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Property BAR > Tenancy and Leases > Flashcards

Tenancy and Leases Flashcards

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1
Q

Types of cotenancy

A
  1. Tenancy in common
  2. Joint Tenancy
  3. Tenancy by the entirety
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2
Q

Joint Tenancy

A
  1. Right of survivorship
  2. CL - conveyance to two or more people is presmumed to create a joint tenancy unless stated otherwise.
  3. Modern - presumed tenancy in common
  4. must state you want right of survivorship
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3
Q

Tenancy in Common

A
  1. Each co-tenant owns an undivided possessory interest in the whole property.
  2. only requires unity of possession
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4
Q

Tenancy by the Entirety

A
  1. form of concurrent ownership reserved for married couples, which gives each spouse an undivided interst in the whole property and a right of survivorship unless otherwise stated.
  2. can be created by deed or will, not by descent
  3. not recognized in community property states
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5
Q

Sever tenancy by the entirety

A
  1. spouse jointly convey to a TP
  2. one spouse conveys to other spouse, OR
  3. couple divorces
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6
Q

Severing a JT

A
  1. inter vivos act by a party
  2. can seek a partition action
  3. JT sells his interest in the property (destroys for his portion)
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7
Q

What happens if JT mortgages their interest in the property?

A
  1. Modern - lien theory, M is viewed as a lien, will not sever. If M’or dies then M dies w/ them.
  2. Minority - title theory, M is viewed as title to the property and will sever.
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8
Q

Voluntary Partition

A

Done by exchange of deeds or selling the property and dividing the proceeds.
Tenants decide

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9
Q

Involuntary Partition

A

result of a partition action filed by one or more co-tenants in the court.
Court decides

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10
Q

Rights and duties of co-t’s

A
  1. possession
  2. profits
  3. expenses
  4. improvements
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11
Q

Co-T: possession

A

each co-T is entitled to possess the whole property. If ousted can bring suit for dmgs or ejectment.

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12
Q

Co-T: profits

A

If profit is produced by ONE co-t’s efforts then the others have no right to share in those profits.
If profit is generated by a TP, then all co-t’s are entitled to a proportionate share of the profits.

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13
Q

Co-T: expenses

A

Taxes/M: each must pay a proportionate share
Repairs: no direct duty imposed on any co-t. If one makes solely, then the amount may be off-set by any TP rents or from proceeds in a partition action.

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14
Q

Co-T: improvements

A

Gen, no duty to any co-t to improve the property. If one chooses to, they can’t get contribution from the others. IF property is sold, any amount attributable to the improvement goes to those that made it.)

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15
Q

Types of leases *

A
  1. Term of years
  2. Periodic tenancy
  3. Tenancy at will
  4. Tenancy at sufferance
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16
Q

Term of years *

A

A lease that has a definite beginning and end date. (months or years)
Creation: express agreement b/w LL and t for a term specified in lease. If longer than a year, must be in writing
Termination: automatically at end of the period, no notice required.

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17
Q

Periodic Tenancy *

A

A lease w/ a set beginnig and end date and continues from period to period
Creation: express or by implication w/ a holdover tenant.
Termination:
1. Notice: in writing (if lease requires or oral) AND equal to rental period (up to max of 6 months)
2. timing of notice:
(modern - notice is good whenever given but it doesn’t take effect until start of next rental period) (cl - notice had to be given at start of rental period).

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18
Q

Tenancy at will *

A

Has no fixed duration and lasts only as long as the LL and t desire.
Creation: gen by express agreement of the parties
Termination: freely as soon as either party decides (no notice), if either LL or t dies, OR if either party attempts to transfer their interest.

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19
Q

Tenancy at sufferance*

A

Creation: a holdover situation (will either become a periodic tenant if LL accepts rent or kicked out)

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20
Q

How much rent may a LL sue for tenancy for years?

A

Modern - LL has duty to mitigate, breacher liable for difference if not same amount. If can’t relet then rest of rent due.
CL - tenant liable for all unpaid rent as it accrues.

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21
Q

How much rent may a LL sue for periodic tenancy?

A

t liable for the rental obligation up until proper notice is given to terminate the lease.

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22
Q

How much rent may a LL sue for tenancy at will?

A

t liable for amount of rent stated in agreement that is already owed.

23
Q

How much rent may a LL sue for a holdover tenant?

A

t liable for R rental value of the property.

