Real Property Flashcards
Joint Tenancy
A joint tenancy is an estate in land held concurrently by two or more co-tenants. The feature that distinguishes a joint tenancy from a tenancy in common is the right of survivorship: when one joint tenant dies, the surviving joint tenants take the property free of the deceased tenant’s interest.
Joint Tenancy (Four Unities)
At common law, four unities are required to create a joint tenancy: the unities of time, title, interest, and possession. This means the interest must have vested at the same time, have been acquired by the same instrument, by of the same type and duration, and give identical rights to enjoyment. As for the initial grant, a joint tenancy is created when there is a clear expression of intent to create this estate.
Joint Tenancy (termination)
A joint tenancy can be terminated by the acts of one co-tenant. For example, a joint tenant’s inter vivos conveyance of his undivided interest destroys the joint tenancy, and the transferee takes as a tenant in common.
Joint Tenancy (Title v. Lien Theories)
The effect of one co-tenant mortgaging her interest varies depending on how mortgages are characterized in that jurisdiction. The majority of states follow the lien theory, in which a mortgage is regarded as a lien on title; thus, one joint tenant’s execution of a mortgage on her interest does not by itself cause a severance. In the minority of states, however, a mortgage is regarded as a transfer of title, which destroys the unity of title, and therefore severs the joint tenancy. This is known as the title theory.
Joint Tenancy (Mortgages)
A mortgage is a security interest in real estate, usually securing a promise to repay a loan. If the loan is not paid when due, the mortgagee can either take title to the real estate or have it sold and use the proceeds to pay the debt. A single JT can encumber joint tenancy property.
Tenancy for Years
A tenancy for years is one that is to continue for any fixed period of time. In most states, the Statute of Frauds requires that a lease creating a tenancy for more than one year be evidenced in a signed writing.
Covenant of Quiet Enjoyment–Constructive Eviction
Implied in every lease is a covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. One way a LL can breach this covenant is through constructive eviction. This means that if a LL does an act or fails to provide some service that he has a legal duty to provide, thereby making the property uninhabitable, the tenant may terminate the lease and seek damages under this theory. The tenant can claim constructive eviction only if (1) the landlord–not a neighbor or stranger–breaches a duty to the tenant; (2) the breach substantially and materially deprives the tenant of her use and enjoyment of the premises; (3) the tenant gives the LL notice and a reasonable time to repair; and then (4) the tenant vacates the property within a reasonable time.
Implied Warranty of Habitability (standard)
The majority of states have adopted the implied warrant of habitability for residential tenancies. Standards are more favorable to tenants than with constructive eviction, and the range of remedies for breach is broader. Courts usually apply the local housing code if one exists; if there is none, the court asks whether the conditions are reasonably suitable for human residence. Tenant can establish that a consistently malfunctioning toilet or drain qualify under this standard.
Implied Warranty of Habitability (remedies for breach)
When a LL breaches the warranty of habitability, court have allowed tenants to (1) move out and terminate the lease, as in a constructive eviction; (2) make repairs directly and offset the cost against future rent obligations; (3) reduce or abate rent to an amount equal to the fair rental value in view of the defects in the property; or (4) remain in possession, pay full rent, and seek damages against the LL.
Non-Assignment Provision
Absent an express restriction in the lease, a tenant may freely transfer her leasehold interest in whole or in part. If she makes a complete transfer of the entire remaining term, she has made an assignment. If she retains any part of the remaining term, the transfer is a sublease. However, many leases contain covenants on the part of the tenant not to assign or sublease without the LL’s consent. These covenants are strictly construed against the LL. Thus, a covenant prohibiting assignment does not prohibit subleasing, and vice versa.
Reserved Easement in Gross
The holder of an easement has the right to use a tract of land (called the servient tenement) for a special purpose, but has no right to possess or enjoy the tract of land. An easement in gross is created where the holder of the easement acquires that right independent of his ownership or possession of another tract of land. An easement by reservation arises when a landowner conveys land but reserves the right to continue to use the tract for a special purpose after the conveyance. In effect, the grantor passes title to the land but reserves for himself an easement interest.
Transfer of Easements in Gross
When a servient parcel is transferred, its new owner takes it subject to the burden of the easement, unless she is a bona fide purchaser with no notice of the easement. There are three ways the person who acquires the servient might have notice of the easement: (1) actual knowledge; (2) notice from the visible appearance of the easement on the land; and (3) notice from the fact that the document creating the easement is recorded in the public records.
Sublessee’s Duty to Pay Rent
In a sublease, the sublessee is considered the tenant of the original lessee and usually pays rent directly to the original lessee, who in turn pays rent to the landlord under the main lease. The sublessee is liable to the original lessee for the rent to which they agreed in the sublease. Generally, the sublessee is not personally liable to the LL for rent or for the performance of any other covenants not made by the original lessee in the main lease. This is because the sublease is not in privity of contract with the LL, nor in privity of estate, because she does not hold the original tenant’s full estate. As a result, the covenants in the main lease would not run with the land to bind the sublease. However, a sublessee may expressly assume the rent covenant and other covenants in the main lease.
Sublessee’s Breach for Failure to Pay Rent
At common law, a breach such as failure to pay rent resulted only in a cause of action for money damages and not in a right to terminate the lease. However, nearly all states have enacted an unlawful detainer statute, which permits the LL to evict a defaulting tenant. Furthermore, even if a sublessee were not personally liable to the LL, the LL can terminate the main lease for nonpayment of rent, which automatically terminates the sublease as well.
Landlord’s Self-Help for Tenant’s Breach
Most states statutorily prohibit forcible entry and prevent a LL from using self-help to remove a tenant. Furthermore, some states also bar a LL from more subtle methods of regaining possession, such as changing locks.
