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Property > Week 8 > Flashcards

Week 8 Flashcards

1
Q

Tenancy in common

A

each tenant separate, devisable interest

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2
Q

TIC is the __

A

default

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3
Q

Joint tenancy requires five unities

A

Time
Title
Interest
Possession
language denoting clear intent

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4
Q

Joint tenants can sever ___ and ___ is not required

A

any unity, notice

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5
Q

Partition in kind generally preferred by courts but partition in sale is allowed when ___

A

physical aspects make partition impractical + interests of owners better served by sale

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6
Q

TIC interests individed means _

A

each right to possess the whole thing

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7
Q

For TIC the only unity required is ___

A

unity in possession

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8
Q

For TIC there is no requirement that ___

A

cotenants own equal shares

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9
Q

Each TIC can convey ___

A

her interest to a third party

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10
Q

tenancy by entirety is ___

A

available only to married couples and requires sixth unity of marriage

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11
Q

Community property approach in marriage

A

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

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12
Q

tenancy by entirety provides no __

A

unilateral exit option so long as married

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13
Q

Partition affords co-owners ___

A

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

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14
Q

what is contribution

A

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

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15
Q

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

A

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

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16
Q

Court will not award contribution for improvements unless ___

A

TOOP assented

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17
Q

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

A

partition and ouster

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18
Q

what is accounting

A

action brought by TOOP against TIP for money made from property

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19
Q

If one co-tenant rents to a third party she is obliged to __ BUT ___

A

share payments with other co-tenants, not obliged to pay tent for value of own possession (except for ouster)

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20
Q

Ouster

A

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

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21
Q

In Gilmor, court found ouster because ___

A

clear demand from TOOP to use land that is rejected

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22
Q

Delfino holds that partition by sale not appropriate because __

A

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

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23
Q

Delfino says partition by sale less favored because __

A

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

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24
Q

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

A

subjective interest (keep home, livelihood)

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25
Q

Delfino held that the D had to ___

A

pay owelty to brothers to compensate for adverse effect of garbage operation

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26
Q

Gilmor says that when a TIP makes essential repairs ___

A

she is entitled to comp from other co-tenants

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27
Q

Harms holds that since a joint tenants property right ____ a mortgage given by joint tenant __

A

extinguished when she dies, does not survive as a lien on the surviving tenant’s property

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28
Q

Harms held that the joint tenancy had ___ so ___

A

not been severed by the execution of the mortgage, dead brother’s interest returned to P unencumbered by the mortgage

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29
Q

Harms uses the ___ of mortgages which says that

A

lien theory, mortgage doesn’t sever joint tenancy because title doesn’t pass to mortgagee unless mortgagor defaults

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30
Q

Title theory of mortgages

A

mortgage conveyed real estate vesting title to property in the morgage

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31
Q

Some courts applying title theory would also find no severance because ___

A

title given for limited purpose

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32
Q

Unlike a bailee, a tenant has a ___

A

right of use

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33
Q

The rental period for a tenant is always ___

A

less than the useful life of the asset

34
Q

Functions of a lease

A

(1) financing device, spend limited resources on other investment
(2) risk spreading device
(3) integrating and managing complexes of assets

35
Q

Types of leases are like _

A

numerus clausus

36
Q

term of years lease

A

fixed time at which lease terminantes

37
Q

Statute of Frauds requires that ___

A

leases longer than a year be in writing

38
Q

In a term of years lease, neither party __

A

need give notice, lease automatically ends

39
Q

Periodic tenancy

A

lease automatically rolls over for stated period of time

40
Q

Periodic tenancy requires that each party __

A

give notice before terminating normally same as period of rollover

41
Q

tenancy at will

A

continues only as long as parties wish it to continue

42
Q

There is ____ in tenancy at will in CL but ___

A

no notice, changed by statute in many places to be rollover time

43
Q

tenancy at sufferance

A

individual once in rightful possession holds over after right ended

44
Q

Lessee acts as ___ and has ___

A

gatekeeper, in rem rights of exclusion

45
Q

Leases only apply to ___

A

tangibles

46
Q

Independent covenants model means that that the lessee promises __ _and lessor promises ___ but the failure of one ___

