Real Property Flashcards
When property is held in joint tenancy or tenancy in common, which of the following is not a co-tenant’s right?
Mortgage her interest
Share in rents paid by third parties
Compel contribution for the cost of improvements
Possess the entire estate
Compel contribution for the cost of improvements
Although a joint tenant or tenant in common may have a right to compel contribution from other co-tenants for the cost of necessary repairs, taxes, and payments due on mortgages, she does not have a right to compel contribution for the cost of improvements.
Under the unity of possession, each co-tenant has a right to possess the entire estate subject to the equal right of her co-tenant. A co-tenant out of possession cannot bring a possessory action unless there has been an “ouster” (i.e., wrongful exclusion) by the co-tenant in possession.
Although a co-tenant generally is not entitled to share in the rental value of the land, she does have a right to share in rents paid by third parties .
A joint tenant or tenant in common may mortgage her interest. However, she may not encumber another co-tenant’s interest. Note that an individual spouse may not mortgage her interest in tenancy by the entirety property.
How will the proceeds from a partition sale of property initially held by four joint tenants (A, B, C, and D) be divided if A sold her interest to E, and B died, leaving her property to F and G?
F and G get 1/8 each; C, D, and E get 1/4 each
C, D, and E get 1/3 each
C and D get 3/8 each; E gets 1/4
C and D get 1/2 each
The proceeds from a partition sale of property initially held by four joint tenants (A, B, C, and D), after A sold her interest to E, and B died, leaving her property to F and G, would be divided as follows: C and D get 3/8 each; E gets 1/4. The distinguishing feature of a joint tenancy is the right of survivorship. When property is held by three or more joint tenants, one joint tenant’s conveyance destroys the joint tenancy only as to that interest. The remaining joint tenants continue to hold in joint tenancy as between themselves, and the grantee holds his interest as a tenant in common with them. When A sold her interest to E, that 1/4 interest was severed and thus converted into a tenancy in common, which E continues to hold. Thus, E gets A’s 1/4 share. When one joint tenant dies, the property is freed from her interest, and the survivors retain an undivided right in the property. Since B’s interest was extinguished on her death, B’s devisees do not take B’s interest; the surviving joint tenants hold free of it. This leaves C and D as joint tenants with right of survivorship, together owning a 3/4 interest in the land. A joint tenancy is terminated by a suit for partition. When the partition sale was ordered, this joint tenancy was converted into a tenancy in common, and split equally between C and D. Thus, C and D each will receive 3/8 of the partition proceeds.
The proceeds would not be divided so that C and D get 1/2 each. A severed her interest in the joint tenancy when she sold her interest to E. However, as is explained above, E now holds that interest as a tenant in common. Thus, E is entitled to 1/4 of the partition proceeds.
The proceeds would not be divided so that C, D, and E get 1/3 each. This would be the case if E took A’s share as a joint tenant, but as is explained above, E took as a tenant in common. Thus, E’s share does not increase on B’s death, because he does not have the benefit of the right of survivorship.
The proceeds would not be divided so that F and G get 1/8 each, and C, D, and E get 1/4 each. F and G do not take B’s share on her death. When a joint tenant dies, her share is divided among the surviving joint tenants. This is the essence of the right of survivorship. Moreover, a devise, unlike an inter vivos conveyance, will not sever a joint tenant’s interest. Thus, B’s devisees take nothing, and C, D, and E take as discussed above.
Two partners bought a commercial building from an owner. They paid cash for the building and took title as joint tenants with right of survivorship. Several years later, the first partner executed a mortgage on the building to secure a personal loan to a bank. The second partner had no knowledge of the mortgage to the bank. The state in which the commercial building is located recognizes the lien theory of mortgages. The first partner died before paying off his loan. He left all of his property by will to his daughter, his only heir.
Who has title to the commercial building?
The second partner has title free and clear of the mortgage.
An undivided one-half is held by the second partner free and clear of the mortgage, and the other one-half is held by the daughter, subject to the mortgage.
An undivided one-half is held by the second partner and the other one-half by the daughter, with both halves subject to the mortgage.An undivided one-half is held by the second partner and the other one-half by the daughter, with both halves subject to the mortgage.
The second partner has title to the entire property, with an undivided one-half being subject to the mortgage.
The second partner has title free and clear of the mortgage.
If the joint tenancy continued until the first partner’s death, then the property would pass immediately on death to the second partner. Because the second partner did not sign the mortgage, she would not be subject to it, regardless of whether she knew about it. The key to answering this question is to know whether execution of the mortgage by the first partner caused a severance of the joint tenancy. If it did cause a severance, then the first partner’s one-half would not pass to the second under right of survivorship but instead would pass to the first’s estate, and thus would go to the daughter by will. Whether a mortgage creates a severance or not depends on whether the state follows the lien theory or the title theory of mortgages. Lien theory means no severance; title theory means severance. Because this is a lien theory state (majority rule on the MBE), there was no severance; thus, the joint tenancy remained intact.
