Real Property Flashcards
Give an example of a fee simple absolute.
To A or To A and his heirs.
Give an example of a fee tail.
To A and the heirs of his body.
Give an example of a fee simple determinable.
To A so long as …
To A until …
To A while …
Give an example of a fee simple subject to a condition subsequent.
To A, but if [event] occurs, grantor reserves the right to re-enter and retake.
Give an example of a fee simple subject to an executory limitation.
To A, but if [event] occurs, then to B
Give an example of a life estate.
To A for life.
To A for the life of B. L.E. Pur Autre Vie.
What is the duration of a fee simple absolute?
It is absolute and of potentially infinite duration.
What is the duration of a fee tail?
It lasts as long as there are lineal descendants of grantee.
What is the duration of a fee simple determinable?
Potentially infinite, so long as the limiting event does not occur.
What is the duration of a fee simple subject to a condition subsequent?
Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination.
What is the duration of a life estate?
The duration of the grantee’s life.
or
The duration of another life if it is a life estate pur autre vie.
What is the transferability of a fee simple absolute?
It is devisable, descendible, and alienable. The grantee has absolute ownership of potentially infinite duration.
What is the transferability of a fee tail?
It passes automatically to grantee’s lineal descendants.
What is the transferability of a fee simple determinable?
It is alienable, devisable, and descendible, subject to condition.
What is the transferability of a fee simple subject to a condition subsequent?
It is alienable, devisable, and descendible, subject to condition.
What is the transferability of a fee simple subject to an executory limitation?
It is alienable, devisable, and descendible, subject to condition.
What is the transferability of a life estate?
It is alienable, devisable, and descendible if pur autre vie and the measuring life is still alive.
Who can hold a future interest in a fee simple absolute? What could he or she have?
No one. There is none.
Who can hold a future interest in a fee tail? What could he or she have?
O (the grantor) could have a reversion.
A third party can have a remainder.
Who can hold a future interest in a fee simple determinable? What could he or she have?
O (the grantor) has the possibility of reverter.
Who can hold a future interest in a fee simple subject to a condition subsequent? What could he or she have?
O (the grantor) has a right of entry (Power of termination).
Who can hold a future interest in a fee simple subject to an executory interest? What could he or she have?
A third party has an executory interest.
Who can hold a future interest in a life estate? What could he or she have?
O (the grantor) can have a reversion.
A third party can have a remainder.
Who can have heirs?
Dead people.
Can a living person have an heir?
No.
O made a will devising BA to his heirs. He has one son, A. Just now, O validly executed the will. Who is his heir?
We don’t know; he is alive. He only has a prospective heir until he dies.
O made a will 10 years ago devising BA to his daughter. Since then his daughter has introduced herself as Sophia, heir to BA. Is she right?
No. She is not an heir until O dies. Until then she is a prospective heir.
In a fee simple determinable, what action must the grantor take to exercise his future interest? What is that future interest called.
The grantor has a possibility of reverter. Once the triggering event/clear durational language occurs, the reversion is automatic. The grantor need not take any additional action.
In a fee simple subject to a condition subsequent, what action must the grantor take to exercise his future interest? What is that future interest called.
The grantor has a right of entry. Once the triggering event/clear durational language occurs, the grantor must exercise his power of termination.
What is the main distinction between a fee simple determinable and a fee simple subject to a condition subsequent?
If the clear durational language/triggering event occurs in a fee simple determinable, the grantor’s future interest automatically applies, whereas in a fee simple subject to a condition subsequent, the grantor must exercise his power of termination.
What is the distinguishing characteristic of a fee simple subject to an executory limitation compared to a fee simple determinable or fee simple subject to a condition subsequent?
A fee simple subject to an executory interest is similar to a fee simple determinable in that it automatically forfeits the estate; however, unlike a fee simple determinable or a fee simple subject to a condition subsequent, it divests the grantee in favor of a third party rather than O.
Give examples of language that does not constitute “clear durational language” for the purposes of defeasible fees.
Words of mere desire, hope, or intention are insufficient to create a defeasible estate, such as:
“for the purpose of”
“with the hope that”
“with the expectation”
“O to A so long as she never attempts to sell” is an example of a/an …
absolute restraint on alienation. An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to a reasonable time or purpose. They are void because it is repugnant to public policy.
What is an example of an absolute restraint on alienation?
“O to A so long as she never attempts to sell.”
What is an absolute restraint on alienation?
An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to a reasonable time or purpose. They are void because it is repugnant to public policy.
