Real Property Flashcards
joint tenancy
two or more tenants with the right of survivorship
MUST have the four unities: TTIP
Time - must have been formed at the same time
Title - by the same title/document
Identical - interests must be equal and identical
Possess - must have rights to possess the whole
“right of survivorship” must be CLEAR and expressly invoked
tenancy by the entirety.
can only be created between spouses - has the right of survivorship
tenancy in common
two or more tenants without the right of survivorship
how do you sever a joint tenancy?
SAP - Sale And Partition
Severance and sale
Severance and partition
what are the types of severance and partition?
- by voluntary agreement)
- by judicial partition (partition in kind)
- by judicial action (forced sale)
what is the lien theory?
in most states, a mortgage is a lien and does not sever a joint tenancy
what is the title theory?
the executor of a mortgage with the lien will sever joint tenancy
how to sever a tenancy by the entirety?
execution by a JOINT creditor of BOTH spouses, mutual agreement, divorce, death
rents and profits from co-tenants and third parties?
from co-tenants: where a co-tenant is in exclusive possession, they don’t need to share profits with other co-tenants unless there is an ouster
from 3rd parties: must account to their co-tenants, providing them with their fair share of rental income
what is voluntary waste?
willful destruction
permissive waste
neglect
ameliorative watse
unilateral change that increases the value of the property
any restraint on a parties’ right to partition must be …
reasonable in kind and duration
tenancy for years
tenancy for a fixed, determined period of time. as long as you know the END DATE. no notice needed to terminate
periodic tenancy
a lease that continues for successive intervals (month to month, etc.), can be implied based on previous payments, notice is usually 1 month for termination
tenancy at will
no fixed period of duration - it is terminable at the will of either party (as long as you want it)
tenancy at sufferance
lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy. created when a tenant wrongfully holds over
tenant breaches but it out of possession
remember - SIR
Surrender - choose to treat as abandonment
Ignore the abandonment
Re-let the premises
breach by constructive eviction
remember to SING
Substantial Interference
Notice
Goodbye!
breach of implied warranty of habitability
MRRR
Move out and terminate the lease
Repair and deduct
Reduce rent
Remain in possession and affirmatively seek money damages
Fair Housing Act
protects tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status
does not apply to owner-occupied buildings with 4 or fewer units and single-family homes sold or rented by someone with no more than 3 other single-family homes. must make reasonable accommodations for disabled people.
what are the landlord duty to keep the premises safe exceptions?
CLAPS
Common areas
Latent defects - must warn a tenant of hidden defects
Assumption of repairs - once repairs are undertaken, the LL must complete them with reasonable care. LL is liable.
Public use rule - a landlord who leases public space and should know, because of the nature of the defect and the length of the lease, a tenant will not repair - LL is liable for any defects on the premises that cause injury to members of the public
Short-term lease of a furnished dwelling - because tenant does not have the time or ability to repair
how do you create an affirmative easement?
PING
Prescription (continuous, open and notorious, actual, and hostile for the statutory period) COAH
Implication (implied from prior use at the time the land is severed)
Necessity (division of tract deprives one lot of means of access)
Grant (writing signed by grantor)
how do you create a negative easement
can only be created by express agreement from the grantor
LASS
Light
Air
Support (underground support)
Streamwater
what is an easement appurtenant
an easement that benefits its holder in his physical use or enjoyment of his own land. 2 parcels MUST be involved. passes AUTOMATICALLY with transfers of the dominant tenement.
what is an easement in gross?
an easement that confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of the property. NOT TRANSFERABLE except for commercial purposes.
