004 Property--Essay

Front 1

4. Must a property owner warn a buyer of defects in the land before selling?

Back 1

Yes. A residential owner/seller must provide the buyer with a disclosure statement regarding the condition of the property, including any known defects.

However, the disclosure statement is not deemed to be a warranty and is not a substitute for inspection by the buyer.

Front 2

Adverse Possession--basically 20 years

Back 2

Requires possession to be open and notorious, continuous and hostile for a period of 20 years.

Front 3

AP--color of title

Back 3

color of title=when adverse claimant takes possession of land subject to a defective document.

Adverse claimant will have good title after 7 years:

if adverse claimant records the the beginning of 7 year period
OR
title of those through whom the possessor claims have been recorded for 30 years.

Otherwise, the the above conditions are not met, possessor has DEFENSIVE TITLE against the owner after seven years, but does not have GOOD TITLE of his own for 20 years.

Front 4

AP--payment of property taxes

Back 4

-payment of property taxes shows an intention to claim the land, but it does not establish title by adverse possession.
--presumption of ownership DOES arise from payment of property taxes for 20 years.

Front 5

AP-transfer of property occupied by AP

Back 5

Property owner may not transfer property which is occupied by an adverse possessor
i.e. must file an action to quiet title before transfer.

Front 6

CL--Accepting a lower rental amount without protest

Back 6

If the landlord accepts rent without reservation and with knowledge of a tenant's default, the landlord by such acceptance condones tile default and thereby waives any rights regarding the breach and is estopped from terminating tile rental agreement as to that breach.

Front 7

CL--common law duty of a landlord

Back 7

The common law provides that a landlord does not have a general duty to keep the premises in good repair.

However, he does have a duty to inform himself of the condition of the premises prior to leasing it.

He must repair or notify a tenant of any dangerous condition that the landlord knows, or ought to know through reasonable care, exists.

In addition, the premises must not be uninhabitable.

Front 8

CL--Constructive Eviction

Back 8

Occurs when L's actions cause the premises to be uninhabitable, effectively forcing the T to move out
---
Constructive eviction is a breach of the implied warranty of quiet enjoyment.

1. breach BY LANDLORD which renders the premises uninhabitable

2.T give notice to L

AND

3. T leaves in a timely fashion

Front 9

CL--L remedies for breach

Back 9

1. continue lease and sue for rent
2. terminate lease, mitigating damages and suing for back rent and other damages
3. file a detainer action to EVICT tenant, mitigating damages and suing for back rent and other damages , including future rent as it accrues.

Front 10

CL--Landlord liable to third parties who are injured on the property

Back 10

The modern trend in courts today is to hold the owner of the land liable to third parties who are injured if the landlord
1. knows about the dangerous condition,
2.realized that the occupier might admit people into the leased property,
and
3. fails to make the repair or makes a negligent repair.

Front 11

CL--May a landlord terminate a lease ifthe tenant uses the property for illegal purposes?

Back 11

Generally, yes, or the landlord may obtain damages and injunctive relief. However, the tenant's duty is breach only if there is continuous illegal conduct. The tenant should be given the opportunity to cure if there was only one illegal act.

Front 12

CL--May a tenant who is in dispute with a landlord stop paying rent?

Back 12

Generally, no. A tenant has an absolute duty to pay rent until the end o f the lease term.

The tenant cannot remain on the property and fail to pay rent.

Instead, if the tenant has a dispute with the landlord, the tenant should continue to pay rent and sue for damages.

Front 13

CL--T remedies if L takes possession of property during the lease term extrajudicially

Back 13

L taking unlawful possession is a breach of the covenant of quiet enjoyment.

Total Eviction: terminates lease and ends T's obligation to pay rent

Partial Eviction: does not terminate lease. T can remain and pay NO RENT unless partial eviction is y someone other than landlord with better title, then pays apportioned rent to reflect amount taken away.

Front 14

CL--voluntary waste by T

Back 14

T will be liable for all damage resulting from his intentional or negligent acts.

Front 15

CLHow may a lease be assigned

Back 15

In Tennessee, a lease is assignable without the consent of the lessor unless there is an agreement in the lease to the contrary.

Once an assignment is made, the entire interest of the original lease is transferred to the assignee, but the obligation of the original lessee does not terminate unless the lessor agrees,

An assignee who accepts an assignment remains liable on the lease for as long as the assignee continues to hold the lease.

If the assignee reassigns the lease, the assignee's obligation terminates.

If, however, an assignee assumes the lease, she remains obligated for the entire lease term, even if she reassigns the lease.

Front 16

dedication

Back 16

Dedication is the appropriation ofland by its owner, for the use of the public, and accepted for such use by or on behalf of the public,

An offer of dedication may be made by making an express statement, opening a road to public travel, or acquiescing to use by the public.

Acceptance by a public body may occur by formal resolution or assumption of the maintenance of the land.

Front 17

detainer action

Back 17

proper action for a landlord to bring to recover unpaid rent, possession and damages for injury to the property.

Typically, these actions are filed in general sessions court, although circuit court also has jurisdiction.

Front 18

If a boundary line on property is defined by a stream that runs through the property and flooding causes the course of the spring to change, does the boundary change?

Back 18

No. A sudden, perceptible change o f a watercourse does not change property rights; boundaries remain where they were.

Front 19

Lease held invalid due to SOF

Back 19

SOF requires lease creating a tenancy for more than 1 year to be in writing (if not in writing a Tenancy at Will is created)

BUT
if a lease is invalid due to SOF and T nonetheless goes into possession, T's periodic payment of rent converts the Tenancy at will into a periodic tenancy.

Front 20

Tenancy at will

Back 20

SOF requires lease creating a tenancy for more than 1 year to be in writing (if not in writing a Tenancy at Will is created)

If the lease only provides thatL has right to terminate at wil, a similar right ill generally be implied in favor of a T.