Will a court likely uphold an absolute restraint on alienation?
No. They are void because it is repugnant to public policy.
“O to A so long as she does not attempt to sell until the year 2016, when clouds on the title will be resolved” is an example of…
a valid restraint on alienation. It is temporary and is linked to a reasonable time and purpose.
“O to A so long as she never attempts to sell”
What interests do the parties have?
A has a fee simple absolute.
O has nothing.
This is an unlawful absolute restraint on alienation so the invalid language is struck leaving the conveyance reading “O to A.”
“O to A so long as she does not attempt to sell until the year 2016, when clouds on the title will be resolved”
What interests do the parties have?
A has a fee simple determinable.
O has a possibility of reverter.
While this is a restraint on alienation, it is temporary and linked to a reasonable time and purpose; therefore, it is valid.
Which of the following creates a valid life estate?
(A) O to A for 50 years, if she lives that long.
(B) O to A for life.
(C) O to A for life, but in no event more than 10 years.
(D) All of the above
(E) B and C only
(B) O to A for life.
O’s will contains the following devise. BA to A for life.
Then, A conveys her interest to B.
Name the interests of the parties?
B has a life estate pur autre vie. The measuring life is A’s.
O has a reversion when A dies.
Under what circumstances may a life tenant consume or exploit natural resources on the property (e.g. timber, oil, and/or, minerals)?
As a general rule, a life tenant must not consume or exploit natural resources. However, he may do so under the following conditions:
PURGE
1) Prior Use/Open Mines Doctrine - the land had previously been used for such exploitation; therefore, the life tenant may continue to mine, but he is limited to the mines already open.
2) Repairs - the life tenant may consume natural resources to repair/maintain the property.
3) Grants - the life tenant was granted that right.
4) Exploitation - the land is only suitable to exploit the resources.
Are the following statements true or false?
A life tenant is entitled to all ordinary uses and profits from the land.
&
A life tenant must not commit waste.
Both statements are true.
What are the types of waste? Provide an example of each.
Voluntary or Affirmative Waste = willful destruction. E.g. removing timber.
Permissive Waste = the land falls into disrepair. E.g. neglecting to conduct routine maintenance.
Ameliorative Waste = an act that enhances value. E.g. converting the property from a residence into a commercial building.
O to A for life, then to B.
B is referred to as the …
remainderman.
O to A for life.
O maintains what type of interest?
reversion.
Remainders can follow what types of estates?
Life estates and terms of years.
How does a remainder vest?
The holder is both ascertained (born and identified) and not subject to a condition precedent.
What is the difference between a remainder and an executory interest?
An executory interest cuts off the interest of another, remainder waits for the life estate or term of years to end.
What makes a remainder contingent?
It is in either an unascertained (either not born or unidentified) person or it is subject to a condition precedent.
Name the interest of each party.
To A for life, then, if B graduates from college, to B. A is alive. B is in high school.
Then…
Follow up: Re-name the interests if B graduates from college during A’s lifetime.
A = life estate B = contingent remainder O = reversion
Follow up answer:
A = life estate B = indefeasibly vested remainder
Name the interest of each party.
To A for life, and, if B has reached the age of 21, to B.
Then…
Follow up: Re-name the interests if B reaches 21 during A’s life.
A = life estate B = contingent remainder O = reversion
Follow up answer:
A = life estate B = indefeasibly vested remainder
O to A for life, and if B has reached the age of 21, to B. A has died, leaving behind B, who is still 19 years old.
What is the state of the title at common law?
What about in MA?
Historically, at common law this is the Destruction of a Contingent Remainder Rule.
A = life estate is now over, and he has nothing.
B = his contingent remainder is destroyed.
O = O and his heirs take the reversion.
Today, the rule has been abolished so under a modern theory, and in MA.
A = life estate is over, and he has nothing.
B = springing executory interest, which takes effect when B turns 21.
O = O and his heirs hold the estate in fee simple subject to B’s springing executory interest.
O to A for life, then, on A’s death, to A’s heirs. A is alive.
What is the state of title at common law?
What about in MA?
Historically, at common law this is the Rule in Shelley’s Case.
A and A’s heirs interest merges and A has a fee simple absolute.
This promoted alienability, but was abolished because it would take effect despite the grantor’s express intent.
Today, the rule has been virtually abolished, and has been abolished in MA.
A = life estate
A’s heirs = contingent remainder
O = reversion, since A could die without heirs.
