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145 Cards in this Set
- Front
- Back
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What are the four principal testable areas in real property?
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1. Classification of present and future estates
2. Competing claimants 3. Land Use 4. Landlord/Tenant Law |
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What are the 7 present possessory estates?
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1. Fee simple absolute
2. Fee simple determinable 3. Fee simple subject to condition subsequent 4. Fee simple subject to Executory interest 5. Fee tail 6. Life estate 7. Term estate |
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Fee simple absolute: def, creation
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An outright gift of property to grantee and his heirs.
At CL created by "To A and his heirs" Modern law: presumed fee simple absolute unless otherwise stated |
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Fee simple determinable: def & creation
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An estate that terminates AUTOMATICALLY upon happening of a named future event.
Created by the use of DURATIONAL language. |
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Fee simple subject to condition subsequent: def & creation
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An estate that MAY be terminated following the happening of a named future event.
Created by use of CONDITIONAL language |
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If estate-creation language is ambiguous as to whether conditional/durational, what is the default?
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Treat as though conditional and thus creating a fee simple subject to condition subsequent
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Fee simple subject to executory interest: def & creation
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An estate that passes into possession of a third party upon the happening of a future event.
Created by either durational or conditional language. |
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Fee tail: def & creation
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An estate whose ownership is limited to lineal descendants
Created by "To A and heirs of his body" Under Modern Law: this is abolished and treated as a fee simple absolute |
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Life estate: def & creation
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An estate lasting for the duration of grantee's life
"To A for life" |
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Life estate pur autre vie
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An estate lasting for the duration of a life other than the grantee's
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Term estate: def & creation
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Any estate granted for a term other than someone's life
"To A for 50 years" |
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What are the 5 future property interests?
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1. Possibility of reverter
2. Right of reentry 3. Reversion 4. Executory interest 5. Remainder |
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What is possibility of reverter?
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Created in a grantor when he transfers a fee simple determinable; interest automatically reverts to grantor upon happening of future event.
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What is Right of Reentry?
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Created in grantor when he transfers a fee simple subject to condition subsequent; Grantor MAY exercise right to retake land upon happening of future event.
Right of reentry must be explicitly stated in conveyance. |
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What is a reversion?
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Created in the grantor when he transfers an estate that terminates naturally (i.e., follows a life estate or term estate) and the remainder is not assigned.
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What is an executory interest?
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Created in a 3D PARTY and CUTS SHORT the preceding estate
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What are the 2 types of executory interests?
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Shifting: passes from one 3d party to another
Springing: returns to grantor then goes to 3d party |
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What is a remainder?
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Created in a 3rd party at the NATURAL conclusion of a prior estate
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What are the two types of remainders?
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Contingent
Vested |
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When is a remainder vested?
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When it is (1) created in an ascertainable person and (2) no condition precedent other than termination of prior estate
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Two special types of vested remainders:
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Vested remainder subject to complete divestment (or subject to condition subsequent
Vested remainder subject to open |
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What is a vested remainder subject to complete divestment?
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A remainder that has vested but that can be lost completely upon happening of future event
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What is a vested remainder subject to open?
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A remainder that has vested in some member of a class but that can be partially divested by additional members of the class
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When does a class open for purposes of vested remainders?
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1. Inter vivos conveyance: class opens at time of conveyance.
2. Testamentary conveyance: class opens upon death of testator |
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When does a class close for purposes of vested remainders?
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Rule of Convenience: a class closes once at least one member of the class is entitled to immediate possession.
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How does RAP interact with vested remainders subject to open?
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If any member of the class could potentially claim in a way that would violate RAP, the entire class gift is knocked out.
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What is the Doctrine of Worthier Title?
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It is more worthy to take by descent than by devise. Thus, where conveyance states "A to B for life then to A's heirs," it will be treated as creating a life estate in B and a reversion in A.
This has been abolished in most jurisdictions, except in case of inter vivos transfers. |
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What is the Rule in Shelley's Case?
