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110 Cards in this Set
- Front
- Back
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Alienability of FSA
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- direct restraints on transfer of ownership are void
- ignore the restriction |
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Exception to the alienability of FSA
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Right of first refusal
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If life tenant dies before the measuring life dies the life estate passes to
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The estate of the deceased life tenant and continues in place until the measuring life dies
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forfeiture restraints
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- valid forfeiture restriction and will be enforced on life estate and future interests while they are still future interests
- but disabling restraints are void |
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Life tenant responsibility towards an estate
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Life tenant must maintain the estate- not commit waste
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Voluntary waste
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Any affirmative action that causes harm to the property
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[RAP - Reforms]
What are the three reforms of the RAP 26 |
-"wait and see" / "second look" doctrine
---Determine validity at the end of the measuring life ---Includes a cy pres doctrine allowing "as near as possible" reform of the future interest -Uniform Statutory RAP (USRAP) ---Provides an alternative 90 year vesting period ---Includes a cy pres doctrine allowing "as near as possible" reform of the future interest -Reduce all Year contingencies to 21 |
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For purposes of waste, maintain means
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Life tenant may continue the NORMAL use of the land
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voluntary waste of Life Tenant
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Generally not allowed, Except when PURGE
Prior Use Repairs Grant Exploitation of natural resources if land is ONLY suitable for that (also open mines doctrine) |
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Life Tenant must do these things to avoid liability for permissive waste
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1. Make ordinary repairs
2. Pay all taxes on property 3. Pay interest (not principal) on mortgage |
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ameliorative waste exception
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changed conditions have made the property relatively worthless- then can alter the property
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Future interests retained by the Grantor
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- Reversion
- Possibility of reverter - Right of re-entry |
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Future interest given to the Grantee
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- Remainder
- Executory Interest |
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A Reversion arises in the Grantor when
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Whenever the Grantor conveys away less than the full durational estate that the grantor had
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Possibility of Reverter is automatically retained in the Grantor when
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Whenever he conveys a FSD
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Whenever Grantor conveys a FSCS, Grantor keeps a
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Right of Re-entry (power to terminate); NOT automatic - grantor must affirmatively reenter
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How do you identify a remainder in a Grantee
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comes naturally and immediately on the termination of the proceeding estate
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Protections of Tenancy by the entirety
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-creditors CANNOT reach to satisfy debts incurred by one of the spouses individually
-unilateral conveyance to 3rd party does NOT sever -unilateral partition is not available |
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Vested remainder
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Taker is ascertainable and no conditions on taking
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Contingent remainder
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There's a condition that must be satisfied before a future interest vests (i.e. becomes possessory)
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General rules regarding Class Gifts
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1. Where the remainder interest is conveyed to a class of unnamed persons whose members are not yet fully known, the class remains open
2. The class closes whenever ANY class member is entitled to a distribution |
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How do you identify an Executory Interest
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An executory interest operates to cut short the estate that comes before it
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If a future interest in a Grantee is NOT a remainder, then it must be
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An executory interest
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Executory interest holders and remainder interest holders ability to sue for waste
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Executory interest- not able to, they lack standing
Remainder interest- can sue, they have standing |
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RAP always applies to
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- Executory Interests
- Contingent Remainders - Vested Remainders Subject to Open (class gifts) |
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RAP and Charities
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An exception is granted to conveyances from one charity to another
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RAP and Rights of First Refusal
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Contingent interests violate the RAP IF they could possibily be exercised outside the time period of the rule
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Four unities necessary to create a joint tenancy
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1. Time
2. Title 3. Interest 4. Possession |
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To create a joint tenancy, the language of the conveyance must clearly reflect
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The Grantor's INTENT to create a joint tenancy - "right of suvivorship"
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Where the intent of the Grantor is unclear, courts will presume
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A Tenancy in Common is created
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Right of Partition
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A joint tenant can partition his portion and will no longer be a joint tenant with the other joint tenants
partition can be done 1. voluntary 2. judicial action |
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Severance
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Occurs whenever any one of the four unities is disturbed in a joint tenancy
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actions that will sever a joint tenancy
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SPaM
1 - Sale 2 - Partition, And 3 - Mortgage (lien vs. title theory) |
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Effect of sale on joint tenancy
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- The unities are disturbed
- Buyer takes his interest as a tenant-in-common - Remaining owners maintain their interests as joint tenants and their right of suvivorship remains intact |
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Effect of mortgage on joint tenancy
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- Lien theory (NV): when a mortgage is executed, a lien attaches, but title is not transferred = No Severance
- Title theory: When a mortgage is executed, title transfers, unities disturbed = Severance |
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Effect of Contract for sale on joint tenancy - when does the severance occur
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When the contract for sale was signed (not closing)
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When does a creditor's sale affect a severance
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Not until the judicial sale actually takes place
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One unity required for a Tenancy in Common
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Possession - each co-tenant is entitled to possess the whole of the property
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What restrictions are there on the alienability of the estate in a tenancy in common
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None - each co-tenant may do what they want with their portion; any tenant can force a partition; no right of survivorship
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Tenancy by the Entirety requires
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Four unities PLUS Marriage
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What are the 3 types of waste?
