Real Property Barbri Flashcards
(129 cards)
1
Q
What is a concurrent estate?
A
An estate in land can be held concurrently by several persons. All have the right to enjoyment and possession of the land.
2
Q
Three forms of concurrent ownership?
A
- joint tenancy
- tenancy by the entirety
- tenancy in common
3
Q
What is a joint tenancy?
A
When two or more own with the right of survivorship
4
Q
A joint tenant’s interest is…?
A
- Alienable inter vivos (can transfer interest during one’s lifetime)
- Neither devisable nor descendible (b/c of survivorship)
5
Q
Can a joint tenant attempt to dipose of the property via will?
A
No, this would be void because of the survivorship characteristic.
6
Q
How to create a joint tenancy:
A
The common law requires 4 unities (T-TIP)
* T-at the same time
* T-by the same title (same deed, will, or other document of title)
* I-with identicial,** equal **interests
* P-with rights to possess the wholl
The grantor must clearly express the right of survivorship. If not, a conveyance to two or more people is presumed to be a tenancy in common.
7
Q
How is a tenancy in common divided?
A
Equal shares are presumed but not required (compare this to a joint tenancy where equal shares are required).
8
Q
How is a joint tenancy severed?
A
Sale and Partition
* A joint tenant may sell or transfer her interest during her lifetime.
* A volunary conveyance by a joint tenant of their interest destroys the joint tenancy. The transferee takes as a tenant in common.
9
Q
May a joint tenant transfer his interest secretly?
A
Yes, even without the other’s knowledge or consent.
10
Q
One joint tenant’s sale severs the joint tenancy as to the seller’s interest. Why?
A
Because it disrupts the four unities.
11
Q
If we start with more than two joint tenants in the first place, and one tranfers, what happens?
A
The joint tenancy remains intact as between the other, non-transferring joint tenants.
12
Q
What are the three types of partition?
A
- voluntary agreement
- judicial action - partition in kind
- judicial action - forced sale
13
Q
What is a voluntary agreement?
A
A type of partition - an allowable and peaceful way to end the relationship
14
Q
What is a partition in kind?
A
a judicial action - an action for a physical division of the property, if in the best interest of all parties
15
Q
What is a forced sale partition?
A
a judicial action - an action when, in the best interests of all parties, the land is sold and the sale proceeds are divided up proportionately
16
Q
What transactions will not result in severance of a joint tenancy?
A
- mortgages
* in most states: a mortgage is a lien on title and does not sever a joint tenancy- severance occurs only if the mortgage is foreclosed and the property is sold
* in title theory states: the execution of a mortgage does sever a joint tenancy
- severance occurs only if the mortgage is foreclosed and the property is sold
- one joint tenant murdering another lol
* UPC and modern statutes: when a beneficiary unlawfully and intentionally kills a joint tenant, any joint property becomes a tenancy in common
17
Q
What effect does a testmentary disposition have in a joint tenancy?
A
A will cannot work a severance because the testator’s interest vanishes at death
18
Q
What is a tenancy by the entirety?
A
- A tenancy by the entirety is a marital estate akin to a joint tenancy.
- It can be created only between married partners who take as “one person” with a right of survivorship
19
Q
How is a tenancy by the entirety created?
A
- If a state recongizes it, it arises presumptively, in any conveyance to married partners unless the language of the grant clearly indicates otherwise.
- VERY protected form of co-ownership! Can’t touch this!
20
Q
Rule with creditors for tenancy by the entirety
A
Creditors of only one spouse cannot touch this tenancy for satisfaction of the debt
21
Q
Rule for unilateral conveyance on tenancy by the entirety
A
One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a 3P
22
Q
Rule for encumbrance on tenancy by the entirety
A
- An individual spouse cannot encumber tenancy by the entirety property
- A deed or mortgage executed by only one spouse is ineffective
23
Q
Severance of tenancy by the entirety
A
- Only death, divorce, mutual agreement, or execution by a joint creditor of BOTH the spouses can sever a tenancy by the entirety
- On divorce, the tenancy by the entirety becomes a tenancy in common
24
Q
What is a tenancy in common?
