REAL PROPERTY Flashcards
Joint Tenancy–Formation
- A conveyance of real property to two or more persons creates a joint tenancy when the four unities are present: (1) unity of time (all interests were received at the same time); (2) unity of title (all interests were acquired by the same instrument); (3) unity of interest (all ownership interests are equal); AND (4) unity of possession (all interests have equal rights of possession).
- There MUST be clear express intent to create a joint tenancy, which may be satisfied by including such terms as “joint tenants”, “right of survivorship”, “joint tenants with right of survivorship”, or even “jointly” (if intent is proven). A right of survivorship means that when one joint tenant dies his interest in the land is automatically transferred to the other joint tenant(s).
Joint Tenancy Severance–Unilateral Transfer
Generally, when one joint tenant unilaterally transfers his ownership interest in the real property, the joint tenancy is severed and the tenants will then hold the property as tenants in common.
Joint Tenancy Severance–Conveyance of Interest
When a joint tenant conveys his interest in a joint tenancy
to a third-party, that party takes the property as a tenant in common. If there are only two joint tenants, the joint tenancy is severed. However, if there are more than two joint tenants, the joint tenancy remains, but only among the other joint tenants.
Joint Tenancy Severance–Mortgage on JT’s Interest
When a joint tenant takes out a mortgage on her interest, the mortgage’s effect on the joint tenancy will depend on the jurisdiction. In a lien theory jurisdiction, the mortgage will NOT sever the joint tenancy. However, in a title theory jurisdiction, the mortgage will sever the joint tenancy, and the tenants will then hold the property as tenants in common.
Leasehold Interests–General Rule and Types
A lease provides the tenant with a present possessory interest in the real property (subject to any terms and conditions agreed to), and gives the landlord a future interest in the property. In most states, the statute of frauds requires a lease of more than one year to be writing.
Three types of leaseholds exist: (1) tenancy for years; (2) periodic tenancy; (3) tenancy at will, AND (4) tenancy at sufferance.
Leasehold Interests–Tenancy for Years
A Tenancy for Years lasts for a fixed period of time (there is a specified beginning and end date), as agreed by the landlord and tenant. The lease automatically terminates after the fixed period. Normally, a tenant CANNOT terminate a lease prior to the end of the term, unless constructive eviction or another exception applies.
Leasehold Interests–Periodic Tenancy
A Periodic Tenancy continues for a specific period (i.e. weekly or monthly) until it is terminated by proper notice from either party. A periodic tenancy may be created: (a) expressly by agreement; (b) by implication if rent is paid at specific periods (i.e. every week or month); OR (c) by law when a tenant-for- years remains after termination of the period or when a lease agreement is invalid.
▪ A periodic tenancy can only be terminated (1) at the end of a natural lease period, AND (2) requires written notice at least a full period in advance. For example, a periodic month-to- month tenancy requires a one-month notice of termination. An exception exists for a periodic year-to-year tenancy, in that only 6-months’ notice is required.
Leasehold Interests–Tenancy at Will
A Tenancy at Will continues until either party terminates it, and is usually created by an express agreement. In most states termination of a tenancy at will requires giving: (1) notice of termination; AND (2) a reasonable time to quit the premises. In a minority of states, termination does not require notice to the tenant.
Landlord Duties: Implied Warranty of Habitability
- A warranty of habitability is implied in every residential lease. The implied warranty of habitability requires that the landlord provide a place to live (apartment, home) that is habitable. A property is deemed habitable if it’s reasonably suitable for human needs (the local housing or public safety code must be considered for specifics – but usually adequate heat, running water, electricity, structurally sound).
- Upon a breach of the warranty of habitability, the tenant may: (a) move out and terminate the lease; (b) withhold or reduce the rent; (c) repair the issue and deduct the cost from the rent; OR (d) remain on the premises and sue for damages.
Landlord Duties: Constructive Eviction
- Every lease includes an implied covenant of quiet enjoyment, which prevents a landlord from interfering with the tenant’s quiet enjoyment and possession of the property. This covenant is breached if the tenant is constructively evicted.
- Constructive eviction occurs when: (1) the landlord breached a duty to the tenant; (2) the landlord’s breach caused a loss of the substantial use and enjoyment of the premises; (3) the tenant gave the landlord notice of the condition; (4) the landlord failed to remedy the condition within a reasonable time after notice was given; AND (5) the tenant vacated the premises.
- Upon being constructively evicted, the tenant may terminate the lease and seek damages.
Assignment of a Lease–In General
- A lease may be freely assigned UNLESS a provision in the lease states otherwise. However, an assignment can never be for a longer period of time than the lessor’s remaining lease term.
- An assignment occurs when a tenant (the assignor) transfers ALL of his remaining interest in a lease to a third-party (the assignee). The assignee is liable to the landlord for rent and all other covenants that run with the land because privity of estate arises between the assignee and the landlord. The assignor also remains liable to the landlord for any rent not paid by the assignee because privity of contract continues to exist with the landlord.
Assignment of a Lease–Landlord Waiver of Prohibition of Assignments
A landlord may be deemed to waive his right to enforce a provision prohibiting assignments if he accepts rent from the assignee.
Real Covenants–In General and Enforcing the BENEFIT of a covenant.
A real covenant is a non-possessory interest in land that obligates the holder to either do something or refrain from doing something to the land. It differs from equitable servitudes in that the remedy is damages (rather than injunctive relief).
To enforce the benefit of a covenant there must be: (1) a writing that satisfies the statute of frauds; (2) intent that the covenant runs with the land; (3) vertical privity between succeeding parties (exists when the successor holds the entire interest held by the predecessor); AND (4) the covenant must touch and concern the land (make the land more useful or valuable to the benefitted party).
Real Covenants–In General and Enforcing the BURDEN of a covenant.
A real covenant is a non-possessory interest in land that obligates the holder to either do something or refrain from doing something to the land. It differs from equitable servitudes in that the remedy is damages (rather than injunctive relief).
To enforce the burden of a covenant, ALL OF THE ABOVE REQUIREMENTS MUST BE MET (WITV), PLUS:
(1) there must be horizontal privity between the original parties (exists when the two parties shared some interest in the land independent of the covenant); AND
(2) the new owner must have notice of the covenant. Notice may be: (a) actual; (b) constructive (the covenant is recorded in previous conveyances); OR (c) by inquiry (an inspection of the land would reveal the covenant).
Easements–In General
An easement is a non-possessory interest in the use of someone else’s land. Easements are either in gross or appurtenant.
o An easement in gross benefits a specific owner’s enjoyment and use of the land and DOES NOT attach to the land (unless the easement is for commercial activity). It DOES NOT pass to subsequent landowners.
o An easement appurtenant benefits any owner’s enjoyment and use of the land and DOES attach to the land. It DOES pass to subsequent landowners so long as the new owner has notice. Notice may be: (a) actual; (b) constructive (the easement is recorded in previous conveyances); OR (c) by inquiry (a reasonable person would have inquired about the existence of any easements or interests in land based on the facts or circumstances of the property).
