Week 9 Flashcards

1
Q

Under bilateral K model (rather than independent covenant), a serious breach could ___ but a less serious one __

A

lead to recission of lease and termination of future performance, only damages (like independent covenants)

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2
Q

Medico Dental says that restrictive covenants in a lease that ____

A

run up to entire consideration (without which would defeat purpose of the lease) are mutual and dependent

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3
Q

Medico Dental says that a L breaches a lease by failing to take action ___

A

to stop conduct by another tenant that amounts to a violation of a dependent covenant

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4
Q

Medico Dental holds that ___

A

the exclusivity clause was interdependent to promise to pay (essential to business success)

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5
Q

Implied warrant of habitability

A

implied in K for lease and makes lessee covenant dependent on continued habitability of the property

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6
Q

Most courts have made IWH ___

A

nonwaivable

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7
Q

R4P endorses IWH but provides ___

A

can be waived for consideration

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8
Q

Remedies for violating IWH

A

recission of lease (no more rent)
order directing SP
action for damages

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9
Q

Some jdxs allow ___ until L corrects IWH violation

A

withholding all or portion of rent

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10
Q

Javins says that leases ____ so ___

A

of urban dwellings have IWH, total breach extinguishes duty to pay rent

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11
Q

Rationale for IWH

A

(1) unequal bargaining power
(2) analogy to products liability
(3) L more capacity to inspect and maintain

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12
Q

When landlord transfers, the new landlord is bound by ___

A

covenants that run with the land

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13
Q

Running with the land requires __ + __

A

intent of parties + touch and concern the land (so related to land as to enhance value and confer benefit upon it)

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14
Q

Covenants to pay rent ___ touch and concern the land

A

DO

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15
Q

____ don’t touch and concern the land

A

Purely financial obligations (outside of rent), security deposits etc

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16
Q

Mullendor says a covenant runs with land _

A

only if touches and concerns the land

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17
Q

Mullendore says to be a running covenant a promise to pay money must __

A

restrict funds to uses that benefit the land itself

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18
Q

Mullendore holds that the ____ does not not run with the land

A

indemnification clause

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19
Q

privity of K

A

obligations that come from being a party to a binding bilateral K

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20
Q

privity of estate

A

obligations from OG lease that run with the land

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21
Q

For privity of estate, one party must ___

A

be in possession of property or have a reversion

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22
Q

Assignment

A

like alienation, prime lease transferred in full to assignee

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23
Q

In assignment there is ___ between L and assignee but they are in ___

A

no privity of K, privity of estate

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24
Q

In assignment, the prime tenant is still ___

A

in privity of K with L

25
Q

Sublease

A

interest of subtenant carved out of interest of prime tenant (Prime T like L)

26
Q

In sublease, prime tenant has ____ with L and subtenant is liable to __

A

privity of K, prime tenant (no privity of estate or K with L)

27
Q

Jaber holds that the __ determines if instrument is assignment vs. sublease

A

intention of the parties

28
Q

Inactive Ls will prefer ___ because ___

A

sublease, prime tenant serves as L

29
Q

Active Ls prefer ___

A

assignment,

30
Q

English rule for determining assignment vs. sublease

A

any instrument transferring for entire remainder of term is assignment

31
Q

Mass rule for determining assignment vs. sublease

A

if sublessor reserves right of re-entry for nonpayment of rent it is a sublease

32
Q

Jaber says the English rule __

A

arbitrary and disadvantages less sophisticated parties

33
Q

Jaber holds that they intended an assignment because ___

A

title of document as assignment

34
Q

Jaber court assumes that provision in OG lease providing for termination in event of destruction is __

A

not covenant running with land upon assignment to new tenant

35
Q

Kendall holds that when a commercial lease permits assignment only with __ , then consent ___

A

prior consent of the L, may be denied only for commercially reasonable objection

36
Q

Rationale for Kendall

A

(1) policy against restraint on alienation (lease is property)
(2) duty of good faith and fair dealing (lease as K)
(3) T gets benefits and losses from the lease

37
Q

In common interest communities, common areas are ___ but persons have ___

A

owned and managed by specialized entity, individual possessory rights ownership rights equivalent to fee simple

38
Q

Rationale for common interest communities

A

stability and some autonomy but still provides advantages of division of managerial authority

39
Q

Condos

A

fee simple for unit + tenancy in common of common areas (no partition)

40
Q

Coops are technically ___

A

corporations

41
Q

Coops

A

residents own shares in corporation and then get long term renewable interest lease
if one fails to make payments others have to make up difference.

42
Q

Associate subdivision

A

consists of standalone units but with certain facilities in common with other units

43
Q

Problems with common interest communities

A

decisions may not always be the most efficient, transaction costs of decision making

44
Q

CCRs act as __

A

constitution of CIC

45
Q

HOAs act as ___

A

voting public of CIC

46
Q

Rules and regulations passed by HOAs are ___ but changes to CCRs passed by HOAs are ___

A

initiatives, amendments

47
Q

Under Nahrstedt, courts will defer to ____ but will generally ____ (Kiekel)

A

judgment of CCR provisions, stricter review to rules/regs adopted by HOAs or Boards

48
Q

Why more deference to CCRs?

A

unanimous consent whereas HOA rules susceptible to majority rule issues

49
Q

NY applies ____ to coops under Pullman

A

business judgment rule (deference to corp over tenant) in evaluating co-op board actions

50
Q

Nahrstedt holds that restrictions in master deed of CIC are ___

A

presumed reasonable unless they are clearly arbitrary or contrary to public policy

51
Q

Nahrstedt holds that the pet restriction was ___

A

rationally related to resident health and noise concerns

52
Q

Nahrstedt says that use restrictions in CIC are crucial to ___

A

stability, predictability, owner reliance interests

53
Q

Nahrstedt is worried about ___

A

costs of lawsuits to seek individual exemptions

54
Q

Nahrstedt dissent says the restrictions on cats are ___

A

arbitary/unreasonable and frays social fabric with little offset benefiting land

55
Q

Pullman held that since D could not ____ the board’s decision was presumed appropriate

A

show that the board acted outside scope of its authority in a way that didn’t further corporate purpose or in bad faith

56
Q

Kiekel says ___ important attribute of property that can’t be prohibited unless __

A

right to rent, clearly proscribed in CIC declaration

57
Q

Kiekel says declaration didn’t explicitly ___ but implicitly __

A

prohibit or permit renting, allowed by defining “resident” as including “tenants of owners”

58
Q
A