24
Q

Tenant’s defenses

A
  1. failure to deliver possession
  2. eviction
  3. t surrenders premises to LL
  4. destruction
25
Q

Failure to deliver possession

A

Modern - LL has obligation to deliver poss

CL - LL has no obligation to deliver, t must take it.

26
Q

Partial, actual eviction

A

excuses t from paying rent.

defense - payment of any rent may be withheld

27
Q

Constructive eviction

A

LL has allowed condition of premises to deteriorate to point of t being essentially forced out.
defense - reduction in rent only until you have full access to prop again.

28
Q

Tenant surrenders premises to LL

A

LL must accept the surrender and retake poss. LL will typically be required to mitigate dmgs via ct law.

29
Q

Destruction

A

Modern - no distinctino b/w leasing all or just a portion of the building. Destruction is a defense to payment of rent unless intentionally or N’lly caused.
CL - did not excuse payment of rent b/c t was still in poss of actual and.

30
Q

Implied Warranty of Habitability

A

t must:
1. provide LL w/ notice and
2. allow the LL R time to repair the problem.
LL must maintain premises in a habitable condition

31
Q

Other Contract Defenses

A
  1. impossibility
  2. impracticability
  3. frustration of purpose
  4. violation of quiet use and enjoyment of property.
32
Q

Landlords Obligations

A

Modern - implied warranty of habitability and other statutory obligations
CL - LL has no obligation to maintain or repair leased premises.

33
Q

LL retains duty to repair:

A 
Latent defects ( known dangerous and not readily known to tenant), LL has R time to inspect and repair. 
- duty for common passageways and other areas under the LL's control.
34
Q

Land occupier owes duties to whom?

A

Invitees, licensees, trespassers

35
Q

Does the tenant have a CL obligation to repair the leased premises?

A

NO, but LL could hold tenant liable.

36
Q

Does the tenant, under modern law, have an obligation to repair the leased premises?

A

Duty to avoid waste (3 types).
Tenant can make improvements if expressly authorized, or if there is a change in circumstances that warrants the improvements to be made.

37
Q

3 types of security deposits

A
  1. True ( paid at beginning of lease and returned at end, minus any used to repair damage by tenant)
  2. Deposit to be forfeited in the event of default; and
  3. Deposit denominated as advance rent (for the last period of the lease)
38
Q

Fight over possession

A

LL can retake if the t has committed a material breach of the lease.

39
Q

CL rule for LL retaking property

A

Self-help allowed, R force

40
Q

Modern rule for LL retaking property

A
  • LL must give t notice to cure breach or vacate
  • judicial hearing to determine if breach has occurred and issue eviction
  • courts don’t uphold retaliatory eviction (IWH)
41
Q

Under CL do trade fixtures become a part of the land?

A

Yes, they must stay w/ the land.

42
Q

Under modern law do trade fixtures become a part of the land?

A

No, if they can be removed w/o substantial damage they may be.

43
Q

If LL transfers interest who collects rent?

A

the LL of record on the date rent is due

44
Q

Assignment

A

Tenant transfers ALL of the remainder of the interest to a new party.

45
Q

Sublease

A

Tenant transfers less than the entire interest in the contract.

46
Q

Assignee

A

If a tenant transfers ALL of the remainder of the rental obligation.

47
Q

Sublessee

A

if a tenant transfers only a portion of the time left on the rental obligation.

48
Q

Liability of the parties: Assignment

A
  • Assignee is liable to the LL for the rent.

- T is liable to the LL for rent unless novation.

49
Q

Liability of the Parties: sublease

A
  • Sublessee pays the tenant and
  • tenant liable for the rent.
  • it’s a mini ll-t b/w them
50
Q

For the original LL to enforce covenant to pay rent against a new tenant, the requirements for a running covenant w/ land must be satisfied. What is the key issue?

A

Vertical privity - an assignee is in privity of estte w/ the LL but the sublessee is not SO covenant can be enforced against an assignee but not a sublessee.

51
Q

Generally, interests in leases are fully transferable absent what?

A

specific, express language in the lease stating otherwise

52
Q

Traditional rule for transfer of interests in leases

A

A silent consent clause gives LL right to withhold consent for any reason, or no reason at all, even if withholding is arbitrary and unR.

53
Q

Minority rule for transfer of interest in leases

A

Requires LL to be R in withholding consent for an assignment

54
Q

Rule in Dumpers Case

A

If there is an express prohibition against an assignment in a lease, and the LL either expressly or impliedly waives that restriction, once waived it is deemed waived for the remainder of the lease except if specifically stated otherwise.

Property BAR (9 decks)

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