Real Property Flashcards
What is a joint tenancy?
Two or more own property with the right of survivorship (deceased JT’s share automatically passes to the surviving JT).
- Property interest is alienable inter vivos.
- It is not devisable (testamentary devise) or descendible (pass through intestacy).
What is a tenancy by the entirety?
A protected marital interest between spouses with the right of survivorship.
- Engaged people can’t have this–must be married at the time of creation.
- Is presumptive in any grant to married partners (unless a grant clearly indicates otherwise).
- Highly protected (sanctity of marriage). Creditors of only one spouse cannot defeat the right of survivorship. One spouse cannot unilaterally transfer the interest (it’s a nullity–unenforceable).
- Severance through divorce, death, or the execution of a lien by a joint creditor of both spouses. When severed, it becomes a tenancy in common.
What is a tenancy in common?
Two or more own property without the right of survivorship.
- Modern presumption in favor of this type of ownership.
- Co-tenants own the individual part + the right to possess the whole.
- Devisable (testamentary devise), descendible (pass through intestacy), and alienable.
What is required for a Joint Tenancy?
The Four Unities (T-TIP)
- T: At the same TIME.
- T: By the same TITLE (deed, will, etc.).
- I: With IDENTICAL, equal interests.
- P: With the right to POSSESS the whole.
How can a joint tenancy be severed?
- Sale: A JT may sell-transfer her interest during her lifetime–even without the other’s knowledge or consent. The buyer in this case is a tenant in common (because the 3 unities are disrupted).
- Partition by Voluntary Agreement: An allowable and peaceful way to end the relationship.
- Partition by Judicial Action Called Partition in Kind: An action for a physical division of the property, if in the best interests of all parties (EX: sprawling acreage–lends itself to division).
- Judicial Action Called a Forced Sale: An action when, in the best interests of all parties, the land is sold and the sale proceeds are divided up proportionately (EX: Blackacre is a single building).
At common law, when all joint tenants enter into an executory contract to sell, will this sever a joint tenancy? What about in other jurisdictions?
No. The joint tenancy continues in both right to the proceeds and legal title. If someone dies before proceeds are distributed, their proceeds will go to the other joint tenants.
- In other jurisdictions, this will result in a tenancy in common (equitable conversion doctrine).
Will a joint tenant’s execution of a lien on her share sever a joint tenancy?
A joint tenant’s execution of a mere mortgage/lien will not sever the joint tenancy in the majority of states.
What is the lien theory of mortgages?
Under the lien theory of mortgages, if a joint tenant encumbers her interest in the joint tenancy to back up / collateralize a bank’s extension of value, then all the bank has is a lien in the event that the debtor defaults (doesn’t sever the joint tenancy).
- This is the majority rule.
In a lien theory state, when a joint tenant takes out a lien on the property and dies before default and disclosure proceedings, will the lender be able to maintain a loan on the property?
No. In most lien theory states, the mortgage is regarded as a lien on title. In these states, a mortgage of the property by one joint tenant does not, by itself, sever a joint tenancy until default and foreclosure proceedings have been completed. The lender loses their rights as to the property if the joint tenant dies before the foreclosure.
What is the title theory of mortgages?
Under the title theory of mortgages, encumbrances by lien will sever the joint tenancy as to that encumbered share.
- This is the minority view (small minority).
Can co-tenants exclude each other from parts of the property?
Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part. If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, they’ve committed ouster. Ouster is an actionable wrong.
When only one co-tenant is using jointly owned property, does she owe the other(s) rent?
Unless there has been an ouster, a co-tenant in exclusive possession is not liable to the other(s) for rent.
When a co-tenant of a tenancy in common leases all or part of the property to a third party, what result with the profits?
When a co-tenant leases all or part of the property to a third party, they must provide other tenants with their fair share of the income
Can co-tenants obtain right of the whole of the property through exclusive possession of the property (adverse possession)?
Unless they’ve ousted the other co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant (the hostility element is absent).
What are carrying costs of co-tenants regarding the property owned?