A landowner conveyed her parcel of land to “my brother and my sister jointly, with right of survivorship.” Shortly thereafter, the brother was in an automobile accident. The driver of the other vehicle sued the brother on a theory of negligence, and obtained a judgment in the amount of $250,000. Because the brother did not have insurance or enough cash to satisfy the judgment, the driver levied on the brother’s interest in the land.
What interest will the driver most likely take?
None, because the brother’s interest in the land cannot be partitioned.
An undivided one-half interest, regardless of whether the brother and the sister’s title to the land is construed as a joint tenancy or a tenancy in common.
An undivided one-half interest, assuming the brother and the sister’s interest is construed as a tenancy in common and not a joint tenancy.
A contingent right of survivorship that will vest if the brother survives the sister.
The driver will get an undivided one-half interest in the land regardless of the status of the brother and the sister’s title. A joint tenancy is a concurrent estate with a right of survivorship, while a tenancy in common does not have a right of survivorship. At common law, the conveyance here would qualify as a joint tenancy because the unities of time, title, interest, and possession are present in the conveyance. Although under modern law a joint tenancy must be created with specific language or else it will be presumed to be a tenancy in common, the conveyance here still would probably qualify as a joint tenancy, even though it did not use the words “joint tenancy,” because it contained the “right of survivorship” language. However, regardless of whether the estate is characterized as a joint tenancy or a tenancy in common, one tenant’s interest may be transferred without the consent of the other tenant, and a creditor may levy on the interest.
In most jurisdictions, a lien against one joint tenant’s interest does not sever the joint tenancy until the lien holder proceeds to enforce it by foreclosure. At that point, the purchaser at the foreclosure sale will hold the property as a tenant in common with the other tenant, but will still have an undivided one-half interest in the property unless and until he brings an action to partition the estate. (A) is incorrect because both joint tenancies and tenancies in common may be subject to partition. (In contrast, tenancies by the entirety cannot be terminated by involuntary partition.) (C) is incorrect because, as discussed above, a joint tenant may validly convey or encumber his interest in the property. (D) is incorrect because the driver does not have a contingent interest; she has a present lien on the brother’s interest that can be enforced immediately by foreclosure, which would sever the joint tenancy.
In which of the following situations must the tenant continue to pay a portion of the rent?
The landlord takes possession of an unused barn on the leased premises and stores farm equipment in it.
A paramount title holder obtains a judgment in an ejectment action against the tenant.
A paramount title holder takes possession of an unused barn on the leased premises and stores farm equipment in it.
The landlord obtains a judgment in an ejectment action against the tenant.
A paramount title holder takes possession of an unused barn on the leased premises and stores farm equipment in it.
If a paramount title holder takes possession of an unused barn on the leased premises and stores farm equipment in it, the tenant must continue to pay a portion of the rent. Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. This covenant is breached by the tenant’s total or partial actual eviction from the leased premises. Total actual eviction occurs when the landlord or a paramount title holder excludes the tenant from the entire leased premises. This terminates the tenant’s obligation to pay rent. Partial actual eviction occurs when the tenant is excluded from only part of the leased premises. Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder of the premises. Partial eviction by a paramount title holder results in an apportionment of rent; i.e., the tenant is liable for the reasonable rental value of the portion that he continues to possess. A paramount title holder’s taking possession of an unused barn constitutes partial actual eviction. Thus, rent will be apportioned.
If the landlord or a paramount title holder obtains a judgment in an ejectment action against the tenant, the total actual eviction terminates the tenant’s obligation to pay rent.
If the landlord takes possession of an unused barn on the leased premises and stores farm equipment in it, the partial actual eviction by the landlord terminates the tenant’s obligation to pay rent for the entire premises.
If a landlord’s breach of duty renders the premises unsuitable for occupancy, under the doctrine of constructive eviction, the tenant may:
Sue for breach only if the lease contained an express covenant for quiet enjoyment
Remain in possession of the premises, continue to pay rent, and sue for damages
Vacate the premises, terminate the lease, and sue for damages
Remain in possession of the premises and refuse to pay rent until the interference ceases
Vacate the premises, terminate the lease, and sue for damages
If a landlord’s breach of duty renders the premises unsuitable for occupancy, the tenant may vacate the premises, terminate the lease, and sue for damages. Under the doctrine of constructive eviction, if the landlord’s breach (i.e., doing an act or failing to provide some service that he has a legal duty to provide) makes the premises untenantable, the tenant may terminate the lease and also may seek damages if the following conditions are met: 1. The breach must be by the landlord or by persons acting for him. 2. The breach must substantially and materially deprive the tenant of her use and enjoyment of the premises (e.g., flooding, absence of heat in winter). 3. The tenant must give the landlord notice and a reasonable time to repair. 4. The tenant must vacate the premises within a reasonable time.
