Real Property Flashcards
Tenant Duties
- Pay Rent (Unless Exception)
- Avoid Waste
- Make Reasonable Repairs
Rights and Obligations of Co-Tenants
- Each Co-tenant has right to possess the entire property
- Rent: Co-tenant does not owe rent for his use of property but must share rents received from 3rd party.
- Operating Expenses(Tax/Morgage): Co-t can generally collect expenses if he paid more than his share, unless he is only one in possession and the value of his use (rent rate) is equal/outweighs the overpayment
- Repairs: Generally no right to be reimbursed. Majority holds contribution for necessary repairs may be compelled through accounting/partition (3rd party rents collected by cotenant may first be used to pay for repairs before sharing with other cotenants)
- Improvements: Not entitled to reimbursement unless agreement to contrary. At end of cotenancy, improving cotenant will be awarded the increase in value due to improvements
Ouster of Co-tenant
occurs when Co-T excludes another Co-T from possession. Party wrongfully excluded may bring action to recover possession and damages.
Termination of Periodic Tenancy
May only be terminated
1. At end of natural lease period; and
2. requires written notice at least a full period in advance. (unless year-to-year, then only need six months notice)
Landlord Duties
- Deliver Possesion
- Duty to Repair
- Implied Warranty of Habitability
- Covenant of quiet enjoyment
- Security Deposits
Implied Warranty of Habitability
Implied in every residential lease. Requires LL provide habitable place to live. Property is habitable if it is reasonably suitable for human needs. Determined by looking to local housing/public safety codes, but generally requires heat, running water, electricity, structural integrity)
Breached when T gives LL notice and reasonable opportunity to repair, but no repairs made.
T may
1) Stay in property and deduct rent until repair occurs
2) Pay for repairs and deduct cost from rent
3) terminate lease and move out
Covenant of Quiet Enjoyment
Implied in every lease, both commercial and residential. LL cannot disrupt T’s possession/enjoyment of the land.
May result in constructive eviction
1) LL substantially interferes with T’s use and enjoyment of land
2) T gives notice and reasonable time for LL to repair, but LL does not repair; and
3) T vacates premise in reasonable amount of time.
Assignment of Lease
Lease may be freely assigned unless provision in lease states otherwise. Occurs when T transfers all remaining assets to 3rd Party.
Assignee liable to LL for rent and all other covenants that run w/ the land b/c privity of estate arises between the assignee and the LL. Assignor also remains liable to LL for rent not paid by assignee becasue privity of K continues to exist.
LL may waive right to enforce assignment prohibition clause if he accepts rent from the assignee
Subleases
Lease may be freely sublet unless clause in lease states otherwise. Occurs when T transfers only portion of remaining interest in lease to 3rd party.
Sublessee is not liable to LL for rent or other covenants because no privity of estate with landlord.
Prohibition Clause
Lease prohibits only assignment->T may still sublease
T violates prohibition->LL can terminate lease
Waiver: LL accepts payment from new tenant, he waives right to enforce prohibition
Consent clause: LL can only withhold consent on commercially reasonable grounds.
Real Covenants
Non-possessory interest in land that obligates the holder to either do something or refrain from doing something with the land. Remedy is damages
Real Covenants: Benefit v. Burden to run
Benefit to Run:
1. Writing SoF
2. Intent for covenant to run with land
3. Vertical Privity between succeeding parties (exists when successor holds the entire estate held by the predecessor)
4. Covenant must touch and concern the land
Burden to Run
All of the above, plus
1) Horizontal privity between original parties (two parties shared some interest in the land independent of the covenant)
2) new owner must have notice (actual, constructive, inquiry)
Equitable Servitudes
Covenants that equity will enforce if burdened estate had notice of the covenants. E.S. get injunctive relief and not damages.
To be enforceable, E.S. must
1) be in writing (SoF)
2) intent for restriction be enforceable by and against successors
3) servitude must touch and concern the land
4) IF person against whom servitude is to be enforced is purchaser, must have notice!
Common Scheme Doctrine
Court will imply reciprocal restrictive covenants on parcels in a subdivision sold by a developer if
1) developer had common scheme/plan that all parcels would be subject to at time parcel was sold
2) D land owner had notice (actual, inquiry, record)
Easements
Non-possessory interest in the use of someone else’s land
Gross: benefits specific owner’s enjoyment/use of land. Does not attach to land or pass to subsequent landowners
Appurtenant: Benefits any owner’s use and enjoyment of land and does attach. Passes to subsequent landowners so long as notice
