Property Ii (Nachman)

Front 1

What are concurrent estates?

Back 1

Concurrent estates occur when more than one person owns a possessory interest in an estate at a time.

Front 2

What is a tenancy in common (TIC)?

Back 2

Two or more persons own the property with no right of survivorship between them; when one tenant in common dies, her interest passes to her heirs or devisees.

Front 3

How was a tenancy in common created a common law?

Back 3

O to “A, B, and C as tenants in common.”
(Without "tenants in common" language it became a joint tenancy.)

Front 4

How was a tenancy in common created at modern law?

Back 4

O “to A, B, and C.”

Front 5

How can a tenancy in common be transferred?

Back 5

Conveyed by deed

Devised by will

Inherited under the intestate succession act

Front 6

What is a joint tenancy with right of survivorship?

Back 6

Two or more persons own the property with a right of survivorship; when one joint tenant dies, the survivor(s) takes all. Remember that the common law required four unities (time, title, interest, and possession) for a joint tenancy.

Front 7

Does North Carolina recognize Joint Tenancies with Rights of Survivorship?

Back 7

NC 41-2 -- Upon conveyance to a third party by one of two joint tenants holding property in joint tenancy with right of survivorship, a tenancy in common is created between the third party and the remaining joint tenant.

Front 8

What are the four unities required to create a joint tenancy?

Back 8

Unity of Time

Unity of Title

Unity of Interest

Unity of Possession

Hint 8

P.I.T.T.

Front 9

How are joint tenancies severed?

Back 9

Joint tenancies may be severed by mutual agreement, partition, or execution of judgment.

Front 10

What are the two types of partition?

Back 10

Partition in kind is division amongst and is most appropriately used when the property can be equally divided.

Partition by sale is used when property cannot be subdivided between the parties, then the court will order it to be sold.

Front 11

Does the severance of a joint tenancy require the use of a strawman?

Back 11

At modern law, the use of a strawman is not necessary to sever a joint tenancy.

Front 12

What happens if both joint tenants die simultaneously and there is no sufficient evidence of the order of death?

Back 12

If joint tenants die in a common disaster and there is "no sufficient evidence" of the order of death, the Uniform Simultaneous Death Act provides that one-half the property is distributed as if A survived and one-half as if B survived.

Front 13

What is the title theory?

Back 13

The title theory provides that a mortgage by a joint tenant conveys the legal title of the joint tenant, the mortgage destroys the unity of interest and severs the joint tenancy. (MORTGAGE SEVERS JOINT TENANCY)

Front 14

What is the lien theory?

Back 14

The lien theory provides that a mortgage does not sever the joint tenancy as most states hold that the mortgagee does not have legal title, but rather a security interest called a lien. Legal title remains in the mortgagor. (MORTGAGE DOES NOT SEVER JOINT TENANCY)

Front 15

What is tenancy by the entirety?

Back 15

Exists only between husband and wife, with a right of survivorship that cannot be severed without consent of both spouses.

Husband and wife have to be married when they take title. If you get married after possession of the property, then the presumption is that husband and wife will take as tenants in common (unless otherwise specified).

Front 16

Does North Carolina retain tenancy by entirety?

Back 16

YES. North Carolina is among a small number of states that retains tenancy by entirety.

If there is a divorce this will sever the tenancy by entirety.

Front 17

BENEFITS AND BURDENS OF CO-OWNERSHIP:

Who has the right to possession?

Back 17

Undivided interest in the whole - right to be on the property and the co-tenant cannot be excluded from the property. If you are excluded, then you have been ousted.

Front 18

BENEFITS AND BURDENS OF CO-OWNERSHIP:

What about payment of rent?

Back 18

A co-tenant in exclusive possession of a property that is commonly owned has no duty to pay rent unless there has been ouster. If you have been ousted you must pay rent.

Front 19

BENEFITS AND BURDENS OF CO-OWNERSHIP:

What is done with the rents and profits that come from the land?

Back 19

Co-tenants are entitled to a fractional share of rents received and profits received unless the profits were achieved by the sole "sweat" of the co-tenant.

Front 20

BENEFITS AND BURDENS OF CO-OWNERSHIP:

What about the payment of taxes?

Back 20

A cotenant paying more than his share of taxes has a right to contribution from the other cotenants, at least up to the amount of the value of their share in the property. If the tenant who has paid taxes has been in sole possession of the property, and the value of the use and enjoyment which he has had equals or exceeds such payments, no action in any form for contribution will lie.

Front 21

BENEFITS AND BURDENS OF CO-OWNERSHIP:

How are repairs handled?

