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173 Cards in this Set
- Front
- Back
what does Possession means in co-tenant?
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each co-tenant can possess & enjoy the whole
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what if one cotenant excludes another?
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he’s committed wrongful ouster
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Does co-tenant own rent from other in exclusive possession?
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absent ouster, a co-tenant in exclusive possession isn’t liable to the others for rent
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Does A co-tenant who leases all or part of the premises to a third party must account to his co-tenants?
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Yes, providing them their fair share of their rental income
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co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the exclusion of the others?
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no. absent ouster no hostility
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what's the NY Distinctions – Theory of Implied Ouster?
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A co-tenant may acquire full title by adverse possession, if he is in exclusive possession for 20 continuous years
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Does each co-tenant is responsible for his share of carrying costs? how should he pay?
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Yes.based on % of ownership
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Does co-tenant enjoys right to pro-rate contribution for repairs?
what must be done? |
neccessary repairs.
notice required to the others of the need of the repair |
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Is there right for contribution for “improvements”?
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no.
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At Partition, what does improving co-tenant entitle to?
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credit equal to any increase in value or fully liable for any decrease in value
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Co-tenant can bring an action for waste?
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co-tenant must not commit waste. can bring an action for waste during the life of the co-tenancy
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what tenancy can bring partition?
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joint tenant or tenant in common has a right to bring an action for partition
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what kind of dealing duty does tcoenant own?
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fair
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what are the 4 leasehold?
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1. Tenancy for Years
2. Periodic tenancy 3. Tenancy at Will 4. Tenancy at Sufferance |
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what is Leasehold?
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estate in land, under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest
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what is Tenancy for Years?
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lease for a fixed, determined period of time
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what's the statute of fraud in tenancy for years?
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greater than 1 year must be in writing to be enforceable, because of Statute of Frauds
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what is oral lease over 1 year in tenancy for years?
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creates an implied periodic lease, depending on the interval to tender rent
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does Termination for year require notice?
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no,because the term of years states from the outset when it’ll terminate
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L leases Blackacre to T “from January 1, 2003 to July 1, 2003.” Which form of tenancy exists here? . How much notice is needed to terminate the tenancy?
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Term of Years.It is a leasehold for a fixed known period of time
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what's Periodic tenancy?
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lease continues for successive periods, until terminated by proper notice by either party
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how to create periodic tenancy?
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(i) Express Agreement.
(ii) Implication in one of 3 ways |
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what's implication in periodic tenancy?
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(a) Leased with NO mention of duration, but provision is made for rent payment at set intervals
(b) Oral term of years in violation of the statute of frauds, creating an implied periodic tenancy (c) Holdover |
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what periodic tenancy does landlord have in a residential lease?
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in a residential lease, if landlord elects to holdover a tenant who has wrongfully stayed on past conclusion of the original lease, measured by the way rent is now tendered
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what does hold over in a commercial lease result?
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if the original lease is over a year, the periodic tenancy is a year-to-year tenancy results.
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what's the exception in holdover?
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the tenant holds over for a couple of hours;
leaves a few articles of personal property the delay is not due to the tenant’s fault it is seasonal lease. |
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T rents an apartment from L, beginning June 1. Nothing is said about duration. T pays rent each month. What tenancy exists here?
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implied month to month periodic tenant.
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what's ny distinction for hold over?
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Landlord who elects to holdover a tenant creates an implied month-to-month periodic tenancy, unless otherwise agreed
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what's the termination time of periodic tenancy?
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automatically renewed until proper notice of termination, usually written, is given
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how much notice must be given in a period tenancy?
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Notice must be given at least equal to the length of the period itself, UNLESS otherwise agreed
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how much notice given in month-to-month tenancy?year-to-year tenancy
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need at least 1 month’s notice
only 6 months’ notice |
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can the parties may lengthen or shorten these common-law prescribed notice provisions in periodic tenancy?
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yes,Freedom of Contract
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when does periodic tenancy must end?
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a natural lease period (last day of the period)
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L leased Blackacre to T on January 1, 2003, for a periodic tenancy of month-to-month. On May 15, 2003, T sends written notice of termination.
when is t bounded? |
T is bound until June 30, 2003
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what is Tenancy at Will?
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no fixed period of duration
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how does tenancy at will Create?
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unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy
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when does tenancy at will may be terminated?is their time limit?
