Real Property Flashcards
Concurrent ownership
Co-ownership
1) joint tenancy
2) tenancy by the entirety
3) tenancy in common
Joint tenancy
Two or more people own with the right of survivorship
- alienable inter vivos = transferrable
- not devisable or descendible = passing by will or intestacy
How to create a joint tenancy
T-TIP
JT’s must take their interests:
T = at the same Time
T = by the same Title (same deed, will or other document of title)
I = with Identical, equal Interests and
P = with rights to possess the whole
Right of survivorship
deceased joint tenant’s share automatically goes to the surviving JT
Must be clearly expressed by grantor
Without clear expression, a conveyance to two or more people = PRESUMED tenancy in common
Severance of a joint tenancy
When a JT is severed, right of survivorship is destroyed, and a TIC results
SAP = Sale And Partition
Sale = voluntary conveyance by a JT of their interest destroys joint tenancy
- Transferee takes as a tenant in common
- may be done secretly (without other JT’s knowledge)
3 types of Partition:
1) voluntary agreement = peaceful end to relationship
2) partition in kind = judicial action for a physical division of property
- works best for property with sprawling acreage
3) forced sale = judicial action to sell land and divide proceeds proportionately
- works best for a single building, small plot, etc.
Mortgages and joint tenancies
A JT’s execution of a mortgage will not sever the JT in most states
Lien theory (majority) = no severance unless mortgage is foreclosed and property sold
Title theory (minority) = lien severs JT as to the encumbered share –> equivalent of transferring title to creditor
Effect of one JT’s mortgage on the other JTs
Joint tenants who did not sign the mortgage are not subject to it, regardless of their knowledge of it
If a JT takes out a mortgage and then dies, entire property still goes to other JT (right of survivorship still in tact)
Tenancy by the entirety
A protected marital interest between spouses with the right of survivorship
Arises presumptively in any conveyance to married partners
CAN’T TOUCH THIS = very protected form of co-ownership
- creditors of only one spouse cannot touch
- one spouse acting alone cannot convey to third party
- one spouse acting alone cannot execute a mortgage
Severance of a tenancy by the entirety
Death
Divorce = becomes a TIC
JOINT creditor (of both spouses)
Execution of lien by both spouses
Tenancy in Common
Co-ownership with no right of survivorship
- each co-tenant owns an individual part
- each has a right to possess the whole
- each interest is devisable, descendible and alienable (no right of survivorship!)
Multiple grantees presumed TIC
Possession of TIC
1) right to possess all portions but NO RIGHT to EXCLUSIVE possession of any part
2) Ouster = one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part
- actionable wrong
Rents and profits of TIC
1) co-tenant in exclusive possession has right to retain profits from their use (unless ouster or contrary agreement)
- BUT must share profits from exploitation of land, such as mining
2) Co-tenants get their fair share of rental income if leased to third party
Adverse possession and TIC
No adverse possession by co-tenant in exclusive possession of property UNLESS there is ouster
Ouster = satisfies hostility requirement for adverse possession
Carrying costs for TIC
Each co-tenant pays their fair share of costs:
- taxes
- mortgage payments
Fair share = co-owner’s individual share in the whole
Duties to repair in TIC
Each co-tenant must contribute fair share for reasonable, necessary repairs with notice
Improvements to TIC
An improver gets credit equal to any value increase he caused and a debit equal to any decrease in value he caused
No contribution from co-tenants required for unilateral improvements
- credit or debt given/taken at partition if applicable
Duty to not commit waste in TIC
Co-tenant may bring an action for waste against another co-tenant
3 types of waste:
1) voluntary = willful destruction
2) permissive = neglect
3) ameliorative = unilateral change that increases value
Leasehold estate (and types)
An estate in land in which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion)
1) tenancy for years
2) periodic tenancy
3) tenancy at will
4) tenancy at sufferance
Tenancy for years
Lease for a known, fixed period of time = end date!