Back 21

A cotenant making necessary repairs has no right to contribution from the other cotenants in the absence of an agreement.

Prior agreement: Contribution required.

No Prior agreement: NO contribution required UNLESS the co-tenant is required to account for rents/profits

Repairs to increase FMV: must account at time of division of sales proceeds

Majority Rule – CT who makes repairs and is later required to account to other CTs, would be entitled to a credit.

In NC, a co-tenant is entitled to a contrib. for repairs. Works the same way as the credit, but they call it a contribution.

Front 22

BENEFITS AND BURDENS OF CO-OWNERSHIP:

How are improvements handled?

Back 22

An addition to real property, whether permanent or not; esp., one that increases its value or utility or that enhances it appearance. (e.g., adding a room, deck, etc.)

Prior agreement: Enforceable & Contribution required

No Prior agreement: NO contribution required EVEN if there is an accounting for rent BUT if the improvement increases the FRV> contribution may be permitted.

Front 23

What is rent reserved?

Back 23

the period in which the tenant is required to pay rent and how often the landlord can demand rent pursuant to the agreement (monthly, quarterly, etc.)

Front 24

What is ouster?

Back 24

the wrongful dispossession or exclusion of some from property.

Front 25

What is a Term for Years?

Back 25

A tenancy whose duration is known in years, weeks, or days from the moment of its creation.

Front 26

What is the duration for a term for years?

Back 26

A term for years has a fixed or definite maximum duration.

Front 27

Can a fixed duration be followed by a or subject to a future interest?

Back 27

Yes, there must be a reversion or a remainder.

Front 28

Can a leasehold estate be subject to a condition subsequent or an executory limitation?

Back 28

Yes, if there is something that causes the lease to be cut short.

Front 29

How does one create a term for years in North Carolina?

Back 29

In North Carolina, the statute that applies is NCGSA 22-2.

a. All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, and all leases and contracts for leasing land for the purpose of digging for gold or other minerals, or for mining generally, of whatever duration; and all other leases and contracts for leasing lands exceeding in duration three years from the making thereof, shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.

Front 30

How is a term for years terminated?

Back 30

Since the duration is fixed, it ends by its own terms - no notice of termination is required.

Can terminate earlier upon the happening of some stated event or condition.

Death of the landlord or tenant has not effect on the duration of the tenancy.

Mutual Assent

Eminent Domain

Abandonment by tenant with reletting on the tenant's behalf.

Front 31

What is a periodic tenancy?

Back 31

A tenancy that automatically continues for successive periods -- usu. month to month or year to year -- unless terminated at the end of a period by notice. • A typical example is a month-to-month apartment lease. This type of tenancy originated through court rulings that, when the lessor received a periodic rent, the lease could not be terminated without reasonable notice.

Front 32

What is the duration of a periodic tenancy?

Back 32

Duration is continuous and indefinite until proper notice of termination is given by either the LL or Tenant.

Front 33

How is a periodic tenancy created?

Back 33

Express Creation -- LL and Tenant agree to lease the property for a period of time that continues indefinitely

Implied Creation - implied if a term for years ends and the tenant remains with the landlord's consent. The period is determined by looking at how rent is paid and the length of the prior lease term.

If the prior lease was for less than a year, then one must look at how rent was reserved.

If the prior lease was for one or more years, then the landlord is assumed to consent to a year-to-year.

No written evidence.

Front 34

How is a periodic tenancy terminated?

Back 34

Either party landlord or tenant can terminate a periodic tenancy by giving proper notice to terminate.

Front 35

What is the statute in NC that references proper notice?

Back 35

NCGSA §42-14 (Notice to quit certain tenancies)

A tenancy from year to year may be terminated by a notice to quit given one month or more before the end of the current year of the tenancy; a tenancy from month to month by a like notice of seven days; a tenancy from week to week, of two days. Provided, however, where the tenancy involves only the rental of a space for a manufactured home as defined in G.S. 143-143.9(6), a notice to quit must be given at least 60 days before the end of the current rental period, regardless of the term of the tenancy.

Front 36

What is a tenancy at will?

Back 36

A tenancy in which the tenant holds possession with the landlord's consent but without fixed terms (as for duration or rent); specif., a tenancy that is terminable at the will of either the transferor or the transferee and that has no designated period of duration. • Such a tenancy may be terminated by either party upon fair notice.

Front 37

What is duration of a tenancy at will?

Back 37

As long as the landlord and tenant want it to continue.

Front 38

How is a tenancy at will created?

Back 38

A tenancy at will may be created by an express agreement between LL and T and there may also be inferred tenancies at will.

There must be no rent payments involved in the transaction.

