rp Flashcards
Default estate created by a conveyance to two or more people
A tenancy in common is the default estate created by a conveyance of real property to two or more people
Grantor need not use any type of explicit language to create a TIC
What does each TIC have
Each TIC has
- seperate but undivided interest in the property
- right to possess and enjoy the entire property; and
- the right to transfer their interest in the property freely during their lifetime or at death (no ROS)
Joint tenancy
A joint tenancy is a conveyance of real property to two or more people that is distinguished by a right of survivorship, whereby the surviving JTs automatically take the deceased T’s property interest
Can JTs pass their interest through intestate succession?
Because of ROS, joint tenants cannot pass their property interest by will or intestate succession
When is a JT created by a conveyance to two or more people?
A joint tenancy is created by a conveyance of real property to two or more people if the grantor
- makes a clear expression of intent to create a JT; AND
- uses survivorship language (“as joint tenants with ROS”)
Four unities for a JT
- Possession (each T must have equal right to posses and enjoy whole property)
- Interest (each T must have equal share of same type of interest)
- Time (JTs must receive interest at same time)
- Title (JTs must receive property interest in the same instrument of title
Severance of JT
If any of the four unities are severed, then the joint tenancy is terminated and the cotenants hold the property as TICs
Lien theory JDX
In a lien theory JDX, the mortgage is treated as a lien and does not terminate the JT
majority
Title theory
In a title theory JDX, the mortgage will terminate the joint tenancy, and the tenants will then hold the property as TICs
minority
Operating expenses between tenants
Operating expenses are divided based on the ownership interests of each cotenant. Operating expenses consist of necessary charges (taxes, mortgage payments)
Rent payments between cotenants
Rent payments received from a third party’s possession of the property, minus operating expenses, are divided based on the ownership interests of each cotenant
Repair costs between cotenants
Repair costs (even if necessary) are NOT divided between co Ts (no right to reimbursement)
HOWEVER, the cotenant who pays for repairs can get credit for repairs in a partition action
Ouster
Each coT has the right to possess all of the property, regardless of ownership share.
outster occurs if a co T denies another access to the property
What happens if ouster occurs
If this occurs, the ousted tenant can
- get an injunction granting access to the property; and/or
- recover damages for value of the use while ousted
Partition action
A partition action is an equitable remedy that is available unilaterally to joint tenants and TICs
Two types of partition actions
- partition in kind
- partition by sale
Partition in kind
A partition in kind physically divides the property into distinct portions. Courts have a preference for physical divisions of property over forced sales
Partition by sale
A partition by sale involves selling the property and dividing the proceeds from the sale among each co T based on their ownership interests
When will a court order a partition by sale
When a partition in kind is
- not practicable; or
- not fair to all parties
Types of leaseholds
The relationship between a landlord and T can create four types of possessory estates
1. tenancy for years
2. periodic tenancy
3. tenancy at will
4. tenancy at sufferance
What is a lease
A lease governs the relationship between a tenant and a landlord and contains the covenants of the parties
Tenancy for years
- A tenancy for years is an interest that lasts for a fixed and ascertainable amount of time
- if longer than one year, must satisfy SOF
- automatically terminates when term expires
Periodic tenancy
A periodic tenancy is a repetetive and ongoing interest that continues for a set period of time until it is terminated by proper notice from either party
proper notice for a periodic tenancy
proper notice requires the terminating party to give notice before the start of what will be the last term.
notice is effective on the last day of the term
Tenancy at will
- A tenancy at will continues until it is terminated by either party
- may be terminated at any time for any reason, even without notice
- if either party dies, it’s terminated
Intent to create tenancy at will
Parties must intend to create a tenancy at will. Intent can be
- express
- implied
What if agreement gives only LL right to terminate at will
If agreement gives only the LL the right to terminate at will, T also gets the right to terminate implicitly
What if agreement gives only T right to terminate at will
If agreement gives only the T the right to terminate at will, the landlord is NOT given the right to terminate at will
Tenancy at sufferance
A tenancy at sufferance is created when T refuses to vacate premises after lease has terminated. This creates a temporary tenancy, whre terms of prior lease control until
- landlord evicts T
- landlord releases property to T
- tenant voluntarily vacates
Duty to pay rent
T has a contractual duty to pay rent to LL in exchange for possessory interest in the LL’s property.