Each pays their fair share of the property according to their interests (EX: taxes, mortgage, etc.).
What are repair cost liabilities of co-tenants regarding the property owned? What are the rights of a repairing co-tenant?
A repairing co-tenant enjoys a right to contribution during the life of the co-tenancy for reasonable, necessary repairs, provided they gave notice to the other co-tenant(s) of the need for the repairs.
If a co-tenant creates unilateral improvements, can they seek contribution from other co-tenants?
No. During the life of the co-tenancy, there is no right to contribution for unilateral “improvements” made by only one co-tenant.
- At partition/dissolution, an improver gets a credit equal to any value increase he caused in the property. The improver suffers a debit equal to any decrease in value that he caused.
What are co-tenants duties regarding waste? What are the types of waste?
A co-tenant must not commit waste. During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant.
TYPES:
- Voluntary waste is willful destruction (overt damage and/or decrease in value).
- Permissive waste is neglect (EX: leaving windows open and weather causes harm).
- Ameliorative waste is unilateral change that increases value (others still have right to recover for sentimental loss if it’s quantifiable).
What kind of partition is preferred?
A partition in kind is preferred because it’s easy, but they will also allow for a partition by forced sale if fair/equitable physical division is not possible.
What is a Tenancy for Years?
In Landlord/Tenant law, a Tenancy for Years is a lease for a known, fixed period of time (as long as you know the end date from the start, you have a Tenancy for Years).
- Termination is automatic on the end date.
- No notice needed to terminate.
- Writing typically needed if more than 1 year (SOF).
What is a Periodic Tenancy?
In Landlord/Tenant law, a Periodic Tenancy is a lease that continues in repeating intervals until the landlord or tenant gives proper notice of termination.
- Applies by IMPLICATION when (1) land is leased with no mention of duration, but rent is set at regular intervals (EX: end of each month); (2) there is an oral term of years violating the statute of frauds; OR (3) a landowner elects to hold over a tenant after the lease ends.
- TERMINATE: At common law, notice must be given at least equal to the length of the period itself. Month-to-month, one month of notice is needed. Week-to-week, one week is needed. Year-to-year, common law is 6 months and the restatement is 1 month (bar examiners preferred approach).
What is a Tenancy at Will?
In Landlord/Tenant law, a Tenancy at Will has no fixed duration and is terminable at will by either the landlord or the tenant. This must be created by an express agreement (failing to explicitly do so, the periodic payment of rent will cause this to be treated as a Periodic Tenancy).
- In most states, a reasonable demand to quit/vacate will be required to end this.
What is a Tenancy at Sufferance?
In Landlord/Tenant law, a Tenancy at Sufferance is created when a tenant wrongfully holds over past the expiration of the lease. The landlord then will go on to recover the rent.
- TERMINATES when the landlord moves to evict or holds the tenant to a new tenancy.
When a lease is silent, what duties does the tenant have to repair?
T has the duty to maintain the premises. T must make routine repairs other than those due to ordinary wear and tear.
What duties regarding waste does a tenant have? What are the types of waste?
T has a duty to not commit waste.
TYPES:
- Voluntary (Affirmative) Waste: This results when the tenant’s overt conduct damages the premises.
- Permissive Waste: occurs when the tenant fails to take reasonable steps to protect the premises from damage from the elements. Remember, the tenant is liable for maintaining the premises, excluding ordinary wear and tear. If the duty to maintain the premises is shifted to the landlord (by lease or statute), the tenant has a duty to report deficiencies promptly.
- Ameliorative Waste: It occurs when the tenant unilaterally alters the leased property, thereby increasing its value. Generally, the tenant is liable for the cost of restoration. There is a modern exception to this rule, however, which permits a tenant to make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood.
What result when a tenant promises in the lease (express covenant) to repair and maintain the property in good condition?
At common law, a tenant was responsible for any loss to the property, including loss attributable to force of nature, such as hurricanes, earthquakes, or lightning strikes.