Front 39

How is a tenancy at will terminated?

Back 39

1. There are several ways to terminate a tenancy at will including:
a. Death alone terminates it.
b. If the tenant abandons the property.
c. A mutual agreement to terminate (condemnation or eminent domain)
d. Either party may give notice of termination.
i. Majority—convert the tenancy at will into a periodic tenancy by looking at how rent was paid.
ii. Minority—no notice is required. Requires a reasonable time to vacate the premises—NC.
iii. How does the LL give notice? In NC, there is the NC Ejectment of Resident Tenants Act (NCGSA §42-25.6).

Front 40

How is a tenancy at sufferance created?

Back 40

HOLDOVER!!!

A tenancy at sufferance arises when a person in rightful possession of land as a tenant or otherwise wrongfully continues in possession after that right ends.

Front 41

How is a tenancy at sufferance terminated?

Back 41

Since a tenancy at sufferance is not an estate, no notice or other action by the landlord is required to terminate it.

If the tenant starts to pay rent then it converts to a periodic tenancy.

Front 42

What is the majority rule governing delivery of possession of property?

Back 42

MAJORITY RULE: In the absence of stipulations to the contrary, there is in every lease an implied covenant on the part of the landlord that the premises shall be open to entry by the tenant at the time fixed by the lease for the beginning of the term.

Front 43

If the tenant is successful in a suit following the English rule (NC follows this rule), what remedies should he/she be entitled to?

Back 43

Specific Performance

Damages resulting from the fair rental value + special damages

Recission of the contract

Front 44

What is the minority rule governing delivery of actual possession of property?

Back 44

MINORITY RULE: No implied duty for the landlord to deliver actual possession of the land. The landlord only has a duty to deliver legal possession of the property.

Front 45

What is legal possession and what is the duty that is associated with it?

Back 45

In every lease, the court will imply a duty to deliver legal possession.

This duty can be breached by leasing the property to two people at the same time and during the same period; OR

Entering into a lease while there is a tenant still in possession.

Front 46

What is actual possession and what is the duty associated with it?

Back 46

The duty to convey actual possession depends on whether the jurisdiction applies the American or English Rule.

Front 47

What is a sublease?

Back 47

A lease by a lessee to a third party, conveying some or all of the leased property for a shorter term than that of the lessee, who retains a reversion in the lease.

Front 48

What is an assignment?

Back 48

The transfer of rights or property (it is a complete transfer)

Front 49

What is a headlease?

Back 49

A primary lease under which a sublease has been granted

Front 50

What is novation?

Back 50

The act of substituting for an old obligation a new one that either replaces an existing obligation with a new obligation or replaces an original party with a new party.

Front 51

What is a third-party beneficiary (3PB)?

Back 51

A person, who, though not a party to a contract, stands to benefit from the contract's performance.

Front 52

What is abandonment?

Back 52

It occurs when a tenant wrongfully vacates the premises before the lease expires.

Front 53

What is surrender?

Back 53

Tenant offers to relinquish the leased premises back to the landlord before the expiration of the lease term and the landlord accepts the relinquishment.

Front 54

What is privity of contract?

Back 54

The relationship between the parties to a contract, allowing them to sue each other but preventing a third party from doing so.

Front 55

What is privity of estate?

Back 55

A mutual or successive relationship to the same right in property, as between grantor and grantee or landlord and tenant.

Covenants that run with the land:

Promises to pay rent
Keep in good repair

Front 56

ASSIGNMENT: What is the relationship between LANDLORD and TENANT?

Back 56

Privity of Estate has been terminated.

Privity of Contract will continue UNLESS there is:

1. Express Release from the landlord
2. Release by implication - novation

RULE: Absent a novation or release by the landlord letting the original tenant out of the lease agreement, the original tenant is still in privity of contract with the landlord.

Front 57

ASSIGNMENT: What is the relationship between LANDLORD and ASSIGNEE?

Back 57

Privity of estate is created.

Privity of contract is NOT created between Landlord and Assignee UNLESS:

1. There is an express agreement between assignee and landlord.

2. If the landlord is deemed a 3PB.

Front 58

What is the future interest that follows an ASSIGNMENT?

Back 58

Landlord retains a reversion.

Original tenant gave away everything so he/she has no future interest.

Front 59

SUBLEASE: What is the relationship between LANDLORD and TENANT?

Back 59

Privity of estate continues.

Privity of contract continues UNLESS :
1. Express release
2. Novation

Front 60

SUBLEASE: What is the relationship between SUBLESSEE and LANDLORD?

Back 60

Privity of estate is not created.

