Real Property Flashcards
Joint Tenancy
- Right of Survivorship
- Alienable
- NOT descendible or devisable
- Created by:
1. Interests taken at the same time
2. By the same title
3. With identical, equal interests; and
4. With rigthts to possess the whole - Grantor must CLEARLY express the right of survivorship. Otherwise, a conveyance to two or more persons, without more, is presumed to be a tenance in common.
How can joint tenancy be severed?
- Severance and Sale (sell or transfer during her liftime w/ notice to joint tenant)
- Partition
a. Voluntary Agreement (both parties agree to end)
b. Partition in Kind (judical partition by physical division)
c. Partition in Forced Sale (judicial partition by selling the land and dividing profits between tenants)
What are transactions that WILL NOT sever a joint tenancy?
- Mortgages
- One joint tenant murdering another
- Testamentary disposition (i.e., leaving the estate in a will)
Tenancy by the Entirety
- Marital estate akin to joint tenancy
- Right of survivorship
- Not alienable, deviseable, or descendable
- Created by presumptively conveying land to married partners unless the language of the grant clearly indicate otherwise
Can creditors claim a tenancy by the entirety?
No, creditors of only one spouse cannot touch this tenancy for satisfaction of the debt. Note, however, that creditors of BOTH spouses may claim the tenancy.
How can a tenancy by the entirety be severed?
- Death
- Divorce
- Mutual Agreement
- Execution by a joint creditor of BOTH the spouses
Note: Upon divorce, the tenancy becomes a tenancy in common
Tenancy in Common
- No right of survivorship
- Presumption of tenancy in common
- Alienable, deviseable, and descendable
Rights and Duties of Co-Tenants
- Possession = Right to possess al portions of the property
- Rents/Profits = A tenant in exclusive possession has the right to retain all profits BUT a co-tenant who leases the property must account to all the co-tenants
- Carrying Costs = Each tenant must pay fair share of taxes/mortgages
- Repairs = Reparing co-tenant may receive contribution forom co-tenants if notified co-tenant of repair
- Improvements = No right to contribution for improvements unilaterally made
- Waste = May not commit waste
Waste
- Voluntary = willful destruction
- Permissive = neglect
- Ameliorative = unilateral change that increases value
Tenancy for Years
- Lease for a fixed, determined period of time
- Leases for greater than one year must be in writing to satisfy SoF
When does a tenancy for years end?
- Automatically at its termination date (no notice is needed to terminate)
- Breach of lease covenant (e.g., failure to pay rent)
- Tenant surrenders the tenancy and the landlord accepts
Periodic Tenancy
A lease which contiues for successive intervals until either the landlord or the tenant gives proper notice of termination (i.e., continuous until terminated)
How are is a periodic tenancy created?
- Express (express term from month/month, year/year, or week/week)
- Implication
a. No mention of duration but provision of rent is set in intervals
b. Oral term of years in violation of SoF
c. If a landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease
How is a period tenancy terminated?
May be terminated by landlord but requires notice (usually written). Until the tenancy is terminated the tenancy is automatically renewed.
Generally, notice must be given equal in terms of the length of the tenancy (e.g., 1 month notice for a month lease). For year leases, notice is either 6 months (common law) or 1 month (restatement).
Tenancy at Will
A tenancy with no fixed period of duration. May be terminable at the will of either the landlord or the tenant.
When is a tenancy at will terminated?
Can be terminated by either party at any time. However, in most states, notice and a reasonable time to quit are required to terminate a tenancy at will.
May also be terminated by operation of law (e.g., death or commission of waste).
Tenancy at Sufferance
Created when a tenant wrongfully holds over (meaning they remain in possession past the expiration of the lease). During such cases, the landlord has the right to recover rent.
When are tenancy at sufferance terminated?
Only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy. No notice is required.
Hold-Over Doctrine
If a tenant continues in possession after their right to possession has ended, the landlord may:
1. Evict the tenant; or
2. Bind the tenant to a new periodic tenancy
Tentant’s Primary Duties
- Repair
- Pay Rent
What are the tenant’s duties to repair when the lease is silent?
- Maintain premises (routine repairs BUT NOT repair occasioned by ordinary wear and tear)
- May not commit waste
What remedies may a landlord seek if the tenant does not pay rent?
- Evict through the courts
- Continue the relationship and sue for rent due
Note that the landlord MAY NOT engage in self-help (such as changing the locks, forcibly removing the tenant, or removing any of the tenant’s possessions).
What remedies does a landlord have if a tenant vacates with time left on a term of years lease?
- Surrender = landlord can choose to treat the tenant’s abandonment as an implicit offer to surrender (thereby ending the lease)
- Ignore = do nothing and hold the tenant responsible for the unpaid rent until the natural end of the lease
- Re-let = re-let the premises on the wrongdoer-tenant’s behalf, and hold the wrong-doer tenant liable for any deficiency
Implied Covenant of Quiet Enjoyment
Implied promise in every lease that a tenant has a right to quiet use and enjoyment of the premises, without the interference from the landlord or a paramount title holder.
