Real Property Nonfreehold Estates Flashcards
Tenancy for Years
any estate measured by a fixed period of time
Any tenancy for years for over 1 year must
be in writing to statisfy the statute of frauds
What notice is required in a tenancy for years?
No notice is required between landlord and tenant to terminate the tenancy for years
In GA a tenancy for years is presumed to exist if the lease period is
5 years or more
Usufruct
a contractual privilege or license to use another’s property rather than an estate in land; any lease for less than five years
Periodic Tenancy
a tenancy that continues from year to year or for successive fractions of a year until terminated by proper notice by either party
Periodic tenancies can be created by
1) express agreement 2) implication 3) operation of law
If the lease does not specify how long the tenancy is to last then it is presumed
to be a periodic tenancy measured by the rent payment
Periodic tenancies are created by operation of law in two situations
1) oral leases that violate the Statute of Frauds 2) holdover tenants
To be valid, termination notice of a periodic tenancy must:
1) be given in an amount of time equal to the length of the period of the tenancy except in the case of the year-to-year tenancy which requires only 6 months notice 2) specific an effective date that is at the end of the periodic tenancy
Tenancy at will
an estate in land that is terminable at the will of either the landlord or the tenant
Tenancy at will termination by operation of law:
1) death of either party 2) waste by the tenant 3) assignment by the tenant 4) transfer of title by the landlord 5) lease by landlord to a third party
GA tenancy at will
GA imposes a notice requirement in order to terminate this tenancy (60 days for landlord and 30 days for tenant)
Tenancy at sufferance
arises when a tenant wrongfully remains in possession after the expiration of the lawful tenancy (tenant still liable for rent)
Landlords 2 options w/ a holdover tenant:
1) sue to evict and recover damages 2) impose a new periodic tenancy
In GA the landlord must _________ for a holdover tenant
continue to provide utilities until the eviction process is complete
If the expired tenancy was for less than a year the new period will be ________ for residential property.
month to month
If the expired tenancy was for a year or more the new periodif tenancy will be ______ for commercial property.
year to year
If the landlord gives the tenant ______of the increase in rent _______ the expiration of the lease, then the landlord may ________.
notice; before; properly demand payment of the higher rent amount if the tenant holds over.
Modern majority view on tenants covenant to repair
the tenant is liable for everything- including ordinary wear and tear unless the agreement expressly excludes this responsibility from the covenant
At common law if the tenant failed to pay
the landlord could sue for damages (for the amount in arrears) but could not terminate the lease
Modern view if the tenant failed to pay
the landlord can sue for damages and termiante the lease
By statute in GA there is a _____ day grace period for the tenant to pay rent
7
If the tenant unjustifiably abandons the landlord has two options
1) accept the offer of abandonment by retaking the premises and the tenant has no further rent obligation 2) Relet the premises and hold the tenant liable for any deficiency (common law no duty to mitigate, modern rule must mitigate)
The landlord has no duty to deliver the leased premises in a ________
habitable condition, the lease involves a transfer of an estate
Modern view on habitability
implied warranty of habitability (only applies to residential property)
What are the tenants remedies for the landlords breach of the implied warranty of habitability?
1) The tenant can move out and end the lease 2) the tenant can stay on the property and sue for damages 3) the tenant can make repairs and deduct from rent
GA rule on remedies for breach of implied warranty of habitability?
the landlord has no duty to repair unless the tenants interest is a usufruct. If it is a usufruct and the landlord fails to make the necessary repairs then the tenant may make the repairs and deduct the cost of repairs from the rent
Implied covenant of quiet enjoyment
every lease includes the landlords implied promise not to interfere with the tenant’s quiet enjoyment of the leased premises
The landlord may breach the covenant of quiet enjoyment by:
1) total eviction 2) partial eviction 3) constructive eviction
Total eviction
lease is over
Partial eviction by the landlord–physical exclusion from a portion of the leased property
The tenant can stay on what’s left and stay for free
If there is a partial eviction by someone other than the landlord
the rent is proportionately reducted to reflect the amount taken
Constructive eviction
occurs where the landlord fails to provide some service that the landlord is obligated to provide and that failure makes the property uninhabitable
3 requirements to establish constructive eviction:
1) it must be the landlords failure to provide the service not some 3P 2) there must be a substnatial intereference with the tenant’s quiet enjoyment of property 3) the tenant must abandon within a reasonable time after the breach
Assignment
transfer of all
Sublease
transfer only a part
In GA can the tenant transfer a usufruct?
