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32 Cards in this Set
- Front
- Back
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Tenants in Common
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"a. Separate and undivided interests in the whole property. b. Interest is descendible and may be conveyed by deed or will c. No rights of survivorship
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Joint Tenancy
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"a. Right of survivorship b. There is no probate – if one their interest goes directly to the other. c. Creditors cannot go after your interest when you die they must do it beforehand d. Four unities must exist (PITT)
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What are the four unities?
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"Possession, interest, time and title"
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Time
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interest of each joint tenant must be acquired or vest at the same time
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title
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all joint tenants must acquire title by the same instrument or by a joint adverse possession. A joint tenancy can never arise by intestate succession or other act of law
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interest
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all must have equal undivided shares and identical interests measured by duration
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possession
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each must have a right of possession of the whole. Once created a joint tenant can voluntarily give exclusive possession to the other joint tenant
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How can a J. Tenancy be destroyed?
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"i. Can be severed by inter vivos conveyance. Becomes a TIC.
ii. Can be broken through a straw man. In CA, can be unilaterally broken without a straw man. Become a TIC. iii. Mutually agree to destroy one of the entities. Becomes a TIC. iv. If between three people and one severs the other two are still JT. |
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Tenancy by the entirety
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"a. All four unities + marriage b. If you convey to a husband and wife this tenancy is presumed. c. Can create using a strawman. d. Divorce creates TIC.
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How to terminated Tenancy by the entirety
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a. Divorce terminates this and then creates tenants in common b.Cannot unilaterally sever this. (Neither husband or wife can convey to a third party).
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Special rules of Concurrent interests
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"a. At CL favored JT over TIC. Today, there is a presumption of TIC unless a JT is declared."
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J. Tenancy Bank Accounts
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"Look to intent of the parties (very important). A designation by a bank that the account is J. Tenancy does not necessarily mean parties meant to create one. Generally, the courts decide that the survivor takes the whole unless there is clear evidence that it was just a convenience account."
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Convenience account
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Owner intends the other party to only have power to withdraw funds to pay owner's bills. Does not intent other party to have survivorship rights.
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Types of partitions
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"Partition by kind, partition by sale"
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Partition by kind
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a physical division of the property into separate parcels. Preferred technique. If the value of the parcels does not equal the interest accordingly a court can equalize the distribution by ordering a money payment.
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Partition by sale
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"if physical division of land is impossible, impracticable, or inequitable a court may order the property to be sold and the sales proceeds are divided among the cotenants according to their respective shares. "
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Two conditions of Partition by sale
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"1. Physical attributes of the land are such that a partition is impracticable
2. Interests of the owners would better be promoted by a partition by sale " |
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Spiller v. Mackereth
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"(guy storing stuff in warehouse jointly owned) – cotenant do not have to pay rent to the other tenant. Each tenant has a right to occupy the property. However, if one tenant bars the other from the use of the property (ouster) then that tenant would have to pay rent. i. Minority rule: cotenants in exclusive possession must pay rent to cotenants out of possession even in the absence of ouster."
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Swarzbaugh v. Sampson
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(boxing ring) the act of one joint tenant without the express or implied authority or consent of his cotenant cannot bind or prejudicially affect the rights of the latter. Cotenant who pays for necessary repairs does not have right of repayment from other cotenants. Minority Rule: Cotenants have a fiduciary duty to one another in some JNs
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Leasehold Estates
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non-freehold estates. Do not include seisin. Conveyance and contract. Tenant has a present possessory interest and the landlord has a future interest (reversion).
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Term of years
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estate that lasts for some specific fixed period of time or for a period of computable by a formula that results in fixing calendar dates for beginning and ending. Possessory once created
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Rules regarding Term of years
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"Can be less than a year or more than a year
Some statutes limit the duration of the term of years May be terminated earlier by a subsequent event or condition. Term of years determinable or subject to a condition subsequent . Expires at the end of stated period w/o either party giving notice to the other Likely not a term of years if the time period is uncertain. In CA - 99 years is max for urban property 51 years is max for farm property. Exceeds max then lease is void " |
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Periodic tenancy
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lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination
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termination of periodic tenancy
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"Month to month or year to year lease
Termination date uncertain until notice is given At CL - Year to year - 6 months notice is required a month periodic tenancy requires a 30 day notice to terminate For other terms – notice of termination equal to length of the period, but not to exceed 6 months. JN split: it can be terminated anytime with a 30 day notice " |
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How to create a periodic tenancy
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"Express agreement
Operation of law - Tenant holds over, or lease invalid and converts a tenancy at will to periodic tenancy " |
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Tenancy at will
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"no fixed period, endures so long as both landlord and tenant desire. Landlord and tenant must have the right to terminate the lease. "
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How to terminate a tenancy at will
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"Either landlord or tenant can decide to end the tenancy at will
Requires 30 day notice to terminate or the interval between rent payments. At CL, if one party can terminate, then the other party has that right as well. Unless parties expressly agree to tenancy at will most courts will treat it as a periodic tenancy due to the regular monthly, quarterly payments. " |
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Terminating TaW by operation of law
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"1. Either party dies 2. Tenant commits waste 3. Tenants attempts to assign his tenancy 4. Landlord transfers his interest in the property 5. Landlord executes a term lease to a 3rd party
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Tenancy at sufferance (Holdovers)
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a tenant remains in possession after termination of the tenancy. Could potentially keep a tenant there for another year. Somewhat vague.
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Landlord options for holdovers
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"i. Eviction (plus damages) ii. Consent to create a new tenancy; either implied or expressed
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JN splits on holdover results
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"1. Pay the full term 2. Pay one rent payment 3. Create a tenancy at will 4. Some state require double rent 5. No holdovers when equipment is left behind or can’t move due to extreme circumstances.
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Crechale & Polles v. Smith
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If landlord accepts a check from the tenant it may be grounds for an implied agreement to a holdover. Landlord has a choice to treat the tenant as a trespasser or hold them over for another term. Argument for – common law Argument Against - frustrates the intent of the parties.
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