Privity of contract is not created UNLESS:
1. Express Agreement
2. Landlord is deemed a 3PB

Front 61

Can privity of estate run with more than one person at a time?

Back 61

No. Privity of estate does not run with more than one person at a time.

However, privity of contract can run with more than one person. Landlord can have two people to go after if there is a breach. LL would look to argue that there was an assignment instead of a sublease.

Front 62

What is the future interest that follows a sublease?

Back 62

Landlord retains a reversion

Original tenant retains a reversion in the leasehold estate.

Front 63

What are the remedies to the landlord for a breach of a lease by a subtenant?

Back 63

The landlord must have a theory (Privity of Contract or Privity of Estate)to sue the tenant under.

Front 64

What is the general rule for the landlord's remedy for a breach of a lease by the subtenant?

Back 64

A landlord has no cause of action against a tenant unless there is privity of contract or privity of estate between the landlord and tenant.

NOTE: The landlord has to establish only one of these.

Front 65

What is the remedy for the landlord if the original tenant or subtenant breaches a sublease?

Back 65

Sublease - Under the General Rule, the landlord does not have a cause of action against a sublessee because there is neither privity of contract nor privity of estate between the landlord and the sublessee. The subtenant is liable to the original tenant. The landlord can only sue the original tenant.

Front 66

What is the remedy for the landlord if the original tenant or the assignee breaches an assignment?

Back 66

Assignment - the landlord can bring an action against either the original tenant or the assignee because the landlord has privity of estate with the assignee and privity of contract with the original tenant. The landlord can go against the assignee for only covenants that run with the land unless there is an agreement with the landlord and assignee.

Front 67

What is NCGSA §42-4? In NC, Can a landlord recover for past due rent from a tenant?

Back 67

§ 42-4. Recovery for use and occupation

When any person occupies land of another by the permission of such other, without any express agreement for rent, or upon a parol lease which is void, the landlord may recover a reasonable compensation for such occupation, and if by such parol lease a certain rent was reserved, such reservation may be received as evidence of the value of the occupation.

Front 68

What is North Carolina's position on reasonableness of withholding consent to sublease or assign?

Back 68

The landlord can deny and the court will not imply the reasonable standard.

If the lease is silent on the standard of denial, then the landlord can deny for whatever reason.

Front 69

What are the landlord's rights and remedies against a tenant who defaults (tenant in possession)?

Back 69

Common Law: Self-Help could be used if it was done in a peaceable manner and the landlord is entitled to possession of the property.

Modern Law: The landlord is never allowed to use self-help. This rule is adopted in North Carolina.

Front 70

What does NCGSA §42-25.6 provide and how does it factor in to the landlord’s rights?

Back 70

§ 42-25.6. Manner of ejectment of residential tenants

It is the public policy of the State of North Carolina, in order to maintain the public peace, that a residential tenant shall be evicted, dispossessed or otherwise constructively or actually removed from his dwelling unit only in accordance with the procedure prescribed in the statute.

Front 71

What is North Carolina’s position on distress and distraint?

Back 71

§ 42-25.7. Distress and distraint not permitted
It is the public policy of the State of North Carolina that distress and distraint are prohibited and that landlords of residential rental property shall have rights concerning the personal property of their residential tenants only in accordance with G.S. 42-25.9(d), 42-25.9(g), 42-25.9(h), or 42-36.2.

Front 72

What is the landlord allowed to do then if the tenant defaults while in possession of the property?

Back 72

The landlord has two options:

1. Pursue contract remedies flowing from the lease.
2. Evict pursuant to the summary eviction statutes.

Front 73

What is the process for filing a North Carolina Complaint in Summary Ejectment?

Back 73

1. Before the LL reclaims the property they must file an action in summary ejectment.

2. LL must give notice and a 10-day grace period for the collection of rent from the T.

3. LL must get a writ of possession of real property after the magistrate enters a judgment of action.

4. Typically a lease is joint and several liability (Torts). Somebody better pay the rent or everyone is getting kicked out.

Front 74

What are the landlord's rights and remedies against a tenant who defaults (who abandons the property)?

Back 74

1. Do nothing

2. Renter, relet and release - once the property is relet the tenant would be released from the original lease

3. Reenter, relet on account - any rent that was collected during the time the tenant is gone will be applied toward the balance owed by the defendant for the abandonment period.

Front 75

What are the landlord's rights when a tenant abandons the property?

Back 75

1. Do Nothing (leave the premises vacant and sue the tenant later for accrued rent)

2. Mitigate damages by reletting the premises to a new tenant and then sue the original tenant for the unpaid balance; OR

3. Terminate the lease

Front 76

What are the ways to surrender?