When does wrongful eviction occur?
- Actual Eviction = excludes the tenant from the entire leased premises
- Partial Eviction = tenant is physically excluded from only part of the leased premises
- Constructive Eviction = when the landlord’s breach of duty renders the premises unsuitable for occupancy
Must a tenant pay rent under:
1. Actual Eviction
2. Partial Eviction
3. Constructive Eviction
- Terminates the tenant’s obligation to pay rent
- Terminates the obligation to pay rent for the entire premises (even if only partial exclusion)
- Obligation to pay rent may be terminated if:
a. Substantial Interference
b. Notice to the landlord
c. Goodbye (leaving premises)
Implied Warranty of Habitability
Implied warranty in residential leases that provides that the premises must be fit for basic human habitation.
If the implied warranty of habitability is breached, what are a tenant’s options?
- Move out and terminate the lease
- Repair and deduct from rent
- Reduce rent or withold all rent until the court determines fair rental value
- Remain in possession, pay full rent, and affirmatively seek money damages
May a tenant transfer their interest in the property?
- In the absence of some prohibition in the lease, a tenant may freely transfer their interest in whole (assignment) or in part (sublease).
- In some cases, a landlord can prohibit a tenant from assigning or subletting without the landlord’s prior written approval. However, once the landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant, unless the landlord expressly reserves that right.
Assignment
- When a tenant transfers their interest of a lease in whole to a 3rd party.
- The assignee and the landlord are in “privity of estate” but NOT in “privity of contract”
- The original tenant is no longer in privite of estate with the landlord but IS in “privity of contract”
Privity of Estate
Liable on all covenants in the lease that “run with the land”
Privity of Contract
Liable for original contract obligations (e.g., pay rent)
Sublease
- Occurs when a tenant transfers LESS than her entire estate to a 3rd party
- The sublessee is NOT in privity of estate nor privity of contract with the landlord but IS in privity of estate and contract to the original tenant
- The original tenant is in privity of estate AND privity of contract with the landlord
Caveat Lesee
A landlord is under no duty to make premises safe.
Exceptions:
1. Common areas
2. Latent defects (must warn of hidden deffects with the landlord knows or has reason to know)
3. Assumption of repairs (once repairs are undertaken, the landlord must complete them with reasonable care)
4. Public use rule (a landlord who leases a public space and who should know that a tenant will not repair because of the short length of the lease and the significant nature of the defect)
5. Short-term lease of furnished dwelling
Modern Trend = landlord owes a general duty of reaonable care toward residential tenants, and will be held liable for injuries in tort resulting from ordinary negligence if the landlord had notice of a defect and an opportunity to repair it.
Easement
- Grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land.
- Assumed to be of perpetual duration unless grant specifically limits interests
Affirmative vs Negative Easements
- Affirmative = the right to go onto and do something on servient land
- Negative = entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible (generally falls within light, air, support, or stream water)
How are negative easements created?
Expressly, by a writing signed by the grantor
Easement Appurtenant vs in Gross
- Appurtenant = the easement benefits its holder in his physical use or enjoyment of his own land (2 land affected)
- In Gross = confers upon its holder only some personal or pecuinary advantage that is not related to their use or enjoyment of their land (only 1 land affected)
Dominant vs Servient Tenement
- Dominant = derives the benefits of the easement
- Servient = bears the burden of the easement
Transferability of Easements
- Appurtenant = passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance; also passes automatically with the servient estate, unless the new owner is a bona fide purchaser w/o notice of the easement
- In Gross = not transferable unless it is for commercial purposes
How are easements created?
- Prescription= adverse prescription (continuous and uninterrupted use, open and notorious, actual use, and hostile use)
- Implication = easement that does not satisfy the SoF (i.e., an oral agreement), but there is preexisting use
- Necessity = implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaing land
- Grant = writing signed by holder of servient tenement
What is the scope of easements?
- The scope of an easement is determined by the terms of the grant or conditions that created it.
- If an easement is created but not specifically located on the servient tenement, an easement of sufficient width, height, and direction for the intended use will be implied
- The owner of the servient tenement may select the location of the easement so long as their selection is reasonable
How are easements terminated?
- Estoppel = when the servient owner materially changes their position in reaosnable reliance on the easement holder’s assurances that the easement is terminated
- Necessity = easements created by necessity expire as the necessity ends
- Destruction = destruction of the servient land
- Condemnation = government eminent domain over the servient tenement
- Release = the easement holder terminates the easement
- Abandonment = physical action by the easement holder that demonstrates intent to never use the easement again
- Merger = title to the easementa and title to the servient land become vested in the same person
- Prescription = adverse possession
License
- Mere privilege to enter another’s land for some delineated purpose
- Not an interest in land
- Revocable at will of the licensor (except estoppel applies)
- Inalienable
- May be created by oral agreement