- no notice needed to terminate = automatically ends at its termination date
- Writing required for more than one year (SOF)
Right of entry
Reserved by landlord - allows L to terminate lease if T breaches any of lease’s covenants
- Includes failure to pay rent
Periodic tenancy
Lease which continues for successive intervals until T or L gives proper notice of termination
- continuous until properly terminated
Creation of a periodic tenancy
Express = L to T from month month
- no end date –> continues until termination
Implication/Operation of law = 3 ways:
1) no mention of duration, but rent payment set at intervals
2) oral term of years in violation of SOF –> measured by way rent is tendered
3) hold over lease = T wrongfully stays past conclusion of original lease –> measured by way rent is tendered
Termination of a periodic tenancy
Notice, usually written, must be given
Notice must be at least equal to length of the period itself
- month-to-month = one month’s notice
- week-to-week = one week’s notice
- year-to-year = 6 months at CL, but 1 month under Restatement (preferred for the Bar!)
Tenancy at will
A tenancy of no fixed period of duration
Terminable at will of either L or T
“To T for as long as L or T desires”
Creation of tenancy at will
Must be created by an express agreement that lease can be terminated at any time
If no express provision for tenancy at will, periodic tenancy will be implied
with regular payment of rent
Termination of tenancy at will
Termination by either party
Termination:
- with notice and reasonable time to vacate OR
- operation of law:
1) either party dies
2) T commits waste
3) T attempts to assign his tenancy
4) L transfers her interest in property
5) L executes a term lease to a third person
Lease gives only L right terminate = same right implied for T
Lease gives only T right to terminate = NO right implied for L
Tenancy at sufferance
Created when a T wrongfully remains in possession past expiration of the lease (holds over)
Wrongdoer has a leasehold estate to permit L to recover rent
Terminates when L:
1) evicts OR
2) elects to hold T to new tenancy
- no notice required
Hold-over doctrine
If T continues in possession after their right to possession has ended, L may:
1) evict T or
2) bind T to a new periodic tenancy
Length of new tenancy = way rent was computed under lease that has ended
- maximum tenancy created = year-to-year
- promises in original lease apply to new tenancy
Residential Ts = usually a new month-to-month tenancy
- if notice of increased rent, staying = assent to increase
Exceptions to hold-over doctrine
1) T remains in possession for only a few hours after termination or leaves a few items of personal property
2) delay is not T’s fault
L cannot bind T to a new tenancy if exception applies
Tenant’s duties
1) duty to repair
2) duty to pay rent
Silent lease (T’s duties to repair)
If lease is silent on duties to repair, T only has obligation to:
1) maintain premises
2) make routine repairs
- NOT repair for ordinary wear and tear
3) not commit waste
- voluntary = damage by overt conduct
- permissive = failing to take reasonable steps to prevent damage
- ameliorative = unilateral change by T increasing value; T liable for cost of restoration
T’s duty to repair with express covenant in lease
When expressly in lease, T must maintain the premises in good repair and condition
CL = T responsible for any destruction to property (even natural forces)
Modern:
- Residential = L remains obligated to repair under non-waivable implied warranty of habitability
- Nonresidential = covenant to repair is enforceable and includes repairs for ordinary wear and tear, unless excluded in covenant
T breaches duty to pay rent
1) T remains in possession = L can evict (still entitled to rent) or sue for rent due
- no self help for L (includes changing locks, forcibly removing T or removing T’s possessions)
2) T is out of possession = L’s options are SIR:
- Surrender = T shows by words or conduct that she wants to give up lease
- Ignore abandonment = L does nothing and holds T liable for rent until natural end of lease (only in minority of states)
- Re-let premises = hold T liable for any deficiency
Majority = L must at least TRY to re-let to mitigate (good-faith effort)
Condemnation of leaseholds
Condemnation = taken by eminent domain
Entire leasehold taken = T’s liability for rent is extinguished and lessee entitled to compensation
Temporary or partial taking = T is not discharged from rent duty but is entitled to compensation
L’s duty to deliver possession
L must put T in actual possession of premises at beginning of leasehold term
If holdover T, L has breached and new T gets damages
Implied covenant of quiet enjoyment
T has right to quiet use and enjoyment of the premises without interference from L
- applies both to residential and commercial leases
Breach of implied covenant of quiet enjoyment
1) breach by wrongful eviction
2) breach by constructive eviction
Breach by wrongful eviction
exclusion from whole or part of premises without cause
Actual eviction = exclusion from entire premises by L, paramount title holder or hold-over T
- Terminates obligation to pay rent
Partial eviction = exclusion from part of premises
- when excluded by L, terminates obligation to pay rent
- when done by a paramount title holder –> T is liable for reasonable rental value of portion T continues to possess
Breach by constructive eviction
L’s breach of duty renders premises unsuitable for occupancy
Elements = SING
- Substantial Interference = chronic or permanent problems due to L’s actions or failures
- Notice = T must notify L of the problem and L must fail to fix it
- Get out = T must vacate within a reasonable time after L fails to remediate
T who has been constructively evicted may terminate the lease and seek damages
Acts of other tenants
L is generally not responsible for other T’s wrongful acts except:
1) L has a duty to abate a nuisance on site
2) L must control common areas
Implied warranty of habitability
Non-waivable warranty requiring Ls to keep residential premises fit for human habitation
- bare living requirements must be met
- standard = based on CL and housing codes
- Breach triggered by no heat in winter, no working plumbing, no running water, etc.