Yes, but only with prior consent by the landlord
Privity of estate exists
only between present landlord and present tenant
Privity of contract exists
only where there is an agreement between the landlord and the particular tenant from whom the landlord seeks to recover the rent
Covenants to pay rent always run with the land but other covenants must
touch and concern the land to run with it
Touch and concern
if the performance of the covenant makes the land more valuable or more useful then the covenant touches and concerns the land
Successor landlords may be liable to the original tenatn if there is
either privity of contract or privity of estate and the lease covenant runs with the land
In the case of a sublease, the sublessor ______ the estate
keeps; the estate is not transferred to the sublessee (therefore sublessee never has privity of estate)
General rule regarding waiver of non-assignment/non-sublease clause
permission given once means that a non-assignment/non-sublease caluse is waived altogether unless the landlord states otherwise at the time of giving permission
Does the tenant have to pay rent on a partial taking by eminant domain?
yes, they must pay rent for the portion of the property taken but they will get an award in an amount equal to the rent that was to be paid over the remainder of the lease term for that portion of the property
Does the tenant have to pay rent on a complete taking?
No, a complete taking extinguishes the lease and the tenant will share in the award only to the extent that the fair rental value of the property exceeds the amount of rent due under the lease
Common law rule for tort liability of landlord
No duty imposed on the landlord
Five exceptions (tort liability)
1) latent defects 2) short term lease of a furnished dwelling 3) common passageways under the landlords control 4) negligent reparis undertaken by the landlord 5) public use
Tenants tort liability
The tenant is always liable to a third party invitee for negligent failure to correct dangerous conditions on the leased premises, regardless of whether the landlord may be held liable as well
General rule for fixtures
Fixtures become part of the real property
When is an item of personal property to be treated as a fixture?
Turns on intent; 1) degree of attachment 2) general custom 3) degree of harm to premises on removal 4) trade fixtures are not fixtures
If an item of personal property is not a fixture, when can the item be removed in the tenant’s situation?
The items must be removed before the tenant vacates at the end of the lease.
If an item of personal property is not a fixture, when can the item be removed in the seller’s situation?
The seller must remove the item before closing or the seller will lose the chattel
An easement is a _______ interest in land involving a ________ the land.
non-possessory, right to use
Affirmative Easement
entitles the holder to enter upon the servient tenement and make an affirmative use of it
Negative Easement
does not grant to its owner the right to enter upon the servient tenement. Entitles the privilege holder to compel the possessor of the servient tenement to refrain from engaging in activity on the servient tenement.
Servient Estate
the property burdened by the easement
Dominant Estate
the property benefited by the easement
Easement Appurtenant
Any time the easement directly benefits the use and enjoyment of a specific parcel of land, it is classified as an easement
Easement in Gross
occurs where there is no dominant estate because there is only one parcel of land involved, which is the property burdened by the easement or the servient estate
An Express Easement must be:
in writing (but easements for a year or less do not have to be in writing), be signed by the holder of the servient estate and satisfy all the deed formalities
To obtain an implied easement (previous use by grantor) there must be:
A previous use by a common owner and this previous use must be continuous, apparent (open and obvious) and reasonably necessary
With an implied easement (absolute right of acess) can the owner of the servient estate choose the location?
Yes, so long as the choice is a reasonable one.
4 Requirements to establish a prescriptive easement:
1) use must be adverse to the true owner 2) use must be continuous and uninterrupted and must last for the statutory period (20 years CL) 3) use is visible and notorious or made with the owner’s knowledge 4) use is without the owner’s persomission (oral permission destroys hositility)
What is the statutory period for a prescriptive easement in Georgia?
