Real Property (MBE) Flashcards
Concurrent Estates: Joint Tenancy
Two or more owners with RIGHT OF SURVIVORSHIP, meaning upon death of one owner the property it does not become a part of the estate, rather it devises to the other joint owner.
Concurrent Estates: Joint Tenancy - Alienability
A joint tenant’s interest is alienable INTER VIVOS (transferable during lifetime), NOT devisable or descendible
Concurrent Estates: Joint Tenancy - Creation
Four unities (PITT):
1) Possession,
2) Interest (must be EQUAL),
3) Time, and
4) Title
Concurrent Estates: Joint Tenancy - Severance and Sale
A joint tenant may sell or transfer his interest during his lifetime, which destroys the joint tenancy and creates a tenancy in common.
If there are more than two joint tenants, the remaining joint tenants still have their joint tenancy relationship.
Concurrent Estates: Joint Tenancy - Severance and Partition Types
1) Voluntary agreement
2) Partition in Kind - physical division of the property
3) Forced Sale - land is sold and proceeds are divided proportionately.
Concurrent Estates: Joint Tenancy - Transactions That Will Not Impact Severance (Lien Theory v. Title Theory)
Lien Theory (Majority View) - if a joint tenant encumbers his share as collateral in a mortgage, the bank only has a LIEN INTEREST in the property, not enough to sever the joint tenancy
Title Theory (Minority View) - Encumbrance by putting a mortgage on a property WILL sever joint tenancy.
Murder, when a beneficiary unlawfully and intentionally kills a joint tenant, the property is transformed into a tenancy in common.
Concurrent Estates: Tenancy by the Entirety
A MARITAL estate akin to a joint tenancy, but both owners must be married, each having a right of survivorship
Concurrent Estates: Tenancy by the Entirety - Creation
A tenancy by the entirety is automatically presumed in any conveyance to married partners, UNLESS the language of the grant clearly indicates otherwise.
Concurrent Estates: Tenancy by the Entirety - Protections
Creditors of only one spouse CANNOT touch this tenancy for satisfaction of debt AND unilateral conveyances by one spouse cannot defeat right of survivorship.
Concurrent Estates: Tenancy by the Entirety - Severance
Only death, divorce, mutual agreement, or execution by a joint creditor of BOTH spouses can sever a tenancy by the entirety.
On divorce, the tenancy becomes a tenancy in common.
Concurrent Estates: Tenancy in Common
A concurrent estate with NO RIGHT OF SURVIVORSHIP, with each co-tenant owning an individual part and a RIGHT TO POSESS THE WHOLE. This interest is DIVISABLE, DESCENDBILE and ALIENABLE.
Concurrent Estates: 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, and doing so creates the claim for OUSTER.
Concurrent Estates: Rights and Duties of Co-Tenants - Rents and Profits from Co-Tenant in Exclusive Possession
A co-tenant in exclusive possession has the right to retain profits from their use of the property without sharing with other tenants, UNLESS profits come from exploitation of the land (e.g., mining or farming).
Concurrent Estates: Rights and Duties of Co-Tenants - Rents and Profits from Third Parties
A co-tenant who leases all or part of the premises to a third party MUST account to their co-tenants, providing them a share of the rental income.
Concurrent Estates: Rights and Duties of Co-Tenants - Adverse Possession
Unless they’ve ousted the other co-tenant, adverse possession CANNOT be acquired by excluding the other co-tenant
Concurrent Estates: Rights and Duties of Co-Tenants - Carrying Costs
Each co-tenant pays their fair share of carrying costs (i.e., taxes and mortgage interest payments)
Concurrent Estates: Rights and Duties of Co-Tenants - Repairs
Repairing co-tenant enjoys the right to contribution for any necessary repairs PROVIDED he has notified the other co-tenants of the need.
Concurrent Estates: Rights and Duties of Co-Tenants - Improvements
There is NO RIGHT to contribution for “improvements” unilaterally made without the consent of the other co-tenant.
At partition, the improver gets a credit equal to any VALUE INCREASE or a debit to any VALUE DECREASE attributable to the unilateral improvement
Concurrent Estates: Rights and Duties of Co-Tenants - Effect of One Concurrent Owner Encumbering the Property
A joint tenant or tenant in common MAY encumber her interest, but MAY NOT encumber the interest of the other tenant. A mortgage or lien DOES NOT sever a joint tenancy, but a foreclosure sale WILL.