Back 76

1. Surrender by mutual assent - tenant tenders the premises back to the landlord in person or writing and the landlord accepts

2. Surrender by operation of law - Tenant who has abandoned the premises and Landlord acts in some way that is inconsistent with the tenant’s rights under the lease.

Front 77

What is the impact of surrender?

Back 77

It relieves the parties' obligation to one another.

It relieves the tenant of future liability to pay rent on the premises for the current lease term.

It is a transfer of property that is subject to the Statute of Frauds.

Front 78

What is the effect of a jurisdiction applying contract principals versus real property principals with respect to surrender?

Back 78

a. If jurisdiction supports contract principals, then (2) and (3) will not be options for the landlord. The LL will simply sue for damages based on the terms of the contract.
b. If jurisdiction supports real property principals, then there is room for the option to re-enter the premises, but the LL is under no duty to mitigate damages.

Front 79

What is North Carolina’s position on mitigation?

Back 79

a. The landlord can recover only the amt of damages that he could not have avoided by using reasonable diligence to rent the premises to a substitute tenant.
b. If the LL uses reasonable diligence and is unable to rent the premises to a substitute tenant, they are entitled to the full amount under the lease.
c. If the LL fails to use reasonable diligence, then his amt is limited to the RENT DUE UNDER THE LEASE (LESS) FULL RENTAL VALUE.
d. If the LL uses reasonable diligence and finds a substitute tenant, he is entitled to damages equal to RENT DUE UNDER THE LEASE (LESS “-“) SUBSTITUTE RENT RECEIVED.
e. THERE IS A DUTY TO MITIGATE IN NC.

Front 80

What is the NC Tenant Security Deposit Act?

Back 80

It applies to every residential lease in NC.

Front 81

What are NC’s rules for deposits from the tenant?

Back 81

NCGS §42-50

a. Requires landlord to keep security deposits in a separate trust account and give the name and address of the bank to the tenant within 30 days of the beginning of the lease term (after the tenant takes possession).
b. The landlord could get a bond that promises to deliver the security deposit back.

Front 82

What are NC’s rules for permitted uses of the deposit?

Back 82

NCGS §42-51.
Provides a maximum permissible amount for security deposit.

Front 83

What are the landlord’s obligations for a security deposit?

Back 83

a. Landlord has to provide an itemized statement on how the security deposit was used and the balance.
b. Prohibits the use of the security deposit for normal wear and tear.

Front 84

TENANT'S RIGHTS AND REMEDIES: What is quiet enjoyment?

Back 84

The possession of land with the assurance that the possession will not be disturbed by a superior title.

At common law quiet enjoyment, meant that the tenant would not be physically ousted by the landlord or anyone with superior title. Once the leasehold began, the landlord could not physically oust the tenant from the premises.

Front 85

Under common law, how was a person physically ousted from property?

Back 85

1. LL physically removed T from property.
2. LL barred the tenant from entering the premises.
3. LL forces the tenant off of the premises

Front 86

What is the rule if there is a breach in quiet enjoyment and an eviction of the tenant?

Back 86

If there is a breach, and the tenant is actually evicted from the premises, from any or all of the premises, then it would suspend the tenant's liability for rent.

Front 87

What is constructive eviction?

Back 87

A landlord's act of making premises unfit for occupancy, often with the result that the tenant is compelled to leave

Front 88

What are the elements for a constructive eviction?

Back 88

1. LL had to have breached a duty to the tenant.

2. Breach has to substantially or materially interfere with the tenant's beneficial use or enjoyment of the premises.

3. AND the tenant vacates the premises within a reasonable time.

Front 89

What are the tenant's options if there is a breach of quiet enjoyment?

Back 89

1. Leave and stop paying rent, this can be done only if he was actually or constructively evicted.

2. Stay and sue for damages. Damages = FRV Warranted - FRV in Defective Condition

Front 90

What is the Majority Rule for the covenant of quiet enjoyment and whether or not it is expressed in the lease?

Back 90

If the covenant of quiet enjoyment is not expressed in the lease, it will still be implied in every lease under the majority rule.

NC follows this rule.

Front 91

What is an implied warranty of habitability?

Back 91

In a residential lease, a warranty from the landlord to the tenant that the leased property is fit to live in and that it will remain so during the term of the lease.

Front 92

What was the outcome of Hilder v. St. Peter regarding the implied warranty of habitability?

Back 92

In order to bring a cause of action for breach of the implied warranty of habitability, the tenant must first show that he or she notified the landlord of the deficiency or defect not known to the landlord and allowed a reasonable time for its correction.