Unless the parties expressly agree to a tenancy at will, the periodic payment of rent will cause a court to treat the tenancy as a periodic tenancy.

Front 21

Tenancy for years

Back 21

one that is certain to continue for a fixed period of time.

expires at the end of the stated period without either party giving notice to each other.

also terminates upon T's surrender, failure to pay rent, or breach of leasehold covnants.

Front 22

URLTA Generally

Back 22

Uniform Residential Landlord Tenant Act to counties whose population is greater than 68,000

**does NOT APPLY to commercial leases.
---
Applies to:
Anderson
Blount
Bradley
Davidson
Hamilton
Knox
Madison
Montgomery
Murray
Rutherford
Sevier
Shelby
Sumner
Washington
Williamson
Wilson

Front 23

URLTA--failure of landlord to sign lease

Back 23

if L accepts rent it creates a periodic month-to-month tenancy

periodic tenancy is a tenancy that continues from year to year or for successive fractions of a year (e.g. month to month) until terminated by proper notice of either party.

For a yr to yr tenancny 6 months is required. Under URLTA 30 days notice is req. for a month to month tenancy.

Front 24

URLTA--L duties

Back 24

1. comply with requirements of applicable housing and building codes ( i.e. SUPPLY ESSENTIAL SERVICES) materially affecting health and safety
2. make ALL REPAIRS and do what is necessary to keep the property in a FIT and HABITABLE condition
3. Keep COMMON areas CLEAN and SAFE.

Front 25

URLTA--L duty to inspect before deliver posession

Back 25

URLTA--apartment and list any damages to the property. L then must give list to the T. who then has an opportunity to initiate a court challenge.

Front 26

URLTA--L liability for common areas

Back 26

L may be held liable for any injury resulting from a dangerous condition in a common area that could REASONABLY have been discovered and made safe.

Front 27

URLTA--L liability for injuries occurring on the property

Back 27

Generally a L is not liable for injuries T from unsafe/dangerous condition on the property
UNLESS
1. condition was in existence at time lease was entered into
2. L knew or should have known of the dangerous condition
AND
3. T did NOT KNOW and could not have discovered it based on REASONABLE INSPECTION

Front 28

URLTA--L right to expedited eviction

Back 28

if a T or licensee willfully behaves in a manner that threatens health, safety or welfare of of other Ts or licensees, then only 3 DAYS NOTICE is required.

-otherwise 30 days notice is required

T can seek an injunction to block the eviction.

If L acts in BAD FAITH, then T can recover damages including atty's fees.

Front 29

URLTA--Prohibited Provisions

Back 29

-no lease may authorize:
1. confession of a judgment
2. limitation of liability
3. provision that "T waives rights under the act"

Front 30

URLTA--security deposits

Back 30

URLTA requires that L keep security deposit in a separate bank account used ONLY FOR THAT PURPOSE; otherwise no portion of the sec. deposit may be retained.

Security deposit can be used to pay for damages to premises caused by the T
AND
can be applied toward unpaid rent.

Front 31

URLTA--T Duty to Repair--permissive waste

Back 31

Tn follows a growing minority view by requiring a T to:
1. comply with applicable building and housing codes pertaining to health and safety
2. keep the premises as clean and safe as when he took possession
3. dispose of garbage and waste in proper receptacles
4. refrain from illegal conduct
5. refrain from deliberately or negligently destroying or damaging any part of the premises
6. act so as not to disturb neighbor's peaceful enjoyment of the premises.

If T fails to comply with these duties and there is a breach by the T materially affecting health and safety that can be remedied by repair, replacement or cleaning, L must give notice to T.

If within 14 days, T has not made repairs, L may enter and have the work done at T's expense.

Front 32

URLTA--T Duty to Repair--voluntary waste

Back 32

T liable for damages resulting from his own intentional or negligent acts or exploitation of minerals on the propety

Front 33

URLTA--T remedies if L takes possession of property during the lease term extrajudicially or commits retaliatory eviction

Back 33

EITHER
1. recover POSSESSION of the apartment
OR
2. terminate the rental agreement (plus return of prepaid rent and security deposit; )

AND, with either option,

recovery of actual damages, punitive damages, and reasonable attorney fees.

Front 34

URLTA--T remedy for breach of L duty to provide essential services

Back 34

substantial services=utilities and any other obligations imposed on the landlord that affect T's health and safety.

T must give written notice which may be followed by one of several actions:
(1) the tenant may procure the services on his own and deduct the cost from the rent,
(2) the tenant may choose to recover damages based on the diminution of the rental value,
(3) the tenant may discontinue rent payments and find substitute housing until the services are supplied,

The tenant may also be entitled to collect actual and punitive damages and attorneys' fees.

Front 35

URLTA--T remedy for damage by fire other casualty without fault of the T

Back 35

T may vacate the premises and terminate lease upon 14 days written notice.

Common Law: leased premises must be:
1. destroyed by the elements
2.as to be untenable and unfit for occupancy.
3. without fault of the T

T may surrender possession and is relived liability for the rent.

Front 36

What is the effect of a missing or defective notarizing of a deed?

Back 36

Title may be unmarketable because of a defect in tile chain of title, e.g., failure to meet the requirements for recordation.

The recording acts require that before an instrument may be recorded, it must be acknowledged by the grantor before a notary.

While an unacknowledged deed does not qualify for recordation and thus does not give constructive notice to subsequent purchasers, a deed recorded with an acknowledgment that is defective for a reason not apparent on the face of the instrument imparts constructive notice.

Front 37

Joint Tenant--purchaser of interest of another joint tenant

Back 37

The purchaser becomes a tenant in common with the other joint tenants.