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Property Law > Final > Flashcards

Final Flashcards

1
Q

Assignment

A

transfer of all of the tenant’s rights; assignee has privity of estate with landlord and the tenant has privity of contract with the landlord

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2
Q

Sublease

A

transfer of less than all of original tenant’s rights; no privity of contract or estate with landlord; tenant has privity of contract; subleasee can explicitly assume all obligations; right of possession is forfeited when landlord declared forfeiture of the original lease

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3
Q

privity of estate

A

covenant for all issues that touch and concern land for those that have a possessory interest; transferrable by original tenant

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4
Q

privity of contract

A

covenant to be obligated to full terms of the lease; non-transferrable by tenant

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5
Q

if the rent is paid to the original tenant and not the landlord, is it more likely to be an assignment or lease

A

lease

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6
Q

jurisdictional splits on what determines an assignment or sublease

A
  1. right of re-entry
  2. transfer of all rights/payment to tenant
  3. intention of the parties
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7
Q

is there a right to sublease/assign if the lease is silent

A

yes there is an implied right unless the profit from sales plays a role into the total amount of rent that is paid

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8
Q

if a lease prohibits assignments or subleases completely, can a tenant do it

A

most likely no, but some jurisdictions see it as a right

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9
Q

if landlord requires permission to sublease or assign - must they be reasonable

A

jurisdictional split

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10
Q

if a landlord must be reasonable in accepting a candidate for sublease/assignment, what are the factors to consider (5)

A
  1. financial responsibility
  2. suitability of tenant
  3. legality of proposed use
  4. need to alter premises
  5. nature of occupancy
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11
Q

landlord’s obligations at common law

A

quiet enjoyment, convey possession, duty to disclose issues but not fix, repair common areas, finish premises, discriminate and terminate at will; tenant was responsible for checking habitability of property; independent covenants so tenant must pay regardless of landlord’s actions

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12
Q

modern trend of landlord’s responsibilities

A

quiet enjoyment, warranty of habitability, repair all damages not caused by tenant, convey possessory interest, no discrimination or retalitory eviction; dependent covenants so tenant can stop paying if the landlord violates their covenant (although very risky)

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13
Q

what is quiet enjoyment

A

landlord or one the landlord’s behalf (including other tenants) cannot disturb the quiet enjoyment of the tenant’s possession

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14
Q

remedies for quiet enjoyment

A

constructive eviction, partial actual eviction, actual eviction

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15
Q

constructive eviction

A

landlord has deprived tenant of a beneficial use or enjoyment of property that action is tantamount to depriving tenant of use; notice is required; some jurisdictions require tenant to vacate the premises

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16
Q

partial actual eviction

A

landlord deprives tenant of physical possession of some portion of the leased property

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17
Q

was there a warranty of habitability at common law

A

no

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18
Q

what kinds of leases does the warranty of habitability apply to

A

residential, multi-dwelling units

some jurisdictions allow a warranty of suitability for commerical properties, but most do not

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19
Q

what is a violation of a warranty of habitability

A

substantial violation of health and safety codes not caused by the tenants

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20
Q

factors in determining the substantiality of a violation of habitability (6)

A
  1. code provisions
  2. nature and seriousness of violations
  3. impact on health and safety
  4. length of time problem has existed
  5. age of building
  6. amount of rent
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21
Q

remedies for violating warranty of habitability (6)

A
  1. termination of lease
  2. repair and deduct
  3. specific performance
  4. rent abatement/reduction/withholding
  5. damages
  6. making landlord live there
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22
Q

protected classes (6)

A

race, religion, natural origin, sex, disability, familial status

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23
Q

must a landlord allow accomodations for a disabled person

A

yes, at tenants expense; new construction must adhere to accessibility standard

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24
Q

remedies for discrimination

A

1st refer to state/local agencies & exhaust all administrative remedies first

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25
Q

waste

A

conduct by holder of possessory interest in real property that harms value of non-possessory interest hold and that conduct reduces the value; returned in same condition minus ordinary wear and tear

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26
Q

damages for waster

A

injunction, forfeiture, damages

27
Q

commissive waste

A

voluntary; intentionally damage and permanently reduce value

28
Q

permissive waste

A

negligence that fail to preserve the property

29
Q

financial waste

A

failure to pay tax or mortgage

30
Q

ameliorative waste

A

improves value of property by greatly changing it

31
Q

life tenant responsibility re waste

A

keep up with normal maintenance expenses, interest on mortgage, tax

32
Q

tenant for years responsibilities re waste

A

not responsibly unless lease says otherwise

33
Q

future interest holder rights/responsibilities re waste

A

cannot be held to pay for improvements/fixtures; rights depend on contingent estate, concerns of restoration, and assurance of return