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may be terminated by either party at any time,a reasonable demand to quit the premises is typically required
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what's the ny disctinction of terminating tenancy at will?
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Landlord terminating a tenancy at will must give at least 30 days written notice of termination
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what's tenancy Sufferance?
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created when tenant has wrongfully held over past the expiration of the lease
(i) Created to permit landlord to recover rent |
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how long does tenancy at sufferance last?
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lasts only until either landlord evicts the tenant or elects to hold the tenant to a new term
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what's the ny distinction for tenancy at sufferance after expiration of term?
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will create an implied month-to-month periodic tenancy, unless otherwise agreed
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what's tenant's liability to 3rd party.
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must keep premises in reasonably good repair, & is liable for injuries sustained by 3rd parties he invited, even where landlord has expressly promised to make all repairs
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L leases a building to T, expressly promising to maintain the premises in a state of good repair. T’s invitee trips over a loose floorboard and sues T. If invitee sues T, what result?
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T always loses. (It does not matter that T may seek indemnification from L.
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what's Tenant’s duty to repair when the lease is silent?
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tenant must maintain the premises and make ordinary repairs
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can Tenant commit waste ?
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no
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what's Fixture
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a once movable chattel that has been so affixed to land that it has ceased being personal property and it objectively shows the intent to improve the realty
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what's the common fixture?
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heating systems, custom made storm windows, certain lighting installations
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how does fixture pass?
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pass with ownership of the land
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can Tenant remove a fixture?
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must not.removing a fixture commits a voluntary waste
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how to determining a tenant installation that qualifies as a fixture that absent agreement?
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tenant may remove tenant installed chattel so long as removal does not cause substantial harm to the premises
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what does it mean by causing substantial harm?
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in objective judgment tenant has shown intent to install a fixture and fixture must stay
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does express agreement for fixture between between L and T binding?
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yes
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b. When expressed covenanted to maintain the property in good condition for the duration of the lease at common law? ny?
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tenant was responsible for any loss to the property, regardless of the cause, including loss attributable to force of nature
(ii) Today – tenant may terminate lease if the premises are destroyed without his fault |
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Tenant breaches duty to pay rent and in possession of the premises, what can landlord do?
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(a) Evict through the courts; OR
(b) Continue the relationship (now a tenant at sufferance) & sue for the rent due |
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is there self-help when tenant don't pay rent?
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(ii) NO SELF HELP – e.g. changing locks, forcibly removing the tenant; removing any of his possessions
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how does self help punish in NY?
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self-help flatly prohibited and punishable civilly & criminally – treble damages in NY
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Tenant breaches this duty BUT is out of possession of the premises, What can landlord do?
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(i) Surrender
(ii) Ignore the abandonment & hold the tenant responsible for the unpaid rent, just as if the tenant were still there (3) re-let the premises on the wrongdoer tenant’s behalf, & hold him liable for any deficiency SIR |
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What's the majority rule when tenant fail to pay rent? what's requried for landlord?
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mitigation principle
Re-let the premises |
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Does NY require landlord to mitigate damages when tenants abandon the premises?
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no
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what's tenant's duty in general?
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1. Tenant’s liabilities to 3rd parties
2. Tenant’s duty to repair 3. Tenant’s duty to pay rent |
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what's the majority rule for Duty to deliver possession
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– landlord must put tenant in actual physical possession of the premises (if a prior holdover tenant is still in possession at the start of the new tenant’s lease, the new tenant is entitled to damages)
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what's the minority rule for landlord's duty to deliver possession?
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landlord has NO duty to deliver actual possession at the commencement of the term,
hence is not in default when previous tenant continues wrongfully to occupy the premises L only required to give legal possession. |
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what's the fundamental right applies to BOTH residential & commercial leases?
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Implied covenant of quiet enjoyment
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how does landlord breach Implied covenant of quiet enjoyment?
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(i) Breach by actual wrongful eviction; or
(ii) Breach by constructive eviction |
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what's the requirement for qualify as landlord breach by constructive eviction?
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(a) Substantial Interference
(b) Notice--tenant must give notice of problem & landlord must fail to respond meaningfully (c) Goodbye (get out) – tenant must vacate within a reasonable time after landlord fails to correct |
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what's substantial interference?
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attributable to landlord’s actions or failures to act
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is Landlord liable for the acts of other tenants
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usually not.
