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Semester II Property > Non-freehold Estates and Cocurrent Ownership > Flashcards

Non-freehold Estates and Cocurrent Ownership Flashcards

1
Q

WWhat are the four basic non-freehold estates?

A

(1) Tenancy for a term of years
(2) Periodic tenancy
(3) Tenency at will
(4) Tenancy at sufference

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2
Q

What is a tenancy for a term of years

A

A tenenacy that lasts
(1) for a fixed duration
(2) agreed to in advance

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3
Q

What is a Periodic Tenancy?

A

A tenancy
(1) for a set period which automatically renews
unless;
(2) one party ends it by giving notice

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4
Q

What is a tenancy at will?

A

A tenancy which lasts as long as both parties desire

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5
Q

What is a tenancy at sufferance?

A

(1) A created tenancy
(2) created when a person continues to possess land
(3) after a rightful possession has ended

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6
Q

What are the three federal tenancy laws you need to know

A

Civil Rights act of 1866
Civil Rights act of 1964
Fair Housing Act of 1968

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7
Q

What are the protected classes under the FHA?

A

(1) Race
(2) Color
(3) Religion
(4) Sex
(5) Familial Status
(6) National Origin
(7) Disability
(8) (LIKELY) Sexual orientation

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8
Q

What exceptions exists for the FHA?

A

(1) Owner-occupied housing

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9
Q

What are the steps under the FHA for discrimination claims?

A

(1) Primie Facie case showing
(i) Protected class, and defendents knoew/suspected
(ii) Applied for property and was qualified
(iii) defendents rejected appplication
(iv) property remained available
(2) Burden shifts to defendent to show non-discriminatory reasons
(3) Then plaintiff has to show that reason is a “mere pretext”

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10
Q

How does the statute of frauds effect Lease Agreements?

A

Leases for
(1) longer than one year are only enforcable if
(2) they are in writing.

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11
Q

Where does FHA apply? Where does the civil rights act of 1866 apply?

A

(1) FHA only protects Dwellings
(2) CRA1866 affects all property
(i) and merely effects race

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12
Q

What are the two rules for delivering possession

A

(1) American/Minority rule: Landlord only must deliver legal right to possession
(2) English/Majority rule: Landlord must deliver both legal and physical possession

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13
Q

What are the two approaches toward premises and their conditions?

A

(1) Traditional approach
(2) Modern approach

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14
Q

Describe the traditional approach to land conditions

A

(1) Tenant must make basic repairs required by permissive waste
(2) If repair was under landlord’s responsibility, this does not free tenant from fiscal responsibility from rent. Instead tenant must sue landlord.

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15
Q

Describe the modern approach to land conditions

A

(1) Doctrine of constructive eviction
(2) Implied warranty of habitability

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16
Q

Describe the doctrince of constructive eviction

A

if
(1) a wrongful act or omission by landlord
(2) substantially interferes with beneficial use and enjoyment of premisies
then
(3) give notice to the land lord
(4) wait a reasonable time
(5) and a tenant may leave if premisies are not fixed

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17
Q

What are examples of wrongful conduct?

A

(1) Fail to perform an obligation in the lease
(2) Fail to adequately maintain common areas
(3) breaches statutory duty owed to tenant
(4)Allows nuisance like behavior

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18
Q

When will a landlord be liable for the action of third parties?

A

(1) Generally never
Unless;
(2) the LL has a legal right to control third party conduct

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19
Q

What counts as substantial interference?

disregard this card just mark “5”

A

N/A

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20
Q

Does constructive eviction require a tenant to move out

A

A minority of states do not require them to move out.

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21
Q

describe partial constructive eviction

A

(1) some states allow a partial CE
(2) the tenant is released from a portion of the rent to reflect a portion of premisies unuseable.

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22
Q

What is an implied warranty of habitability?

A

Warranty that
(1) bare minimum requirements fit for human occupation
but;
(2) substantial complience with building and housing code may be enough
(3) minor deficiencies do not breach the warranty

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23
Q

Explain implied warranty of habitability breach options

A

(1) Withold rent
(2) “Repair and deduct” within reasonable costs
(3) sue for damages, where rent owed is fair market value of premises with the defect
(4) Terminate lease and sue for damages

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24
Q

What are the best practices and things to know for implied warranty of habitability?

A

(1) Tenant should notify
(i) landlord
(ii) housing inspector
(2) Place housing in escrow
(3) Only some jurisdictions give IWH for commercial leases.

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25
Q

What are the four ways to end the tenency?

A

(1) Term ends
(2) Surrender - mutual agreement
(3) Abandonment:
(i) Tenant vacates without justification
(ii) without intent of returning
(4) Constructive/actual eviction

26
Q

What is the eviction process?

A

(1) Landlord must give notice, tenant usually has time to respond or cure issue
(2) Summary court proceedure

27
Q

Privity of estate vs. privity of contract distictions

A

N/A

28
Q

What is an assignment? What is a sublease?

A

(1) An assignment agrees that the transferor never receives possession in the future
(2) A sublease agrees that the transforer will automatically receive possession at some point in time in the future

29
Q

Tell me about the rights a sublessor has in some states

Disregard this card just mark it “5”

A

In merely some states, a sublease agreement gives the transforer a ‘contingent’ right of reentry

But like what does this mean?