O to A for life, then to O’s heirs. O is alive.
What is the state of title at common law?
What about in MA?
At common law this is called the Doctrine of Worthier Title.
A = life estate
O = reversion. The devise to his heirs is void since he is alive, and he does not have heirs. It promotes alienability.
Note*** The grantor can draft around this rule by clearly demonstrating that the Doctrine of Worthier Title shall not apply.
In MA
A = life estate
O’s heirs = contingent remainder as long as O is alive since O has no heirs until he dies.
What are the different types of vested remainders and how do you know which is which?
1) Indefeasibly vested remainder = no strings attached to the remainder.
2) Vested remainder subject to complete defeasance/subject to total divestment = there is no condition precedent, so the remainderman can take, but he remains subject to a condition subsequent.
3) Vested remainder subject to open = there is one person in a class who is qualified to take, but the class remains open.
O to A for life, remainder to B. A is alive. B is alive.
Name the interests of the parties.
What if B pre-deceases A?
A = life estate B = indefeasibly vested remainder. No strings attached.
If B pre-deceases A, the interest passes by B’s will or intestate statute.
O to A for life, then to B, provided, however, that if B dies under the age of 25, to C. A is live, B is 20 years old.
Name the interests of the parties.
A = life estate.
B = Vested remainder subject to complete defeasance. It is a condition subsequent, not a condition precedent because B still takes even if he is isn’t 25, but he remains subject to forfeiture until he is 25. Note the placement of the triggering event and the placement of commas.
C = shifting executory interest if B dies before B is 25 (even if he has already taken possession.)
O = reversion because it is possible that neither C nor C’s heirs will exist if and when the condition is breached.
O to A for life, and if B reached the age of 25, to B.
Name the interests of the parties.
A = life estate.
B = contingent remainder.
O = reversion.
O to A for life, then to B’s children. A is alive. B has two children, C and D.
Name the interests of the parties.
A = life estate.
B’s children = vested remainder subject to open.
When does an open class close?
Provide examples.
When no additional parties can join or when any member can demand possession.
O to A for life, then to B’s children. A is alive. B has two children, C and D.
At B’s death it closes because once B dies, he cannot have more children.
At A’s death it closes because those within the class can demand possession.
Note*** - A child in gestation when the class closes counts as part of the class.
Define “executory interest”
An executory interest is a future interest in a third party that takes effect by cutting off another’s interest.
What are the two types of executory interests? What is the difference? Provide examples.
Shifting executory interests divest someone other than the grantor.
Example: O to A, but if B returns from Canada sometime in the next year, to B and his heirs.
O to A, but if A uses the land for non-residential purposes in the next 20 years, then to B.
Springing executory interests divest a grantor.
Example: O to A, if and when he marries. A is unmarried.
O to A, if and when he becomes a lawyer. A is in high school.
Define the common law Rule Against Perpetuities.
Same rule in MA?
The Rule Against Perpetuities is a rule that prevents the grantor from tying up the alienability of land well after he passes away. The Rule is violated if an interest might not vest or fail within 21 years of a life in being at the time the interest is created. If there is any chance that the interest will fail, then the interest that fails is void and stricken from the devise. The Rule only applies to contingent remainders, executory interests, and certain vested remainders subject to open. It NEVER applies to future interests in the grantor, an indefeasibly vested remainder, or vested remainders subject to complete defeasance.
MA has adopted the Uniform Statutory Rule Against Perpetuities. Under this Rule the interest must either satisfy the R.A.P. or vest within 90 years after the creation of the interest (i.e. @ transfer/conveyance, e.g. death or sale.) The USRAP allows the court to exercise cy pres and reform a violation of the rule in a way that most closely matches the grantor’s intent while complying with the R.A.P. USRAP also allows for the reduction of an offensive age contingency to 21 years.
Explain the four step technique for assessing R.A.P. problems.
Step 1: Determine the type of future interest created by the conveyance. Is it subject to RAP?
Step 2: Identify the conditions precedent to the vesting of the suspect future interest. That is, what has to happen before a future interest holder can take?
Step 3: Find the measuring life, that is, a person alive at the date of conveyance, and determine his/her relevance.
Step 4: Ask this question, “Will we know, with certainty, within 21 of the death of the measuring life, if our future interest holders can or cannot take?
Does the following conveyance violate RAP?
How would this analysis change in MA?
O to A for life, then to the first of her children to reach the age of 30. A is 70. Her only child is B, and he is 29.