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what's the time when landlord liable for acts of other tenants?
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(i) Landlord has a duty not to permit a nuisance on the premises
(ii) Landlord must control common areas |
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what does Implied warranty of habitability apply?
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ONLY residential, NOT commercial leases
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what is Implied warranty of habitability?
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bare living requirements must be met (e.g., heat in winter, plumbing or running water);
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Is Implied warranty of habitability waivable?
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no.
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what are the 4 options when warranty breached?
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MR3
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what are the 4 options when warranty breached?
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MR3
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MR3
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(i) Move out & terminate the lease
(ii) Repair & deduct – tenant may make reasonable repairs & deduct their cost from future rent (iii) Reduced rent or withhold all the rent until the court determines fair rental value – place rent in escrow account (iv) Remain in possession – pay rent & affirmatively sue money damages |
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What the tenant's difference in Constructive eviction and Implied warranty of habitability?
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tenant must vacate
tenant has different options, including vacate |
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If tenant lawfully reports landlord for housing code violations, can landlord bar from penalizing tenant, by raising rent, ending the lease, harassing tenant, other retaliatory measures?
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yes
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how can tenant make assignment?
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absent some prohibition in the lease, a tenant may freely transfer his interest in whole
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what 's sublease?
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a tenant may freely transfer his interest in part
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Cana lease may prohibit the tenant from assigning or subletting without the landlord’s prior written approval?
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yes
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what's Rule of Dumpor’s Case
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once the landlord consents to one transfer by the tenant, he waives the right to object to future transfers by that tenant, unless the landlord expressly reserves the right
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can tenant assign lease in NY?
(RESIDENTIAL TENANT) |
May NOT assign without L’s written consent
(unless lease provides otherwise) |
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Can consent in assignment NY be withheld? what's the tenant's remedy?
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CAN unconditionally be withheld,
(T’s sole remedy is to seek release from lease) |
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what are the tenant's right to sublease in NY?
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Right to sublease subject to L’s written consent
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Can consent in NY in sublease be withheld?result?
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Can NOT be unreasonably withheld.
(unreasonable withheld consent is deemed consent) |
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what's the landlord and tenant2's privity in assgnment.
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(i) Privity of estate (i.e. liable to each other for all of the covenants in the original lease that “run with the land,” such as the promise to pay rent, repair or paint the premises, & pay taxes)
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does landlord and tenant 2 has privity of contract?
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no.unless T2 expressly assumed performance of all promises of the original lease
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what's the privity does landlord and tenant1 have?
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(i) NO longer in privity of estate
(ii) Remain in privity of contract (AND are secondarily liable to each other) |
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what's the secondary liabiltiy?
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if third party cannot pay?
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what right does Landlord & Tenant2 have in sublease when there is tenant 3?
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NO privity of estate once T2 assigned to T3; NO privity of contract (unless T2 expressly assumed all promised in the original lease)
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what's the relationship between Landlord & sublessee?
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in NEITHER privity of estate NOR privity of contract – they share no nexus
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what does primary tenant and subtenant have in sublease?
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, primary tenant & the subtenant are in privity of estate AND privity of contract
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what's the common law of landlord's tort liability?
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Common Law of caveat lessee (‘let the tenant beware’) – landlord has no duty to make the premises safe
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what's the exception for landlord's tort liability?
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CLAPS
a. Common areas – hallways, stairwells b. Latent defects rule – landlord must warn tenant of hidden defects of which landlord has, or should have, knowledge (Duty to warn but NOT duty to repair) c. Assumption of repairs – once undertaken, a landlord must complete repairs with reasonable care d. Public use rule – when landlord leases public spaces (e.g. convention centers, museums or auditoriums), & who should know, because of the nature of the defect & the length of the lease, that tenant won’t repair, landlord is liable for any defects on the premises. e. Short term lease of furnished dwelling – landlord is responsible for any defective condition which proximately injure tenant |
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If repair is done negligently, is L liable?
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no
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If repair is done negligently, is L liable?
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yes
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Do landlord has a duty to warn?
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Duty to warn but NOT duty to repair
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what's Servitudes?
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nonpossessory interests in land, creating a right to use land possessed by someone else
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what's Easements?
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a grant of nonpossessory property interest that entitled its holder to some form of use or enjoyment of another’s land
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what's the Scope of easement
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set by the terms of the grant or conditions that created the easement
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Does unilateral expansion of easement allowed?