Concurrent Estates: Rights and Duties of Co-Tenants - Partition
A joint tenant or tenant in common has a right to bring an action for partition (voluntary, partition in kind, and forced sale). Courts prefer partition in kind, but will permit partition by sale if fair and equitable division of property cannot be made. Temporary restraints on partition by co-tenants are VALID, provided they are reasonable in time.
Concurrent Estates: Rights and Duties of Co-Tenants - Duty of Fair Dealing
A confidential relationship exists among co-tenants and one co-tenants acquisition of an outstanding title or lien that may affect the estate is DEEMED TO BE ON BEHALF OF OTHER CO-TENANTS.
Landlord Tenant: Leasehold Estates
1) Tenancy for Years,
2) Periodic Tenancy,
3) Tenancy at Will,
4) Tenancy at Sufferance
Landlord Tenant: Leasehold Estates
1) Tenancy for Years,
2) Periodic Tenancy,
3) Tenancy at Will,
4) Tenancy at Sufferance
Landlord Tenant: Tenancy for Years
A lease for a known FIXED PERIOD of time.
Landlord Tenant: Tenancy for Years - Termination
A tenancy for years ends AUTOMATICALLY at its termination date, NO NOTICE NEEDED.
Landlord Tenant: Tenancy for Years - Termination Upon Breach
Landlord reserves a RIGHT OF ENTRY, which allows them to terminate the lease if the tenant breaches any of the lease’s covenants (e.g., failure to pay rent).
Landlord Tenant: Tenancy for Years - Termination Upon Tenant’s Surrender
A tenancy for years may also terminate if the tenant surrenders and the landlord accepts, if the unexpired term exceeds one year IT MUST BE IN WRITING
Landlord Tenant: Tenancy for Years - Writing
Terms greater than ONE YEAR must be in WRITING.
Landlord Tenant: Periodic Tenancy
A lease which continues for successive intervals (e.g., month to month) until either the landlord or tenant gives proper notice of termination.
Landlord Tenant: Periodic Tenancy - Creation
Either expressly or by implication in the following ways: (i) land is leased with NO MENTION of duration, but provisions is made for rent to be paid in intervals, (ii) an ORAL TERM OF YEARS in violation of the SOF, or (iii) in a residential lease, a landlord elects to HOLD OVER a tenant who has wrongfully stayed on past the original lease
Landlord Tenant: Periodic Tenancy - Termination
Terminated by notice, usually written. At common law, the notice must be at least equal length to the tenancy period (e.g., month to month = one month), HOWEVER, a tenancy that is year-to-year requires ONE MONTH notice.
Landlord Tenant: Tenancy at Will
A tenancy for no fixed period of duration, terminable at the will of either the landlord or tenant (e.g., “To T for as long as L or T desires”).
Landlord Tenant: Tenancy at Will - Creation
Generally, created by an express agreement that the lease can be terminated at any time. Without it, courts will treat the regular payment of rent as an implied periodic tenancy.
Landlord Tenant: Tenancy at Will - Termination
A tenancy at will can be terminated by either party at any time. However, most states REQUIRE NOTICE AND REASONABLE TIME to terminate. A tenancy at will can also be terminated by OPERATION OF LAW (e.g., death or commission of waste).
Landlord Tenant: Tenancy at Sufferance - Creation
A tenancy at sufferance occurs when a tenant WRONGFULLY remains in possession past the expiration of the lease.
Landlord Tenant: Tenancy at Sufferance - Termination
The tenancy at sufferance lasts until the landlord either EVICTS the tenant or ELECTS to hold the tenant to a new tenancy. No notice of termination is required.
Landlord Tenant: Hold-Over Doctrine
If a tenant continues in possession after their right to possession has ended, the landlord may: (i) EVICT the tenant, or (ii) bind the tenant to a NEW PERIODIC TENANCY
Landlord Tenant: Hold-Over Doctrine - Commercial Tenants
Commercial tenants may be held to a year-to-year periodic tenancy if the original term was for one year or more. If less than one year, a month to month will be created.