Yes. B’s interest is a contingent remainder. B could die tomorrow, and based on the Fertile Octogenarian Rule, A could have another child. Therefore, when A dies, it could be longer than 21 years before we know if the interest vests or fails. Therefore RAP is violated. The devise should change to O to A for life.
In MA, the court would wait and see. If 90 years after the original conveyance from O to A for life, the contingent remainder has not vested or failed, the interest fails. Here, it will almost certainly vest within 90 years since B only has to survive one more year in order to change his contingent remainder to an indefeasibly vested remainder. Remember, the remainder is not a class, it is simply A’s first child to reach the age of 30 who takes.
What are Barbri’s two bright line rules for common law RAP?
- A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP.
1a. Bad as to one bad as to all. - Many shifting executory interests violate RAP. An executory interest with no limit on the time within which it must vest violates RAP.
2a. e.g. To A and his heirs so long as the land is sued for farm purposes, and if the land ceases to be so used, to B and his heirs. = violates RAP. Strike the executory interest to B.
2b. e.g. To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs. Strike the whole condition subsequent because the sentence is not gramatically correct if you only strike the shifting executory interest.
Does the following violate common law RAP?
O to the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA.
No. There is a charity to charity exception; therefore, a gift from one charity to another does not violate RAP.
Name the various types of concurrent interests.
1) Joint Tenancy
2) Tenancy By the Entirety
3) Tenants in Common
How is a joint tenancy created?
The Four Unities
(i) At the same time;
(ii) by the same instrument (with same title);
(iii) with each party taking the same interest; AND
(iv) each have an equal right to possess the whole.
Explain the transferability of a joint tenancy.
Joint Tenancies carry a right of surviorship; therefore, when one tenant dies, that tenants interests automatically passes to the other joint tenant without going through probate.
Joint tenancies are alienable, but not devisable or descendable because of the R.O.S.
Does using a straw man to create or sever a joint tenancy violate any laws or public policy?
No.
How does one sever a joint tenancy?
S: Sale - One joint tenant selling or transferring his interest during his lifetime. The purchaser and former joint tenant become tenants in common.
P: Partition - When the parties or the court partitions the land, or when the court sells the land and divides the proceeds among the joint tenants.
A: AND
M: Mortgage-
Title Theory States (Minority including MA) - A joint tenant’s execution of a lien or mortgage on his share of a joint tenancy will sever the joint tenancy.
Lien Theory States (Majority) - In lien theory states, liens are ok. That is, a lien or mortgage executed by one joint tenant on his interest will not sever the joint tenancy.
O to Phoebe, Ross, and Monica as joint tenants with the R.O.S.
- Phoebe sells her interest to Chandler. Explain the state of title.
- Later, Ross dies, leaving behind an heir, Rachel. What is the state of the title.
- Monica and Ross hold 2/3 as joint tenants, and Chandler holds 1/3 as a tenant in common.
- Monica takes Ross’ share. Monica now holds 2/3 and Chandler holds 1/3. They are tenants in common. Rachel takes nothing.
In equity, if one joint tenant enters into a contract for the sale of her share, will the joint tenancy be severed when the contract is entered into or when the deed is delivered? Why?
When the contract is entered into. This is due to the doctrine of equitable conversion. Equity regards as done that which ought to be done.
Paul, John, and Ringo hold a property as joint tenants. On January 1, Ringo enters into a contract to sell his interest in a joint tenancy to George, with the closing to take place on April 1. When does Ringo’s interest in the joint tenancy sever and why?
On January 1 due to the doctrine of equitable conversion.
How is a Tenancy by the Entirety created?
MA distinction?
The 4 Unities + the Unity of Marriage.
Same time, instrument, interest, and possession
+
Married.
Generally, in the states recognizing a T/E, a grant to a married couple is presumed to be a tenancy by the entirety. In MA, it is created only with an express statement indicating that intention. 2 married takers without the express statement creating the T/E are T in C.
Explain the transferability of a T/E.
One tenant in a T/E cannot alienate the property, and there is a right of survivorship.
Neither party can defeat the right of survivorship unilaterally.
Can creditors of only one spouse reach a T/E?
MA distinction?
Generally, creditors of only one spouse may not reach a T/E.
In MA, creditors of one spouse may encumber that spouse’s share, but cannot touch the other spouse’s share, and the creditors cannot defeat the R.O.S.
Tony and Carmella are married and own BA as T/E. Tony secretly transfers his interest to Uncle Jun. What is the current state of the title?