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Where conveyance states "A to B for life then to B's heirs," it will be treated as transferring a fee simple absolute to A.
Abolished in most jurisdictions. |
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Three types of Waste:
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1. Voluntary: intentionally or negligently causing damage to property.
2. Permissive: Failure to take reasonable measures to prevent damage to property. 3. Ameliorative: Making improvements to the land |
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What is the modern law on ameliorative waste?
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A tenant is allowed to commit ameliorative waste if:
1. Market value of the land is not impaired AND EITHER 2a. Improvement was permitted by the remainderman OR 2b. A change to the nature of the property or the neighborhood justifies the improvement |
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What is a restraint on alienation?
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A condition in a conveyance restricting someone from transferring his interest (e.g., "A to B for life, but if B tries to sell his interest, then to C").
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What is a total restraint on alienation and what rules apply?
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A condition completely divesting someone of their interest if they attempt to sell that interest.
Total restraints are never allowed on a fee simple absolute. Total restraints are allowed if reasonable on anything less than a fee. |
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What is a partial restraint on alienation and what rules apply?
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Two types: Purchase Option (A to B, but A reserves right to buy back property during A's life) and Right of First Refusal (A to B, but if B tries to sell during A's life, A gets first refusal)
Both are allowed if REASONABLE |
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What is the Rule Against Perpetuities? (actual language of rule)
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No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
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To what 5 interests does RAP apply?
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1. Executory Interests
2. Contingent Remainder 3. Vested remainder subject to open 4. Purchase options 5. Right of first refusal |
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What are the steps in handling a RAP problem?
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1. Identify whether one of the 5 applicable interests is involved.
2. If so, can you imagine a scenario in which someone could take more than 21 years after everyone currently alive is dead? 3. If yes, cross out offending interest and deal with what's left; if no, RAP does not apply |
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Three types of concurrent estates:
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1. Joint tenancy
2. Tenancy in common 3. Tenancy by the entirety |
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What is joint tenancy?
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A form of concurrent ownership where each co-tenant owns an undivided interest in the whole and has a right of survivorship.
To create: make it clear there is a right of survivorship |
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What is a tenancy in common?
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A form of concurrent ownership where each co-tenant owns an undivided interest in the whole but does NOT have a right of survivorship.
Tenancy in common is presumed unless language clearly states otherwise. |
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What is a tenancy by the entirety?
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A joint tenancy between a husband and wife, which severs upon termination of the marriage. One co-tenant may not sell interest without consent of the other.
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What are the four unities traditionally required for joint tenancy and what do they mean? Which are required now?
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1. Time: interests vested at same time
2. Title: interests created in same instrument 3. Interest: equal ownership interests 4. Possession: equal right to possess entire parcel Only Interest and Possession are now required. |
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Which unity does a tenancy in common require?
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Only unity of possession. Co-tenants in common may have unequal ownership interests.
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What are the main differences between joint tenancy and tenancy in common?
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JT requires unity of interest; TIC does not.
JT has right of survivorship; TIC does not. |
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How may one sever a joint tenancy and what is the result?
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1. Partition action
2. Contract of sale 3. Mortgage the interest Result: joint tenant(s) now has tenancy in common with new purchaser(s) |
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What are the rights and duties of co-tenants?
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1. Each entitled to possess the whole property.
2. Profits: if generated by one tenant, he gets it, unless he has ousted the other; if generated by third party (rent), tenants share it 3. Taxes: Each must pay proportionate share 4. Repairs: No duty of repair, each makes repairs at own expense; but if there is rent, it can offset the expense before being split 5. Improvements: No duty to repair, each does so at own expense; but if property is sold for greater value due to improvement, the improving tenant is entitled to the amount of the increase so created |
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What are the three major components of an adverse possession issue?
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1. Physical
2. Mental 3. Time |
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What is required to succeed in an adverse possession claim?
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1. Actual, open, exclusive, notorious occupation of the land
2. With hostile intent 3. Continuously for statutory period |
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What constitutes "actual, open, exclusive, notorious occupation" for adverse possession?