Because a tenant cannot claim a constructive eviction unless and until she vacates the premises, her remedies do not include remaining in possession of the premises and refusing to pay rent until the interference ceases or continuing to pay rent and suing for damages.
The tenant is not limited to suing for breach only if the lease contained an express covenant for quiet enjoyment. Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. If a landlord does so, the tenant has the remedies discussed above.
Which statement regarding partial actual eviction is correct?
Partial actual eviction by a paramount title holder does not relieve the tenant of any rent obligation
Partial actual eviction by a paramount title holder relieves the tenant of the obligation to pay rent for the entire premises
Partial actual eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises
Partial actual eviction by the landlord relieves the tenant of the obligation to pay rent for only the portion of the premises from which he was evicted
Partial actual eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises.
Every lease contains an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. This covenant is breached by the tenant’s total or partial actual eviction from the leased premises. Partial actual eviction occurs when the tenant is excluded from only part of the leased premises. Even though the tenant continues in possession of the remainder of the premises, partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises rather than for only the portion of the premises from which he was evicted.
In contrast, partial eviction by a paramount title holder results in an apportionment of rent; i.e., it relieves the tenant of the obligation to pay rent NOT for the entire premises, but only for the portion of the premises from which he was evicted. The tenant remains liable for the reasonable rental value of the portion that he continues to possess.
Key: Paramount title holder로 인한 eviction인지, landlord로 인한 eviction인지
Which of the following transfers creates a sublease from T to T2?
One year into a five-year tenancy for years, T transfers his interest “to T2 for four years; however, if T2 breaches the original lease terms, T may reenter and retake the premises”
Six months into a seven-month tenancy for years, T transfers his interest “to A for the balance of the leasehold term”
Two years into a four-year tenancy for years, T “assigns my entire interest to T2 for one year”
Two years into a four-year tenancy for years, T “assigns my entire interest to T2 for one year”
If two years into a four-year tenancy for years, T “assigns my entire interest to T2 for one year,” the effect of the transfer is to create a sublease between T and T2. The label given by the parties does not determine whether a transfer is an assignment or a sublease. Rather, a complete transfer of a tenant’s entire remaining lease term is an assignment, and a transfer retaining any part thereof is a sublease. Here, although T “assigned” his interest to T2, he transferred only one of the remaining two years of the lease. Thus, the transfer is a sublease rather than an assignment.
If six months into a seven-month tenancy for years, T transfers his interest “to A for the balance of the leasehold term,” the effect of the transfer is an assignment of the lease from T to T2 because it includes T’s entire remaining lease term.
If one year into a five-year tenancy for years, T transfers his interest “to T2 for four years; however, if T2 breaches the original lease terms, T may reenter and retake the premises,” the effect of the transfer is an assignment of the lease from T to T2. T transferred the remaining four years of the lease to T2, and by the slight majority view, T’s reservation of a right of reentry does not result in a sublease, but rather is still an assignment.
If L leases property to T, and L subsequently assigns L’s interest to L2, whom may T hold liable when X, a paramount title holder, ejects T?
L or L2
If L leases property to T, and L subsequently assigns L’s interest to L2, T may hold L or L2 liable when X, a paramount title holder, ejects T. A landlord may assign the rents and reversion interest that he owns. The assignee is liable to the tenants for performance of all covenants made by the original landlord in the lease, provided that those covenants run with the land. The original landlord also remains liable on all of the covenants he made in the lease. X’s evicting T from the entire leased premises breaches the covenant of quiet enjoyment, which runs with the land. Thus, L and L2 are personally liable to T.
L only is incorrect because L2, the assignee, is liable for all lease covenants that run with the land, and the covenant of quiet enjoyment runs with the land.
L2 only is incorrect because L, the original landlord, also remains liable on all covenants in the original lease after assignment.
Neither L nor L2 is incorrect because the original landlord (L) remains liable on all covenants in the original lease after assignment, and the assignee (L2) is liable for all lease covenants that run with the land, including the covenant of quiet enjoyment.
If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers.
T or F?
T
If a tenant transfers her interest in violation of a covenant against assignment or sublease, the transfer is void.
T or F?
F. If a tenant transfers her interest in violation of a covenant against assignment or sublease, the transfer is NOT void. However, the landlord usually may terminate the lease under the lease terms or sue for damages.
A landlord leased a house to a tenant for five years. Under the terms of the lease, the tenant was to pay a fixed monthly rent plus all taxes and reasonable maintenance charges for the upkeep of the house. Three years into the lease, the tenant assigned her lease to a friend by written agreement. Although the tenant properly set forth the terms concerning the rent and maintenance charges, she failed to properly state that the friend was liable to pay the taxes on the residence during the period of the lease. A year later, the landlord received notice that a tax lien would be placed on the residence unless the taxes were immediately paid. The landlord paid the taxes and brought suit against the tenant’s friend for the amount. The suit extremely upset the friend, who abandoned the residence.