No change. Tony cannot unilaterally transfer his interest in BA because it is a T/E.
What are the features of a tenancy in common? That is, describe what a tenancy in common entails.
- Each tenant owns an individual part, and each has a right to possess the whole (undivided).
- Each interest is devisable, descenable, and alienable. There are no survivorship rights.
- The presumption favors a tenancy in common.
if Greg pays 90% of the purchase price, and Marcia pays 10%, can Greg exclude Marcia from 90% of the property? Why/Why not?
Each has equal right to possess the whole.
What is the term for a tenant who wrongfully excludes another tenant?
Ouster.
Part 1: If one tenant moves away, but does not sell her interest, must the remaining tenant pay rent?
Part 2: If the tenant who moved away stays away so long that the statutory terms of years for adverse possession runs, can the remaining tenant acquire the whole property by adverse possession?
Part 1: No. Absent ouster, a co-tenant is not liable to the other for rent.
Part 2: No. The possession is not adverse (hostile).
If A and B hold property held as T in C, and A rents to C. Is A liable to B for rent payments?
Yes. A must pay B, B’s share.
In a T in C, who is responsible for carrying costs?
Each is responsible for paying carrying costs (taxes, mortgage interest payments, etc.) based upon his share.
In a T in C, who is responsible for repairs?
Each party may seek contribution from the other for reasonable necessary repairs provided that the party who does the repairs told the other of the need. Contribution is based on his share.
May one T in C seek contribution from the other T in C for improvements?
No because improvements are inherently subjective. However, at partition/sale, if those improvements increased the value of the property, that tenant is entitled to a credit.
That being said, if at partition/sale, those so called improvements lowered the value, that tenant is responsible for the drop.
What are T in C’s obligations and rights when it comes to waste?
Ts in C must not commit any of the three types of waste (destructive, permissive, or ameliorative). If one does, the other may bring an action during the life of the tenancy.
If one tenant in a joint tenancy or T in C wants to partition and the other does not, what result?
A joint tenant or a T in C may bring an action for partition (by voluntary agreement, by partition-in-kind, or by forced sale).
Give an example of a term of years.
O to A for 10 years.
O to A for 2 days.
Both are examples of a term of years.
What notice is required to terminate a term of year?
None because parties know from the start date when the date of termination is going to be.
During the holidays, Nikki Kuckes and Jonathan Gutoff were eating Christmas cookies and talking. During their conversation Kuckes orally promises Gutoff that he can lease BA for 10 years. Gutoff moves in. The next day Kuckes shows up to BA and begins hurling candy at Gufoff demanding that he leave the property and claiming their agreement is unenforceable. Gutoff says, “I am high so thank you for the candy, but I am pretty sure we agreed to a term of years.” Is he right?
No, terms of years for more than one year must be in writing.
Goldstein rents Ralston land to build a hair restoration clinic from month to month. This is an example of…
A periodic tenancy.
T rents an apartment from L, beginning June 1. Nothing is said about duration. T pays rent each month. What type of tenancy exists?
An implied month to month periodic tenancy.
L and T negotiate on the telephone for a commercial lease. They orally agree on a five year lease with rent at $1000 per month. What type of tenancy exists?
What would MA call this?
An implied periodic tenancy measured by the way rent is tendered. It is not a tenancy for years because it violates the SoF.
In MA, there is a tenancy at will.
T holds over after the expiration of her one year lease, but sends another month’s rent check to L, who cashes it. What tenancy now exists?
What would MA call this?
An implied periodic tenancy measured by the way rent is now tendered (month to month, here)
In MA, there is a tenancy at will.
Aaron Hernandez was renting Ritchie’s flop house month to month without a lease. Ritchie wants to terminate. How may he do so?
What if it was week to week?
What if it was from year to year?
What if Ritchie and Hernandez agreed that either party would give 90 days notice of termination?
Ritchie must give Hernandez notice, usually written, equal to the length of the period itself. Here, 1 month.
Or if it was week to week, 1 week.
Or if it was year to year, six months.
90 days is fine if that’s what the parties agreed to. Freedom to Contract governs.
Ritchie leased BA to Hernandez on January 1, 2010, for a periodic tenancy of month to month. On May 15, 2010, Hernandez sends written notice of termination because he found a better flop house. Hernandez is still bound until…
June 30th. The tenancy must end at the conclusion of a natural lease period. Here, the natural lease period is at the end of the month. Therefore, while at first glance it may seem like Hernandez can leave on June 15 because that is one month notice, that is an incorrect conclusion based on the previously stated rule.
