Non-Freehold and Non-Possessory Interests Flashcards
(27 cards)
Tenancy for Years
Key: Specified Time (does NOT have to be for yrs)
MUST specify beginning and ending date
SoF apply if for 1yr+ (if 1yr or less, no SoF)
Termination: NO notice required between L and T
Types of non-freehold estates: landlord-tenant estates
Tenancy for Years
Periodic Tenancy
Tenancy at Will
Tenancy at Sufferance
Restrictive Covenant types
- impose restriction on USE of land
1) Covenants: in writing and enforced at law (if party wants money damages)
2) Equitable servitude: in writing and enforced in equity (if party wants injunction)
Periodic Tenancy
Key: tenancy repeats (e.g. month-to-month) thus rolls on until one party gives proper notice to terminate
Created by: express agreement, implication (no K for duration), operation of law (lease violates SoF OR holdover tenant)
Termination: notice is REQUIRED AND must give: 1) enough TIME (equal to lenght of period of tenancy unless year-to-year only 6mo notice), AND 2) effective DATE (at the end of the period of tenance e.g. 15th of month to 14th of month)
Duties of Landlord
Deliver possession of prop: actual and legal T remedies (if L fails): L breaches K
Implied Warranty of Habitability (WoH):
- CL: L has no duty to deliver prop in habitable condition
- Modern (Residential ONLY): implied WoH (prop MUST meet basic human habitation stds - compliance w/local code). L cannot retaliate if T reports L for housing code violation
T remedies (if L fails): 1) T moves out AND terminates lease and no obligation to pay rent, OR 2) T stays AND sues for damages, OR 3) T makes reasonable repairs AND deducts costs from future rent
Implied Covenant of Quiet Enjoyment (QE): EVERY lease (res, comm, etc) includes covenant of QE (L cannot interfere w/T’s use of prop
L breaches Covenant of QE by:
1. Total eviction: L enters and keeps T off prop
T remedies: lease terminates, T does not pay
- Partial eviction: L physically excludes T from portion of prop
T remedies: T stays AND does NOT pay rent TEMPORARILY UNTIL prop is given back to T. If partial eviction by other party than L, rent is proportionately reduced (e.g. other party actually owns prop)
3. Constructive eviction: T remedies (SING): Substantial Interference, Notice and reasonable time for L to remedy, Go: MUST vacate w/in reasonable time after L fails to correct
Duties of Tenants
Pay Rent:
L remedies (if T fails):
- CL: L can sue for damages (ONLY rent in arrears) and CANNOT terminate lease
- Modern: sue for damages AND terminate
Maintain prop:
- CL: if lease is silent, T has duty not to commit waste (voluntary, permissive, ameliorate)
- Modern: If prop is destroyed w/o T fault then T has option to terminate, NO duty to rebuild even w/covenant to repair unless otherwise agreed to
L remedies (if T fails):
Repair:
- CL: T is NOT responsible for wear and tear
- Modern: T is absolute insurer, MUST repair and maintain. Once T repairs, T liable for wear and tear unless otherwise agreed to
Not unjustifiably abandon: L remedies (if T fails): - Accept T's abandonment as offer of surrender by L retaking prop and terminating the lease. T has no rent obligation, OR - L relets holding T liable for defficiency under regular K remedies (CL: T has no duty to mitigate. Majority: L MUST make reasonable effort to relet in order mitigate damages)
Tenant’s Tort liability
- Satisfy SoC by
1) Fix hazard
2) Warning signs (do NOT apply to children) - Unknown Trespassor: NO duty of care owed to UT
- Child Trespassor (attractive nuisance): RPP to prevent injuring children trespassing
1) Dangerous condition which Onwer knows or should know about
2) Owner knows or should know children frequent the vicinity
3) Condition likely to cause injury because the C is unable to appreciate the risk
4) Expense of remedying is slight compared to risk - Known Trespassor (anticipated):
SoC: Protect ONLY from known man-made highly dangerous conditions hidden from known trespassor
NO duty if UT is aware of condition
NO duty if mildly dangerous - Licensee: entrant w/permission but confer NO econ benefit to possessor (e.g. social guest)
Soc: Protect from ALL known highly dangerous conditions hidden from licensee
NO duty if Licensee is aware - Invitee: entrant w/permission AND confers econ benefit to possessor
Soc: Protect from ALL known OR reasonably discovered highly dangerous conditions hidden from licensee
NO duty if Licensee is aware - Public servants (firefighters and PO): NEVER recover based on Premise liab because of assumption of risk
Privities for Assignment and Sublease
Privity of K: lease agreement between L and contracting T
Privity of Estate: lease conveys estate (interest in land) between present L and present T (not future T)
Separate and independent grounds for liability
Tenancy at Sufferance (Holdover)
T holds bare possession and T wrongfully holds over
L option for Terms: 1) Sue to evict based on trespass and recover damages, OR 2) Impose new periodic tenancy based on original lease term (Commercial: yr-to-yr if original 1+yr, or mo-to-mo if
Non-Assignment/non-sublease clauses
Although it’s a restraint on alienation and fully enforceable, Cts strictly construe so non-assignment does not prohibit non-sublease AND non-sublease does not prohibit non-assignment
Violation of clause makes transfer ONLY VOIDABLE thus L must take action to end assignment/sublease
Waiver: permission given by L once waives it all together for future unless L states otherwise or makes new K
Transfer of Easements
Appurtenant:
- Benefit is transferred AUTO w/dominant estate regardless of easement mentioned in deed. CANNOT be transferred separate from the land
- Burden is ALWAYS binding on subsequent owners IF there is notice (actual, constructive, inquiry) regardless of easement mentioned in deed.