34
Q

lease

A

possessory interest in land

35
Q

license

A

authorized use of land in possession of another

36
Q

considerations for deciding a lease or a license (5)

A
  1. short or long term
  2. exclusive
  3. specifically designed space
  4. rent amount
  5. termination
37
Q

implications for declaring license or lease (7)

A
  1. tax laws
  2. notice to evict/terminate
  3. tort liability
  4. statute of frauds
  5. eminent domain compensation
  6. equitable remedies
  7. termination potential
38
Q

nuisance

A

nonphysical invasion consisting of an unreasonable activity that substantially interferes with the use and enjoyment of land

39
Q

public nuisance

A

unreasonable interference with rights common to general public

40
Q

who can bring a public nuisance suit

A

usually only public officials, but if a private citizen has suffered an injury that is different in kind than the rest, they might be able to

41
Q

issues with suing for nuisance

A
  1. costly and time consuming
  2. judges aren’t scientists and can be hard to convince them
  3. remedies are limited
42
Q

reasonable factors for nuisance (7)

A
  1. customary
  2. can it be carried on with less disturbance
  3. value to party engaging
  4. value to society
  5. time of day it occurs
  6. how long its been going on
  7. permitted by zoning
43
Q

substantial factors for nusiance (objective test)

A
  1. financial loss
  2. physical damages and harm
  3. mental anguish
  4. cost and difficulty to remedy
  5. duration
44
Q

remedies for nuisance

A
  1. balancing of burden (P pays for D to move
  2. permanent damages
  3. injunction
  4. injunction if D doesn’t pay damages
45
Q

adverse possession

A

means of acquiring title to real or personal property by one who is not the legal owner, but who takes and maintains possession during statutory period (typically 21 years) during which real owner does nothing to prevent it

46
Q

elements of adverse possession

A 
open
continuous
exclusive
actual
non-permissive (hostile)
47
Q

open element for AP

A

sufficiently apparent to true owner or at least put them on notice

48
Q

continuous element of AP

A

more than sporadic or occasional use unless vacation home; tacking can be used if there is privity (intentional transfer with no gap)

49
Q

exclusive element of AP

A

cannot share property with general public or owner; can allow others on as a normal owner would; can work together with someone to establish AP and be tenants in common

50
Q

actual element of AP

A

give owner notice of extent of their claim

51
Q

non-permissive element of AP split

A
  1. must be in bad faith
  2. must be in good faith
  3. intent does not matter (majority)
52
Q

policy concerns for AP

A
  1. encourages bad behavior
  2. protects mistakes
  3. nullifies conveyancing errors
53
Q

does landlord have a duty to mitigate tenant damages

A

there is an evolving duty but not everywhere; some require it to be reasonable and some require active/passive but there are jurisdictional splits

54
Q

damages for landlord if tenant breaches

A

lost rent, cost of reletting, repairs and maintenance

55
Q

how can landlord obtain damage for tenant breach

A
  1. sue every month
  2. retained jurisdiction
  3. rent acceleration
56
Q

concurrent estate

A

2 or more people have simultaneous right to possession of same property

57
Q

joint tenancy

A
  • right of survivorship
  • 4 unities
  • severed by any of four unities, conveyance, mortgage, or sale
58
Q

4 unities (pitt)

A

possession - equal
interest - equal
time - created at same time
title - created in same document

59
Q

tenancy in common

A

default; no right of survivorship

60
Q

tenancy in entirety (22 states)

A
  • married couples with right of survivorship
  • can only be severed by death of spouse, divorce, or mutual agreement
  • cannot be severed by partition or involuntary separationg
61
Q

lawsuit options for concurrent estates

A
  1. contribution- cotenant to reimburse others money spent on property
  2. accounting - one makes money and other can sue for their share (statute of anne), but subject to an offset for the maintenance
  3. partition- clear division of property or sale of property
62
Q

what are cotenants in a joint tenancy liable for

A

loss of value of property, potential rents from third party minus operating, share of upkeep

not liable for rent to others minus an ouster or improvements until final accounting

63
Q

are cotenants in a joint tenancy liable for repairs (necessary & unnecessary)

A

necessary: yes
unnecessary: split of authority

Property Law (1 decks)

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