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Real Property > Real Property Nonfreehold Estates > Flashcards

Real Property Nonfreehold Estates Flashcards

1
Q

Tenancy for Years

A

any estate measured by a fixed period of time

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2
Q

Any tenancy for years for over 1 year must

A

be in writing to statisfy the statute of frauds

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3
Q

What notice is required in a tenancy for years?

A

No notice is required between landlord and tenant to terminate the tenancy for years

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4
Q

In GA a tenancy for years is presumed to exist if the lease period is

A

5 years or more

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5
Q

Usufruct

A

a contractual privilege or license to use another’s property rather than an estate in land; any lease for less than five years

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6
Q

Periodic Tenancy

A

a tenancy that continues from year to year or for successive fractions of a year until terminated by proper notice by either party

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7
Q

Periodic tenancies can be created by

A

1) express agreement 2) implication 3) operation of law

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8
Q

If the lease does not specify how long the tenancy is to last then it is presumed

A

to be a periodic tenancy measured by the rent payment

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9
Q

Periodic tenancies are created by operation of law in two situations

A

1) oral leases that violate the Statute of Frauds 2) holdover tenants

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10
Q

To be valid, termination notice of a periodic tenancy must:

A

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

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11
Q

Tenancy at will

A

an estate in land that is terminable at the will of either the landlord or the tenant

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12
Q

Tenancy at will termination by operation of law:

A

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

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13
Q

GA tenancy at will

A

GA imposes a notice requirement in order to terminate this tenancy (60 days for landlord and 30 days for tenant)

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14
Q

Tenancy at sufferance

A

arises when a tenant wrongfully remains in possession after the expiration of the lawful tenancy (tenant still liable for rent)

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15
Q

Landlords 2 options w/ a holdover tenant:

A

1) sue to evict and recover damages 2) impose a new periodic tenancy

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16
Q

In GA the landlord must _________ for a holdover tenant

A

continue to provide utilities until the eviction process is complete

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17
Q

If the expired tenancy was for less than a year the new period will be ________ for residential property.

A

month to month

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18
Q

If the expired tenancy was for a year or more the new periodif tenancy will be ______ for commercial property.

A

year to year

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19
Q

If the landlord gives the tenant ______of the increase in rent _______ the expiration of the lease, then the landlord may ________.

A

notice; before; properly demand payment of the higher rent amount if the tenant holds over.

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20
Q

Modern majority view on tenants covenant to repair

A

the tenant is liable for everything- including ordinary wear and tear unless the agreement expressly excludes this responsibility from the covenant

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21
Q

At common law if the tenant failed to pay

A

the landlord could sue for damages (for the amount in arrears) but could not terminate the lease

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22
Q

Modern view if the tenant failed to pay

A

the landlord can sue for damages and termiante the lease

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23
Q

By statute in GA there is a _____ day grace period for the tenant to pay rent

A

7

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24
Q

If the tenant unjustifiably abandons the landlord has two options

A

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)

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25
Q

The landlord has no duty to deliver the leased premises in a ________

A

habitable condition, the lease involves a transfer of an estate

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26
Q

Modern view on habitability

A

implied warranty of habitability (only applies to residential property)

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27
Q

What are the tenants remedies for the landlords breach of the implied warranty of habitability?

A

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

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28
Q

GA rule on remedies for breach of implied warranty of habitability?

A

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

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29
Q

Implied covenant of quiet enjoyment

A

every lease includes the landlords implied promise not to interfere with the tenant’s quiet enjoyment of the leased premises

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30
Q

The landlord may breach the covenant of quiet enjoyment by:

A

1) total eviction 2) partial eviction 3) constructive eviction

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31
Q

Total eviction

A

lease is over

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32
Q

Partial eviction by the landlord–physical exclusion from a portion of the leased property

A

The tenant can stay on what’s left and stay for free

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33
Q

If there is a partial eviction by someone other than the landlord

A

the rent is proportionately reducted to reflect the amount taken

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34
Q

Constructive eviction

A

occurs where the landlord fails to provide some service that the landlord is obligated to provide and that failure makes the property uninhabitable

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35
Q

3 requirements to establish constructive eviction:

A

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

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36
Q

Assignment

A

transfer of all

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37
Q

Sublease

A

transfer only a part

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38
Q

In GA can the tenant transfer a usufruct?

A

Yes, but only with prior consent by the landlord

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39
Q

Privity of estate exists

A

only between present landlord and present tenant

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40
Q

Privity of contract exists

A

only where there is an agreement between the landlord and the particular tenant from whom the landlord seeks to recover the rent

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41
Q

Covenants to pay rent always run with the land but other covenants must

A

touch and concern the land to run with it

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42
Q

Touch and concern

A

if the performance of the covenant makes the land more valuable or more useful then the covenant touches and concerns the land

43
Q

Successor landlords may be liable to the original tenatn if there is

A

either privity of contract or privity of estate and the lease covenant runs with the land

44
Q

In the case of a sublease, the sublessor ______ the estate

A

keeps; the estate is not transferred to the sublessee (therefore sublessee never has privity of estate)

45
Q

General rule regarding waiver of non-assignment/non-sublease clause

A

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

46
Q

Does the tenant have to pay rent on a partial taking by eminant domain?

A

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

47
Q

Does the tenant have to pay rent on a complete taking?