Front 93

What are the factors to look at in establishing a breach in the implied warranty of habitability?

Back 93

Factors to consider to establish a breach:

i. A substantial violation of a housing code shall constitute prima facie evidence that there has been a breach of the warranty of habitability.
ii. The nature and seriousness of the defect is taken into consideration.
iii. The length and time the condition has persisted.
iv. The predictability and reliability of services.

Front 94

Under the implied warranty of habitability, is the landlord under a duty to repair?

Back 94

Yes, the landlord is under a duty to repair.

Front 95

Is the implied warranty of habitability recognized in NC?

Back 95

Pursuant to NC §42-42 (Landlord to provide fit premises), the answer is YES.

"Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition."

Front 96

What is an easement?

Back 96

An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose

Front 97

What is the scope of an easement?

Back 97

An easement cannot be extended to serve land other than the dominant tenement.

Front 98

What is an easement appurtenant?

Back 98

One which benefits the owner of the easement in the use and enjoyment of his property.

Front 99

What is a dominant tenement?

Back 99

An estate that benefits from an easement.

Front 100

What is a servient tenement?

Back 100

An estate burdened by an easement

Front 101

What is an easement in gross?

Back 101

An easement benefiting a particular person and not a particular piece of land

Front 102

What is an affirmative easement?

Back 102

An easement that forces the servient-estate owner to permit certain actions by the easement holder, such as discharging water onto the servient estate.

Front 103

What is a negative easement?

Back 103

An easement that prohibits the servient-estate owner from doing something, such as building an obstruction.

Front 104

What were the four kinds of negative easements at common law?

Back 104

i. Easement not block your neighbor’s light
ii. Easement not to interfere with flow of air to your neighbor’s land (he might have windmill)
iii. Easement not to remove support from your neighbor’s building (wall)
iv. Easement not to interfere with flow of water with an artificial stream running to neighbor’s land (irrigation ditch)

Hint 104

L.A.W.W.

Front 105

What is an express easement?

Back 105

Voluntarily created by deed, will, or other written instrument. The vast majority of easements are express easements.

Front 106

What is an express easement by grant?

Back 106

Typically created when a grantor conveys or grants an easement to another person

Front 107

What are the elements for an express easement by grant?

Back 107

1. Must be in writing.

2. Identify the grantor and grantee;

3. Contain words manifesting an intention to create an easement;

4. Describe the affected land, AND

5. Be signed by the grantor.

Front 108

What is an express easement by reservation?

Back 108

A grantor conveys land to another; but retains or reserves an easement in that land.

Front 109

What is an example of an express easement by grant of easement only?

Back 109

"A purchases property near a lake and could not afford a waterfront lot."

A wants to get to the lake.
B can grant access to the lake by giving an easement.

Front 110

What is an example of an express easement by grant of easement + land?

Back 110

"A agrees to buy a part of B's land but wants to be able to cross to reach the public road."

B will convey by deed both the conveyance of the interest in land A is purchasing and the easement to cross the land.

Front 111

What is an example of an express easement by reservation?

Back 111

"B agrees to sell a part of his land to A but wants to be able to cross A's land to reach the public road."

Front 112

What is an implied easement?

Back 112

An easement created by law after an owner of two parcels of land uses one parcel to benefit the other to such a degree that, upon the sale of the benefited parcel, the purchaser could reasonably expect the use to be included in the sale.

Requires Unity of Title and Prior Use

Front 113

What are the elements needed to create an easement through implication?

Back 113

1.Unity of Title - severance of title to land held in common ownership

2. Apparent - discoverable upon reasonable inspection

3. Continuous - consistent with the character and nature of the land

4. Reasonably Necessary - for the use and enjoyment of the quasi-dominant tenement

Front 114

What is an easement by necessity?

Back 114

The easement is implied when the court finds the claimed easement is necessary to the enjoyment of the claimant's land and that the necessity arose when the claimed dominant parcel was severed from the claimed servient parcel.

When the property is landlocked, the law will imply a grant of an easement by necessity.

GENERAL RULE: One that obtains an easement by necessity is not required to pay compensation to the servient tenement.

NC VIEW: The owner of the servient tenant can determine where the easement will be but must take into consideration convenience and suitability of B's use of the property.

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What are the elements for an easement by necessity?

Back 115

Unity of Ownership of dominant and servient prior to transfer

The roadway must be a necessity

The necessity of the road existed when the title was severed.

Hint 115

Start with unity of ownership.

Front 116

What is the majority rule for an easement by necessity?

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MAJORITY RULE: An easement by necessity cannot be established if there is any other way to access the property

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What is the minority rule for an easement by necessity?