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no
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Does overuse or misuse of an easement does terminate the easement?
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no
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overuse or misuse of an easement.what's the appropriate remedy for the servient owner
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injunction against the misuse
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what's a Positive easements
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the right to go onto & do something on the servient land
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what's Negative easements
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can only be created expressly, by writing signed by the grantor
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Does serviant hold has natural or automatic right to LASS?
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no.
LASS: (i) Light; (ii) Air; (iii) Support; (iv) Streamwater from an artificial flow |
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what's Easements appurtenant to land
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the when easement benefits its holder in his physical use or enjoyment of his property
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what's dominant tenement?
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tenement which derives the benefit
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what's a servient tenement
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which bears the burden of the easement
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Dose easement transfer with tenement?
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c. Transferred automatically with dominant tenement, regardless whether mentioned in the conveyance
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what's the Easements appurtenant to land's exception in servient tenement
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the new owner is a bona fide purchaser, without notice.
otherwise, pass automaticly with servient tenement. |
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what's this
right to place a billboard on another’s lot; right to swim in another’s pond; utility co’s right to lay power lines on another’s land) that’s not related to the use or enjoyment of his land |
6. Easements held in gross
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what isEasements held in gross
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confers upon its holder only some personal or pecuniary advantage
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what land is involved in Easement held in course?
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servient tenement, which is burdened by this easement
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when is Easements held in gross transferable?
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ONLY if it is for commercial purposes
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what's personal easement in gross
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like swimming in a lake where it is personal to the holder
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how can easement be create?
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PING
a. Prescription b. Implication c. Necessity d. Grant |
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what's Prescription ?
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satisfying the elements of adverse possession
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what's the elements of adverse possession?(COAH)
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(i) Continuous use for the given statutory period (10 years in NY);
(ii) Open & notorious use; (iii) Actual use; & (iv) Hostile use |
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Does permission defeats the acquisition of an easement by prescription?
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yes, because it’s no longer hostile
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what's implication?
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b. Implication – an easement (“quasi-easement”) can be implied from existing use
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what's the requirement for implication?
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(i) prior to the division of a single tract,
(ii) an apparent & continuous use exists on the “servient” part, (iii) that is reasonable necessary for the enjoyment of the “dominant”, & (iv) Court determines that the parties intended the use to continue after division of the land |
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A owns two lots. Lot 1 is hooked up to a sewer drain located on lot 2. A sells lot 1 to B, with no mention of B’s right to continue to use the drain on A’s remaining lot 2. how can B get a easement?
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The court may nonetheless imply an easement on B’s behalf if: 1) the previous use had been apparent and 2) the parties expected that the use would survive division because it is reasonably necessary to the dominant lands use and enjoyment
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if grantor conveys a portion of his land where this division of a tract deprives one lot of means of access out, what's the result?
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Necessity – An easement of right of way will be implied by necessity
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what's the statute of fraud requirement for easement?
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1 year
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how can easement terminate?
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END CRAMP
a. Estoppel b. Necessity c. Destruction of the servient land d. Condemnation of the servient estate e. Release f. Abandonment g. Merger doctrine h. Prescription |
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the servient owner materially changes his position in reasonable reliance on the easement holder’s assurances that the easement will no longer be enforced. what's this?
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easement terminate by estoppel.
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: A tells B that A will no longer be using her right of way across B’s parcel. In reasonable reliance, B builds a swimming pool on B’s parcel, thereby depriving A of the easement
what's the result? |
A is estopped from enforcing the easement.
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easements created by necessity when do it ends?
what about in writing? |
easements created by necessity expire as soon the necessity ends; but, if the easement was created by express grant, it doesn’t end automatically once the necessity ends
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O conveys a portion of his ten-acre tract to A, with no means of access out except over a portion of O’s remaining land. The parties reduce their understanding to express writing. Thereafter, the city builds a public roadway affording A access out. what's the result?
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The easement persists.
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what's Destruction of the servient land,
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other than through willful conduct of the servient owner
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what does in reasonable reliance on the easement mean?
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In equity: A is estopped from enforcing the easement.
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what's Release?
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a written release, given by the easement holder to the servient land owner
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what's easement holder demonstrates by physical action the intention to never make use of the easement again
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Abandonment.