However, today, the majority view is: If a residential tenant covenants to repair, the landlord usually remains obligated to repair (except for damages caused by the
tenant) under the nonwaivable “implied warranty of habitability”.
However, a nonresidential tenant’s covenant to repair is enforceable, and a landlord may be awarded damages for breach based on the property’s condition when the lease terminates compared with its condition when the lease commenced. In the absence of a specific reference to ordinary wear and tear, a covenant to repair usually includes such repairs.
However, repair covenants frequently exclude ordinary wear and tear.
If a tenant breaches and remains on the premises, what options does the landlord have?
- Evict: If a tenant is on the premises and fails to pay rent, the landlord can evict through the courts; OR
- Continue the Relationship and Sue for Rent: L can proceed affirmatively for the rent that is owed.
NOTE: Self-help is NOT allowed (can’t change the locks or forcibly remove the tenant). Self-help is flatly outlawed and is punishable civilly and criminally.
If a tenant breaches and is out of possession, what options does the landlord have?
SIR
Surrender: End the lease. (view as a voluntary offer of surrender–giving up the lease). Can sue to collect the rent owed. ((This option available only in a minority of states))
Ignore: Do nothing. Can hold T liable for rent. This is a mitigation principle.
Relet: Re-let the premises on the wrongdoer-tenant’s behalf and hold the wrongdoer-tenant liable for any deficiency.
What is a landlord’s Duty to Deliver Possession?
At the beginning of the lease, L must place T in actual, physical possession of the property (otherwise they get damages).
What is the Implied Covenant of Quiet Enjoyment in LL/T law? What result when it is breached?
T has the right to the use and enjoyment of the property without interference from L (residential and commercial) or someone with paramount title. This is breached by wrongful eviction of constructive eviction.
- Wrongful Eviction: L excludes T from the whole or from part of the premises without cause. Both whole and partial evictions relieve T of the duty to pay rent.
- Constructive Eviction: L’s breach of duty renders the premises unsuitable for occupancy. Elements are (1) Substantial Interference (chronic or permanent problem due to L’s actions or failures), (2) Notice (T must notify L), (3) Reasonable time for L to repair, and (4) Vacate/Goodbye (T must vacate the property) (EX: the apartment floods every time it rains).
Is a landlord liable for the disruptions of other tenants?
No. However, there are two exceptions:
- A landlord has a duty to abate a nuisance on site.
- A landlord must control common areas.
What is the Implied Warranty of Habitability?
The implied warranty of habitability provides that the premises must be fit for basic human habitation. In other words, bare living requirements must be met. This is determined by caselaw and by the local housing code.
- Only applies to residential leases (NOT commercial leases).
- This is non-waivable.
What are a tenant’s options if a landlord breaches the Implied Warranty of Habitability?
M & 3Rs:
- Move: T may move out and terminate the lease.
- Repair & Deduct: T may make the reasonable repairs and deduct their cost from future rent (allowable by statute in a growing number of jurisdictions).
- Reduce or Withhold Rent: T may reduce rent or withhold all rent until the court determines fair rental value (typically, the tenant must place withheld rent into an escrow account to show their good faith).
- Remain & Seek Damages: T may remain in possession, pay full rent, and affirmatively seek money damages.
What recourse does L have when T engages in “whistleblowing” on the premises?
L can’t terminate/penalize T in retaliation for T’s exercise of legal rights (EX: whistleblowing). L needs to show a good faith, valid reason for actions that might be retaliatory.
What housing protections are provided by the Civil Rights Act?
The Civil Rights Act bars racial or ethnic discrimination in the sale or rental of all property.
What protections does the Fair Housing Act provide?
The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing). L must permit T with disabilities to make reasonable accommodations to meet the needs posed by disabilities (T makes those accommodations at their own expense, but L must make the proper policies to make this possible).
- Doesn’t apply to (1) owner-occupied buildings with 4 or fewer units OR (2) single-family homes sold or rented by an owner who owns no more than 3 single-family homes.
- PROHIBITED ACTIONS: (1) Refusing to negotiate, rent, or sell housing, or give mortgage; (2) providing different terms for the sale/rent of a dwelling; and (3) Falsely representing dwelling available.