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Occupation sufficient to put inspecting owner on notice.
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What constitutes "hostile intent" for adverse possession? How may it be satisfied?
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An intent contrary to the true owner's interest.
Satisfied either by claim of right (declaring self the owner regardless of true owner) or by color of title (mistaken belief that you are the true owner) |
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What is the effect of permission from the owner on an adverse possession claim?
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Destroys "hostile intent" element and thus defeats claim.
NB: Owner's awareness and silence does not constitute permission. |
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What is the majority position on mistaken encroachment and adverse possession?
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Mistaken encroachment is sufficient to establish hostile intent.
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How is "continuous" occupation determined for adverse possession?
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A question of fact based on specific circumstances (e.g., for mountain resort only accessible 6 months out of the year, 3 months occupation would be 50% of the time and may suffice)
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What is "tacking" and how does it work in adverse possession?
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Tacking is the combination of adverse possession periods to meet the statutory time requirement for adverse possession.
To work, the first adverse possessor must transfer his interest to the next (by conveyance or will). |
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What is "disability" in adverse possession context?
Which three are recognized in majority of jurisdictions? How does it work? |
Something that suspends or tolls the running of the SOL for adverse possession.
1. Infancy 2. Insanity 3. Imprisonment Disability tolls SOL only if it existed at time adverse possession commenced; adverse possession period then commences once the disability ends. |
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What is the effect of a successful adverse possession claim?
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Adverse possessor becomes the true owner of the estate as it was at the time possession commenced (e.g., a life estate, fee simple, etc.) and ownership relates back to that moment.
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What are the 3 relevant time periods for a land sale contract issue?
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1. Prior to closing
2. On closing date 3. After closing |
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What are the requirements for land sale contracts under the Statute of Frauds?
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1. Must have a writing
2. signed by party against whom enforcement is sought 3. including description of property, 4. description of parties 5. price, and 6. any conditions of price or payment |
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What are the exceptions tot he SOF requirement for land sale contracts?
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1. Doctrine of part performance
2. Equitable/promissory estoppel |
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What is the doctrine of part performance?
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An oral contract for sale may be enforced where part performance unequivocally proves existence of a contract. Factors to consider include:
1. Payment of all or part of purchase price 2. Taking of possession 3. Making of substantial improvements |
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How does estoppel work for oral land contracts?
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Estoppel may be used to enforce an oral land sale contract. Equitable estoppel is based on acts or representations of the parties; promissory estoppel is based on a promise.
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What is equitable conversion and what is its significance in land sale contracts?
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At the moment a land sale contract is formed (prior to actual closing), there is a bifurcation of title: equitable title passes to the buyer, legal title stays with the seller.
The risk of loss follows equitable title. |
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What is marketable title?
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A title reasonably free from defects. Seller impliedly promises to deliver marketable title at the time of closing in every land sale contract.
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What are some possible defects in a title?
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1. Unpaid mortgage or lien
2. Covenants and easements restricting use of the land 3. Title acquired by adverse possession (with no judicial decree) 4. Existing zoning or statutory violation |
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What is a quitclaim deed?
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A deed delivered without any of the 6 covenants of title -- "as is."
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What is a warranty deed? What are the 2 types and how do they differ?
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A deed containing covenants of title.
1. General warranty deed: contains all 6 covenants; covers all time prior to sale 2. Special warranty deed: specifies covenants; covers only time of seller's ownership |
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What are the 3 present covenants of title?
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1. Seisin: grantor owns the property
2. Right to convey: grantor has right to convey the property 3. Encumbrances: there are no encumbrances on the property |
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What are the 3 future covenants of title?
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1. Quiet enjoyment: won't be disturbed by a 3d party asserting a claim
2. Warranty: grantor will defenda grantee against 3d party 3. Further Assurances: grantor will do what is reasonably necessary to perfect title |
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Which covenants of title run with the land and when can they be breached?