A
- a tenancy in common is a concurrent estate with no right of survivorship
- multiple grantees are presumed to take as tenants in common, not as joint tenants
25
Two features of a tenancy in common
* each co-tenant owns an individual part and each has a right to possess the whole
* each interest is devisable, descendible, and alienable
26
Rights and Duties of Co-Tenants: possession
Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part
27
What is ouster?
When one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part. This is an actionable wrong.
28
Rents and Profits: Co-Tenant in Exclusive Possession
In most states: co-tenant in exclusive possession has the right to retain profits for their use of the property. They don't need to share profits with other co-tenants absent ouster or an agreement to the contrary.
Co-tenants in exclusive possesson must also share net profits gained by exploitations of the land (mining).
29
Co-Tenants: Rents and Profits: from third parties
A co-tenant who leases all or part of the premises to a 3p must account to their co-tenants + provie them their fair share of the rental income.
30
Rights and Duties of Co-Tenants: Adverse Possession
Unless they have ousted the other co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other tenant.
31
Rights and Duties of Co-Tenants: Carrying Costs
Each co-tenant is responsible for his or her fair share of carrying costs such as taxes and mortgage interest payments.
32
Rights and Duties of Co-Tenants: Repairs
A repairing co-tenant enjoys a right to proportional contribution for reasonably necessary repairs provided that she has given notice to the others of the need to repair.
33
Rights and Duties of Co-Tenants: Improvements
During the life of the co-tenancy, there is no right to contribution for improvements
34
Rights and Duties of Co-Tenants: Waste
* A co-tenant must not commit waste.
* During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant.
35
Types of Waste
1. Voluntary - willful destruction
2. Permissive - neglect
3. Ameliorative - unilateral change that increases value
36
Rights and Duties of Co-Tenants: Partition
* A joint tenant or tenant in common has a right to bring an action for partition (voluntary agreement, partition in kind, forced sale)
* Courts prefer partition in kind, but will permit a partition by sale when a fair and equitable physical division of the property cannot be made
* Although this right generally may be exercised at any time, restraints on partition by co-tenants are valid if limited to a reasonable time
37
Rights and Duties of Co-Tenants: Effect of One Concurrent Owner's Encumbering the Property
* A joint tenant or tenant in common may encumber her interest (mortgage, judgment lien), but may not encumber the interests of other co-tenants
* ex: mortgage interest, mortgagee can only foreclose on that co-tenant's interest
* If a joint tenancy is involved, a mortgage (in a lien theory state) or a lien does not sever the joint tenancy, but a foreclosure sale will.
* In a joint tenancy, the mortgagee or lienor runs the risk that the obligated co-tenant will die before foreclosure, extinguishing mortgagee's or lienor's interest
38
Rights and Duties of Co-Tenants: Duty of Fair Dealing
* A confidential relationship exists among co-tenants
* One co-tenant's acquisition of an outstanding title or lien that may affect the estate is deemed to be on behalf of other co-tenants (why it's hard for one co-tenant to adversely possess against another)
39
What is a leasehold?
A leasehold is an estate in land. The tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion)
40
What are the types of leasehold estates?
1. tenancy for years
2. periodic tenancy
3. tenancy at will
4. tenancy at sufferance
41
What is a tenancy for years?
* This is the estate for years or a term of years and is for a fixed, determined period of time. (could be a week or 50 years)
* if you see a termination date from the state, you have a tenancy for years
42
How to terminate a tenancy for years:
A tenancy for years ends automatically at its termination date - no notice needed
43
Two ways tenancy for years is terminated
1. Termination upon Breach of Lease Covenant
* In most leases, the landlord reserves a right of entry. This allows them to terminate the lease if the tenant breaches any of the lease's covenants.
