Real Property - Landlord Tenant & Titles Flashcards Preview

Bar Exam 2014 > Real Property - Landlord Tenant & Titles > Flashcards

Flashcards in Real Property - Landlord Tenant & Titles Deck (19):
1

Constructive Eviction (breach of quiet enjoyment)

Short: 1) Premises “uninhabitable”; 2) Tenant must move out (L's act must substantially & permanently interfere w/ T's use & enjoyment of premises & T must move out)
1) T must show an interference w/ beneficial use & enjoyment of premises serious enough to amount to eviction
2) T's liability for payment of entire rent suspended until premises restored to T, even though T remains in possession of remainder of premises
3) T must vacate premises w/in reasonable time
4) T may treat lease an cancelled. T not liable for payment of rent

2

Tenancy for Years

fixed term

3

Periodic Tenancy

no ending date

4

Tenancy at Will

indefinite

5

Tenancy at Sufferance

holdover tenant

6

Delivery of Possession

English/Majority Rule - LL has a duty to deliver possession at the lease inception
American/Minority Rule - contra, T only has a cause of action against holdover T1

7

Subjacent & Lateral Support

Landowner is strictly liable if his excavation causes unimproved adjacent land to subside. Otherwise must prove negligence if improved.

8

Adverse Possession

1. Physical element
a) actual and exclusive (cannot be shared)
b) open and notorious
2. Mental element – adverse and hostile (cannot be permissive)
3. For the statutory period
- requires proof of possession ie. open, visible & notorious; actual; exclusive; hostile & under claim of rt; & continuous for statutory period

9

Fixture

Chattel that has become so connected to real property that a disinterested observer would consider the chattel part of the realty.
-owner of chattel may affix it to land also owned by that person that later becomes encumbered by a mortgage (mortgage extends to both land & fixture)
- if chattel attached to land already mortgaged/encumbered, prior mortgage encompasses chattel even though mortgagee receives greater security interest greater than one bargained for
- fixture attached to land under common ownership can be severed by owner (physically & permanently). Fixture then goes back to being personal property
- constructive severance of fixture - when owner of land expressly reserves fixture in K of sale for the land or deed of conveyance of the land
MIND:
Mode
Intent
Nature
Damage

10

Sublease

When T transfers to a 3rd person (subtenant or lessee) less than all of her rt, title, & interest in leased premises. sT doesn't come into privity of estate w/ L. Therefore, absent express assumption of duty to pay rent, L may not sue sT directly for rent due.
TX: during term of lease, T is expressly prohibited from renting or subletting leasehold to any other person w/o prior consent of L. Statutory provision applies to assignments too.

11

Assignment

When T transfers to a 3rd person (assignee) all of her rt, title, & interest in leased premises. Assignee comes into privity of estate w/ L.
TX provides statute expressly prohibiting w/o prior of L.

12

L not liable to T or others on premises w/ consent of T for injuries caused by a condition of premises, except:

1) undisclosed dangerous condition exists that is known or should've been known by L but is unknown to T
2) condition exists that is dangerous to persons outside premises
3) premises are leased for admission to public
4) parts of land are retained in L's control but are available for use by T
5) L has K'ed to repair
6) L negligent in making repairs

13

Remedies for Breach of Landlord/Tenant Duty

Traditional: if T abandons premises, L may retake premises, ignore an abandonment & continue to hold T liable for rent, or reenter & relet premises
Modern View: L has duty to mitigate

14

Implied Warranty of Habitability

Guarantees L will deliver & maintain premises that are safe, clean, & fit for human habitation. Applies to residential leases, NOT commercial. May be excluded: leases for single-family houses, agricultural leases, long-term leases & casual leases made by non-merchant Ls
1) T must show patent or latent defect in essential residential facilities
2) T excused from further performance under lease
3) T may, but need not, vacate premises
4) T may treat lease an cancelled
5) Rent abated
6) T may seek $ damages, reformation, or other tradition K or tort remedies

15

Landlord/Tenant Duties

- L has duty to deliver possession of premises to T at start of lease term (TX follows majority rule of requiring actual delivery rather than just legal possession)
- T may treat lease as terminated & w/hold rent if L breaches covenant of quiet enjoyment by constructive eviction
- Modern Trend: L is deemed to have warranted impliedly that residential premises are fit for habitation

16

Lease Creation

- can be express (oral or writing). Writing generally required by SoF for a term of more than 1 yr
- term of yrs has definite beginning and end
- no notice required to terminate lease for a term of yrs
- periodic tenancy has a set beginning date & continues from period to period (month to month) w/o a set termination date until proper notice given
- Traditional Rule: periodic tenancy could be terminated only on anniversary date. Improper service deemed ineffective & notice period measured by rent reservation clause.
Modern Statutory Approach: termination can take place on any date, & notice period measured by rent payment clause

17

Trade Fixture

Chattel annexed to land by a T to advance her business or trade during her tenancy.
Common Law: if tenancy for a definite term & ends of certain day, trade fixture must be removed before end of term or they become part of realty
TX: T permitted to remove trade fixtures w/in a reasonable time after expiration of lease
TRAP:
Trade fixture is
Removable, unless there's been an
Accession, & they've attached for
Pecuniary gain

18

Partial Taking of a Leasehold

Majority Rule: Rentals are not abated. T is obligated to continue payment of rentals provided in lease K & must look to an apportionment of damages assessed against condemning authority based on reduced value of his lease.

19

Doctrine of Caveat Emptor

Common Law Doctrine. L general doesn't impliedly warrant that leased premises are suitable for any particular purpose, & he's not liable for a dangerous condition existing on leased premises. Exceptions: L may be liable in tort to T, his guests, licensees, & invitees, if at commencement of lease there is a dangerous condition that L knows or should know about & the discovery of which wouldn't likely occur by T exercising due care.