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Does nonuse, or words, sufficient to terminate by abandonment?
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no
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– title to the easement & title to the servient land becomes vested in the same person , what does this called?
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Merger doctrine,also known as unity of ownership
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what 's required by Prescription in easement?
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We need interference (continuous, open & notorious, actual, and hostile to the easement holder)
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what's the weakest form of servitude, what's the strongest form
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license, easement
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what 's license?
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a mere privilege to enter another’s land for some delineated purpose
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Does license subject to SOF
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NO
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: Neighbor A, talking by the fence with neighbor B, says, “B, you can have that right of way across my land.”
What does this create? |
This oral easement is unenforceable because it violates the SOF. An oral easement creates instead a freely revocable license
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what servitude is freely revokable? what's the exception?
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license
estoppel bars revocation the license is coupled with an interest in the land |
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what is estoppel?
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licensee has invested substantial money, labor or both in reasonable reliance on the license
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what's a failed attempt to create an easement?
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results in license
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what's Profit?
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entitles its holder to enter the servient land & take from it the soil, or some substance from the soi
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can profit be appurtenant or in gross?
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yes
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what's the rule for profit?
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the Profit shares all the rules of easements
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what's Covenant?
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a real covenant is a written promise to do or not do something related to land
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what's the remedy for covenant?
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damages ONLY
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what's covenant?
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a real covenant is a written promise to do or not do something related to land
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is covenants of a property interest?
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no. they are contractual interest.
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is covenants of a property interest?
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no. they are contractual interest.a contractual limitation or promise regarding the land – one tract is burdened, while the other is benefited
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what's Negative (restrictive covenants) ?
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a promise to refrain from doing something related to the land
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what's this?not build for commercial purposes; not to paint my shutters brown; not to maintain a petting zoo
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restrictive covenant.
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what's this?a promise to do something related to land
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Affirmative covenant.
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what's this ? maintain a common fence; paint our adjoining wall)
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affirmative covenant.
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Does covenants to pay money to be used in connection with the land (e.g. homeowners’ association fees) and covenants not to compete runs with the land?
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yes
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what's required for burden to run in covenant?
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WITHN must be satisfied
a. Writing b. Intent c. Touch & concern d. Horizontal AND vertical privity e. Notice |
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what 's the wring and intent requirement for burden to run?
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a. Writing – original promise must be in writing
b. Intent – original parties must have intended for the burden to run |
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what does it mean by touch and concern mean?
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Promise must be of or pertaining to the land
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what does negative covenant and affirmative covenant touch and concern?
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negative covenants touch & concern by restricting the holder of the servient estate in his use of that parcel, while affirmative easements require the servient estate to do something
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what's (i) Horizontal Privity ?
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refers to nexus between the originally promising parties
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what does Vertical Privity means?
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refers to non-hostile nexus (e.g. contract, devise, or descent) between the a party and it successor
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what's the time when privity is lacking?
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the only time vertical privity is lacking is if the successor acquired interest through adverse possession
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what does subsequent purchaser for value must have?
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(i) actual, (ii) inquiry, or (iii) record notice
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what's required Requirements for Benefits to run?
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WITV must be satisfied
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what's witv?
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a. Writing – original promise was in writing
b. Intent – original parties must have intended the benefit to run c. Touch & concern – the promise affects the parties as landowners d. Vertical privity – some non-hostile nexus between A1 & A2 (easier for benefits to run because no need for horizontal privity |
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what's Equitable Servitudes?
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a promise that equity will enforce against successors
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what's this?covenant that, regardless of whether it runs with the land of law, equity will enforce against assignees of the burdened land who have notice of the covenant
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equitable servitude.
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If P seeks an injunction. what's this?
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you must construe as an equitable servitude.
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(i) If seeking monetary damages what's this?
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you must construe the promise as a covenant
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what's the creation for equitable servitudes?
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a. Writing – generally, but not always, the original purpose must be in writing
b. Intent – original parties intended that the promise would be enforceable by & against assignees c. Touch & concern – promise affects the parties as landowners d. Notice – assignees of the burdened land had notice of the promise witn |
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what's the Implied equitable servitude?
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exception to the writing requirement
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what's this? if developer subdivides land, and some deed contain negative covenants, while others do not, the negative covenants will be binding on all parcels
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a. General/common scheme doctrine
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