Can the landlord successfully bring a suit against the tenant for this breach of the lease?
Yes, because the tenant’s assignment to the friend did not terminate the tenant’s obligations.
The landlord can sue the tenant for breach because the tenant’s assignment to the friend did not terminate the tenant’s obligations. An assignee is in privity of estate with the landlord and is liable for all covenants that run with the land, including the covenant to pay rent. The original tenant (assignor) remains in privity of contract with the landlord and is liable for the rent reserved in the lease if the assignee abandons the property. Therefore, the tenant is liable to the landlord for the remaining rent.
A covenant against assignment or sublease is an unreasonable restraint on alienation.
T or F?
F. A covenant against assignment or sublease is NOT an unreasonable restraint on alienation. All jurisdictions permit and enforce such covenants.
Does a conditional consent to the term against transfers act as a waiver of the term requiring the landlord to give written permission for subletting?
A conditional consent is not a waiver where the condition is not agreed to. If no condition is met, it’s a breach if the tenant violated the transfer term of the lease.
A landlord entered into a 10-year lease of a building with an auctioneer, who planned to use the building itself for a storage area and the covered porch at the front of the building for auctions. A term in the auctioneer’s lease stated, “Lessor agrees to maintain all structures on the property in good repair.” Four years into the lease, the landlord sold the property to a buyer. The buyer did not agree to perform any obligations under the lease. As instructed, the auctioneer began paying rent to the buyer. In the fifth year of the lease, the porch roof began to leak. Citing the lease terms, the auctioneer asked the buyer to repair the roof. He continually refused to do so. The auctioneer finally repaired the roof herself at a cost of $2,000. The auctioneer then brought an appropriate lawsuit to recover the money.
Absent any other facts, what is the auctioneer likely to recover?
$2,000 from either the buyer or the landlord, because they are both in privity with the auctioneer.
The auctioneer may recover the cost of repair from either the landlord or the buyer. A landlord’s promise in a lease to maintain the property does not terminate because the property is sold. Although no longer in privity of estate, the original landlord and tenant remain in privity of contract, and the original landlord remains liable on the covenant unless there is a novation. A novation substitutes a new party for an original party to the contract. It requires the assent of all parties and completely releases the original party. Because neither the auctioneer nor the buyer has agreed to a novation, the landlord remains liable for the covenant because he and the auctioneer remain in privity of contract even after the sale. Thus, the promise to repair can be enforced against the landlord. When leased property is sold, the purchaser may be liable for his predecessor’s promises if the promise runs with the land. A covenant in a lease runs with the land if the parties to the lease so intend and the covenant touches and concerns the land.
Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land. Thus, the buyer is liable because he is in privity of estate with the auctioneer and the covenant to repair runs with the land. Consequently, both the landlord and the buyer are potentially liable to the auctioneer for the repairs. While it is true that the sale/assignment to the buyer did not sever the landlord’s obligation to the auctioneer, as explained above, the landlord is not the only person who is liable to the auctioneer.
A man had rented a woman’s home from her for seven years. When the time came to sign a new lease, the woman decided that because the man had always been a quiet tenant, she would continue to charge him only $350 per month rent instead of the $500 to $550 she could probably get otherwise. The new lease was for a period of five years, and by its terms, the man was specifically prohibited from assigning the lease without the woman’s specific written consent. About a year later, the man got married and moved into his new wife’s home. Instead of giving up his lease, the man sublet the property to a friend for $500 a month. The man did not get the woman’s permission to sublease the property.
If the woman brings an action to either eject the friend from the premises or to recover damages from the man for subletting the premises without her consent, what is the most likely result?
The woman will have no cause of action for either ejectment or damages.
The woman will most likely have no cause of action for either ejectment or damages. There are two ways for a tenant to transfer the right to possession under a lease: assignment (transferring the entire period of time remaining under the lease) and sublease (transferring only a portion of the time remaining under the lease). Restraints on alienation are traditionally strictly construed. Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa. Hence, this prohibition against assignment would not be read to include a prohibition against subleasing. Therefore, the woman would have no cause of action against the man
If an easement is said to be surcharged, this means:
The easement’s legal scope was exceeded. If the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged.
“quasi-easement”
An easement may be implied if, prior to the time the tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part,” and a court determines that the parties intended the use to continue after division of the property. To give rise to an easement, a use must be apparent(clearly visible and would be readily discoverable - e.g. overhead wires) and continuous at the time the tract is divided.
Plus, the use must also be reasonably necessary. Whether a use is reasonably necessary depends on many factors, including the cost and difficulty of the alternatives.