30
Q

Some states look to what, instead of the duration of the agreement to decide between an assignment and sublease?

A

The intention of the parties

31
Q

What is the default rule for transfer of leases?

A

Leases can be transferred by default unless waived by the parties

32
Q

What is the special rule for transfer of commercial leases

A

(1) The modern trend is that
(2) when there is no need specified for landlord consent
(3) the landlord may only object if it is ‘commercially reasonable’

33
Q

What are the three options a landlord has when a tenant abandons premises?

A

(1) Wait til end then sue
(2) Terminate the lease
(3) Relet the premises, retain those rents, then sue for difference.

34
Q

What does an abandoned tenant owe if a land lord goes for the relet/mitigation remedy?

A

(1) Rent for time premisies were vacant
(2) Costs of looking for replacement tenant
(3) difference between old rent and new rent

35
Q

What does a faliure to mitigate do to a landlord’s damages?

A

N/A

36
Q

What are the three forms of co-tenancy?

A

(1) Tenancy in common
(2) Joint Tenancy
(3) Tenancy by the entirety

37
Q

What is the default cocurrent estate? How would you make the other?

A

(1) A tenancy in common is default
(2) and joint tenancies require very specific languages

38
Q

What are the basic rights of tenants in common?

A

(1) Free ability to enjoy the entire property
(2) Free ability to alienate and devise their peice of the property

39
Q

What are the requirements to create a joint tenancy?

A

(1) Specific ‘survivorship’ language
such as to show;
(2) Intent
and
(3) The four unities must be in place

40
Q

What are the four unities?

A

(1) Possession
(2) Interest
(3) Time
(4) Title

41
Q

What is the Possession unity?

A

(1) Each joint tenant must have the right to possess the entire property

42
Q

What is the Interest unity?

A

(2) Each tenant must have an equal interest in the property

43
Q

What is the Time unity?

A

(3) The tenants must have their interests made at the same time

44
Q

What is the Title unity?

A

(4) The tenants must have their interests created by the same legal instrument

45
Q

How can one sever a joint tenency?

A

(1) One may sell/transfer their interest such that it severs the tenenacy
(2) Partition
(i) through voluntary agreement
(ii) in kind: where the court divides the land physically
(iii) through forced sale: where the court forces a sale, and divides the proceeds proportionately

46
Q

What is a tenancy by the entirety?

A

(1) Cocurrent owndership is a marital interest in property
(2) with a right of survivorship

47
Q

What strengths does a tenancy by the entirety have?

A

(1) Predators of only one spouse cannot reach this tenancy
(2) Neither tenant acting alone can defeat the right of survivorship.

48
Q

What is a tenancy in common?

A

(1) Each tenant in common owns some piece of the property
(2) Each has the right to possess the whole
(3) Freely devisable, alienable, descendable

49
Q

Does adverse possession work with cocurrent owners?

A

Generally, no. But Ouster has rules

50
Q

What rights do all co-owners have toward all property? What is the failure to allow these rights called?

A

They can all enjoy the whole property.
To disallow this wrongfully would be outster

51
Q

Do co-tenants ever have to pay rent even if in exclusive possession?

A

Typically, no but ouster may say otherwise

52
Q

What rights do co-tenants have to rental income?

A

They generally have a right to an proportional share of rent income

53
Q

What liabilities do co-tenants have for repairs and improvements?

A

(1) co-tenants are liable for contribution for reasonable and necessary repairs as long as they have notice
(2) But there is no right to contribution for improvements

54
Q

What is Ouster?

A

(1) A tenant in possession
(2) Refuses to allow another use and enjoyment of the whole property
(3) The ousting tenant has owes the ousting tenants proportional rent
(4) And is effectively an adverse possessor

55
Q

What is duties does a tenant have when they have only ‘privity of estate’?

A

(1) Perform all covenants that “Run with the land”
(i) meaning those that have connection to the
(ii) use
or;
(iii) occupancy of the premisies

56
Q

What is it called where a landlord’s contract might refuse consent for a sublease for any reason?

A

A contract with a sole discretion clause

57
Q

What is the a lien theory?

A

(1) A mortgage does not sever a joint tenancy
because
(2) it is merely a lien to secure repayment of a debt

58
Q

What is a title theory

A

(1) Here, a mortgage is seen as a conveyance of title to the mortgagee
(2) So, it does sever a joint tenancy

59
Q

What is a separate property system?

A

(1) Majority rule
(2) During Marriage: property acquired by one spouse belongs to that spouse - think creditors
(3) At Divorce: Equitable distribution such that property acquired with eithers’ earnings during the marriage is fairly divided in light of
(i) incomes
(ii) standards of living
(iii) age/health/special needs
(iv) and income
(4) At Death: surviving spouse can take under the will or take a pre-determined share of the estate?

60
Q

What is a community property system?

A

(1) Minority rule
(2) During marriage: All earnings and assets earned during marriage are owned by both spouses equally - not freely devisable
(3) At Divorce: all community property is divided between spouses either equally or equitably
(4) At Death: The community property is divided in half.

Semester II Property (10 decks)

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