Landlord Tenant: Hold-Over Doctrine - Residential Tenants
Residential tenants are held to a new MONTH-TO-MONTH tenancy, REGARDLESS of original term. If the landlord notifies the tenant BEFORE the lease expires, that occupancy after the termination will be at an increased rent (holdover = consent to increase in rent)
Landlord Tenant: Leases - Dependence of Lease Covenants
At common law, if a party breached a covenant in a lease, the other party could recover damages but the landlord-tenant relationship continued.
The modern view is that 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 implied warranty of habitability.
Landlord Tenant: Leases - Options to Purchase
In general, the option to purchase real property through a lease LASTS AS LONG AS THE LEASE. The party granting the option may keep the consideration REGARDLESS of whether the option is exercised.
Tenant’s Duties
A tenant has TWO primary duties: (1) to repair, and (2) to pay rent.
Tenant’s Duties: Duty to Repair When Lease is Silent
A tenant need only MAINTAIN the premises for ROUTINE REPAIRS routine repairs, EXCEPT ordinary wear and tear replacements
Tenant’s Duties: Duty to Repair - Waste
A tenant’s duty of repair includes the duty NOT TO COMMIT WASTE.
Tenant’s Duties: Duty to Repair - Express Covenant in Lease
If the tenant has expressly covenanted in the lease to maintain the property in good condition, at COMMON LAW, a tenant would be responsible for ANY loss to the premises.
HOWEVER, today the MAJORITY VIEW is if a RESIDENTIAL tenant covenants to repair, the landlord still remains obligated to repair (unless damages caused by tenant) under the NONWAIVABLE IMPLIED WARRANTY OF HABITABILITY. A NON-RESIDENTIAL tenant’s covenant to repair IS ENFORCEABLE
Tenant’s Duties: Duty to Pay Rent - Breach, But Tenant is In Possession
If a tenant fails to pay rent, the landlord can EVICT and sue for rent or CONTINUE the relationship and sue for rent due.
Tenant’s Duties: Duty to Pay Rent - Self-Help
The landlord MUST NOT ENGAGE IN SELF-HELP, such as changing locks, forcibly removing the tenant, or removing any of the tenant’s possessions.
Tenant’s Duties: Duty to Pay Rent - Breach, But Tenant is Not In Possession
Landlord has the option to (SIR): (1) treat the tenant’s abandonment as a SURRENDER of the premises, thereby ending the lease, (2) IGNORE the abandonment and hold the tenant responsible for unpaid rent (available in MINORITY of states), or (3) RE-LET the premises (required under MAJORITY rule).
Tenant’s Duties: Duty to Pay Rent - Rent Security Deposits
Most states restrict the amount of security deposits to ONE MONTH’S RENT, and allow statutory or punitive damages for a landlord’s improper refusal to return. Any clause to avoid these laws are VOID. The landlord is permitted to retain a SECURITY deposit for damages ACTUALLY SUFFERED to the premises
Tenant’s Duties: Condemnation of Leasehold by Eminent Domain
If the ENTIRE leasehold is taken by eminent domain, the tenant’s liability for rent is EXTINGUISHED because both the leasehold and reversion have merged. The lessee is entitled to COMPENSATION.
However, if the taking is TEMPORARY or PARTIAL, the tenant is NOT discharged from the rent obligation, but is entitled to compensation for the taking.
Tenant’s Duties: Ameliorative Waste - Exception
A tenant is permitted to make changes that enhance the value if he is LONG TERM and they are REASONABLE because they reflect changes in the neighborhood.
Landlord’s Duties: Duty to Deliver Possession
The MAJORITY rule requires that the landlord put the tenant in ACTUAL PHYSICAL POSSESSION of the premises at the beginning of the leasehold term.
Landlord’s Duties: Implied Covenant of Quiet Enjoyment + Breach
Implied in EVERY residential and commercial lease, this covenant provides that a tenant has a RIGHT TO QUIET USE AND ENJOYMENT of the premises, WITHOUT INTERFERENCE from the landlord or a paramount title holder. Breached by wrongful or constructive eviction.
Landlord’s Duties: Implied Covenant of Quiet Enjoyment - Breach by Wrongful Eviction - Actual Eviction
Actual eviction occurs when the landlord, a paramount title holder, or a hold-over tenant EXCLUDES the tenant from the ENTIRE leased premises. Here, tenant’s obligation to pay rent is terminated.
