Week 8 Flashcards by Elena L Swirczek

Tenancy in common

each tenant separate, devisable interest

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TIC is the __

default

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Joint tenancy requires five unities

Time
Title
Interest
Possession
language denoting clear intent

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Joint tenants can sever ___ and ___ is not required

any unity, notice

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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

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TIC interests individed means _

each right to possess the whole thing

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For TIC the only unity required is ___

unity in possession

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For TIC there is no requirement that ___

cotenants own equal shares

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Each TIC can convey ___

her interest to a third party

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tenancy by entirety is ___

available only to married couples and requires sixth unity of marriage

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Community property approach in marriage

all property acquired in marriage automatically community and must be divided in half upon divorce

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tenancy by entirety provides no __

unilateral exit option so long as married

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Partition affords co-owners ___

right to terminate relationship for any reason (won’t look into justness/reasonableness)

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what is contribution

brought by tenant in possession against tenant out of possession for money put into property

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Courts are more likely to order contribution for ___ rather than ___

liquidated sums like property taxes (certain), repairs (uncertain value)

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Court will not award contribution for improvements unless ___

TOOP assented

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Courts more likely to consider offsets for repair and maintenance in cases of ___

partition and ouster

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what is accounting

action brought by TOOP against TIP for money made from property

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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)

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Ouster

cotenant used property to exclude cotenant that prevented from exercising rights in the property

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In Gilmor, court found ouster because ___

clear demand from TOOP to use land that is rejected

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Delfino holds that partition by sale not appropriate because __

property could be physically divided and interests of all parties better served that way

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Delfino says partition by sale less favored because __

selling one’s property without her consent is an extreme exercise of power

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Delfino said that the D has a strong ___ in partition in kind

subjective interest (keep home, livelihood)

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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

Week 8 Flashcards

(80 cards)