* Failure to pay rent: in many jx's, a landlord may, by statute, terminate the lease upon the tenant's failure to pay the promised rent, even without a reserved right of entry
2. Termination upon Landlord's Acceptance of Tenant's Surrender
* A tenancy for years may also terminate if the tenant surrenders the tenancy and the landlord accepts.
* Need the same formalities for surrender that are required for the creation of the leasehold (like being in writing for > than year leasehold)
44
Form of a tenancy for years?
* Tenancies for years are usually created by written leases.
* If term > 1 year, must be in writing b/c statute of frauds
45
What is a periodic tenancy?
A periodic tenacy is a lease which continues for successive intervals (month to month) until either the landlord or the tenant gives proper notice of termination
46
Defining characteristic of a periodic tenancy?
It is continuous until properly terminated.
47
How is a periodic tenancy created?
1. Expressly
2. Implication/Operation of Law
* Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals
* An oral term of years in violation of the SoF creates an implied periodic tenancy measured by the way rent is tendered
* In a residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed past the conclusion of the OG lease, an implied periodic tenancy arises measured by the way rent is now tendered
48
How is a periodic tenancy terminated?
Usually, written notice must be given because a periodic tenancy is automatically renewed until proper notice of termination is given
49
How much notice is required for termination of a periodic tenancy?
CL: notice must be at least equal to the length of the period itself, unless otherwise agreed. Usually, notice also must be timed to terminate the lease at the end of a period.
week to week: 1 week
month to month: 1 month
year to year or greater: 1 month under restatement
Party can lengthen or shorten these common-law prescribed notice provisions
50
What is a tenancy at will?
A tenancy at will is a tenancy of no fixed period of duration.
It is terminable at the will of either the landlord of the tenant.
"To T for as long as L or T desires"
51
How is a tenancy at will created?
A tenancy at will must be created by an express agreement that the lease can be terminated at any time.
Unless the parties agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy a an implied periodic tenancy.
If the lease gives only the landlord the right to terminate, a similar right will be implied in favor of the tenant.
If the lease only gives the tenant the right to terminate, a similar right will NOT be implied in favor of the landlord.
52
How is a tenancy at will terminated?
* A tenancy at will can be terminated by either party at any time.
* Most states: require notice and a reasonable time to quit (vacate) to terminate
* A tenancy at will can also be terminated by operation of law (death, commission of waste).
53
How is a tenancy at sufferance created?
A tenancy at sufferance is created when a tenant wrongfully holds over (remains in possession past the expiration of the lease)
This wrongdoer gets a leasehold estate (the tenancy at sufferance) to permit the landlord to recover rent
54
How is a tenancy at sufferance terminated?
It lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy.
55
What notice is required to terminate a tenancy at sufferance?
No notice!
56
What is the hold over doctrine?
If a tenant continues in possession after their right to possession has ended, the landlord may:
1. evict the tenant OR
2. bind the tenant to a new periodic tenancy
The length of the new tenancy depends on how rent was computed under the lease that has ended. But the max allowed is a year to year tenancy. Various promises from original lease become part of tenancy for additional term.
If monthly: month to month periodic tenancy
If quarterly: a quarter to quarter
57
Hold-Over Doctrine for Commercial Tenants
Commercial tenants may be held to a new year-to-year periodic tenancy if the OG lease was for one year or more. If OG lease was less than one year, new tenancy is typically a month to month tenancy.
58
Hold-Over Doctrine for Residential Tenants
Residential tenants are generally held to a new month to month tenancy regardless of the OG term.
If the landlord notifies the tenant before the lease expires that the occupancy after termination will have an increased rent, the hold over tenant has assented to the new terms.
59
Exceptions to the Hold-Over Doctrine
1) when the tenant remains in possession for only a few hours after the termination or leaves a few articles of personal property OR
2) the delay is not the tenant's fault (severe illness)
In these cases, the landlord cannot bind the tenant to a new tenancy
60
What is a lease?