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Voluntary (overt acts)
Permissive (neglect) Ameliorative (increased value) |
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Four ways to terminate a TBE
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1. Death
2. Mutual agreement in writing 3. Divorce (now tenants in common) 4. Execution by a joint creditor (individual creditor will fail) |
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Co-owners right to possession
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Each co-owner has the right to possess the whole property
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Co-tenant accountability
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One co-tenant does not have to account to another co-tenant for his share of the profits, subject to four exceptions
1. Ouster 2. Agreement to share 3. Lease of the property by a co-tenant to third party (rent collected) 4. Depletion of natural resources |
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What is contribution for purposes of co-ownership
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Concerns the right of one-tenant to force the other co-tenants to pay their fair share of expenditures regarding the property
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What type of expenditures are covered by principles of contribution
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- Taxes
- Mortgage (if signed by the co-tenant) - Necessary repairs |
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Four landlord-tenant estates
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1. Tenancy for years
2. Periodic tenancy 3. Tenancy at will 4. Tenancy at sufferance |
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Key phrase in establishing an estate for years
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"Specified time"
beginning date and an ending date |
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notice required to terminate a tenancy for years
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No notice is required to terminate the tenancy for years
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Key phrase to establish a periodic tenancy
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"Repeating"
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What are the two implied covenant/warranties with residential leases?
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Warranties of:
Quiet enjoyment Habitability |
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Periodic tenancy can be created by
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- Express agreement
- Implication (no agreement to duration) - Operation of Law 1. Oral lease that violates the Statute of Frauds 2. Holdover Tenant |
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If the lease does not specify how long the tenancy is to last, then it is presumed
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Periodic tenancy measured by the rent payment
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Rule when a landlord accepts a rent payment from a holdover tenant
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A periodic tenancy is created by operation of law for the specified period in the rent check
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periodic tenancy termination notice requirements & effective end date
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1. Enough time
An amount of time equal to the length of the period of the tenancy (EXCEPT for yr-to-yr tenancy only requires 6 months) 2. Effective date must be the last day of the tenancy period |
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Tenancy at Will can be terminated by
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Either party at any time without notice
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Termination of tenancy at will by operation of law
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- Death of either party
- Waste by tenant - Assignment by tenant - Transfer of title by landlord - Lease by landlord to third party |
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Tenancy at Sufferance
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a tenant wrongfully holds over
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Landlord has two options with a holdover tenant (i.e. tenancy at sufferance)
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1. Sue to Evict
2. Impose new periodic tenancy |
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Raising rent to a hold over tenant
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Can raise rent if the landlord gave the tenant notice of the increase in rent before the expiration of the lease
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Tenant's two primary duties are to
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- Pay rent
- Maintain premises |
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A lease that includes a covenant to repair on the tenant will make the tenant liable for
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everything including ordinary wear and tear unless otherwise agreed
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Landlord's remedies where tenant fails to pay rent
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Sue for damages and terminate the lease, thereby evicting the tenant
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Landlord's remedies where tenant unjustifiably abandons
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SIR
1. Accept the offer of Surrender 2. Ignore and continue to charge rent (not favored) OR 2. Relet and hold tenant liable for any deficiency (majority: landlord must make a reasonable effort to relet to mitigate tenant's damages) |
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Landlord's duty to deliver possession means
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He must deliver possession of the leased premises to the tenant when the lease begins; failure to deliver actual possession constitutes a total breach
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Landlord's duty regarding the condition of the leased premises
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Implied Warranty of Habitability
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Implied Warranty of Habitability applies
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Only to residential leases
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Tenant's remedies for the landlord's breach of the implied warranty of habitability
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MR3
- Move out and end the lease - Repair and deduct - Reduce rent to fair rental value - Remain and sue |
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What is an easement
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Non-possessory right to someone else's land
positive or negative easement |
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An implied covenant included in every lease, whether residential or commercial
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Implied Covenant of Quiet Enjoyment
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Landlord may breach the Implied Covenant of Quiet Enjoyment by
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- Total eviction
- Partial eviction - Constructive eviction |
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Partial eviction occurs when
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- Landlord physically excludes tenant from some portion of the leased property
OR - Where some third party, who holds title, retakes the property and physically excludes the tenant from that portion |
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When landlord effects a partial eviction tenant has the option to
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Stay for free on the non-excluded portion of the premises
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When a third party retakes the property tenant has the option to
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Stay on and reduce rent by the proportion of property taken
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Constructive Eviction
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Landlord fails to provide some service that he's obligated to AND that failure makes the property uninhabitable
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when does the benefit and burden of an easement pass
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Benefit passes AUTOMATICALLY, EVEN if not mentioned in deed!