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Present covenants do not run with the land and can be breached only at time of closing.
Future covenants run with the land and can be breached at time of closing or afterwards. |
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Three basic requirements for a valid conveyance by deed:
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1. Donative intent
2. Delivery 3. Acceptance |
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What are the requirements for a valid deed?
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1. Sufficient ID of the parties
2. Words indicating an intent to transfer the property interest 3. Sufficient ID of the property 4. Grantor's signature |
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What are the steps in handling a competing claimants problem?
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1. Look at potential claimants in chronological order and establish their claims to the property
2. Then take subsequent claimants and see if they can take title away (by adverse possession, land sale contract, or conveyance) |
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What are the three ways a subsequent land claimant may be able to take an interest away from someone?
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1. Adverse possession
2. Land sale contract 3. Conveyance |
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Three potential actions of grantor (in relation ot delivery of a deed) and their result:
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1. Physically deliver to grantee: presumption of delivery
2. Keep the deed: presumption of non-delivery 3. Give to 3d party: depends on circumstances |
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Describe the relation back doctrine for delivery of a deed via third party/agent. How do conditions affect this?
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Once 3rd party delivers to grantee, delivery is accomplished and relates back to the date grantor gave the deed to the 3rd party.
The more conditions grantor places on delivery by 3rd party, the more likely the conditioned conveyance will fail. |
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What is a "death escrow"? How do courts handle it?
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Where grantor gives deed to 3rd party and says "give this to Grantee when I die."
Courts will treat this as conveying a life interest to himself and a remainder to the grantee. |
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What result if grantor gives deed to 3rd party for delivery, but expressly retains right to reclaim it from 3rd party?
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This defeats the relation back doctrine.
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What is the general presumption when you have competing/subsequent claimants?
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First in time is first in right: whoever took first is presumed to be rightful owner.
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What are the 3 recording statute jurisdictions?
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1. Race
2. Notice 3. Race/Notice |
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Effect of a race statute:
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Whoever records first prevails.
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Effect of a notice statute:
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An unrecorded conveyance is invalid against a subsequent bona fide purchaser.
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What is a bona fide purchaser?
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One who purchases land (1) for value and (2) without notice
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What type of recording statute is this: "No conveyance shall be good against a subsequent purchaser for value and without notice, unless the same be recorded according to the law."
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Notice Statute
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What types of "notice" for recording statutes?
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1. Actual notice
2. Constructive/record notice 3. Inquiry notice |
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Effect of a race-notice statute:
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An unrecorded conveyance is invalid against a subsequent bona fide purchaser who records first.
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What type of recording statute is this: "A conveyance is void against a subsequent purchaser for value whose conveyance is first duly recorded."
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Race-Notice Statute
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Two types of Title Search Jurisdictions:
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1. Tract Index: searcher looks at legal description of land with chronological list of all conveyances; this always creates constructive notice
2. Grantor & Grantee Index: look up grantees going back in time, then grantors; this type may result in "Wild Deeds" not imparting constructive notice |
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What is "estoppel by deed"?
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Where A conveys to B without good title, then subsequently obtains good title, B may assert estoppel in court and prevail, acquiring good title.
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What are the 2 main categories of situations involving land use issues?
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1. Non-owner party asserts right to use owner's land in some way
2. Non-owner party asserts right to dictate how owner uses land |
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What are the three ways in which one asserts right to use another's land?
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1. Easements
2. Profits 3. Licenses |
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What are the two ways in which one asserts right to dictate how another uses his land?
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1. Covenants
2. Equitable servitudes |
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What are the three issues for easements?
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1. Creation
2. Scope 3. Termination |
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How can easements be created?
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1. Expressly by writing
2. By implication 3. Prescription 3. Estoppel |
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What is easement by prescription and how is it created?
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Basically adverse possession for easements. Must satisfy same requirements as for adverse possession, except adverse party must continually use the land, rather than occupy it.
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What is an easement by implication? How is it created?
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An easement is implied into a conveyance without being expressly included.
