Real Property

Question 1

Fee Simple Determinable (FSD)

Answer 1

A FSD is a present fee simple estate that is limited by specific durational language, such that it terminates automatically upon the happening of a stated condition, and full ownership of the property is returned to the grantor.

A FSD is freely alienable, devisable, and descendible.

“so long as” “as long as” “until”

Question 2

Possibility of Reverter

Answer 2

A possibility of reverter is a future interest automatically retained by the grantor that becomes possessory upon the occurrence of the stated condition in a FSD.

Question 3

Restraint on Alienation

Answer 3

A restraint on alienation is a provision that restricts the transferability of real property. Restraints on alienation are only valid if they are reasonable when weighing the utility of the restrain and harm of enforcement.

Question 4

Joint Tenancy (JT)

Answer 4

A joint tenancy is a concurrent estate wherein each individual owns the property with a right of survivorship, which must be expressly stated. A valid JT requires each tenant has an equal right to possess, equal interest, and created at the same time in the same in instrument.

Question 5

Severance of a Joint Tenancy

Answer 5

A JT is severed when on tenant conveys her interest in the property. The severance of a JT converts it to a tenancy in common.

Question 6

Tenancy in Common (TIC)

Answer 6

A tenancy in common exists when two or more persons own property with an equal right to possess the property but with no right of survivorship.

It is the result of a severed JT.

Question 7

Tenancy for Years

Answer 7

A tenancy for years is an estate created by an agreement between landlord and tenant and measured by a fixed amount of time. The tenancy expires automatically at the end of the term.

Question 8

Tenancy at Sufferance/Hold-over Tenancy

Answer 8

A tenancy at sufferance exists for a period of time after the expiration of a lease during which the tenant remains on the premises and is bound by the terms of the lease that existed before expiration, including payment of rent.

This converts to a periodic tenancy upon the continued payment of rent without an express lease agreement.

Question 9

Periodic Tenancy (PT)

Answer 9

A PT is a repetitive, ongoing estate measured by a set period of time but with no predetermined termination date.

It may be terminated by either the landlord or tenant upon notice equivalent to the term.

Question 10

Co-owner Right to Third-Party Rents

Answer 10

A co-tenant must account to other co-tenants for rent received from third parties. Each tenant has a right to their pro rata share rent based on their ownership interest.

This can be recovered through an accounting action.

Question 11

Co-owner Contribution for Property Tax

Answer 11

A co-owner can collect contribution from the other co-tenants for paying more than his portion of operating expenses, including property taxes.

Question 12

Duty to Pay Rent

Answer 12

At common law, a landlord could not regain possession of the premises or terminate the lease if a tenant breached a duty imposed by the lease. Most jurisdictions now statutorily recognize the right of a landlord to terminate a lease for nonpayment of rent.

A tenant has a duty to pay rent for the entire term of a lease unless a defense to nonpayment of rent applies.

Question 13

Surrender

Answer 13

A surrender occurs when the tenant returns the premises to the landlord prior to the expiration of the lease. Upon surrender, the landlord may accept or reject the surrender. If the landlord accepts it, the lease is terminated and the tenant no longer owes rent for the remainder of the lease term. If the landlord rejects it, then the landlord retains the right to continue to enforce the lease and thus the tenant is still liable for the rent for the remainder of the lease.

The landlord is subject to a duty to mitigate his damages.

Question 14

Duty to Mitigate Damages

Answer 14

A landlord must mitigate damages by making a reasonable effort to re-rent the premises. The landlord who re-rents the premise on a tenant’s behalf may hold the tenant liable for any deficiency.

Question 14

Duty to Deliver Possession

Answer 14

In most states, a tenant is relieved of the obligation to pay rent if the landlord fails to deliver actual physical possession of the leased property.

One can recover compensatory damages under a breach of contract theory.

Question 14

Duty to Repair

Answer 14

A landlord has the duty to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant. The tenant must give the landlord notice.

Question 15

Covenant of Quiet Enjoyment

Answer 15

The landlord has an implied duty not to interfere with a tenant’s possession or enjoyment of the leased property. In this, the landlord has a duty to control other tenant’s nuisance like behavior and common areas.

Any actions breaching this duty may amount to constructive eviction allowing the tenant to withhold rent. Constructive eviction requires (1) the premise was unusable for their intended purposes, (2) the tenant notifies the landlord of the problem, (3) the landlord does not correct the problem within reasonable time, and (4) the tenant vacates the premises within a reasonable time.

Question 15

Covenant of Implied Warranty of Habitability

Answer 15

The implied warranty of habitability creates a duty in the landlord to ensure that a residence is reasonably suitable for residential use.

A condition that substantially threatens a tenant’s health or safety violates this warranty. A failure to substantially comply with housing code requirements does not constitute a breach but may serve as evidence of a breach.

If the premises are not habitable, then the tenant may chose to (1) refuse to pay rent, (2) remedy the defect and offset the cost against the rent, or (3) defend against eviction.

Generally, a tenant must notify the landlord of the problem and give them reasonable opportunity to correct the problem. They do not have to vacate the premises.