small stuff for property Flashcards
lease vs. sublease
Assignment of lease: when the assignor transfers his ENTIRE interest in the property, meaning all of his rights and duties under the lease are given to assignee for entire time remaining.
Sublease: transfer of anything less than tenant’s entire interest to third party (not for remaining time)
Sublesssee liability
a sublease does NOT establish privity of estate or contract between sublessee and LL. The sublessee is not liable to the LL, but the original lessee is still liable to the LL under privity of K and estate
Only OG tenant liable.
Assignee liability
New tenant landlord relationship is established between LL and assignee. The landlord and assignee are now in privity of estate with each other, but OG tenant is also liability under privity of K.
Both liable.
elements of constructive eviction
SING
1) substantial interference
2) notice - Tenant must inform LL and give him reasonable opportunity to repair
3) Good bye - tenant must vacate within reasonable time after LL fails to repair
Covenants implied in lease
Implied warranty of habitability (ONLY RESIDENTIAL, NOT COMMERCIAL)
covenant of quiet enjoyment leases
neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. A landlord can breach this covenant through constructive eviction.
tenant’s remedies when implied warranty of habitability is breached
MR3
1) move
2) repair and deduct
3) Reduce rent or withhold all rent
4) remain in possession and sue for damages
LL liability for defects in public use property
known defects
For a seasonal or short term lease of a dwelling, what is LL liable for
defects that cause harm to tenant
4 types of easements?
1) easement appurtenant
2) easement in gross
3) affirmative easement
4) negative easement
4 types of affirmative easements (implied)
PING
1) prescription
2) implication
3) necessity
4) grant
4 types of negative easements
LASS
1) Light
2) Air
3) Support
4) stream water
what is an easement in gross?
No one is benefitted by the easement (no dominant parcel), and there is only 1 parcel
*easement is for commercial purposes
ex. right to place a billboard on another’s lot, right to run utility line across land, right to fish in another’s pond
ways an easement is terminated
END CRAMP
E - Estoppel (servient owner materially changes positions in reliance, relied on holder who said they would abandon)
N - Necessity ends (when need ends unless expressed in a WRITING)
D - destruction (of serviant land)
C - Condemnation (of serviant land) - eminent domain power will terminate the easement
R - Release by holder to servient owner
A - Abandonment (physical action)
M - Merger (easement and servient land held by same person)
P - Prescription (by servient owner)
how is an implied reciprocal servitude created? IMPORTANT HIGHLY TESTED
- developer had a common scheme of residential development; and
- The lot holder had notice of the promise in the prior deeds (AIR)
if a party is seeking an injunction, but then there is no writing evidencing the covenant, what is your next option for recovery?
implied equitable servitude – common scheme doctrine
notice statute
Under a notice state, a subsequent BFP who pays valuable consideration takes the property free of all prior interests.
3 types of notice
3 types of notice:
1) actual
2) inquiry
3) record
warranty deed covenants
PRESENT:
Right to convey
Seisin
No encumbrances
FEW: future
Further assurances
Quiet Enjoyment
Warranty
Shelter Rule
Even if a BFP HAD notice, they can still take the land free of it under the Shelter Rule. Under the shelter rule, a person who is a bona fide purchaser will prevail against any interest that the transferor would have prevailed against because they took from a purchaser who did not have notice.
WD: covenant against encumbrances
assures that there are neither visible encumbrances nor invisible encumbrances (easements, servitudes, mortgages)
Present covenants are breached
at the time of conveyance. Time may pass to enforce and it does not run with the land
who cannot enforce a present covenant against an original grantor
a remote grantee. Majority courts say that a remote grantee cannot sue to enforce a present covenant. Minority rule says unless had notice of encumbrance.
easement by implication
does not need to be in writing. Typically, you need a prior use by common grantor that was subsequently divided. However, if there was no prior use, the easement can still exist where:
1. lots in subdivision are sold with reference to a map plan; or
2. holder of profit has an implied easement for extraction of materials