Can be created by prior use or by necessity. |
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Requirements for an easement implied by prior use:
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1. Severance of land held in common ownership
2. A quasi-easement (an existing, apparent, continuous use) at time of severance 3. Reasonable necessity for the easement, implying intent of parties to continue quasi-easement |
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Requirements for an easement implied by necessity:
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1. Severance of land held in common ownership
2. Strict necessity for the easement at time of severance |
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What is an easement?
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An interest in the land of another
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Four ways to categorize easements
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Affirmative: gives holder the right to do somehting on the land of another
Negative: gives holder the right to prevent landowner from doing something on his own land Easement appurtenant: involves both a dominant and servient tenement Easement in gross: only a servient estate, no dominant (e.g., power company right to run wires across land) |
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What is the allowable scope of an easement?
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If an express easement, and use is specifically defined, then that is the allowable scope.
Otherwise, holder of easement is alloed reasonable use of the easement. |
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What remedy for servient estate where use of easement exceeds reasonable bounds (surcharging the easement)?
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This is NOT grounds to terminate the easement. Servient owner may sue for damages or injunction.
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Easement holder's rights in relation to maintenance.
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Holder may do what is reasonably necessary to maintain the easement, even if it interferes with servient owner's use of his property.
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How may easements be terminated?
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1. Destruction of servient estate: terminates easement unless owner intentionally destroyed
2. Merger 3. Written release: must satisfy SOF 4. Abandonment: holder has stopped use and words or actions show intent to abandon 5. Estoppel: holder did something indicating abandonment and leading to foreseeable, reasonable reliance 6. Severance: an attempt to sever from dominant estate severs easement 7. Prescription: servient estate interferes continuously, etc., with use of easement 8. Sale of servient estate to BFP 9. End of Necessity |
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What is a "profit" in terms of land use? How is it created?
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The right to remove something from another's land
Created (1) expressly, or (2) by prescription. |
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What is a "license" in terms of land use?
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Permission to use another's land; NOT an interest in land (and thus no SOF, can be oral)
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Revocability of licenses for land use?
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Licenses typically are freely revocable at any time, fo any reason.
Made irrevocable where (a) it is coupled with an interest (permission to go onto land to retrieve something you purchased) or (b) license by estoppel |
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What is the principal difference between a covenant and an equitable servitude?
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Damages for equitable servitude can only be injunction; for covenant can get monetary damages.
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Four elements for a covenant to run with the land:
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1. Touch and concern the land
2. Intent 3. Notice 4. Privity (horizontal & vertical) |
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Three elements for equitable servitude:
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1. Touch and concern the land
2. Intent 3. Notice |
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How is the "touch and concern" element satisfied for covenants and equitable servitudes?
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For servient estate: the restriction reduces the use and enjoyment of the estate
For dominant estate: the restriction enhances/increases the use and enjoyment of the estate |
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Explain "intent" element for covenants & equitable servitudes.
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Parties must intend that the restriction bind future landowners.
Most jurisdictions imply this intent when the restriction touches and concerns the land. |
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Explain "notice" element for covenants & equitable servitudes.
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The owner of the servient estate ONLY, must take with notice of the restriction (actual, constructive, or inquiry notice)
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Explain "privity" element for covenants.
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Must have both horizontal & vertical privity.
Horizontal privity is privity of contract connected with the land: (1) grantor-grantee, (2) mortgagor-mortgagee, (3) landlord-tenant Vertical Privity is privity of estate. Exists on servient side only when all ownership interest in servient estate is transferred (e.g., not with leases). Exists on dominant side when any interest, partial or whole, is transferred. |
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Five ways to terminate a covenant or equitable servitude:
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1. Merger
2. Written release 3. Abandonment with words or conduct showing intent to abandon 4. Estoppel 5. Changed circumstances rendering reason for restriction invalid |
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What is an implied reciprocal servitude?
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The only type of servitude not requiring satisfaction of SOF.