Landlord’s Duties: Implied Covenant of Quiet Enjoyment - Breach by Wrongful Eviction - Partial Eviction
Partial eviction occurs when the tenant is physically excluded from PART of the leased premises. Tenant is excused for paying rent of the ENTIRE premises, even though the tenant is in possession of the remainder.
Landlord’s Duties: Implied Covenant of Quiet Enjoyment - Breach by Constructive Eviction and Elements
Constructive eviction occurs when the landlord’s breach of duty renders the premises UNSUITABLE FOR OCCUPANCY. A tenant who has been constructively evicted MAY TERMINATE the lease and seek DAMAGES.
Elements of constructive eviction are as follows (SING):
1) Substantial Interference (chronic/permanent problem),
2) Notice (T must notify L of the problem, and L must fail to fix it), and
3) Goodbye (T must vacate).
Landlord’s Duties: Implied Covenant of Quiet Enjoyment - Acts of Other Tenants
Generally, a landlord IS NOT liable to a tenant for the acts of other tenants. HOWEVER, two exceptions exist: (i) a landlord has a duty to ABATE A NUISANCE on site, and (ii) COMMON AREAS.
Landlord’s Duties: Implied Warranty of Habitability
The implied warranty of habitability provides that for RESIDENTIAL LEASES, the premises MUST be fit for basic human habitation, the standard set by case law and local housing code (e.g., no heat in the winter, no water).
Landlord’s Duties: Implied Warranty of Habitability - Breach by Landlord
If breached by the landlord, tenant has the option to (MR3): (i) Move, (ii) Repair and deduct from future rent, (iii) Reduce rent or withhold rent until court determines fair value, and (iv) Remain in possession, pay rent, and seek money damages.
Landlord’s Duties: Retaliatory Evictions
A landlord may not terminate a lease or otherwise penalize a tenant in retaliation for the tenant’s exercise of their legal rights.
Landlord’s Duties: Anti-Discriminatory Legislation - Civil Rights Act
The Civil Rights Act prohibits racial and ethnic discrimination in the sale or rental of all property.
Landlord’s Duties: Anti-Discriminatory Legislation - Fair Housing Act
The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, and familial status.
Landlord’s Duties: Anti-Discriminatory Legislation - Fair Housing Act - Exemptions
The Fair Housing Act does not apply to: (i) owner-occupied buildings with four or fewer units in which persons live independently of each other, and (ii) single-family homes sold or rented by an owner who owns no more than three single-family homes.
Landlord’s Duties: Anti-Discriminatory Legislation - Fair Housing Act - Discriminatory Advertising
It is unlawful under the FHA to make any advertisements that indicate any preference based on race, color, religion, sex or national origin.
Landlord’s Duties: Anti-Discriminatory Legislation - Fair Housing Act - Reasonable Accomodations
Landlords must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities.
Landlord’s Duties: Anti-Discriminatory Legislation - Fair Housing Act - Prohibited Actions
1) Refusing to negotiate, rent, or sell housing/give mortgage,
2) providing different terms for sale/rental,
3) falsely representing dwelling unavailable
Transfers of Leaseholds: Assignment v. Sublease
Assignment - A transfer of the ENTIRE leasehold interest (remaining lease term)
Sublease - A transfer of PART of the remaining term)
Transfers of Leaseholds: Prohibition of Assignments or Subleases
A landlord can prohibit a tenant from assigning or subletting without the landlord’s PRIOR WRITTEN APPROVAL. However, once the 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.
Transfers of Leaseholds: Assignment - Privity with Landlord
The assignee and landlord are in PRIVITY OF ESTATE, and each is liable to the other on ALL COVENANTS in the lease that “RUN WITH THE LAND.” The original tenant is NO LONGER in privity of estate with the landlord, but is in PRIVITY OF CONTRACT, meaning their lease contract remains in effect and enforceable.
Transfers of Leaseholds: Assignment - Breach of Lease (Landlord’s Rights)
Landlord can sue the assignee (privity of estate) AND original tenant (privity of contract). If the assignee reassigns their leasehold interest, their privity of estate ends and they have no liability for the subsequent assignee’s failure to pay rent.