A lease is a contract that governs the landlord-tenant relationship
61
Common Law Rule for Dependence of Lease Covenants
Covenants (promises) in the lease were independent. If one party breached a covenant (pay rent or repair premises), the other party could recover damages for that breach, but the landlord-tenant relationship persisted and the lease endured
62
Modern Law for Rule of Dependence of Lease Covenants
The landlord can terminate the lease for nonpayment of rent and the tenant can terminate the lease when the landlord breaches the covenant of quiet enjoyment or the implied warranty of habitability
63
What are options to purchase?
An option to purchase real property is a separate contract supported by consideration that is a continuing offer to sell the land at a specified price.
These are sometimes attached to leases.
As long as the option is contained within the lease itself, the condsideration for the lease supports the option.
An option must be evidenced by signed writing to satisfy the statute of frauds (b/c interest in land)
64
Exercising an Option to Purchase
Unless there is a contrary provision, the option lasts as long as the lease. The agreement determines the method of exercise.
Generally, the party granting the option may keep the consideration regardless of whether the option is exercised; the consideration is for the continuing offer and not money for the purchase.
65
RAP and Options to Purchase
Althought RAP applies to options, there is an exception for options attached to leases.
An option to purchase in a lease is enforceable even if it would otherwise violate RAP.
Remedy for enforcement of an option to purchase: specific performance, but damages are also available
66
Tenant's Two Primary Duties
1. to repair
2. to pay rent
67
Tenant's Duty to Repair Categories
* when lease is silent
* when express covenant in lease
68
Tenant's Duty to Repair when Lease is Silent
1. Obligation to maintain premises
* tenant is obliged to make routine repairs, but tenant is not obliged to make repair occasioned by ordinary wear and tear
2. Tenant must not commit waste
* voluntary (affirmative): when tenant's overt conduct damages the premises
* permissive: when tenant fails to take reasonable steps to protect the premises from damage. If the duty to maintain the premises is shifted to the landlord, the tenant has a duty to report deficiencies properly.
* ameliorative waste: occurs when the tenant unilaterally alters the leased property, increasing its value.
69
Modern Exception to Ameliorative Waste
* permits a tenant to make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood
70
Tenant's Duty to Repair When Express Covenant in the Lease
When a lease is silent about a tenant's repair obligations, the tenant must maintain the premises in reasonably good repair, but is not responsible for ordinary wear and tear.
CL: tenant was responsible for any loss to the property, including by force of nature
Majority View today:
* If residential tenant covenants to repair, the landlord usually remans obligated to repair under the nonwaivable implied warranty of habitability.
* A **nonresidential **tenant's covenant to repair is enforceable, and a landlord may be awarded damages for breach based on the property's condition when the lease terminates compared to its condition when the lease commenced.
* In the absence of specific reference to ordinary wear and tear, a covenant to repair usually includes such repairs
* However, repair covenants frequently exclude ordinary wear and tear
71
Tenant's Duty to pay Rent: when tenant breaches and is in possession of premises
If a tenant is on the premises and fails to pay rent, the landlord can evict through the courts or continue relationship and sue for the rent due. If a landlord moves to evict, it is still entitled to rent for the time in possession.
Landlord must not engage in self-help (changing locks, forcibly removing tenant, removing any of tenant's possessions)
72
Tenant's duty to pay rent: tenant breaches but is out of possession
1. Surrender: landlord coud treat tenant's abdonment as an implicit offer of surrender and accept it -> ends the lease
2. Ignore the abandonment: do nothing and hold tenant responsible for unpaid rent until the natural end of the lease as if tenant is still there (only available in minority)
3. Re-let the premises: on the wrongdoer tenant's behalf and hold wrongdoer tenant liable for any deficiency (MUST try this under majority rule)
| SIR
73
Rent Deposits
Most states:
1. restrict the amount of security deposits to one month's rent
2. require landlords to pay interest on security deposits AND
3. allow statutory or punitive damages for a landlord's improper refuasal to return a security deposit (cannot create a lease clause to get out of this -> VOID)
4. Landlord is permitted to retain a security deposit for damages actually suffered to the premises
74
Condemnation of Leaseholds: if entire leasehold is taken by eminent domain
the tenant's liability for rent is extinguished because both the leasehold and reversion have merged in the condemnor and there is no longer a leasehold estate.