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MINORITY RULE: An easement by necessity can be established even if there is an existing access which is inadequate, difficult, or costly.

Front 118

What does NCGS §136-69 (Statutory Cartway) provide?

Back 118

Remedy available to a landowner who plans to use the property for specific commercial purposes which are protected by statute.
1. There are specific purposes in the statute:
a. Cultivation of any land
b. Cutting and removing of any standing timber
c. Working of any quarries, mines, and minerals
d. Operation of manufacturing plants

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What is an implied easement by prescription?

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An easement created from an open, adverse, and continuous use over a statutory period.

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What are the elements of an easement by prescription?

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1. Actual (use of the property)

2. Adverse or Hostile

3. Open and Notorious

4. Continuous and Uninterrupted (for the statutory period)

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What is the difference between an easement and an estate?

Back 121

a. Easement
i. Non-possessory interest in land
ii. Merely the right to use and enjoyment for the purposes of the easement
iii. Interest in land
iv. Must comply w/all other transfers of land -- Statute of Frauds
v. Dominant tenements have the right to exclude others
vi. Can be measured in terms of duration (like estates)
b. Estates
i. Possessory interest in land (or has the possibility of becoming possessory)
ii. Unlimited right to exclude
iii. Must comply w/SOF
iv. Can be measured in terms of duration

Front 122

What is the difference between easement by implication and easement by necessity?

Back 122

a. Requires proof of preexisting use for Easement by Implication

b. If the dominant tenant that has an easement by necessity secures another route, the easement will terminate

c. This differs from easement by implication where gaining an alternate route does not necessarily terminate the easement.

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What is a license?

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A permission, usu. revocable, to commit some act that would otherwise be unlawful; esp., an agreement (not amounting to a lease or profit à prendre) that it is lawful for the licensee to enter the licensor's land to do some act that would otherwise be illegal, such as hunting game.

Front 124

Give an example of an express license.

Back 124

When there is permission given to come onto the property to watch the migration of blue herrings every April.

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Give an example of an implied license.

Back 125

By virtue of the attempt to create an easement but fails; does not comply w/SOF.

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How can a license be revoked?

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It is revocable at the will of the landowner.

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In what instances makes a license irrevocable?

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Exceptions – It is not revocable when:

1. Combined w/Profit
a. Ex -- A owns Blackacre and gives B a profit to cut and remove timber from 100 acres. A gives B, at the same time, a license to cross the property to get to that timber. A cannot revoke this license until the profit discontinues at the end of the 50 year period.

2. Equity
a. Ex -- License has been granted and the licensee has reasonable reliance and has spent money. Courts may estop the landowner from revoking the license.

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What are profits?

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a. A servitude that gives the right to pasture cattle, dig for minerals, or otherwise take away some part of the soil; PROFIT À PRENDRE. • A profit may be either appurtenant or in gross.
b. This is interest in land and therefore must comply with the Statute of Frauds.
c. Allows a person to remove something from the servient tenement’s property.

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Who is responsible for the maintenance of an easement?

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The duty of the owner of the easement to keep it in good repair.

The duty is of the dominant tenant.

The servient tenant cannot obstruct the dominant tenant’s use.

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What are the six commonly recognized ways to terminate an easement?

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1. Merger

2. Adverse or Prescriptive Use by Servient Tenant

3. Destruction of the Servient Tenement

4. Expiration of the Period of the Easement.

5. Abandonment by the Dominant Tenant.

6. Release (must comply with the Statute of Frauds)

Front 131

What is the general rule for tort liability under landlord-tenant law?

Back 131

At common law, the landlord was not liable to the tenant or a third party for injuries caused to them on the premises.

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What are the exceptions to the common law rule for tort liability for the landlord?

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1. Latent Defects

2. Danger to Persons Outside Premises

3. Premises that are open to the public

4. Common areas

5. Landlord contracts to repair

6. Negligent Repairs

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What is affirmative waste?

Back 133

Some action taken on the property which reduces its value or changes it nature

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What is permissive waste?

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A failure to make repairs that causes damages to the property.

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At common law, who had the burden to make repairs?

Back 135

Common law placed a duty on the tenant to make repairs. Therefore, the tenant was obligated to perform ordinary maintenance.

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At modern law, who has the burden to make repairs?

Back 136

Modern law provides that the landlord has the duty to make repairs, absent some contrary provision in the lease.

Front 137

What does § NCGSA 42-42(a)(2) provide?