In Gross: ONLY commercial easements in gross can be transferred, not personal
Enforcement of Restrictive Covenant (at law)
In order to enforce BURDEN to bind successor, must have: WITHN
- Writing
- Intent: parties intended restriction to run w/land
- Touch and Concern: MUST run w/land
- H+V Privity: Horizontal (common interest is conveyed between original parties grantor/grantee SEPARATE from covenant) privity AND Vertical (successor takes whole estate) privity between promisor and promisee
- Notice: party being enforced against had actual, constructive, inquiry notice
In order to enforce BENEFIT to run to successor, must have: WITV
- Writing
- Intent: parties intended restriction to run w/land
- Touch and Concern: MUST run w/land
- Vertical Privity (successor takes whole estate) privity between promisor and promisee
- NO Notice required
Tenancy at Will
No K
Willful Termination: by either party BUT must give notice to the other AND reasonable time to vacate
Termination by Law:
- Death of either party
- Waste by T (voluntary, permissive, ameliorate)
- Assignment by T
- Transfer of title by L
- Leased land by L
Enforcement of Restrictive Covenant (Equitable Servitude - in equity)
*Similar to enforcement of restrictive covenants except that NO Privity is required to either enforce burden or benefit
In order to enforce BURDEN to bind successor, must have: WITN
- Writing
- Intent: parties intended restriction to run w/land
- Touch and Concern: MUST run w/land
- Notice: party being enforced against had actual, constructive, inquiry notice
- NO Privity required
In order to enforce BENEFIT to run to successor, must have: WIT
- Writing
- Intent: parties intended restriction to run w/land
- Touch and Concern: MUST run w/land
- NO Notice required
Scope of Easement
Follow terms of easement
If terms are silent: easement is presumed perpetual AND presumed use is for reasonable development of dominant estate (development likely contemplated by parties AT THE TIME easement is granted)
Remedy for excessive use: enjoin but easement DOES NOT terminate
Repair of easement: DOMINANT estate must make necessary repairs
Reciprocal Negative Servitude or Mutual Right of Enforcement
To establish a mutual right of enforcement, must have WIN
- Writing
- Intent: parties intend to impose SERVITUDE (restriction) on ALL land in subdivision (e.g. common building plan)
- Notice: actual, constructive, inquiry
License vs Easement
Factors: Limited privilege (NOT a possessory, NOT a non-possessory interest) Not property interest Contractual right Always revoked at will of licensor Damages: based on K
Irrevocable license: created when easement fails because SoF, OR if money is spent on prop in furtherance of oral license
Landlord’s Tort liability
CL: no duty imposed on L because it’s only a conveyance of estate (possession) nothing more
Exceptions:
- Latent defects (T does not know and reasonable person would not discover): L has duty to disclose latent defect L knows or has reason to know
- Short term lease of furnished dwelling: L liable for defects even if L does not know or has no reason to know of defects
- Common areas: negligence std (L fails to exercise reasonable care)
- Negligent repairs by L: Neg std
- Public Use: L liable if 1) L knows or should know of major defect, 2) L knows or should know T does not fix, 3) L knows or should know public uses premise
Liability of successive L on lease
OG L continues to be liable to OG T if privity because of privity of K (privity of estate ends)
Successor L (L2) may be liable to OG T if 1) privity of K, OR 2) privity of estate AND covenant runs w/land
Assignments of Lease
Law favors transferability thus Assignments are favord
Assignment: Transfers ENTIRE interest
Liability to pay rent (covenant runs w/land): T liable to L if there is Privity of Estate OR Privity of K
Liability on convenants in the K: Covenant runs w/land if it touches AND concerns the land (promise makes prop more VALUABLE and more USEFUL)
Termination of Covenants AND Servitudes
Deed of Release
Merger (unity of ownership): MUST be in writing AND comply w/deed formalities (recording, etc)
Changed Conditions: ONLY if ALL lots in subdivision are affected
Easements: express and implied
Easements: NON-POSSESSORY interests in land involving RIGHT TO USE
Express easements:
- Appurtenant: owner of the LAND directly benefits (dominant estate) and other is burdened (servient estate)
- In Gross: owner of EASEMENT benefits personally and ONLY one parcel of land (NO dominant estate) is burdened (e.g. utility, RR, etc)
Implied easements:
- Previous use
Defenses to enforcement of Equitable Servitude
- Unclean Hands: Plaintiff has made the same use as D
- Acquiescence: P let neighbors do the same act as D
- Estoppel: P represents that no issues w/D’s plans
Termination of Easement
By its own terms
By merger of dominant and serviant estate
By deed of release: MUST be in writing AND comply w/deed formalities (recording, etc)
By Abandonment: MUST manifest by some physical action.
* Mere non-use is NOT abandonment
By estoppel: representation of relinquishment of easement by dominant, AND servient makes a change in reliance on representation
By Prescription: HONCA
By Necessity: AUTOMATICALLY terminates upon necessity that gave rise to implied easement terminates (e.g. new road built to give access to-from dominant)