Burden ALSO passes automatically (even if not in deed), BUT not if subsequent person is a BFP w/o notice |
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Three requirements to establish constructive eviction
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SING
1. Substantial Impairment 2. Notice to L 3. Goodbye: T must leave in reasonable amount of time |
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Distinguish between assignment and sublease
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- Assignment: transfer all (estate transfers)
- Sublease: transfer only part (estate does not transfer) |
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A tenant is liable to the landlord for rent if there is either
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Privity of contract or privity or estate
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Privity of estate exists only between
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Present landlord and present tenant
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Requirements for creating an affirmative easement by implication (quasi-easement)
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-Land split in 2, AND
-Previous use was apparent AND -Parties expected use would survive division b/c reasonably necessary to continued enjoyment |
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Privity of contract exists only where there is
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An agreement between the landlord and the particular tenant from whom the landlord seeks to recover rent
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Requirements for creating an affirmative easement by grant
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Must be in writing if > 1 year
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As to covenants contained in the lease other than rent, the general rule is that they will run with the land if
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They touch and concern the land (performance makes the land more valuable or useful)
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Subtenant's liability for rent
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Subleasor keeps the estate; it is NOT transferred to the sublessee so he is not liable to the landlord
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What are ways to terminate an easement
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***END CRAMP
-Estoppel -Necessity (period of necessity ends) -Destruction of servient land -Condemnation of servient estate -Release -Abandonment -Merger -Prescription |
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Validity of non-assignment clauses
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- Despite being a restraint on alienation courts will uphold them as valid and enforceable
- BUT strictly enforceable (generally does not prohibit a sublease) |
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Effect of waiver of non-assignment/non-sublease clause
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Permission given once is considered to waive the clause altogether unless otherwise stated at that time
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Partial condemnation
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- Tenant must continue to pay full rent
- Will share in the condemnation equal to the amount of rent that was to be paid for that portion of the property over the remainder of the lease term |
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What is a license
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Mere privileged to enter another's land for some purpose
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Complete condemnation
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Tenant no longer has to pay rent; Will share in the condemnation award only to the extent the FMV of the property exceeds the amount of rent due under the lease
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Tort liability of landlord to tenant or tenant's invitees for injuries sustained on the premises during the period of the lease
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Generally no liability, Except CLAPS
CLAPS Exceptions 1. Common Areas 2. Latent Defects 3. Assumed repairs 4. Public Use 5. Short term lease of furnished dwelling |
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Requirements to terminate a license
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NONE - they are freely revocable (but estoppel can apply)
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Landlord and latent defects
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Landlord is under a duty to disclose latent defects which he either knows or has reason to know of; NO duty to repair
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Requirement to satisfy estoppel claim, preventing license being revoked
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Licensee has invested substantial money, labor or both
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Landlord and short term lease (rental of a furnished dwelling for a short term - 3 months)
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Liable for defects, even if the landlord neither knows nor has reason to know of such defects
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Landlord and common passageways under his control
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Liable for failure to exercise reasonable care (standard negligence analysis)
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What is a covenant
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Promise to DO or NOT DO something, but it's a K obligation, NOT a property interest
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Three requirements to invoke the Public Use Exception for landlord's liability
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1. Landlord must/should know of major defects
2. Landlord must/should know tenant will not fix the defect 3. Landlord must/should know the public will be using the premises |
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Tenant's tort liability
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Tenant is ALWAYS liable to a third party invitee for negligent failure to correct dangerous conditions on the leased premises, regardless of whether the landlord may be held liable as well
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The analysis to determine when an item of personal property is to be treated as a fixture turns on
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Intent
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Four factors relevant to determine whether there is an intent to create a fixture
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1. Degree of attachment
2. General custom 3. Harm to premises on removal 4. Is it a trade fixture (always can be removed) |
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When can personal property be removed by tenant or seller
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- Tenant: before he vacates at the end of the lease
- Seller: must remove before closing |
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What's required to have vertical privity
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Any non-hostile nexus (K, devise)
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life tenants repair, mortgage interest, and tax obligations are limited to
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1. the amount of rents received from the land, OR
2. reasonable rental value if the life tenant is using the land, OR 3. no obligation to repair if not using the land or receiving rent |
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failure of life tenant to pay taxes
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a tax sale will eliminate the future interests
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effect of wish, desire, or expectation of use of land on title
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- no effect on title
- must specifically create a FSD or FSCS |
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effect of a contingent remainderman not satisfying the contingency by the death of the life tenant, but still capable of satisfying it
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reversion to grantor who holds in fee simple subject to executory interest- the remainderman has the executory interest until he fulfills the condition
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negative reciprocal servitude
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an IMPLIED equitable servitude
Servitude due to common scheme, requires: -Subdivider had general scheme of development, including D's land -D had NOTICE |
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a joint tenancy cannot be severed by
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a will- the remaining joint tenants automatically take the property
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