lessee is entitled to compensation
75
Condemnation of Leaseholds: if taking is temporary or partial
the tenant is not discharged from the rent obligation, but is entitled to compensation for the taking
76
Tenant's Duty - premise for illegal purposes
If the tenant uses the premises for an illegal purpose, the landlord may terminate the lease or obtain damages and injunctive relief
77
What is the landlord's duty to deliver possession?
The majority rule is requires that the landlord put the tenant in actual physical possesion of the premises at the beginning of the leasehold term.
If at the start of the tenant's lease, a prior holdover tenant is still in possession, the L is in breach and the new tenant gets damages
78
What is the implied covenant of quiet enjoyment?
* arises by implication in every residential and commercial lease
* provides that a tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or paramount title holder
79
Two Types of Breach by Wronful Eviction
* actual eviction
* partial eviction
80
What is actual eviction?
Actual eviction ocurs when the landlord, a paramount title holder, or a holdover tenant excludes the tenant from the** entire** leased premises
Actual eviction terminates the tenant's obligation to pay rent
81
What is partial eviction?
Partial actual eviction occurs when the tenant is physically excluded from only part of the leased premises
Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder
82
What is breach by constructive eviction?
Constructive eviction occurs when the landlord's breach of duty renders the premises unsuitable for occupancy
1) substantial interference
2) notice
3) goodbye
83
What can a tenant who has been constructively evicted do?
Terminate the lease and seek damages
84
Is the landlord liable to a tenant for the wrongful acts of other tenants?
As a general rule, no. Two exceptions:
* landlord has a duty to abate a nuisance on site
* landlord must control common areas
85
What is the implied warranty of habitability?
* most jurisdictions imply a covenant of habitability into residential leases
* it is nonwaivable
* applies only to residential,ot commercial
* provides that the premises must be fit for basic human habitation
86
What are tenant's options when implied warranty of habitability is breached?
1. move out and terminate the lease
2. repair and deduct (allowable by statute in some jx, tenant makes repairs and deducts cost from future rent)
3. reduce rent or withold all rent until court determines fair rental value
4. remain in posssession, pay full rent, affirmatively seek money damages
87
Difference between covenant of quiet enjoyment and implied warranty of habitability
covenant of quiet enjoyment-to plead constructive eviction, tenant must vacate
implied warranty of habitability-tenant could vacate but is not required to
88
What is retaliatory eviction?
In many states, a landlord may not terminate a lease or otherwise penalize a tenant in retaliation for the tenant's exercise of their legal rights
may be a presumption within certain amount of days that landlord has to rebut
89
What is the Civil Rights Act?
Bars racial or ethnic discriminaton in the sale or rental of all property
90
What is the Fair Housing Act?
The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, national origin, sex, disability, as well as familial stattus (except in senior housing)
91
What are the exceptions to the fair housing act?
Except as to advertising, the fair housing act does not apply to 1) owner-occupied buildings with four or fewer units in which persons live indepdently of each other and 2) single-family homes sold or rented b an owner who owns no more than three single family homes
92
What is prohibited under the Fair Housing Act?
Unlawful to take certain actions because of a person's race, color, religion, sex, disability, familial status, or national origin including:
1. refusing to negotiate, rent, or sell housing or make available a mortgage loan or other financial assistance
2. providing different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assistance
3. falsely representing that a dwelling is not available for inspection, sale, or rental
**discriminatory ads are also prohibited (can violate by making or publishing it)
* landlords must permit disabled tenants to make reasonable modifications to accomodate disabilities and landlords must make reasonable accomodations when necessary to allow equal opportunity to use dwelling
93
Can a tenant transfer interest in the lease?