Works for negative restrictions only. Two elements: 1. Restriction must be part of common scheme or plan for development 2. Current owner must take with notice |
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What is a nuisance?
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An unreasonable interference with the use and enjoyment of land. Often an alternative method of achieving a goal in property law. (rather than, e.g., covenant or equitable servitude)
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What are the two types of support rights?
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1. Lateral support (from the side)
2. Subjacent support (from underneath) |
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What is the rule for lateral support?
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A landowner has an absolute right to lateral support of his property. Where neighbor's excavation causes land to subside, neighbor is strictly liable if land is in natural condition, or would have collapsed in its natural condition. Otherwise, neighbor is liable only for negligence.
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What is the rule for subjacent support?
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A landowner has an absolute right to subjacent support of his property. Unlike lateral support, this right extends to improvements in existence at the time the underground rights were granted. As to subsequent improvements, underground owner is liable only for negligence.
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What are the two theories of riparian rights?
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1. Reasonable Use (majority): an owner of land abutting navigable water may make reasonable use of the water such that it does not unreasonab;y interfere with the riparian rights of others.
2. Prior Appropriation (minority, Western states): first person to take water for beneficial purposes has the rights |
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Common Enemy Rule
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A landowner may use any method available to keep diffuse surface water off of his land. Followed in northeast.
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Civil Law Rule
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A landowner may not interfere with the flow of diffuse surface water. Followed in the west.
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How does UCC apply to crops, emblements, & minerals on the land?
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Crops/emblements: sale of crops apart from the land is a sale of goods and governed by UCC, regarldess of who severs
Minerals: sale of minerals is a sale of goods and governed by UCC ONLY IF seller will sever |
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Four types of Tenancies
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1. Tenancy for Years
2. Periodic Tenancy 3. Tenancy at Will 4. Tenancy at Sufferance |
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Three-step approach to a Landlord/Tenant question:
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1. Identify the type of tenancy involved (creation/term/termination)
2. Identify which of the four disputes is involved (rent, condition, possession, improvements) 3. Determine whether landlord or tenant has transferred his interest in the property and know the effects. |
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Tenancy for Years: Definition/Creation/Term/Termination
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Any fixed-term tenancy
Created by express agreement of the parties. May be oral unless duration is greater than one year. Term is fixed by agreement. Can be any length. Automatically terminates at expiration of agreed-upon term. |
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Periodic Tenancy: Definition/Creation/Term/Termination
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Tenancy with a fixed start date and no fixed end date, continuing from period to period
Created by express agreement or by implication (holdover tenant) Term is indefinite Terminated upon giving of proper notice by either party |
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Tenancy at Will: Definition/Creation/Term/Termination
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Tenancy with no fixed duration
Created by express agreement or (very briefly) by implication (if lease invalid under SOF, becomes at-will until tenant makes first payment, then becomes periodic) Term is indefinite Terminated at will by either party |
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Tenancy at Sufferance: Definition/Creation/Term/Termination
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Tenancy created when a tenant remains in possession after termination of lease term.
Holdover tenant is considered either a periodic tenant (if landlord wants him there) or a tenant at sufferance (if landlord doesn't). Landlord indicates this by accepting/declining rent payment. If at sufferance, tenant is basically a trespasser. If periodic, common law says period is length of expired lease up to one year, modern law says it is the period for which rent is reserved. |
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Rules regarding notice of termination in a Periodic Tenancy:
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Termination requires appropriate notice, which must be equal to the length of the rental period, up to a max of 6 months.
At common law, notice had to be given on the first day of the period or was invalid. Now, notice any time is valid, but takes effect at beginning of next period. |
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How may a Tenancy at Will be terminated?
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1. Landlord or Tenant states his will that it be terminated.
2. Death of either party. 3. Any attempt by either party to transfer his interest. |
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What are the four common disputes between landlord and tenant?
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1. Rent
2. Condition of premises 3. Possession of premisses 4. Improvements: who keeps them? |
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Two steps in approaching a rent dispute:
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1. Determine hw much rent the landlord may sue for
2. Determine what defenses tenant may raise |
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What rent may a landlord sue for under the various tenancies?