Robert Kraft leases Gillette Stadium to Brady for as long as Kraft or Brady desires is an example of…
How is a court likely to interpret this?
A Tenancy at Will.
However, a court will likely look to how often Brady pays rent and call it a periodic tenancy.
At common law, how can a party terminate a tenancy at will?
Either party can terminate by providing a reasonable demand to vacate.
Grasso leases Alves an office in his building. After the lease ends, she does not move out or pay Grasso rent. What is this called, and how long can this last?
This is called a Tenancy at Sufferance and it will last only until Grasso either evicts Alves or decides to hold Alves to a new tenancy.
What are a tenant’s duties?
1) T is liable to third parties as a matter of tort law. That is T must keep the property in good repair. He is liable for injuries sustained by 3rd Parties T invited even if L promised to make all repairs.
2) T has a duty to make some repairs. That is T must make routine repairs other than those due to ordinary ware and tare. For example, T must unclog the sink, but need not re-tile aging bathroom tiles. That is, unless he contracts to make repairs.
3) T must not commit any of the three types of waste (voluntary, permissive, or ameliorative).
4) T must pay rent.
Coombs and Monestier rent a house in Canada for a year. While they are living there, Coombs installs a high powered heating system. When they are moving out, he begins uninstalling the heating system in order to take it with them. The landlord sees him and demands that he leave it installed lest Coombs cause substantial harm to the premises. What result?
Would this result change if there was an agreement in place regarding the heating system?
What if it was guaranteed that Coombs would not cause substantial harm to the premises?
At common law, when a tenant removes a fixture, he commits voluntary waste. The heating system is a classic example of a fixture, that is, a once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty. Therefore, Coombs may not remove the fixture no matter that he installed it. Other common examples of fixtures include furnaces, certain lighting installations, and custom storm windows.
If there was an agreement in place, then that agreement governs.
If Coombs would not cause substantial harm to the premises, then he may remove the fixture.
Goldstein decides to go back to Kansas City for the summer and rents a small house. During the summer, a tornado rips through the house, destroying it. What is Goldstein’s liability?
Historically?
Today?
Historically, Goldstein is liable for any loss to the property including loss due to forces of nature.
Today, Goldstein may end the lease as long as the tornado was not his fault (wink wink).
Judah rents Bogus a room at his house for the semester. Bogus stops paying rent about halfway through the semester so Judah changes the locks and dumps Bogus’ possessions on the lawn.
Which of the following is true?
(A) Bogus is out of luck because he had not been paying rent.
(B) Judah could be punished civilly and criminally for his conduct because the law does not help those who help themselves.
How might this analysis change if it occurred in MA?
(B)
In MA, not only is Judah liable, but he is liable for treble damages or 3 month’s rent, whichever is greater, as well as, attorney’s fees, and costs.
What are a landlord’s remedies if T does not pay rent, but remains on the property?
Landlords may evict tenants through the courts or continue the relationship and sue for rent due. Even a landlord decides to evict, he is still entitled to rent from the tenant at sufferance.
Coombs and Tanya decide to move to Canada. They rent their house to Tom Muscara for two years. One month into the agreement, Muscara takes off and stops paying rent. What are Tanya and Coombs’ options?
1) S: Surrender. They may choose to treat Muscara’s abandonment as an offer to surrender and accept it as such. Because there was more than one year left on the lease, the surrender must be in writing, and the landlords must send it to the tenant’s last known address.
2) I: Ignore. In a minority of jurisdictions, they may ignore the abandonment and hold Muscara responsible for the unpaid rent as if he was still there.
3) R: Re-Let. They may re-let the premises on Muscara’s behalf and charge him for any deficiency.
Majority Rule is that the landlord must at least try to re-let as a mitigation effort.
L rents a house to T, but the prior renter is still in the house on the first day of the lease. Has L breached…
Under the English Rule?
Under the American Rule?
Under the English Rule, which is also the majority, the Landlord has breached because he is responsible for putting T in the house on the date the lease starts. L is liable to T for damages.
Under the American Rule, which is the minority rule, the Landlord need only provide T with legal possession (a lease and a key) on the start date.
Explain the implied covenant of quiet enjoyment.
The implied covenant of quiet enjoyment applies to both residential and commercial leases, and means that T has a right to quiet enjoyment of the premises without interference from L. A breach would be a wrongful eviction or exclusion.
