession
must have clear express intent to create JT with right of survivorship
joint tenancy severence
when one joint tenant unilaterally transfers interest in his ownership, JT severed and tenants hold as TIC
if there are more than two JT, the JT remains among the other JT that did not transfer
mortgage:
title theory jxn –> severs JT
lien theory –> does not sever JT
if one JT leases –> Maj: severed JT
co-tenant entitlement to rent, repairs, and improvements
rent from co-tenant = an out of possession co-tenant does not have right to receive rent unless otherwise agreed or wrongfully ousted
rent from third party = co-tenant entitled to share of rent from third-party
repairs = co-tenant is entitled to reimbursement for costs of necessary repairs paid for unless there was wrongful ouster
improvements = co-tenant not entitled to reimbursements for improvements on property unless otherwise agreed but improving co-tenant entitled to downside risk or upside gain when property is sold
types of leasehold interests
a lease grants present possessory interest in real property for limited period of time.
1. tenancy for years - lease for fixed period of time automatically terminated after period ends
2. periodic tenancy - lasts for an initial period, then automatically continues for additional equal periods until terminated with proper notice
termination requires written notice at least a full period in advance, or if period is yearly, 6 months’ notice
3. tenancy at will - continues until either party terminates it; usually created by express agreement
termination requires notice & reasonable time to quit the premises (some states, no notice is required)
tenant duties
duty to pay rent: runs with land. if tenant remains on land and does not pay landlord can evict tenant or allow tenant to remain on land and sue for damages
if tenant abandons and doesn’t pay rent, landlord may have to take reasonable steps to mitigate losses
hold over tenant
if tenant remains in possession after lease ends, the landlord may evict or hold the tenant over
an implied month-to-month lease is created with identical terms. if tenant is informed of rent increase before the end of lease, a higher rent applies.
duration:
modern view –> month-to-month
common law –> term is equal to OG tenacy period
implied warranty of habitability
LL must provide a place to live that is habitable (reasonably suitable for human needs)
- sometimes also implied in commercial leases.
if warranty is breached tenant may:
- move out and terminate lease
- withhold or reduce rent
- repair issue or defect and deduct cost from rent or
- remain on premises and sue for damages
constructive eviction
every lease has implied covenant for quiet enjoyment hat prevents LL from interfering with tenant enjoyment and possession of land. this is breached when tenant is constructively evicted
constructive eviction occurs when
- LL breached duty to tenant
- breach caused loss of the substantial use and enjoyment of premises
- tenant gave LL notice of condition
- LL failed to remedy AND
- tenant vacated premises
* *tenant may seek damages, terminate lease, and avoid rent for time constructively evicted
residential leases»_space; LL has duty to repair common areas and warn of latent defects that create risk of serious harm that LL knows of or should know of
commercial leases»_space; LL has no duty to repair unless specified in lease agreement
LL duty to mitigate
Common law»_space; LL NO duty to mitigate
maj»_space; impose duty to take reasonable steps to mitigate losses, but does not have to be successful to recover damages
assignment of lease
when the tenant transfers ALL remaining lease to third-party
- freely assignable unless lease states otherwise
- assignment cannot be for longer period than remaining lease term
- liable for covenants that run with land
liability for rent/breach:
assignee»_space; liable to LL for rent and all other covenants that run with land (privity of estate)
assignor/OG tenant»_space; remains liable for rent (privity of k) unless novation
LL»_space; maintenance obligations runs with land (privity of estate)
LL consent for assignment: if lease requires consent, it must be obtained. LL waives right to enforce a provision prohibiting assignment if he accepts rent from assignee
if lease is silent on consent»_space; maj - LL may withhold consent for any reason; some states - LL must have reasonable basis for withholding consent
sublease
when T transfers only some of the remaining lease
- T may freely sublet unless provision of lease prohibits
- sublease cannot be for longer than remaining lease term
sublessee is not liable to LL for rent or other covenants (no privity of estate)
OG tenant remains laible to LL for rent (privity of k)
surrender of lease
an agreement to end lease early
LL must clearly accept surrender of lease unless otherwise agreed
- attempt to end lease early does not constitute surrender unless LL clearly accepts
if LL accepts surrender»_space; T duty to pay rent after acceptance ends
if LL does not accept»_space; T is deemed to have abandoned and is liable for damages
termination of real covenant
merger, written release, or condemnation of burdened property
real covenant
non-possessory interest in land that obligates holder to either do something or refrain from doing something
runs with land at law - diff req. depending on benefit/burden
remedy = damages
can be restrictive – these are like negative easements but you can restrict them from doing more than light, air, water, etc., and can be created in more ways than writing
enforcing benefit of covenant
WITV writing intent touch and concern vertical privity (only absent if acquired by AP)
enforcing burden of covenant
“WITHN”
writing
intent to run with land
touch and concern (restrictive = must restrict owner in use of land/affirmative = required to do something that increases obligations)
horizontal privity (OG parties shared some interest other than covenant - i.e., landlord/tenant; grantor/grantee, etc.)