T’s rights when IWH is breached
T has 3 options: MR3 (MRRR)
M = Move out and terminate the lease (not required!)
R = Repair and deduct cost from future rent
R = Reduce rent or withhold all rent until court determines fair rental value
R = Remain in possession, pay full rent and affirmatively seek money damages
Covenant of quiet enjoyment vs implied warranty of habitability
quiet enjoyment = T must vacate to successfully plead constructive eviction
Habitability = T MAY (but doesn’t have to) vacate - there are other remedial options
Retaliatory eviction
L cannot terminate T’s lease or penalize T in retaliation for T’s exercise of legal rights
Majority = retaliation presumed if L acts within 90 to 180 days after T exercises rights
Fair Housing Act
Protects Ts and potential Ts from discrimination based on race, color, religion, national origin, sex, disability, or familial status
Exemptions:
1) owner-occupied buildings with 4 or less units
2) single-family homes if owner owns no more than 3
Reasonable accommodations = L must permit disabled Ts to make reasonable modifications to existing premises at T’s own expense
Actions prohibited by Fair Housing Act
Based on a person’s race, color, religion, national origin, sex, disability, or familial status
1) refuse to negotiate, rent, sell or mortgage
2) provide different terms or conditions for sale, rent, or financial assistance
3) falsely represent that a dwelling is not available for inspection, sale or rental
4) make, print or publish any notice or ad that indicates preference (including exemptions)
Assignment vs sublease
Assignment = transfer of entire remaining term of lease
Sublease = transfer of part of remaining term of lease
Absent a prohibition in the lease, T may freely transfer their interest in whole (assignment) or part (sublease)
Prohibition of assignment and/or sublease
A covenant in the lease prohibiting assignment does not prohibit subletting and vice versa (strictly construed against L)
If T transfers interest in violation of a covenant, transfer is NOT void
BUT L usually can terminate lease or sue for damages
If L consents to one transfer by T, L waives right to object to future transfers by that T
Assignment
Transfer of entire remaining term of a lease
Assignee (T2) and L in privity of estate = both L and T2 liable to each other for covenants that run with land
Original (T1) and L in privity of contract = T1 remains liable for original lease obligations, such as to pay rent
Covenants that run with the land
1) if original contracting parties so intend AND
2) it touches and concerns the land
- benefits and/or burdens parties with respect to their interests in the property
- promises to do a physical act like maintain or repair property generally considered to run with the land
Rent covenants run with the land –> assignee (T2) owe rent directly to L
- L can sue T2 for rent (privity of estate) AND
- L can sue T1 for rent (privity of contract)
- BUT if T2 assigns to T3, T2 no longer liable to L (no privity of estate or K)
Sublease
Original T transfers less than entire interest in remaining term of lease
T2 pays rent to T1, who pays L
T2 and L ≠ privity of K OR estate (unless T2 expressly assumes covenants)
T1 and T2 = privity of K
T1 and L = Privity of K and estate
L’s remedies and sublessee’s rights
L’s remedies = terminate main lease for nonpayment of rent or other breaches of covenant
- sublease automatically terminates with main lease
Sublessee’s rights = no right to enforce any covenants made by L in main lease, EXCEPT IWH
Assignments by L (and rights and liabilities)
Usually done by deed when L1 conveys to new owner (L2)
- T’s consent not required
- T must be given reasonable notice of assignment
Rights of L2 = T must pay rent to L2 as new landlord
- all benefits run with estate to L2
Liabilities of L2 = burdens that touch and concern the land also run with estate to L2 (privity of estate)
Liabilities of L1 = L1 remains liable on all covenants in lease, unless there’s a novation (privity of K)
L’s tort liability
CL caveat lessee = Let T beware
- L has not duty in tort to make premises safe
5 exceptions = CLAPS:
Common areas = L duty of reasonable care in maintenance
Latent defects = duty to warn of hidden defects (not discoverable by reasonable inspection) that L knows or has reason to know of
Assumption of repairs = If L makes repairs, he is liable for any negligence
Public use rule = L who leases public space liable for any defects that cause injury to members of the public
