Real Property Flashcards
(27 cards)
JOINT TENANCY
KEY ATTRIBUTES
- Right of survivorship
- Alienability
- Not devisable
FORMATION (T-TIP)
- Same Time
- Same Title
- Equal Interest
- Right to Possess whole
+ Must clearly express right of survivorship (common tenancy is default)
SALE AND PARTITION
+ destroys joint tenancy wrt new tenant: will own with common tenancy
TENANCY BY THE ENTIRETY
+ Marital estate. Similar to joint tenancy.
+ Arises presumptively when married couple
VERY PROTECTED
+ Creditors of only one spouse cannot touch tenancy
+ One spouse cannot unilaterally defeat tenancy by conveying
SEVERANCE
+ Death, divorce, mutual agreement, execution by joint creditor
+ Divorce: becomes tenancy in common
TENANCY IN COMMON
+ Two or more own without right of survivorship.
+ Each co-tenant has right to possess whole.
+ Ownership parts do NOT have to be equal.
+ Devisable and alienable.
Presumptive.
RIGHTS AND DUTIES OF CO-TENANTS
+ POSSESSION: ouster if tenant tries to wrongfully have exclusive possession of part
+ RENTS AND PROFITS: share rents from third parties. co-tenant in exclusive possession may retain rents.
+ ADVERSE POSSESSION: no adverse possession without ouster
+ REPAIRS: must contribute to necessary repairs
+ IMPROVEMENTS: no need to make improvements
+ WASTE: must not commit waste (voluntary, permissive, ameliorative)
+ PARTITION: voluntary, judicial (divide up money), in kind
TENANCY FOR YEARS
+ Fixed period of time (from one week to decades)
+ MUST BE IN WRITING if longer than one year (SoF violation)
TERMINATION
+ Ends automatically on its termination date.
+ Breach of lease covenant: right of entry (e.g. by failure to pay rent)
+ Termination upon landlord’s acceptance of tenant’s surrender.
PERIODIC TENANCY
+ Successive periods. Continuous until properly terminated
CREATION
+ Express
+ Implied: no mention of duration, or oral terms of years (violation of SoF)
TERMINATION
+ Notice must be equal to length of the period, unless otherwise agreed
TENANCY AT WILL
+ To T for as long as L or T desires
CREATION
+ Must say that the tenancy can be terminated at any time
+ If only landlord has right, imply right for tenant (but not the other way around)
TERMINATION
+ Must give notice and reasonable time
+ Death
TENANCY AT SUFFERANCE
+ When tenant wrongfully holds over
+ Tenancy at sufferance allows landlord to recover rent
TERMINATION
+ Lasts until eviction or if landlord elects to hold tenant to new tenancy
HOLD-OVER
When holdover tenant (tenancy at sufferance), landlord may either
1. Evict
2. Hold to new tenancy
COMMERCIAL TENANTS
+ May be held to year-to-year tenancy if original tenancy was for one year or more
RESIDENTIAL TENANTS
+ Held to month-to-month tenancy, regardless of original term
TENANT DUTIES: DUTY TO REPAIR
+ Duty to repair: must maintain the premises (routine but not wear and tear). Must maintain reasonably good repair
+ Must not commit waste (voluntary, permissive, ameliorative)
+ Duty to repair with express covenant in lease: common law - tenant responsible for loss; today - residential covenant to repair not enforceable, nonresidential is
TENANT DUTIES: DUTY TO PAY RENT
Breach in possession: evict or sue for rent
+ Landlord cannot engage in self-help
Breach out of possession: S I R
+ Surrender: landlord to treat abandonment as surrender of contract
+ Ignore: and continue hold tenant responisble for rent
+ Re-let premises on the tenant’s behalf: hold tenant responsible for any deficiency
Majority rule: Landlord must at least try to re-let.