7 years for improved land, 20 years for wild land
In the case of an easement appurtenant, the benefit is transferred _______ along with the dominant estate, whether or not the easement is mentioned in the deed of conveyance
automatically, all who subsequently succeed to title to the dominant estate become entitled to the benefit of the easement appurtenant. The easement appurtenant can’t be transferred separtely from the dominant estate
Easements in gross that are ______ can _____ be transferred
commercial, always
Easements in gross that are _____ can’t be transferred
personal
General rule for the transfer of the servient estate (the burden of the easement)
Easements are always binding on subsequent holders of servient estates, even if the easement is not specifically mentioned in the deed of conveyance provided that the subsequent holder had notice of the easement
There are 3 ways that a successor in interest to the servient estate may be put on notice of the easement
1) actual 2) contstructive (when recorded) 3) inquiry (physical inspection or the land or chain of title)
Two presumptions where the easement is silent on use:
1) unless otherwise specificed, an easment is presumed to be perpetual 2) the use presumed is that of reasonable development of dominant estate (development which would likely have been contemplated by the parties at the time the easement was granted)
An easement can only be used to benefit the _____ estate
dominant
Remedy for excessive use:
Enjoin the excessive use but do not terminate the easement
Repair of the easement
the holder of the benefit of the easement (dominant estate) is responsible for making any necessary repairs to the easement and can always go on the servient estate to reapair even without an express right.
Doctrine of Merger
whenever title to the dominant and the servient estates come together in the same owner in the same form, the easement is terminated
Deed of release
to be a valid release, the release must be in writing and must comply with all of the deed formalities
Abandonment
the intent to abandon must be manifested by the holder of the dominant estate taking some physical action that would show his intent to abandon. Mere non-use by itself does not consitute abandonment
Termination by estoppel; 2 requirements
1) a representation of relinquishment of the easement by the holder of the domiant estate and 2) the holder of the servient estate must make a change in his or her position in reliance on that representation
Termination by Prescription
the owner of the servient estate must stop the use of the easement and must keep it stopped for a period of time requried by the applicable statute of limitations
Termination of Easements Created by Necessity
Once the necessity that gave rise to an implied easement ceases to exist, then the implied easement will automatically terminate
Easements for view and sunlight
implied easements for these do not exist
A license is a ______ right involving a limited privilege to use land in the possession of the licensor
contract. A license can always be revoked at the will of the licensor but if revocation is wrongful then damages must be paid.
Tickets are
licenses
Irrevocable licenses; 2 rules:
1) if an easement is attempted but fails due to the SOF, a license is created 2) if money is spent on the property in furtherance of an oral license, then that license becomes irrevocable and can be enforced under principles of estoppel
Profits
A profit gives the right to go on to the land of another and take away a natual resource. Along with the grant of a profit goes the implied easement to go on the land to remove the natural resource
A restrictive covenant gives the holder the right to:
restrict some third party in the use of his or her land
2 categories of restrictive covenants
1) covenants running with the land at law and 2) equitable servitudes
If the plaintiff wants damages
the restriction is called a covenant at law
If the plaintiff wants an injunction
the restriction is called an equitable servitude
4 requriements to enforce a restrictive covenant at law
1) the parties must intend for the restriction to run with the land 2) notice to the person against whom enforcement is sought 3) if the performance of the covenant makes the land more valuable or more useful the covenant touches and concerns the alnd 4) privity
If the facts of the question show that the successor in interest is the plaintiff, then we know that the person is trying to
establish that the benefit of the covenant runs to the plaintiff
If the facts show that the successor in interest is the defendant, then we known that the plaintiff
is suing in order to establish that the burden of the covenant runs to and binds the defendant
If the successor in interest is the defendant:
vertical privity and horizontal privity are required
If the successor in interest is the plaintiff:
only vertical privity is required
Vertical privity
refers to those who subsequently obtain the property subject to the covenant. These successors must take the entire estate held by their predecessor
Horizontal privity
refers to the original parties to the promise, these two parties must share shome interest in the land independent of the covenant. There must be a conveyance of property between the original parties
3 Requirements to obtain an injunction to enforce the burden of the promise as an equitable servitude:
1) intent that the restriction be enforceable by successors-in-interest 2) the restriction must touch and concern the land 3) notice to the subsequent purchaser 4) no privity
2 requirements to enforce the benefit of a covenant as an equitable servitude
1) intent and 2) touch and concern
Reciprocal negative servitudes or mutual rights of enforcement
allows each lot owner in a residential subdivision to enforce a restriction on use against every other lot owner in the subdivision
Requirements to establish a mutual right of enforcement:
1) an intent to impose a servitude on all land in the subdivision (common building plan) 2) notice
Defenses to enforcement of covenant as an equitable servitude
1) unclean hands 2) acquiesence 3) laches 4) estoppel
Termination of Covenants and Servitudes
1) deed of release 2) Merger 3) Changed Conditions (must apply to all lots)