A

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

48
Q

Common law rule for tort liability of landlord

A

No duty imposed on the landlord

49
Q

Five exceptions (tort liability)

A

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

50
Q

Tenants tort liability

A

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

51
Q

General rule for fixtures

A

Fixtures become part of the real property

52
Q

When is an item of personal property to be treated as a fixture?

A

Turns on intent; 1) degree of attachment 2) general custom 3) degree of harm to premises on removal 4) trade fixtures are not fixtures

53
Q

If an item of personal property is not a fixture, when can the item be removed in the tenant’s situation?

A

The items must be removed before the tenant vacates at the end of the lease.

54
Q

If an item of personal property is not a fixture, when can the item be removed in the seller’s situation?

A

The seller must remove the item before closing or the seller will lose the chattel

55
Q

An easement is a _______ interest in land involving a ________ the land.

A

non-possessory, right to use

56
Q

Affirmative Easement

A

entitles the holder to enter upon the servient tenement and make an affirmative use of it

57
Q

Negative Easement

A

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.

58
Q

Servient Estate

A

the property burdened by the easement

59
Q

Dominant Estate

A

the property benefited by the easement

60
Q

Easement Appurtenant

A

Any time the easement directly benefits the use and enjoyment of a specific parcel of land, it is classified as an easement

61
Q

Easement in Gross

A

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

62
Q

An Express Easement must be:

A

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

63
Q

To obtain an implied easement (previous use by grantor) there must be:

A

A previous use by a common owner and this previous use must be continuous, apparent (open and obvious) and reasonably necessary

64
Q

With an implied easement (absolute right of acess) can the owner of the servient estate choose the location?

A

Yes, so long as the choice is a reasonable one.

65
Q

4 Requirements to establish a prescriptive easement:

A

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)

66
Q

What is the statutory period for a prescriptive easement in Georgia?

A

7 years for improved land, 20 years for wild land

67
Q

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

A

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

68
Q

Easements in gross that are ______ can _____ be transferred

A

commercial, always

69
Q

Easements in gross that are _____ can’t be transferred

A

personal

70
Q

General rule for the transfer of the servient estate (the burden of the easement)

A

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

71
Q

There are 3 ways that a successor in interest to the servient estate may be put on notice of the easement

A

1) actual 2) contstructive (when recorded) 3) inquiry (physical inspection or the land or chain of title)

72
Q

Two presumptions where the easement is silent on use:

A

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)

73
Q

An easement can only be used to benefit the _____ estate

A

dominant

74
Q

Remedy for excessive use:

A

Enjoin the excessive use but do not terminate the easement

75
Q

Repair of the easement

A

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.

76
Q

Doctrine of Merger

A

whenever title to the dominant and the servient estates come together in the same owner in the same form, the easement is terminated

77
Q

Deed of release

A

to be a valid release, the release must be in writing and must comply with all of the deed formalities

78
Q

Abandonment

A

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

79
Q

Termination by estoppel; 2 requirements

A

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

80
Q

Termination by Prescription

A

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

81
Q

Termination of Easements Created by Necessity

A

Once the necessity that gave rise to an implied easement ceases to exist, then the implied easement will automatically terminate

82
Q

Easements for view and sunlight

A

implied easements for these do not exist

83
Q

A license is a ______ right involving a limited privilege to use land in the possession of the licensor

A

contract. A license can always be revoked at the will of the licensor but if revocation is wrongful then damages must be paid.

84
Q

Tickets are

A

licenses

85
Q

Irrevocable licenses; 2 rules:

A

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

86
Q

Profits

A

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

87
Q

A restrictive covenant gives the holder the right to:

A

restrict some third party in the use of his or her land

88
Q

2 categories of restrictive covenants

A

1) covenants running with the land at law and 2) equitable servitudes

89
Q

If the plaintiff wants damages

A

the restriction is called a covenant at law

90
Q

If the plaintiff wants an injunction

A

the restriction is called an equitable servitude

91
Q

4 requriements to enforce a restrictive covenant at law

A

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

92
Q

If the facts of the question show that the successor in interest is the plaintiff, then we know that the person is trying to

A

establish that the benefit of the covenant runs to the plaintiff

93
Q

If the facts show that the successor in interest is the defendant, then we known that the plaintiff

A

is suing in order to establish that the burden of the covenant runs to and binds the defendant

94
Q

If the successor in interest is the defendant:

A

vertical privity and horizontal privity are required

95
Q

If the successor in interest is the plaintiff:

A

only vertical privity is required

96
Q

Vertical privity

A

refers to those who subsequently obtain the property subject to the covenant. These successors must take the entire estate held by their predecessor

97
Q

Horizontal privity

A

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

98
Q

3 Requirements to obtain an injunction to enforce the burden of the promise as an equitable servitude:

A

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

99
Q

2 requirements to enforce the benefit of a covenant as an equitable servitude

A

1) intent and 2) touch and concern

100
Q

Reciprocal negative servitudes or mutual rights of enforcement

A

allows each lot owner in a residential subdivision to enforce a restriction on use against every other lot owner in the subdivision

101
Q

Requirements to establish a mutual right of enforcement:

A

1) an intent to impose a servitude on all land in the subdivision (common building plan) 2) notice

102
Q

Defenses to enforcement of covenant as an equitable servitude

A

1) unclean hands 2) acquiesence 3) laches 4) estoppel

103
Q

Termination of Covenants and Servitudes

A

1) deed of release 2) Merger 3) Changed Conditions (must apply to all lots)

Real Property (2 decks)

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