What result if a paramount title holder partially violates the Implied Covenant of Quiet Enjoyment owed to a tenant?
T is excused of rent to the portion that the paramount title holder is evicting them.
What is an Assignment in LL/T law?
An assignment is a transfer of the ENTIRE remaining term of a lease.
- The assignee and the landlord are in privity of estate (liable for all of the original covenants that run with the land in the first agreement).
What is a Sublease in property law?
A sublease is a transfer of PART of the remaining term of a lease.
- The second-tier tenant (T2) has no privity (estate or contract) with Landlord.
- The relationship between T1 and L remains fully intact.
When is a covenant considered to “run with the land” for purposes of an Assignment?
A covenant runs with the land if the original parties to the lease so intend AND if the covenant “touches and concerns” the land (that is, benefits the landlord and burdens the tenant (or vice versa) with respect to their interests in the property).
Do a landlord and tenant assignee share privity of contract?
No.
Do a landlord and tenant share privity of estate when the tenant makes an assignment? Do they have privity of contract anymore?
No privity of estate but yes privity of contract. T and L remain secondarily liable to each other (they are the backup to the new setup).
What is Caveat Lessee? What are its exceptions?
“Tenant beware.” The landlord has no duty to make the premises safe.
EXCEPTIONS: (CLAPS)
- Common Areas: L has a duty to maintain in good repair all of the common areas.
- Latent Defects: L must WARN of hidden defects of which L has knowledge or reason to know of and which T couldn’t discover by reasonable inspection (this isn’t a duty to repair though!).
- Assumption of Repairs: While in tort a landlord is under no duty to make repairs, once repairs are undertaken, the landlord must complete them with reasonable care (L is liable if negligent).
- Public Use Rule: A landlord who leases public space (for example, a convention hall or a museum), and who should know, because of the significant nature of the defect and the short length of the lease, that T will not repair, is liable for any defects on the premises that cause injury to members of the public (because T doesn’t have the time or the expertise to make the repairs herself).
- Short-Term Lease of Furnished Dwelling: A landlord who rents a fully furnished premises for a short period (for example, a summer cottage) is under a stricter duty. Such Ls are responsible for any defective condition which proximately injures a tenant (whether or not they knew of the defect).
If a landlord consents to a tenants’s transfer to someone else that violates a covenant against assignment or sublease, what, if anything, has he waived?
If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers.
If a tenant at will “transfer[s] [their] entire interest” to another tenant in order to create an assignment, what will result?
The attempted assignment is void and terminates the tenancy at will by operation of law. A tenancy at will is a leasehold estate that is terminable at the will of either the landlord or the tenant. Such a tenancy terminates by operation of law if: (1) Either party dies; (2) The tenant commits waste; (3) The tenant attempts to assign his tenancy; (4) The landlord transfers her interest in the property; or (5) The landlord executes a term lease to a third person.
What is an easement? What are the types of easements?
An easement is a non-possessory property interest entitling the holder to the use or enjoyment of another’s land.
- AFFIRMATIVE: The right to go on to and do something on another’s land.
- NEGATIVE: The right to prevent a landowner from doing something on their land (categories: light, air, support (EX: excavating), stream water from an artificial flow and sometimes a scenic view).
How can a negative easement be created?
A negative easement can be created ONLY expressly in a writing signed by the grantor.
What is an easement appurtenant?
An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land. Two parcels of land must be involved: a dominant tenement (which derives the benefit) and a servient tenement (which bears the burden).
What is an easement in gross?
An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. Here, servient land is burdened. However, there is no benefited or dominant tenement (because the easement benefits the holder rather than another parcel).
- EX: The right to place a billboard on another’s lot; The right to swim in another’s pond; The utility company’s right to lay power lines on another’s lot.
How is an easement appurtenant transferred?
An easement appurtenant transfers automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance.
How is an easement in gross transferred?
An easement in gross is not transferable unless it is for commercial purposes.