In the absence of some prohibition in the lease, a tenant may freely transfer their interest in the whole (assignment) or in part (a sublease)
94
Can a landlord prohibit tenant from assigning or subletting?
Yes, a landlord can prohibit a tenant from assigning or subletting without the landlord's prior written approval. However, once a landlord conents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant, unless the landlord expressly reserves the right.
95
Is transfer a sublease or an assignment?
For bar exam purposes, a transfer will be considered a sublease, rather than an assignment, only when the original tenant reserves tme for herself (like the last month of the lease)
96
What is an assignment?
* An assignee stands in the shoes of the original tenant in direct relationship with the landlord.
* The assignee and the landlord are in privity of estate and each is liable to the other on all covenants in the lease that run with the land
* After assignment, the OG tenant is no longer in privity of estate with the landlord, but their lease contract remains in effect and enforceable (OG tenant still liable on original contractual obligations)
97
What is a covenant that runs with the land?
A covenant runs with the land if the original parties to the lease so intend and the covenant touches and concerns the land (benefits landlord and burdens tenant or vica versa) with respect to their interests in the property
98
What are rent covenants? What happens when tenant's assignee fails to pay rent?
* At to pay rent runs with the land, so the assignee owes rent directly to the landlord
* If a tenant's assignee fails to pay rent (or breaches another covenant), the landlord can sue the assignee because of the privity of estate and, if the assignee cannot pay, can also sue the original tenant because of privity of contract
* If the assignee reassigns the leasehold interest, their privity of estate with the landlord ends, and they have no ability for the subsequent assignee's failure to pay rent
99
What is a sublease?
* A sublease arises when the original tenant (T1) transfers less than her entire interest to T2
* T2 would be the tenant of the original lessee and would pay rent to the original lessee, who pays the landlord
* In a sublease, the landlord and the sublessee are in neither privity of estate nor privity of contract
* A sublessee is not personally liable to the landlord for rent or for the perfomance of any of the covenants in the main lease unless the sublessee expressly assumes the covenants
100
What are the landlord's remedies under an assignment?
The landlord may terminate the main lease for nonpayment of rent or breach of other covenants if the lease so states or the power is given by statute.
101
What happens to the sublease when the main lease is terminated?
It automatically terminates
102
What rights does a sublessee have?
A sublessee cannot enforce any covenants made by the landlord in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.
103
Can a landlord prevent an assignment or sublease?
In the lease, a landlord can prohibit a tenant from assigning or subletting without the landlord's prior written approval
If the landlord was aware of the assignment and did not object, then a valid covenant against assignment is waived
104
What happens when a landlord consents to transfer by a tenant?
Once a landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant, unless the landlord expressly reserves the right
105
How are lease covenants restricting assignment and sublease construed?
Lease covenants restricting assignment and sublease are strictly construed against the landlord
106
What happens if a tenant assigns or sublets in violation of the lease provision?
If a tenant assigns or sublets in violation of a lease provision, the landlord usually may terminate the lease or sue for damages, but the transfer is not void
107
What can a landlord assign? Is the tenant's consent required?
* A landlord may assign the rents and reversion interest they own.
* Usually done by deed when the landlord coveys a building to a new owner
* Tenant's consent is NOT required
108
When a landlord assigns, what are the rights of the assignee against the tenant?
* Once tenants are given a reasonable notice of the assignment, they must recognize and pay rent to the new owner as their landlord
* The benefit of all tenant covenants that touch and concern the land run with the landlord's estate to the new owner
109
When a landlord assigns, what are the liabilities of assignees to tenants?
The burden of the landlord's covenants that touch and concern the land runs with the landlord's estate to the assignee.
Assignee is liable for performance of all of these covenants.
The OG landlord also remains liable on all of the covenants they made in the lease
110
What is caveat lessee?
This is the common law norm: let the buyer beware. In tort, a landlord was under no duty to make the premises safe.
111
What are the 5 exceptions to caveat lessee?
Common areas
Latent defects
Assumption of repairs
Public use rule
Short-term lease of furnished dwelling
| CLAPS
112
What is the landlord's duty for common areas?
