Real Property Flashcards
JOINT TENANCY
KEY ATTRIBUTES
- Right of survivorship
- Alienability
- Not devisable
FORMATION (T-TIP)
- Same Time
- Same Title
- Equal Interest
- Right to Possess whole
+ Must clearly express right of survivorship (common tenancy is default)
SALE AND PARTITION
+ destroys joint tenancy wrt new tenant: will own with common tenancy
TENANCY BY THE ENTIRETY
+ Marital estate. Similar to joint tenancy.
+ Arises presumptively when married couple
VERY PROTECTED
+ Creditors of only one spouse cannot touch tenancy
+ One spouse cannot unilaterally defeat tenancy by conveying
SEVERANCE
+ Death, divorce, mutual agreement, execution by joint creditor
+ Divorce: becomes tenancy in common
TENANCY IN COMMON
+ Two or more own without right of survivorship.
+ Each co-tenant has right to possess whole.
+ Ownership parts do NOT have to be equal.
+ Devisable and alienable.
Presumptive.
RIGHTS AND DUTIES OF CO-TENANTS
+ POSSESSION: ouster if tenant tries to wrongfully have exclusive possession of part
+ RENTS AND PROFITS: share rents from third parties. co-tenant in exclusive possession may retain rents.
+ ADVERSE POSSESSION: no adverse possession without ouster
+ REPAIRS: must contribute to necessary repairs
+ IMPROVEMENTS: no need to make improvements
+ WASTE: must not commit waste (voluntary, permissive, ameliorative)
+ PARTITION: voluntary, judicial (divide up money), in kind
TENANCY FOR YEARS
+ Fixed period of time (from one week to decades)
+ MUST BE IN WRITING if longer than one year (SoF violation)
TERMINATION
+ Ends automatically on its termination date.
+ Breach of lease covenant: right of entry (e.g. by failure to pay rent)
+ Termination upon landlord’s acceptance of tenant’s surrender.
PERIODIC TENANCY
+ Successive periods. Continuous until properly terminated
CREATION
+ Express
+ Implied: no mention of duration, or oral terms of years (violation of SoF)
TERMINATION
+ Notice must be equal to length of the period, unless otherwise agreed
TENANCY AT WILL
+ To T for as long as L or T desires
CREATION
+ Must say that the tenancy can be terminated at any time
+ If only landlord has right, imply right for tenant (but not the other way around)
TERMINATION
+ Must give notice and reasonable time
+ Death
TENANCY AT SUFFERANCE
+ When tenant wrongfully holds over
+ Tenancy at sufferance allows landlord to recover rent
TERMINATION
+ Lasts until eviction or if landlord elects to hold tenant to new tenancy
HOLD-OVER
When holdover tenant (tenancy at sufferance), landlord may either
1. Evict
2. Hold to new tenancy
COMMERCIAL TENANTS
+ May be held to year-to-year tenancy if original tenancy was for one year or more
RESIDENTIAL TENANTS
+ Held to month-to-month tenancy, regardless of original term
TENANT DUTIES: DUTY TO REPAIR
+ Duty to repair: must maintain the premises (routine but not wear and tear). Must maintain reasonably good repair
+ Must not commit waste (voluntary, permissive, ameliorative)
+ Duty to repair with express covenant in lease: common law - tenant responsible for loss; today - residential covenant to repair not enforceable, nonresidential is
TENANT DUTIES: DUTY TO PAY RENT
Breach in possession: evict or sue for rent
+ Landlord cannot engage in self-help
Breach out of possession: S I R
+ Surrender: landlord to treat abandonment as surrender of contract
+ Ignore: and continue hold tenant responisble for rent
+ Re-let premises on the tenant’s behalf: hold tenant responsible for any deficiency
Majority rule: Landlord must at least try to re-let.
LANDLORD DUTIES: IMPLIED WARRANTY OF QUIET ENJOYMENT
Implied covenant of quiet enjoyment
+ Commercial and residential tenants
+ Tenant has right to enjoy property without interference from landlord (or other paramount title holder)
BREACHES
+ Actual eviction: excluding tenant from entire premises
+ Partial eviction (while continuing obligation to pay for entire premises)
+ Constructive eviction: landlord’s breach of duty renders premises unsuitable for occupancy. SING (Substantial Interference; Notice; Goodbye). Tenant may seek damages or terminate the lease
+ By other tenants: Landlord has duty to control common areas and to abate nuisances
LANDLORD DUTIES: IMPLIED WARRANTY OF HABITABILITY
+ Nonwaivable
+ Premises must be suitable for human habitation
WHEN BREACHED, tenants’ options are MR3:
+ Move out and terminate lease
+ Remain and seek money damages (but continue paying rent)
+ Reduce rent or withhold until court decides fair rental value
+ Repair and deduct costs
FAIR HOUSING ACT
Protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, disability, or familal status
EXCEPTIONS:
+ Owner-occupied buildings with fewer than 4 units
+ Single-family homes rented by owners who owns no more than three single-family homes
TRANSFER OF LEASEHOLD
ASSIGNMENT: tenant transfers interest in entire remaining term
+ Original tenant remains liable for original contractual obligations (privity)
+ Covenants that run with the land: if covenant touches and concerns the land
+ Rent covenants: assignee owes rent directly to landlord
SUBLEASE: tenant transfers some portion of remaining term
+ Not personally responisble to landlord for covenants on main lease unless expressly assumes them
+ Terminates with main lease
+ Cannot enforce covenants express implied implied warranty of habitability (residential)
COVENANTS AGAINST ASSIGNMENT OR SUBLEASE
+ Landlord can restrict this in the lease without the landlord’s prior written approval
+ Once landlord consents to transfer by one tenant, consents to all transfers (unless expressly prohibited) (construed against landlord: covenants prohibiting assignment will not be taken to mean as prohibiting sublease)
ASSIGNMENT BY LANDLORD: original landlord remains liable for covenants made to lessee