A

to pay rent, quiet enjoyment, doesn’t relieve of other obligation to fulfill bargain

47
Q

Eviction or ouster absolves tenant of __

A

duty to pay rent BUT NOT suspend other duties like right to repair

48
Q

Partial eviction amounts to ___ so __

A

violation of covenant to quiet enjoyment, absolved of rent but not duty to repair

49
Q

The default rule is that risk/reward allocated ___

A

to the tenant

50
Q

Old default rule for risk allocation continued to apply in ))

A

most commercial leases

51
Q

Paradine says that the tenant covenant to pay rent is ___

A

independent from other covenants by landlord and that casualty losses born by the tenant

52
Q

Paradine says no breach of quiet enjoyment because ___

A

L himself didn’t evict T

53
Q

Smith says that when a L evicts a T from any portion of the land ___

A

T obligation to pay rent suspended (partial eviction)

54
Q

Smith held that the D was entitled to treat the encroachment as ___ BUT __

A

eviction and cease paying rent, but not entitled to stop upkeep of the shed

55
Q

Smith says that the enjoyment of the entire premises is the ))

A

consideration bargained for in exchange for promise to pay

56
Q

Common law rule of caveat lessee

A

No implied warranty, tenant is responsible for examining land and accepts the risks (Sutton)

57
Q

There are some exceptions to caveat lessee if __

A

warranty inherent to nature of the property (Smith v. Marrable)

58
Q

Sutton holds that tenant required to pay rent even if __

A

property found to be unfit for particular purpose in taking the lease

59
Q

Sutton holds that a lack of deadly paint chips on land is __

A

not inherent to the property

60
Q

Policy behind Sutton

A

local farmer better chance of inspecting land than faraway owner

61
Q

Smith v. Marrable was about __

A

personal property (furniture in vacation homes)

62
Q

Marrable policy

A

unknowing, temporary vacationer less able to inspect cottage than owner

63
Q

Now in residential leases if property destroyed by fire, earthquake war etc then ___

A

discharge tenant from paying rent

64
Q

Forfeiture clauses convert ___

A

independent to dependent covenants but only in one direction

65
Q

Forfeiture clauses say that upon tenant violation of enumerated covenant

A

tenant interest immediately forfeited

66
Q

_____ evolved as response to protect tenants from forfeiture clauses

A

Constructive eviction, surrender

67
Q

First route to constructive eviction

A

L commits some malfeasance that makes it untenable for T to live there so essentially forces T out

68
Q

Second route to constructive eviction

A

L violates covenant and thus commits nonfeasance

69
Q

Constructive eviction requires ___

A

abandonment (with reasonable time to do so)

70
Q

If tenant _____ + ____ then release from obligations of the lease

A

surrenders, L accepts

71
Q

L accepts surrender by ___

A

taking action inconsistent with T continuing rights (Gottlieb)`

72
Q

Three responses to surrender attempt

A

reject
reject but agree to become lessee agent
accept implicitly or explicitly

73
Q

Sommer establishes a ___

A

duty to mitigate when tenant abandons

74
Q

Duty to mitigate usually __

A

applies in non-commercial leases

75
Q

Blackett says that where the L has the ____, failure to do so is a ___

A

power to correct condition that deprives T of quiet enjoyment, constructive eviction and L not entitled to rent

76
Q

It was key to Blackett that the L __

A

had power to correct conditions and did not (also leased club making noise)

77
Q

Blackett says the disturbing conditions were the ___

A

natural and probable consequence of L permitting lounge to operate where it did

78
Q

Gottlieb held that the repudiation was accepted when ))

A

Gottlieb made it clear that it would accept another leasing offer from another tenant

79
Q

_____ is insufficient to establish an acceptance

A

Merely attempting to re-let

80
Q

In Sommer, the L refused to relet even when ___

A

other parties ready able and willing to do so

Property (15 decks)

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