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1. T for Years: Tenant owes rent for the entire agreed-upon period. Common law said LL had to wait and sue as rent accumulated; modern allows for anticipatory repudiation, with a duty to mitigate.
2. Periodic T: Tenant owes rent for the appropriate notice period. 3. T at Will: Usually no future rent due, but may sue for rent still owed. 4. T at Sufferance: If treated as periodic, same as periodic; if treated as sufferance: liable for reasonable rental value of property. |
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What defenses may Tenant raise in rent dispute?
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1. Failure to deliver possession of premises
2. Eviction (actual, constructive) 3. Surrender 4. Destruction of leased premises 5. Offsets 6. Other contract defenses |
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Distinguish actual from constructive eviction.
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Actual eviction occurs where T is physically prevented from occupying all or part of the premises by LL or someone acting on behalf of LL. Either total or partial actual eviction is a defense to paying any rent.
Constructive eviction occurs when there is substantial interference, by LL or someone acting on his behalf, with T's quiet enjoyment. T must actually vacate premises within reasonable time. PARTIAL constructive eviction allows only for rent abatement, not a total defense to paying any rent. |
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What is Surrender in context of rent dispute?
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T surrenders possession of property to LL. To be effective, LL must accept.. An attempt to mitigate damages is not an acceptance of surrender.
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Discuss destruction of premises in context of a rent dispute.
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At common law, if the habitation on a property was destroyed, T remained liable for rent. The exception was where T occupied only part of the building (apartment complex).
Under modern rule, such destruction is a defense to paying any rent, unless T intentionally or negligently caused the destruction. |
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Discuss Offsets in context of rent dispute.
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T may be able to seek offsets to rent for violations of warranty of habitability. If the violation does not constructively evict T, he must give LL notice and reasonable time to correct, then T may do what is reasonably necessary to remedy problem and offset the cost against his rent.
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What are Tenant and LL's respective obligations concerning maintaining condition of premises?
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LL: At common law, no implied obligation to maintain premises. Now, implied warranty of habitability, and possibly additional liability in tort.
T: at common law, no obligation to maintain (except from torts standpoint). T does have duty to avoid waste (voluntary, permissive, ameliorative) |
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When and HOW may LL retake possession of property from T prior to expiration of lease?
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Only where T has committed a MATERIAL BREACH of the lease.
At common law, LL could use reasonable force. Modernly, LL not allowed to use any force (no Self Help), must use legal process. |
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What is the rule on improvements to premises by Tenant?
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At common law, anything affixed to property must remain with property, with the exception of "trade fixtures": something T affixed as part of his trade or profession. The latter could be removed if it did not cause substantial damage to property.
Modern rule: Anything T affixes may be removed if property is left in substantially the same condition as when T took possession. Must be removed prior to expiration of lease, unless T has no way of knowing when lease will end. |
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Where LL transfers hi interest to a new LL, who gets the rent?
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Rent is owed to whoever is LL on the date rent is due.
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Discuss assignment of Tenant's interest in context of rent dispute.
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Depends on whether new T is an assignee or sublessee. He is assignee if T transferred to him ALL of the remainder of his obligation; sublessee if T transferred only a portion.
Covenant to pay rent may be enforced against new T only if it runs with the land, which requires vertical privity. Vertical privity exists where new T is an assignee, bt not a sublessee. Landlord may evict whoever is in possession, regardless of who owes the rent. |
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Discuss the transferability of leases generally.
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Generally, interest in a lease is freely transferable. A prohibition may be written into a lease, but it will be narrowly construed. To prohibit bot assignment and sublease, must explicitly state both. If LL consent is required, LL must act reasonably and in good faith in granting/withholding consent.
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What is the Rule in Dumper's Case?
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Prohibitions against Assignments ONLY (not subleases), if waived once by LL, are deemed waived for duration of lease unless LL states otherwise.
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