Real Property Flashcards
Creation of a joint tenancy
T-TIP Same time Same title Same equal interests W/ rights to possess the whole
AND a clear expression of the right of survivorship
Severance of JT
SAP
Sale and Partition
Partition (3 types)
- voluntary agreement
- partition in kind - physical division of the property; best when blackacre is sprawling acreage
- forced sale - land is sold & proceeds are divided up proportionately; best when blackacre is single building
Other JT transactions
*Mortgages
MAJORITY –> lien theory - mortgage is a lien on title
BUT title theory - DOES sever JT (equivalent of transferring title)
*Slayer Rule DOES sever JT
Under UPC, any joint property is transformed into a TIC
*Testamentary Disposition has no effect - at death, T’s interest vanishes.
Tenancy by the Entirety
Marital estate - created only between married persons who take as “one person” with right of survivorship. Untouchable by creditors.
Creation: arises presumptively in any conveyance to married partners unless lang of grant clearly indicates otherwise.
Severance: death, divorce, mutual agreement, execution by joint creditor of BOTH spouses
- Divorce - TBE –> TIC
Tenancy in Common - no survivorship right
Today - presumed concurrent estate.
Each co-tenant owns an individual part and has the right to possess the whole. Interests are Transferable/Devisable/Descendible.
DUTIES/RIGHTS of Co-Tenants:
Possession: if one co-tenant wrongfully excludes another from possession of the whole/any party, OUSTER. Actionable wrong.
Rents :
Co-tenant in exclusive possession: right to retain profits from their exclusive use of the property.
From third parties: any co-tenant who leases all/part of the premises to a TP must account to their co-tenants, provided them their fair share of rental income. Must also share net profits from land exploits.
Carrying costs: each pays fair share (by ownership percentage).
Repairs: Fair share.
Improvements: no right to contribution for improvements made by ONE co-tenant, but at sale/partition, improver gets a credit tp any value add he caused and a debit of any decrease in value his changes caused.
Waste: co-tenant must not commit waste (voluntary, permissive, ameliorative).
Partition: right to bring an action for partition.
Encumbrances: may encumber his/her interest, but not that of others.
Duty of fair dealing: confidential relationship exists between co-tenants.
LL & Tenant: Leaseholds
Tenancy for years
periodic tenancy
Tenancy at will
Tenancy at sufferance
Tenancy for years
Fixed, determined period of time - there is a known end date.
Ends automatically. No notice required
LL reserves ROE.
TOY greater than 1 year must be in writing (SOF).
Periodic Tenancy (and the lease goes on…)
For successive intervals until either the LL or T gives proper notice of termination –> continuous until terminated.
Can be express or implied (leased with no mention of duration, but rent set at reg intervals; oral term of years violates SOF –> periodic tenancy; RESIDENTIAL - if LL elects to hold over T).
Terminates with notice = must be at least equal to the length of the period itself unless otherwise agreed.
Month to month - 1 month
Week to week - 1 week
Year to year - 1 month under Restatement
Tenancy at Will
For as long as you lease me.
Creation by EXPRESS agreement that lease can be terminated at any time. Payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy.
Termination: notice and reasonable time to quit OR operation of law (death or commission of waste).
Tenancy at sufferance
Created when T wrongfully holds over past lease end.
Termination: lasts only until LL either evicts or elects to hold T to a new tenancy. NO NOTICE REQUIRED.
Holdover Doctrine: LL may (1) evict T; or (2) bind T to new periodic tenancy. Length of new tenancy generally depends on the way the rent was computed under the lease that has ended.
Commercial Ts: may be held to new year to year tenancy if original lease term was for one year or more. If OG tenancy was less than one year, new tenancy is typically month to month.
Residential Ts: generally held to a new month to month tenancy regardless of original term. NOTE: if LL notifies T of rent increase before term expires, will be held to increased rent by holding over.
Exceptions to holdover: (1) T remains in possession for only a few hours after termination/leaves a few articles of personal property; or (2) delay is not T’s fault.
Tenant’s Duty to Repair
When Lease is silent: T need only maintain premises; must not commit waste.
When Lease has express covenant: maintain premises in reasonably good condition; not responsible for ordinary wear/tear.
- Destruction of premises: T may end lease when premises are destroyed w/o T’s fault.
Tenant’s Duty to Pay Rent
T breaches and is in possession of premises:
- LL can evict (entitled to rent until T vacates) OR continue r/ship and sue for rent
- NO SELF HELP PERMITTED (changing locks, removing T/possessions) - punishable civilly and criminally
T breaches and is out of possession: SIR
- Surrender: treat T as if they have surrendered lease
- Ignore abandonment and hold T responsible for rent until lease end
- Re-let the premises and hold wrongdoer T liable for any deficiency
NOTE: LL must at least try to re-let bc of duty to mitigate damages.
LL Duties: Duty to deliver possession
LL has duty to put the T in actual physical possession of the premises at the start of the lease.
LL Duties: implied covenant of quiet enjoyment
Arises by implication. T has a right to quiet use and enjoyment of the premises, without interference from LL or a paramount title holder.
Breach by wrongful eviction: LL wrongfully evicts or excludes T from premises.
- Actual eviction: LL excludes T from ENTIRE premises [terminates T’s obligation to pay rent]
- Partial eviction: T is physically excluded from PART of premises [relieves T of obligation to pay rent for entire premises]
Breach by constructive eviction: when LL’s breach of duty renders the premises unsuitable for occupancy. To recall the elements of constructive eviction: SING
- Substantial Interference: chronic or perm. prob. due to L’s action.
- Notice: T must notify L of problem/L must fail to fix it.
