Real Property Flashcards
Joint Tenancy
A joint tenancy exists when two or more individuals own property with the right of survivorship, meaning when one tenant dies, the other tenant(s) automatically receive their share of the property. Modern law calls for a clear expression of intent along with survivorship language. The joint tenancy must be created with each tenant having an equal right to possess the property, with each interest equal to the others, at the same time, and in the same instrument. These requirements are called the four unities.
House-Related Bills/Taxes
A co-tenant can collect contribution from the other co-tenants for paying more than his portion of the necessary or beneficially spent operating expenses, including taxes and mortgages, unless he is the only one in physical possession of the property, and the value of his use of it is equal to or outweighs the overpayment.
Rent (TC/JT)
If there is no agreement to the contrary, each co-tenant has the right to possess the whole property and is not required to pay rent to the other co-tenants for the value of her own use of the property, even when the other co-tenants do not make use of the property. Similarly, a co-tenant is generally not required to share profits earned from the use of the property, such as from a business conducted on the property.
Third Party Rents (TC/JT)
A co-tenant must account to other co-tenants for rent received from third parties. Third-party rents are divided up based on the ownership interest of each tenant.
Repairs (TC/JT)
A co-tenant does not have a right to be reimbursed by other co-tenants for repairs made to the property, even when those repairs are necessary. That being said, the majority view is that contribution for necessary repairs can be compelled through an action for accounting or partition. In some jurisdictions, a co-tenant may maintain a separate action for contribution as long as the other co-tenants have been notified of the need for the repairs.
Severance of Joint Tenancy
Although an interest in a joint tenancy cannot be devised, joint tenants can convey all or part of their individual interests during their lifetimes to a third party, thereby severing the joint tenancy. Once a joint tenancy is transferred in this manner, the right of survivorship to that interest is destroyed, and it is converted to a tenancy in common. A conveyance by only one of more than two joint tenants does not destroy the joint tenancy between the remaining joint tenants.
Title Theory
The minority of states are title theory jurisdictions. In a title theory jurisdiction, a mortgage severs the title and the tenancy between joint tenants and creditor is converted into a tenancy in common. The mortgagee becomes the equitable owner of the undivided portion that legally belongs to the mortgagor.
Lien Theory
The majority of states are lien theory states. In a lien theory jurisdiction, the mortgage is only a lien on the property and does not sever the joint tenancy absent a default and foreclosure sale.
Ouster
Each co-tenant in a tenancy in common has the right to possess all the property. When a co-tenant refuses to allow another co-tenant access to the property, there has been an ouster.
Valid Deed
To transfer a real property interest, the grantor must demonstrate the intent to make a present transfer of the interest, and the grantee must accept the interest. In addition, pursuant to the Statute of Frauds, the transfer of a property interest must be evidenced by a writing. A transfer requires that the deed be valid and successfully delivered. Valid deeds abide by the Statute of Frauds and include all the necessary terms such as the grantor’s signature, named grantee, words of transfer, and a description of the property. Consideration is not required.
Delivery and Recording of Deed
The grantor must, at the time of transfer, intend to make a present transfer of a property interest to the grantee. Typically, this intent is manifested by deliver of the deed. Delivery may be completed by physical handling or mailing the deed to the grantee or the grantee’s agent. Recording a deed is not required, but can be used to create a presumption of delivery. Intent can also be implied from the words and conduct of the grantor, such as when the grantor drafts and records a deed.
Periodic Tenancy
A periodic tenancy is a repetitive, ongoing estate measured by a set period of time (e.g., a month-to-month,year to year lease) but with no predetermined termination date.
A periodic tenancy can be created by express agreement, implication (e.g., the failure of an express agreement to mention a termination date), or operation of law. A periodic
tenancy automatically renews at the end of each period until one party gives a valid termination notice. The Statute of Frauds does not apply to a periodic tenancy because its nature is that it is for a non-fixed term.
Periodic Tenancy Termination
Since a periodic tenancy automatically renews, written notice is required to terminate. Notice of termination must be given before the beginning of the intended last period of the periodic tenancy. A notice of termination is generally effective only as of the last day of the period (e.g., the end of the month for a month-to-month tenancy that began on the first day of the month, year to year lease must be terminated within 6 months).
Breach of Landlord/Tenant Covenants
The landlord/tenant relationship is generally governed by a contract, called the “lease,” and contains the covenants of the parties. The promises are generally independent of each other. In other words, each party must perform his promises regardless of whether or not the other party performs his promise.
Assignment/Sublease
Absent contrary language, a lease can be freely assigned or sublet. An assignment is a complete transfer of the remaining duration of the tenant’s leasehold estate. Any transfer for less than the entire duration is a sublease.