Short-term lease of furnished dwelling = L is liable for ANY defective condition that proximately injures T
Modern trend in L’s tort liability
Courts now hold L owes a general duty of reasonable care to residential Ts
L is liable for injuries resulting from ordinary negligence if L:
1) had notice of a defect and
2) had an opportunity to repair it
Fixtures
Chattel that has been so affixed to land that it is no longer personal property and has become part of the realty:
1) incorporated into realty so that they lose their identity
2) removal would cause considerable damage to the premises
Passes with ownership of the land and must stay put
Common ownership case and fixtures
Person who brings chattel to land owns both chattel and land = fixture person objectively intended to make item part of realty
Intent:
1) nature of article
2) manner of attachment
3) amount of damage removal would cause
Divided ownership case and fixtures
Chattel brought to land by non-owner (like a T)
Agreement between L and T controls whether fixture or not
If no agreement, T may remove if:
1) removed by end of lease term and
2) T pays for an damage caused by removal
Easement
grant of nonpossessory property interest entitling holder to use/enjoyment of another’s land
- presumed to be of perpetual duration unless grant specifically limits the interest
Examples:
- right to lay utility lines on another’s land
- right of way over another’s land
- right to tap into a neighbor’s drain
Affirmative easement
Right to onto and so something on servient land
servient land = land that is imposed upon by the easement
- the burdened land
Negative easement
right to prevent the landowner from doing something that would otherwise be permissible
- can only be created expressly, by a writing signed by grantor
- no natural or automatic right to negative easement
4 categories = LASS
L - Light = preventing access to sunlight
A - Air = impeding access to unobstructed airflow
S - Support = excavating land that would erode another parcel’s underground support
S - Stream water from an artificial flow = impede access to stream water coming another parcel
Minority = allows easement for scenic view
Easement appurtenant
Appurtenant = relevant to, useful to, helpful to
Easement that benefits its holder in the physical use or enjoyment of his own land
Two parcels invovled:
1) dominant estate = derives the benefit
2) servient estate = bears the burden
Easement in gross
Gives its holder only some personal or commercial advantage unrelated to their use or enjoyment of their land
servient land, but no dominant –> easement benefits the holder rather than another parcel
Examples:
- right to place a billboard on another’s lot
- right to swim in another’s pond
- utility company’s right to lay power lines on another’s lot
Transferability of easement appurtenant
Dominant estate (benefit) = automatically transfers, even without mention in conveyance
- exception = conveyance of easement to the owner of the servient estate extinguishes easement
Servient estate (burden) = only passes if the new owner is BFP with notice of the easement
Transferability of easement in gross
Not transferable UNLESS for commercial purposes
Creating an easement
Created by PING
P = Prescription
I = Implication
N = Necessity
G = Grant
Easement by grant
Must be in writing and signed by the holder of the servient estate, unless it is to last for less than a year (outside SOF)
Writing = Deed of easement
Easement by implication
Created by operation of law –> exception to SOF
Implied from pre-existing use = quasi-easement
Implied without pre-existing use in 2 situations:
1) subdivision plat = buyers of lots have implied easements to use streets to access their lots
2) profit a prendre = implied easement to extract from servient property minerals or other product
Easement by necessity
Implied when landowner conveys a portion of land with no way out except over part of the grantor’s remaining land
Owner of servient land has right to locate the easement
Easement by prescription
Acquire by analogy to adverse possession
Elements required = COAH
C - Continuous and uninterrupted use for statutory period
O - Open and notorious use (discoverable upon inspection)
A - Actual use that need not be exclusive
H - Hostile use (without servient owner’s consent)
permission defeats acquisition of easement by prescription (no longer hostile)
Cannot be acquired in public land
Easement by reservation