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(a) The landlord shall:

(1) Comply with the current applicable building and housing codes, whether enacted before or after October 1, 1977, to the extent required by the operation of such codes; no new requirement is imposed by this subdivision (a)(1) if a structure is exempt from a current building code.
(2) Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.
(3) Keep all common areas of the premises in safe condition.
(4) Maintain in good and safe working order and promptly repair all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances supplied or required to be supplied by the landlord provided that notification of needed repairs is made to the landlord in writing by the tenant, except in emergency situations.

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What does § NCGSA §42-43 provide?

Back 138

The tenant shall:

(1) Keep that part of the premises that the tenant occupies and uses as clean and safe as the conditions of the premises permit and cause no unsafe or unsanitary conditions in the common areas and remainder of the premises that the tenant uses.
(2) Dispose of all ashes, rubbish, garbage, and other waste in a clean and safe manner.
(3) Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits.
(4) Not deliberately or negligently destroy, deface, damage, or remove any part of the premises, nor render inoperable the smoke detector provided by the landlord, or knowingly permit any person to do so.
(5) Comply with any and all obligations imposed upon the tenant by current applicable building and housing codes.

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What does NCGSA §42-42(b) provide?

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(b) The landlord is not released of his obligations under any part of this section by the tenant's explicit or implicit acceptance of the landlord's failure to provide premises complying with this section, whether done before the lease was made, when it was made, or after it was made, unless a governmental subdivision imposes an impediment to repair for a specific period of time not to exceed six months. Notwithstanding the provisions of this subsection, the landlord and tenant are not prohibited from making a subsequent written contract wherein the tenant agrees to perform specified work on the premises, provided that said contract is supported by adequate consideration other than the letting of the premises and is not made with the purpose or effect of evading the landlord's obligations under this Article.

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What does § NCGSA 42-9 provide?

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An agreement in a lease to repair a demised house shall not be construed to bind the contracting party to rebuild or repair in case the house shall be destroyed or damaged to more than one half of its value, by accidental fire not occurring from the want of ordinary diligence on his part.

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What does § NCGSA 42-12 provide?

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If a demised house, or other building, is destroyed during the term, or so much damaged that it cannot be made reasonably fit for the purpose for which it was hired, except an expense exceeding one-year's rent if the premises and the damage or destruction occur without negligence on the part of the lessee or his agents or servants, and there is no agreement in the lease respecting repairs, or providing for such a case, and the use of the house damaged or destroyed was the main inducement to the hiring, the lessee may surrender his estate in the demised premises by a writing to that effect delivered or tendered to the landlord within 10 days from damage or destruction.

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What is voluntary waste?

Back 142

Arises when tenant wants to make some repair or change to the property, which causes a substantial injury or changes its nature; this is property that the tenant does not own

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What is a fixture?

Back 143

An originally movable chattel that has been affixed or attached to the realty in such a way that the law will treat it thereafter as part of the realty and no longer a chattel.

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What are the issues concerning whether or not the improvement has become a fixture?

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1. How do you know that the fixture has been attached in such a way? At the time of improvement did the improvement constitute voluntary waste?

2. Is there voluntary waste at the time improvement was removed?

3. If the tenant did not commit voluntary waste through the making or removal, he might still be liable if the improvement became fixture?

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What are the issues concerning tenant's repairs or changes to the property?

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1. Does improvement constitute voluntary waste?

2. Does removal of the improvement constitute voluntary waste?

3. Is this a possibility that this a fixture?

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What is the three-part test for determining if the improvement become a fixture?

Back 146

1. Annexation - actually constructively affixed to the realty in some way

2. Adaptation - use of the realty has adapted to the presence of the property, such that they are integrated.

3. Intent - when the personal property was affixed was it done so with the intent that it become part of the realty.

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What is permissive waste?

Back 147

A tenant's failure to make normal repairs to property so as to protect it from substantial deterioration.

Is there a duty to repair? (If there is no duty to repair then it is impossible to have permissive waste.)

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If there is a breach of a duty to keep the premises fit under NC 42-42 and 42-43, what issues may arise?

Back 148

If there is a breach of a duty in these situations, there can be an issue of permissive waste or criminal liability but only by the tenant. If there is a breach of duty by the landlord it is the breach of the implied warranty of habitability

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Can the landlord waive the implied warranty of habitability?

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No, the landlord cannot waive the implied warranty of habitability.

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At common law, was there a duty to rebuild?

Back 150

C/L imposed a duty on the LL to make repairs, but that duty existed until the T took possession of the property.

Common law did not impose a duty on the tenant to rebuild the premises if they were destroyed by fire.

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At modern law, is there a duty to rebuild?

Back 151

Modern law provides that the tenant agrees to REPAIR, not to rebuild.