Week 8 Flashcards
Tenancy in common
each tenant separate, devisable interest
TIC is the __
default
Joint tenancy requires five unities
Time
Title
Interest
Possession
language denoting clear intent
Joint tenants can sever ___ and ___ is not required
any unity, notice
Partition in kind generally preferred by courts but partition in sale is allowed when ___
physical aspects make partition impractical + interests of owners better served by sale
TIC interests individed means _
each right to possess the whole thing
For TIC the only unity required is ___
unity in possession
For TIC there is no requirement that ___
cotenants own equal shares
Each TIC can convey ___
her interest to a third party
tenancy by entirety is ___
available only to married couples and requires sixth unity of marriage
Community property approach in marriage
all property acquired in marriage automatically community and must be divided in half upon divorce
tenancy by entirety provides no __
unilateral exit option so long as married
Partition affords co-owners ___
right to terminate relationship for any reason (won’t look into justness/reasonableness)
what is contribution
brought by tenant in possession against tenant out of possession for money put into property
Courts are more likely to order contribution for ___ rather than ___
liquidated sums like property taxes (certain), repairs (uncertain value)
Court will not award contribution for improvements unless ___
TOOP assented
Courts more likely to consider offsets for repair and maintenance in cases of ___
partition and ouster
what is accounting
action brought by TOOP against TIP for money made from property
If one co-tenant rents to a third party she is obliged to __ BUT ___
share payments with other co-tenants, not obliged to pay tent for value of own possession (except for ouster)
Ouster
cotenant used property to exclude cotenant that prevented from exercising rights in the property
In Gilmor, court found ouster because ___
clear demand from TOOP to use land that is rejected
Delfino holds that partition by sale not appropriate because __
property could be physically divided and interests of all parties better served that way
Delfino says partition by sale less favored because __
selling one’s property without her consent is an extreme exercise of power
Delfino said that the D has a strong ___ in partition in kind
subjective interest (keep home, livelihood)
Delfino held that the D had to ___
pay owelty to brothers to compensate for adverse effect of garbage operation
Gilmor says that when a TIP makes essential repairs ___
she is entitled to comp from other co-tenants
Harms holds that since a joint tenants property right ____ a mortgage given by joint tenant __
extinguished when she dies, does not survive as a lien on the surviving tenant’s property
Harms held that the joint tenancy had ___ so ___
not been severed by the execution of the mortgage, dead brother’s interest returned to P unencumbered by the mortgage
Harms uses the ___ of mortgages which says that
lien theory, mortgage doesn’t sever joint tenancy because title doesn’t pass to mortgagee unless mortgagor defaults
Title theory of mortgages
mortgage conveyed real estate vesting title to property in the morgage
Some courts applying title theory would also find no severance because ___
title given for limited purpose
Unlike a bailee, a tenant has a ___
right of use
The rental period for a tenant is always ___
less than the useful life of the asset
Functions of a lease
(1) financing device, spend limited resources on other investment
(2) risk spreading device
(3) integrating and managing complexes of assets
Types of leases are like _
numerus clausus
term of years lease
fixed time at which lease terminantes
Statute of Frauds requires that ___
leases longer than a year be in writing
In a term of years lease, neither party __
need give notice, lease automatically ends
Periodic tenancy
lease automatically rolls over for stated period of time
Periodic tenancy requires that each party __
give notice before terminating normally same as period of rollover
tenancy at will
continues only as long as parties wish it to continue
There is ____ in tenancy at will in CL but ___
no notice, changed by statute in many places to be rollover time
tenancy at sufferance
individual once in rightful possession holds over after right ended
Lessee acts as ___ and has ___
gatekeeper, in rem rights of exclusion
Leases only apply to ___
tangibles
Independent covenants model means that that the lessee promises __ _and lessor promises ___ but the failure of one ___
to pay rent, quiet enjoyment, doesn’t relieve of other obligation to fulfill bargain
Eviction or ouster absolves tenant of __
duty to pay rent BUT NOT suspend other duties like right to repair
Partial eviction amounts to ___ so __
violation of covenant to quiet enjoyment, absolved of rent but not duty to repair
The default rule is that risk/reward allocated ___
to the tenant
Old default rule for risk allocation continued to apply in ))
most commercial leases
Paradine says that the tenant covenant to pay rent is ___
independent from other covenants by landlord and that casualty losses born by the tenant
Paradine says no breach of quiet enjoyment because ___
L himself didn’t evict T
Smith says that when a L evicts a T from any portion of the land ___
T obligation to pay rent suspended (partial eviction)
Smith held that the D was entitled to treat the encroachment as ___ BUT __
eviction and cease paying rent, but not entitled to stop upkeep of the shed
Smith says that the enjoyment of the entire premises is the ))
consideration bargained for in exchange for promise to pay
Common law rule of caveat lessee
No implied warranty, tenant is responsible for examining land and accepts the risks (Sutton)
There are some exceptions to caveat lessee if __
warranty inherent to nature of the property (Smith v. Marrable)
Sutton holds that tenant required to pay rent even if __
property found to be unfit for particular purpose in taking the lease
Sutton holds that a lack of deadly paint chips on land is __
not inherent to the property
Policy behind Sutton
local farmer better chance of inspecting land than faraway owner
Smith v. Marrable was about __
personal property (furniture in vacation homes)
Marrable policy
unknowing, temporary vacationer less able to inspect cottage than owner
Now in residential leases if property destroyed by fire, earthquake war etc then ___
discharge tenant from paying rent
Forfeiture clauses convert ___
independent to dependent covenants but only in one direction
Forfeiture clauses say that upon tenant violation of enumerated covenant
tenant interest immediately forfeited
_____ evolved as response to protect tenants from forfeiture clauses
Constructive eviction, surrender
First route to constructive eviction
L commits some malfeasance that makes it untenable for T to live there so essentially forces T out
Second route to constructive eviction
L violates covenant and thus commits nonfeasance
Constructive eviction requires ___
abandonment (with reasonable time to do so)
If tenant _____ + ____ then release from obligations of the lease
surrenders, L accepts
L accepts surrender by ___
taking action inconsistent with T continuing rights (Gottlieb)`
Three responses to surrender attempt
reject
reject but agree to become lessee agent
accept implicitly or explicitly
Sommer establishes a ___
duty to mitigate when tenant abandons
Duty to mitigate usually __
applies in non-commercial leases
Blackett says that where the L has the ____, failure to do so is a ___
power to correct condition that deprives T of quiet enjoyment, constructive eviction and L not entitled to rent
It was key to Blackett that the L __
had power to correct conditions and did not (also leased club making noise)
Blackett says the disturbing conditions were the ___
natural and probable consequence of L permitting lounge to operate where it did
Gottlieb held that the repudiation was accepted when ))
Gottlieb made it clear that it would accept another leasing offer from another tenant
_____ is insufficient to establish an acceptance
Merely attempting to re-let
In Sommer, the L refused to relet even when ___
other parties ready able and willing to do so
