Real Property Flashcards
(12 cards)
Constructive Eviction
When a landlord substantially interferes with the tenant’s use and enjoyment of the property by breaching a duty to the tenant, the tenant’s obligation to pay rent may be excused under the theory of constructive eviction. In order to end a lease before the end of its term by constructive eviction, the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property within a reasonable period of time. Not every interference with the use and enjoyment of the premises amounts to a constructive eviction. Temporary or de minimis acts generally do not amount to constructive eviction.
Duty to Repair
Commercial Leases
Under the common law, there was no implied duty on the part of the landlord to repair leased premises. However, the majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant. In contrast, courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability does not apply in commercial leases.
Terminating a Lease
- Automatically upon the expiration of the term.
- May also occur before the expiration of the term when:
a. the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold; or
b. a tenant abandons the leasehold without justification, the landlord may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises.
Tenant abandonment of a leasehold
When a tenant abandons the leasehold, the landlord may treat the abandonment as an offer of surrender and accept such surrender, or the landlord may attempt to** re-rent the premises** on the tenant’s behalf and hold the tenant liable for any deficiency.
Majority rule: require landlords to mitigate damages by making a good faith attempt to re-rent the premises
Landlord’s duty to repair
Under the common law, there was no implied duty on the part of the landlord to repair leased premises.
However, the majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, (except for damages caused by the tenant).
Courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability does not apply in commercial leases.
When is an easement terminated?
- if the owner of the dominant or servient estate acquires fee title to the other estate. The easement is said to “merge” into the title. The merger of property interests results in the extinguishment of the property right.
- by a writing that expressly** release**s the easement right and complies with the requirements for the creation of a deed
- Any attempt to convey an appurtenant easement separate from the land it benefits terminates (or “severs”) the easement.
- if the owner of the easement acts in an affirmative way that shows a clear intent to relinquish the easement right
- An easement by necessity terminates when the necessity ceases to exist.
- An easement may be terminated if the owner of the servient estate’s interference with the easement is continuous, actual, open, and hostile use for a specific period.
- If the servient estate owner changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned, then the easement holder may be estopped from asserting the easement.
- If an express easement is granted but not recorded, then, depending on the applicable recording act, the easement may not be enforceable against a subsequent purchaser of the servient estate (not terminated, but cannot be enforced).
Prior Use Implied Easement
If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment
Joint tenancy
A joint tenancy exists when at least two people own property with the right of survivorship.
In addition to the right of survivorship, each joint tenant must have the four unities: the right to possess or use the property and equal interests which were created at the same time and in the same instrument
Title theory
The granting of a mortgage constitutes a transfer of title.
Minority rule.
A transfer of title severs the joint tenancy and converts it into a tenancy in common.
When one party leases their interest in a joint tenancy
There is a split among jurisdictions with respect to joint tenancies when one joint tenant leases his interest. Some jurisdictions hold that the lease destroys the unity of interest and thus severs the joint tenancy, while other jurisdictions believe that the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease.
Tenancy in common
A tenancy in common exists when two or more co-owners have an equal right to possess property, but do not have a right of survivorship. In that case, each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest.
Each tenant can unilaterally transfer, devise, mortgage, or lease his interest to a third party, without affecting the interest of the other tenants.
When one co-tenant receives rent
A co-tenant must account to other co-tenants for rent received from third parties, but can deduct operating expenses, including necessary repairs, when calculating net proceeds. Third-party rents are divided based on the ownership interest of each tenant.