vertical privity (non-hostile nexus b/t OG covenant party & successor, i.e., will be present absent AP)
notice
notice
actual - knowledge
constructive - recorded notice
inquiry - inspection of records would reveal it
equitable servitude
a covenant that equity will enforce if the burdened estate had notice of the covenant regardless of whether it runs with land
remedy = injunction
requirements to enforce equitable servitude
must have
- writing satisfying SOF
- intent for servitude to be enforceable
- servitude touches and concerns the land (makes land more useful or valuable)
- notice
common scheme or plan doctrine
courts will imply reciprocal restrictive covenant on land parcels where there is no writing or absent from deed where it is in subdivision sold by developer only if
- developer had common scheme or plan that all parcels would be subject to restriction at time sold AND
- land owner had notice of restriction (can be AIR or obvious from looking at subdivision)
only apply to negative covenants and equitable servitudes
tort liability LL
CLAPS
Common areas: reasonable care
Latent: disclosure
Assumption of repairs: negligence standard
Public use: known defects LL is aware for public use and tenant is unlikely to repair
Seasonal/short-term lease of furnished home: liable for defects causing harm
some courts hold LL liable for injuries resulting from negligence where LL had notice of defect and opportunity to repair it
obligation of common interest community
common interest community is development of individually owned lots that have an obligation to
- pay for/contribute maintenance of the property held in common or
- pay dues or assessments to an association that maintains the neighborhood and/or property
i.e., condos, HOA, co-ops
residents and successive owners are subject to recorded obligations (restrictive covenants) that run with land
easement
non-possessory interest in the use of someone else’s land
diff from covenant – covenant restricts you or requires you do something on your OWN land
types of easements
in gross»_space; benefits specific owner enjoyment - does not pass to subsequent owners unless easement is for commercial activity (requires one party)
appurtenant»_space; benefits any owner’s enjoyment and does pass to subsequent owners with notice (requires two parties - one benefitted and one burdened)
affirmative –> entitled holder to make affirmative use of servient estate
**affirmative easements take two parties and can be created in other ways than express writing
negative –> entitles holder to restrict the servient estate from otherwise permissible activities
can only prevent light, air, subjacent/lateral support, or water stream by express grant
**restrictive covenants are used more than negative easements to prevent activity on land
ways to create a negative easement
writing signed by grantor
ways to create an affirmative easement
by grant»_space; requires
- writing signed by grantor
- identify land and parties involved and
- indicate grantor intent to convey easement
scope: use agreed upon
prescription»_space; created when possessor’s use of land is
- open and notorious
- continuous
- hostile (without permission from land owner) and
- for statutory period
scope: actual usage during statutory period
implication»_space; established when
- single tract of land is divided by a common owner
- pre-existing use by grantor is established prior to division
- use was continuous and apparent indicating that it was meant to be permanent and
- the use is reasonably necessary for owner use and enjoyment of the land conveyed
scope: prior use
exceptions: easement may be implied without prior use where:
- common scheme plan/subdivision
- profit a prendre: holder has implied easement to pass over land surface as reasonably necessary to extract materials
necessity»_space; created if
- land owned by one owner is subdivided and
- the easement is essential to the use b/c no other ingress is available
scope: limited to remedying the necessity
termination of the easement
END CRAMP
- estoppel - when servient estate owner reasonable relies on assurance that easement will not be enforced
- termination of necessity
- involuntary destruction of servient estate
- condemnation of servient estate
- written release
- abandonment - physical action showing intent to never use easement again
- merger of properties (separation after merger does not revive easement)
- prescription
