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35 Cards in this Set

  • Front
  • Back
What is a joint tenancy?
two or more own with the right of survivorship, and right to use and enjoy the whole.

Interest is alienable but not devisable or descendible.
Creation of joint tenancy
"four unities." Must convey at the same time, by the same title, with identical equal interests, with identical rights to possess the whole.

Must clearly express right of survivorship.

Must convey to straw man to convert fee simple to joint tenancy (but not in NY)
Severance and sale of joint tenancy
Joint tenant may sell during his or her lifetime, but buyer is tenant in common.

The rest of the joint tenants remain joint tenants.

Mere act of entering into contract for the sale will sever the joint tenancy.
Severance and partition of joint tenancy
By voluntary agreement, partition in kind by judicial action, and forced sale
Severance and mortgage of joint tenancy
Execution of mortgage on a joint tenant's share. State split:

Title theory of mortgages (minority): severs joint tenancy
Lien theory of mortgages (majority, NY): does not sever joint tenancy
Tenancy by entirety
tenancy recognized in 21 states including NY where husband/wife are fictional one person, right of survivorship.

Arises presumptively

Creditors of only one spouse cannot get this property (in NY if one spouse mortgages his interest, creditors of that spouse can get).

Unilateral conveyance by only one tenant does not defeat right of survivorship
Tenancy in common
i) Each co-tenant owns an individual part and each has a right to possess the whole.
ii) Each interest is descendible, divisible, and alienable. There are no rights of survivorship between tenants in common
iii) The presumption favors the tenancy in common.
Acquisition by co-tenant through adverse possession
General rule: NONE

New York: co-tenant may acquire full title by adverse possession if he's in exclusive possession for 20 continuous years. Theory of implied ouster.
Waste by co-tenant
Co-tenant must not commit waste, and co-tenants may bring action for waste during the life of the co-tenancy
Term of Years/Tenancy for Years
Lease for fixed determined period of time (not necessarily measured in years)

Automatically terminates

If greater than one year, must be in writing to be enforceable (SOF)
Periodic Tenancy
continues for successive intervals

May arise by implication
Periodic Tenancy by Implication
-provision for rent to be paid at intervals
-Oral term of years that violates statute of frauds creates periodic tenancy measured by how rent is tendered
-holdover tenant stayed on past conclusion of lease measured in how rent is paid (note in NY it is month to month)
Termination of Periodic Tenancy
Notice must be given, usually in writing

Length of notice: at common law at least equal to the period itself, but if year-to-year, then 6 months notice. UNLESS OTHERWISE AGREED.

Ends at the conclusion of a natural lease period. When lease begins on 1st of month, notice on 15th of month will be effective for 30th of FOLLOWING month
Tenancy at Will
For no fixed period of time, terminable at any time by either party (but usually requires reasonable demand to vacate).

Only arises by express agreement
Tenancy at Sufferance
When T has wrongfully held over past expiration of lease.

Lasts until T is evicted by L or L elects to hold T to new tenancy

NY: Landlord's acceptance of rent creates implied month-to-month
When tenant installation qualifies as fixture
Express agreement controls

Otherwise, T may remove a chattel that she has installed so long as removal does not cause substantial harm to the premises.
L's remedies for T's breach of duty to pay rent
If T is in possession: may evict through the courts or continue the relationship and sue for rent due. MAY NOT SELF-HELP.

If T not in possession: may 1) consider it as surrender; 2) ignore abandonment and hold T responsible for unpaid rent; 3) Re-let premises and hold T liable for deficiency.

Most states require mitigation, but NY does not.
Covenant of quiet enjoyment: constructive eviction.
must be chronic and substantial interference, notice to landlord and failure of landlord to respond, and T must vacate within reasonable time.
Implied warranty of habitability
non-waivable; only applies to residential leases.

appropriate standard may be supplied by local housing code or independent judicial conclusion

T may move out, repair and deduct from rent, reduce or withhold rent, or remain in possession and seek money damages.
Exceptions to caveat lessee (landlord's tort liability)
-Common areas: L must maintain all common areas (hallways, stairwells)
-Duty to WARN of latent defects of which L has knowledge or reason to know.
-Assumption of repairs: once undertaken, L must complete repairs with reasonable care.
-Public use rule: L who leases public space (such as: a convention hall or a museum), and who should know, because of the nature of the defect, and the length of the lease, that T will not repair, is liable for any defects on the premises.
-Short term lease of furnished dwelling: L is responsible for any defective condition that proximately harms T.
Easements appurtenant
Easement that benefits its holder in his physical use or enjoyment of his property. Must be two parcels!
Dominant tenement
in easement appurtenant, the benefited parcel
servient tenement
in easements appurtenant or in gross, the burdened parcel
Easements in gross
easement that confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Servient, but no dominant, tenement.
Transferability of easements appurtenant
Appurtenant: Passes automatically with dominant tenement; likewise with servient tenement unless new owner is bona fide purchaser with no notice
Transferability of easements in gross
Not transferable unless it is for commercial purposes
Creation of affirmative easement
1. Grant. If more than one year, must be in writing that complies with formal requirements of deed.
2. By implication. Parties expected that the use would survive division b/c reasonably necessary to dominant's use and enjoyment.
3. Necessity - grantor conveys portion with no way out
4. Prescription (adverse possession)
Termination of easement
necessity (expires as soon as necessity ends)
destruction of the servient land, other than through willful conduct
condemnation of servient estate
abandonment (as demonstrated by physical action)
merger if unity of ownership
What happens when parties purport to create an oral easement in violation of statute of frauds?
Creates a revocable license.
When license not revocable
Only when estopped b/c licensee has invested substantial money or labor or both in reasonable reliance on the license's continuation
Whether to construe as covenant or equitable servitude?
On basis of remedy that is sought.

If P seeks damages, construe as convenant; if P seeks injunction, construe as equitable servitude.
When burden of covenant runs with the land burdened
-A promise in writing
-Original parties must have intended that covenant should run
-promise must touch and concern the land
***horizontal privity between original contracting parties
-vertical privity between original party and new owner
-new owner must have had notice of the promise
When benefit of covenant runs with the land benefited
Touch & Concern
Vertical privity
(same as burden except no horizontal privity)
Requirements for equitable servitude to bind successors
touch and concern

General or common scheme doctrine (subdivision of parcels)
Equitable servitude (negative reciprocal servitude) arises when:

-subdivider had general scheme of residential development which included defendant lot
-defendant lotholder had actual, inquiry, or record notice of the promise