Transfers of Leaseholds: Sublease
A sublessee is the tenant of the original lessee and usually pays rent to the original lessee, not the landlord. Therefore, the sublessee is NOT in privity of contract nor estate with the landlord. Thus, a sublessee is NOT personally liable to the landlord UNLESS the covenants are expressly assumed in the sublease.
Transfers of Leaseholds: Sublease - Breach of Lease (Landlord’s Rights)
Landlord may terminate the main lease for nonpayment of rent or breach of other covenants, and the sublease automatically terminates.
Transfers of Leaseholds: Sublease - Rights of Sublessee
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
Transfers of Leaseholds: Covenants Against Assignment or Sublease
Landlord MAY prohibit assignments or subleases WITHOUT PRIOR WRITTEN APPROVAL. A valid covenant against assignment is considered waived if the landlord was aware of the assignment and did not object.
Once the landlord consents to the transfer of one tenant, they may not prohibit future transfers, UNLESS they expressly reserve their right.
Transfers of Leaseholds: Assignment by Landlord
A landlord may assign the rents and reversion interest WITHOUT tenant’s consent.
Transfers of Leaseholds: Assignment by Landlord - Rights of Landlord Assignee Against Tenants (Attornment)
Once tenants are given reasonable notice of the assignment, they must recognize and pay rent to the new owner as their landlord. The BENEFITS and BURDENS of all tenant covenants that TOUCH AND CONCERN the land runs with the landlord’s estate to the new owner.
Landlord’s Tort Liability: Caveat Lessee + Exceptions
The common law norm is that a landlord was under NO DUTY to make the premises safe, UNLESS (CLAPS):
1) Common areas,
2) Latent defects (must warn T until tenant accepts after disclosure; only duty to warn, not repair),
3) Assumption of repairs (if repairs are made negligently),
4) Public use rule (e.g., museum or convention hall), and
5) Short-term lease of furnished dwelling (e.g., Lewes Cottage Airbnb).
Landlord’s Tort Liability: Modern Trend
Now, a landlord owes a general duty of REASONABLE CARE toward residential tenants and will be held LIABLE FOR ORDINARY NEGLIGENCE if the landlord had NOTICE of a defect and an OPPORTUNITY to repair it.
Landlord’s Tort Liability: Modern Trend - Defects Arising After Tenant Takes Possession
A landlord IS NOT LIABLE in tort for defects arising AFTER tenant takes possession UNLESS the landlord knew or should have known of them.
Landlord’s Tort Liability: Modern Trend - Legal Duty to Repair
If the landlord has a statutory duty to repair (e.g., housing codes), the landlord is liable for injuries resulting from failure to repair or negligent repairs.
Landlord’s Tort Liability: Modern Trend - Security
Landlords may be liable in tort for injuries caused by criminal conduct of third parties where the landlord FAILED TO COMPLY with housing code provisions dealing with security.
Tenant’s Tort Liability: Fixtures
A fixture affixed to land that has ceased being personal property PASSES WITH THE OWNERSHIP OF THE LAND and must stay put.
Tenant’s Tort Liability: When a Chattel Becomes a Fixture
When either: (i) items are incorporated into the realty that they lose their identity or (ii) when its removal would cause considerable damage to the premises, the chattel becomes a fixture and must stay put.
Tenant’s Tort Liability: Divided Ownership - Accession
When a tenant installs a chattel to real estate, courts will FIRST look toward an agreement between the landlord and tenant to determine if the chattel is a fixture. SECOND, a tenant is deemed to lack the intent to permanently improve the property, and thus may remove his chattel AT THE END OF THE LEASE TERM
Easements
A grant of NONPOSSESSORY interest that entitles its holder to some form of use or enjoyment of another’s land, presumed to be of perpetual duration unless specifically limited.
Types of Easements
1) Affirmative Easements - the right to go onto or do something on servient land.
2) Negative Easements - Entitles its holder to EXPRESSLY PREVENT the servient landowner from doing something, typically only for the following categories (LASS): Light, Air, Support, stream water from an artificial flow.
Easements: Appurtenant
An easement appurtenant is when it benefits its holder in his physical use or enjoyment of land, made up of a DOMINANT estate (derives the benefit) and a SERVIENT estate (bears the burden).
Easements: In Gross
Confers upon its HOLDER ONLY some personal or pecuniary advantage not related to use or enjoyment of THEIR LAND.