what if T fails to pay rent
If T fails to pay rent, LL may evict T or sue for breach of K
3 main situations where duty to pay rent is suspended
The main situations where a duty to pay rent is suspended are
- premises are destroyed (so long as T didn’t cause damage)
- L completely or partially evicts T; or
- L materially breaches on the lease
IWH
Implied warranty of habitability is implied in every residential lease (NO COMMERCIAL LEASES)
What does IWH require
IWH requires L to maintain their prop such that it is reasonably suitable for basic human needs. T CANNOT waive habitability protection
What constitutes a breach of IWH
Failure to comply with applicable housing codes
What can T do if L breaches IWH
- Vacate premises and terminate lease (not required to tho)
- Withold or reduce rent (must notify L of problem first and give them reasonable opportunity to correct problem)
- Remedy defect and offset costs against rent; OR
- Defend against eviction
Implied cov of quiet enjoyment
every lease includes an implied covenant of quiet enjoyment, which prevents L from taking action that makes premises wholly or substantially unsuitable for their intended purposes, resulting in constructive eviction
Effect of breach of implied covenant of quiet enjoyment
The implied covenant of quiet enjoyment is breached if the tenant is constructively evicted
Constructive eviction
A constructive eviction occurs if the
- L causes premises to be unsuitable for intended purposes
- T notified L of problem
- L did not correct the problem; AND
- T vacates the premises after a reasonable amount of time passed
Assignment
An assignment is a complete transfer of T’s entire remaining term under the lease
Who can L collect rent from in an assignment
- assignee (because privity of estate); OR
- original T (because privity of K)
Sublease
A sublease is a transfer of less than the T’s entire remaining term under the lease
Who can L collect rent from in a sublease
Landlord can ONLY collect rent from original T because of privity of estate and K.
Subtenant only has rent obligations to original T, not L
Surrender of lease
A surrender terminates the lease agreement and ends the L-T relationship between both parties (releases both duties from their obligations under the lease)
When does a surrender occur
- T returns possession of the leased premises to L before the expiration of lease; AND
- L consents
Abandonment
An abandonment occurs when the T unilaterally returns possession of the leased premises before the lease expires WITHOUT the L’s consent
Effect of an abandonment
T will have to continue paying rent until L is able to find a replacement T.
What if T refuses to pay rent after abandonment
If T refuses to pay rent, L is entitled to damages for the difference between the original rent and rent recived from the replacement T
Duty to mitigate
majority rule
- Under the majority rule, L has duty to mitigate damages if the T abandons the property early or is evicted by making reasonable efforts to re-rent the property to another T
- L is entitled to damages for the difference between the original rent and rent received from replacement T
Duty to mitigate
minorty rule
Under the minority rule, L does NOT have to mitigate damages (more common in cases involving commercial leases)
Real covenant
A real covenant is a promise concerning the use of the land that runs to successors of the promise. It typically requires the holder to do something or refrain from doing something
Benefit of a covenant
Ability to enforce the covenant
Burden of a covenant
The burden of a covenant is being subject to it or bound by it
Requirement for benefit to run to succesors
Four elements must be met
- writing
- intent
- touch and concern
- relaxed veritcal privity
Requirements for burden to run to successors
Following elements must be met
- writing
- intent
- touch and concern
- strict vertical privity (successor must take entire party’s entire interest)
- horizontal privity (instrument between OG parties must have covenant)
- notice (new owner needs notice of covenant)
easement
an easement is a right held by one person to use another’s land
easement by grant
an express easement by grant arises when it is affirmatively created by the parties in a writing that satisfies the statute of frauds
Shelter rule
- a person who is transferred property from a bona fide purchaser has the same recording statute protections as the BFP
What is a BFP
A BFP is a person who pays valuable consideration (not an heir, devisee, or donee) for RP without notice of a prior interest
First in time first in right
- Under the common law, if a grantor transfers the same piece of property to multiple grantees, the first grantee to receive the deed acquires rightful title
- in the absence of a recording statute, the common law rule controls
When does a subsequent purchaser have actual notice
A subsequent purchaser has actual notice when he has personal knowledge of a prior interest
Constructive notice
A subsequent purchaser is on constructive notice when the prior interest is recorded
Wild deed
If a deed is not recorded properly, it is considered a wild deed. A wild deed does NOT put subsequent purchasers on constructive notice
Inquiry notice
A subsequent purchaser has inquiry notice when a reasonable investigation would have revealed the existence of prior claims