Arises when grantor conveys title to land but reserves the right to continue to use the tract for a special purpose
Easement can only be reserved for GRANTOR –> attempts to reserve for a third party are VOID
Scope of easement
Scope is determined by terms of grant or conditions that created it
If not specified –> interpreted to accommodate holder’s present and future reasonable needs
Surcharged easement = legal scope exceeded by easement holder
- servient landowner can enjoin excessive use and sue for damages if land was harmed
- misuse does NOT terminate the easement by operation of law
Terminating an easement
If not specified in original easement grant, 8 ways to terminate an easement: END CRAMP
Estoppel = servient owner materially changes their position in reliance on oral intent to abandon easement
Necessity = expire as soon as necessity ends, unless easement was reduced to an express grant
Destruction = servient land destroyed ends easement (unless through willful conduct of servient owner)
Condemnation = of servient land by eminent domain (courts split as to whether easement holders are entitled to compensation)
Release = easement holder releases - must be in writing
Abandonment = physical action on part of easement holder demonstrating intent to never make use of the easement again (mere words are insufficient to abandon)
Merger = title to easement and title to servient land become vested in the same person
Prescription = servient owner may extinguish by interfering with elements creating it (COAH)
- nonuse of easement, without more evidence of intent, is insufficient
License
Mere privilege to enter another’s land for a narrow and delineated purpose
- not an interest in land
- personal to licensee –> inalienable
- No writing required to create –> freely revocable at will of licensor
- failed attempt to create an easement = creates a license
Revocation of license
Freely revocable at will of licensor, unless estoppel bars revocation:
1) Ticket cases = freely revocable license
2) Neighbors talking by the fence ≠ easement, but LICENSE
Estoppel = applies when licensee has invested substantial money, labor, or both in reasonable reliance on license’s continuation
- license becomes easement by estoppel and lasts until holder receives sufficient benefit to reimburse costs expended
License coupled with interest = irrevocable as long as interest lasts
- e.g., buyer of chattel may enter seller’s land to remove chattel
Profit
entitles holder to enter servient land and take some resource
Rules for creation and termination = same as for easements
May be extinguished through surcharge = profit is exploiting or otherwise unduly burdening the servient land
Covenant
written promise to do or not do something related to the land
- NOT a grant of property interest, but a promise regarding the land
Negative covenant
AKA restrictive covenant
A promise to refrain from doing something related to land
E.g., I promise not to build for commercial purposes
Affirmative covenant
A promise to do something related to land
E.g., I promise to maintain our shared fence
Less common than restrictive covenants
Covenant vs equitable servitude
Distinguished by the remedy sought:
Covenant = money damages sought
Equitable servitude = injunction sought
Running with the land
One tract is burdened by the promise, the other is benefited
Key question = when does a covenant run with the land?
Requirements for burden to run with the land
Successor in interest to the burdened estate bound by covenant IF = WITHN
Writing = original promise in writing
Intent = original parties intended that covenant would run, usually found in conveyance itself
Touch and concern = promise is of and pertaining to the land and effects the parties as landowners (use and enjoyment of land)
- includes HOA fees and covenants not to compete
Horizontal and vertical privity:
- Horizontal = connection between original parties –> succession of estate (L-T, G/or-G/ee, M/or-M/ee)
- Vertical = connection between successor in interest and originally covenanting party (NOT adverse possession)
Notice = successor had notice of promise when she took
- actual, inquiry or record notice
Requirements for benefit to run with the land
Easier for benefit to run than burden
Must have WITV:
Writing
Intent
Touch and concern
Vertical privity
Termination of covenant
Covenant may be terminated by:
1) written release
2) merger of benefited and burdened estates OR
3) condemnation of burdened property
