Tort liability of landlord/tenant; Easements

Question 1

Latent Defects:

Answer 1

Landlord has duty to disclose latent defects which landlord knows or has reason to know of UNLESS it is a short term furnished lease then ALWAYS liable even if they didn’t know or should have known

Question 2

Negligent Repairs undertaken by landlord:

Answer 2

Always liable

Question 3

Landlord’s premises liability when tenant uses space open for public

Answer 3

Three requirements 1) landlord must know or should know of MAJOR defects, landlord must KNOW/should know tenant WILL NOT FIX defect 3) Landlord must know (or should know) that the PUBLIC will USE premises

Question 4

What’s an easement that burdens one estate and benefits another?

Answer 4

Easement Appurtnenant

Question 5

What’s an easement that has no dominant estate?

Answer 5

Easement in gross

Question 6

What’s it called when easement is created by adverse possession? requirements?

Answer 6

Easement by Prescription: 1) use is adverse to true owner 2) Use is continuous and uninterrupted 3) use is notorious or made with owner’s knowledge 4) use is without owner’s permission (permission destroys hostility to establish it)

Question 7

Transferring easements in gross:

Answer 7

commercial easements in gross can be transferred, personal easements in gross (right to fish the land) cannot.

Question 8

repairing easements, whose duty is it?

Answer 8

Duty of the benefitted estate.

Question 9

Terminating easement by estoppel:

Answer 9

When benefitted landowner calls the burdened and says “I won’t use the easement anymore”, the burdened relies on it and builds pool there. 1) representation of relinquishment and 2) change in position in reliance on that representation

Question 10

Requirements to enforce a restrictive covenant at law:

Answer 10

1) Intent 2) notice 3) touch and concern 4) privity

Question 11

Privity in restrictive covenants:

Answer 11

Vertical privity = those who subsequently obtain property subject to covenant (must take the FULL ESTATE held by predecessor)
Horizontal privity = original parties to the promise must share some interest in the land independent of the covenant (conveyance of property b/w original parties)

Question 12

Privity analysis, how do you tell whether the burden or benefit is being tested?

Answer 12

Look at the SUCCESSOR IN THE INTEREST. If the successor is the plaintiff, he’s trying to establish the benefit of the covenant runs to him. If the successor is the defendant, then the plaintiff is trying to enforce the burden on him.

Question 13

What privity required for benefit or burden? see p. 66

Answer 13

benefit=only need vertical privity (holder of any succeeding possessor yestate can enforce benefit)
Burden = Horizontal AND vertical privity.

Question 14

Enforcing burden:

Answer 14

Must show 1) intent (to run with land), 2) Notice 3) Touch and Concern 4) Horizontal AND Vertical privity

Question 15

Enforcing benefit:

Answer 15

Must show 1) intent (to run with land), 2) touch and concern 3) vertical privity only

Question 16

What if you can’t enforce a restrictive covenant?

Answer 16

Equitable servitude (injunction to enforce burden): 1) Intent that restriction be enforceable, 2) restriction must touch and concern the land 3) Notice to the subsequent purchaser (actual, constructive, inquiry)

Question 17

Assigning leases and the covenants:

Answer 17

If there is privity of estate, the landlord/tenant are liable on all covenants in the lease that run with the land (even if they happened to be excluded in subsequent sales/purchases of property)