A landlord has a duty of reasonable care in mantaining all common areas (hallway, stairs, elevators)
113
What is the landlord's duty for latent defects?
* A landlord must warn the tenant of hidden defects (a dangerous condition that the tenant could not discover by reasonable inspection) of which the landlord has knowledge or reason to know
* Otherwise, the landlord is liable for any injuries resulting from the condition
* If the tenant accepts the premises after disclosure, the tenant assumes the risk and the landlord is not longer liable in tort
* Landlord's obligation in tort is a duty to warn, not a duty to repair
114
What is the landlord's duty for assumption of repairs?
While in tort a landlord is under no duty to make repairs, once repairs are undertaken, the landlord must complete them with reasonable care.
115
What is the landlord's public use rule?
A landlord who leases a public space (convention hall or museum) and who should know because of the significant nature of the defect and the short length of the lease, that a tenant will not repair, is liable for any defects on the premises that casue injury to members of the public.
116
What is the landlord's rule for short-term lease of furnished dwelling?
A landlord who rents a fully furnished premises for a short period is under a STRICTER duty. Such landlords are responsible for any defective condition which proximately injures a tenant.
117
What is the modern trend for landlord tort liability?
Many courts now hold that a landlord owes a general duty of reasonable care toward residential tenants, and will be held liable for injuries in tort resulting from ordinary negligence if the landlord had notice of defect + opportunity to repair it.
118
Modern trend for defects arising after tenant takes possession?
A landlord is generally held to have notice of defects existing before the tenant took possession, but is not liable in tort for defects arising after the tenant takes possession unless the landlord KNEW or should have knwon of them.
119
Modern trend for landlord's legal duty to repair?
If the landlord has a statutory duty to repair (housing codes), the landlord is liable in tort for injuries resulting from the landlord's failure to repair or negligence in making repairs
120
Modern trend for landlord's security duty?
Some courts hold landlords liable in tort for tenant injuries inflicted by the criminal conduct of third parties in cases where the landlord failed to comply with housing code provisions dealing with secuirty, maintain ordinary security measures, or provde advertised security measures.
121
Duty of care owed by tenant?
Discussed in torts outline
122
What is a fixture?
A chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty
A fixture passes with the ownership of the land and must stay put
123
How to tell if a chattel is incorporated into the structure?
* When items are incorporated into the structure, they lose their identity
* A chattel affixed to realty is a fixture whe its removal would cause significant damage to premises (plumbing, heating ducts, furnance)
124
What is a common ownership case?
A common ownership case is one in which the person who brings the chattel to the land owns both the chattel AND the land, as when X installs a furnace in his home.
That item is a fixture if the party who made the annexation objectively intended to make the item part of the realty
Test for intention: nature of article, manner of attachment, amount of damage that would be caused by removal, adaption of item to use of realty
125
What is a divided ownership case?
The chattel is owened and brought to the realty by someone other than the landowner (maybe tenant, licensee, or trespasser)
Accession is the annexor's intent to make the chattel a permanent part of the real estate.
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Landlord Tenant Divided Ownership
An agreement between a landlord ad a tenant is controlling on whether the annexed chattel is a fixture.
Absent an agreement, tenant is deemed to lack the intent to permanently improve the property, and thus may remove his annexed chatels if removal does not substantially damage the premises or destroy the chattel
Annexed chattels must be removed by the end of the lease term (or within reasonable time) and the tenant is responsible for repairing any damage caused by the removal
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Life Tenant and Remainderman Divided Ownership
Same rules as landlord-tenant, except life tenant's representative may remove annexations within reasonable time after tenant's death
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Licensee or Trespasser and Owner Divided Ownership
Licensees are treated much like tenants, but trespassers normally lose their annxations. Absent a statute, an adverse possessor or good faith trespasser cannot remove fixtures
Some courts allow a good faith respasser recovery measured by the value added to the land
129
What is an easement?