- Goodbye: T must vacate w/in reasonable time after L fails to mediate
LL generally not liable for acts of other Ts, but must act where:
- duty to abate a nuisance on site
- must control common areas
LL Duties: Implied warranty of habitability (residential leases ONLY)
Provides that premises must be fit for human habitation. Problems that trigger: - no running water - no working plumbing - no heat in winter
T’s entitlements when LL breaches: M R 3
M - move out and terminate lease
R - repair and deduct (statutory remedy)
R - reduce rent or withhold rent until the court determines fair rental value (place rent in escrow account in show of good faith)
R - remain in possession, pay full rent, seek money damages
LL - retaliatory eviction
LL may not terminate a lease or otherwise penalize a T for T’s exercise of their legal rights.
Presume RE is LL acts within 90-180 days after T exercises their rights. To overcome, LL must show valid, non-retaliatory reason.
Anti-Discrimination Legislation
Civil Rights Act - bars racial or ethnic discrimination in the sale/rental of all property.
Fair Housing Act - protects Ts and potential Ts from discrimination on basis of race, color, religion, nat’l origin, sex, or disability as well as family status.
- Exemptions: does not apply to
(1) owner-occupied buildings with 4 or fewer units in which persons live independently of each other; and
(2) single family homes sold or rented by an owner who owns no more than three single fam homes. - Prohibited Actions:
(1) LL cannot refuse to negotiate/rent/sell housing or make avail a mortgage loan or other financial assistance;
(2) Provide diff terms or conditions for sale/rental of a dwelling or for a mortgage or other financial assistance; or
(3) Falsely representing that a dwelling is not avail
Discriminatory ads also prohibited - violated by person making the ad AND the paper printing it.
Reasonable accommodations: LL must permit disabled Ts to make reasonable modifications to existing premises to accommodate their disabilities at T’s expense.
Transfers of Leases
As long as lease allows, T may freely transfer interest:
- Assignment: transfer of entire remaining lease term. Assignee stands in T’s shoes in direct r/ship with LL - privity of ESTATE. A owes rent directly to LL. T remains in privity of K with LL (T is secondarily liable to LL).
- Sublease: T retains some part of remaining term. SL pays rent to T who pays LL. SL and LL are in neither privity of estate or K.
LL can prohibit T from assigning/subleasing without LL’s prior written approval; once LL consents to one transfer, waives the right to object to future transfers by T unless LL expressly reserves the right.
NOTE: if T assigns/subleases in violation of LL’s provision, LL may terminate lease or sue for damages, but the transfer is not void.
LL may assign rents and reversion interest they own (usually via deed when LL conveys to building to new owner). T’s consent not required.
LL’s Tort Liability
Common Law: Caveat Lessee! T beware.
Exception: (If I can make your hands CLAP[S])
C - common areas
L - latent defects (duty to warn; not repair)
A - assumption of repairs (LL must repair w/ reasonable care)
P - public use rule*
S - short term lease of furnished dwelling*
*Because T doesn’t have time/ability to repair.
Modern trend - general duty of reasonable care.
-LL will be held liable for injuries in tort resulting from ordinary negligence if the LL had notice of a defect and opp to repair it.
Fixtures
Fixture is a chattel that has been so affixed to land that is has ceased being personal property and has become party of the realty. Fixtures pass with the ownership of the land.
Two ways to tell chattel –> fixture:
1) when items are incorporated into the realty so that they lose their identity.
2) chattel affixed to realty is a fixture when its removal would cause considerable damage to the premises.
Easements - Definition & Types
Grant of a nonpossessory property interest that entitles its holder to use/enjoy another’s land.
Presumed to be of perpetual duration unless the grant specifically limits the interest.
Types:
- Affirmative: right to go onto and do something on servant land (land imposed upon)
- Negative: holder can prevent the landowner from doing something otherwise permissible (DISFAVORED; can only be created expressly)
LASS (light, air, support, stream water from artificial flow)
Easements - appurtenant or gross
Appurtenant - when it benefits its holder in his physical use or enjoyment of his own land. TWO land parcels involved:
- Dominant tenement (gets benefit)
- Servient tenement (has burden)
Gross - when it benefits a PERSON/COMPANY unrelated to their land.
- Servient tenement (burdened)
Transferability of easements
Easement appurtenant passes automatically with transfer of dominant tenement, REGARDLESS OF WHETHER IT IS MENTIONED IN CONVEYANCE. Burden also passes with servient estate, UNLESS new owner is BFP with no notice of easement.
Easement in gross NOT transferrable unless commercial purpose.
Creation of easements
PING: P - prescription I - implication N - necessity G - grant
Grant - must be in writing and signed up by burdened estate holder, called deed of easement. Must comply with formal requisites of deed.
Implication - operation of law (exception to SOF).
- easement by prior use: must find (1) previous use on burdened land was apparent and continuous AND (2) parties expected use would survive plot division bc reasonably necessary to the dominant tenement’s use and enjoyment
- easement without any existing use: two limited situations:
(1) subdivision plot - buyers have implied easements to use streets to access their lots
(2) profits - holder of a profit has an implied easement to pass over the surface of the land to use it as reasonably necessary to extract applicable resource.
Necessity - implied when landowner conveys portion of HER land with no way out except over some part of O’s remaining land. Owner of burdened/servient land has right to locate easement.
Prescription - may be acquired by COAH. C - continuous use for statutory period O - open and notorious use A - actual use H - hostile use *Permission defeats prescriptive easement
ALSO - express reservation: O conveys title to land but reserves right to continue to use for a special purpose.
EXAM! Watch for express reservation fact patterns where O reserves easement for someone else. Under majority view, easement can only be reserved for O. Reservation for anyone else = void.