LANDLORD DUTIES: IMPLIED WARRANTY OF QUIET ENJOYMENT
Implied covenant of quiet enjoyment
+ Commercial and residential tenants
+ Tenant has right to enjoy property without interference from landlord (or other paramount title holder)
BREACHES
+ Actual eviction: excluding tenant from entire premises
+ Partial eviction (while continuing obligation to pay for entire premises)
+ Constructive eviction: landlord’s breach of duty renders premises unsuitable for occupancy. SING (Substantial Interference; Notice; Goodbye). Tenant may seek damages or terminate the lease
+ By other tenants: Landlord has duty to control common areas and to abate nuisances
LANDLORD DUTIES: IMPLIED WARRANTY OF HABITABILITY
+ Nonwaivable
+ Premises must be suitable for human habitation
WHEN BREACHED, tenants’ options are MR3:
+ Move out and terminate lease
+ Remain and seek money damages (but continue paying rent)
+ Reduce rent or withhold until court decides fair rental value
+ Repair and deduct costs
FAIR HOUSING ACT
Protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, disability, or familal status
EXCEPTIONS:
+ Owner-occupied buildings with fewer than 4 units
+ Single-family homes rented by owners who owns no more than three single-family homes
TRANSFER OF LEASEHOLD
ASSIGNMENT: tenant transfers interest in entire remaining term
+ Original tenant remains liable for original contractual obligations (privity)
+ Covenants that run with the land: if covenant touches and concerns the land
+ Rent covenants: assignee owes rent directly to landlord
SUBLEASE: tenant transfers some portion of remaining term
+ Not personally responisble to landlord for covenants on main lease unless expressly assumes them
+ Terminates with main lease
+ Cannot enforce covenants express implied implied warranty of habitability (residential)
COVENANTS AGAINST ASSIGNMENT OR SUBLEASE
+ Landlord can restrict this in the lease without the landlord’s prior written approval
+ Once landlord consents to transfer by one tenant, consents to all transfers (unless expressly prohibited) (construed against landlord: covenants prohibiting assignment will not be taken to mean as prohibiting sublease)
ASSIGNMENT BY LANDLORD: original landlord remains liable for covenants made to lessee
LANDLORD’S TORT LIABILITY: CAVEAT LESSEE
CAVEAT LESSEE: common law
+ Let the tenant beware
+ Exceptions: CLAPS
1. Common areas: landlord duty to maintain common areas
2. Latent defects: must warn tenant of hidden defects (what tenant couldn’t discover on reasonable inspection) of which landlord has knowledge or reason to know
3. Assumption of repairs: must undertake repairs with reasonable care
4. Public use rule: landlord responsible for repairs tenant wouldn’t make in public space (because short-term lease) that would cause injury
5. Short-term lease of furnished dwelling: landlord responsible for any defective condition which injures a tenant
LANDLORD’S DUTY TO TENANT: GENERAL DUTY OF REASONABLE CARE
Landlord liable for injuries if it resulted from ordinary negligence and landlord had notice and opportunity to repair.
+ Not liable for defects arising after tenant takes possession (unless knew or had reason to know)
FIXTURES
Chattel that has been so affixed to land it became part of the realty.
EASEMENT
Grant of nonpossessory property intrerest that entitles its holder to use or enjoyment of another’s land.
+ easement appurtenant: benefits its holder to physical use. Transfer automatically
+ easement in gross: grants personal or pecuniary benefit that is not related to personal enjoyment (e.g. place billboard, swim in pond). Not transferable
AFFIRMATIVE: right to do something on servient land. Creation PING:
+ Prescription (continuous, open and notorious use that is actual for the statutory period)
+ Implication (implied from prior use before land is severed)
+ Necessity (division of land deprives one of means to access)
+ Grant (writing)
NEGATIVE: allows holder to prevent servient landowner from doing something that would otherwise be permissible (LASS)
+ Light
+ Air
+ Support
+ Stream water from artificial flow
+ Sometimes for scenic view
+ By grant only
TERMINATION: END CRAMP
+ Estoppel
+ Necessity
+ Destruction
+ Condemnation
+ Release
+ Abandonment
+ Merger
+ Prescription (continuous, actual, open and notorious, hostile interference)
LICENSES AND PROFITS
License: privilege to enter another’s land for some purpose
CREATION: writing not needed. Failed attempt to create easement (writing needed) creates a license
REVOCATION: freely revocable unless estoppel applies
RESTRICTIVE COVENANTS
Covenant: contractual promise/obligation regarding land
Negative and affirmative covenants
Damages: covenants. Injunction: equitable servitude.
RUNNING WITH THE LAND:
+ Runs with the land if: WITHN (Writing + Intent + Touch and concern + Horizontal and vertical privity + Notice)
Horizontal privity: grantor-grantee, mortgagor-mortgagee, landlord-tenant
EQUITABLE SERVITUDES
Promise that equity will enforce against successors of the burdened law regardless of whether it runs with the land.
EXCEPTION: the successor is a bona fide purchaser
CREATION: Promises in writing (WITNES)
+ Writing
+ Intent
+ Touch and concern
+ Notice (had record notice when acquiring land)
+ ES (equitable servitude)
COMMON SCHEME DOCTRINE
Exception to the original requirement that the original promise be in writing.
If land is divided, and only some of the subdivisions contain restrictive covenants, we imply all subdivisions to contain the restrictive covenants.
ELEMENTS:
+ General scheme of residential development
+ Notice (AIR: Actual notice, Inquiry notice, Record notice)
No common scheme that arises after lot is sold.
EQUITABLE DEFENSES
+ Unclean hands
+ Benefited party acquiesced
+ Estoppel
+ Laches
