ABANDONMENT

IFA TENANT ABANDONS UNJUSTIFIABLY,THE MAJ VIEW IS THAT THE LANDLORD HAS DUTY TO MITIGATEBYSEEKING TO RELETTHE PREMESIS.  IF SURRENDER IS NOT FOUND, THE TENANT IS LIABLE FOR THE DIFFERENCE BETWEEN THE PROMIZSED RENT AND THE FMV.

1. Partition – a voluntary destruction
2. Severance – an involuntary destruction. Occurs whenever any one of the four unities is disturbed. *4 ways to sever for exam:

Creation of Joint Tenanc

“Four Unities”

1. 1. Time – all interest must have vested at the same time
   2. Title – the grant to all JTs must be by the same instrument
   3. Interest – all JTs must take the same kind and same amount interest
   4. Possession – all must have identical rights of possession

1. Right of survivorship – when one joint tenant dies, the property is freed from her concurrent interest (survivors do not succeed to it)
2. Right to partition – any JT can ask that the property be partitioned: lines are drawn and the party is no longer a JT.

Joint Tenancy Creation Language

1. Language needed to create joint tenancy: Must clearly make intent known, b/c if intent of the grantor is unclear, court construes the interest to be a tenancy in common.
   1. Must have “as joint tenants, with right of survivorship,” or “in joint tenancy with right of survivorship.”

1. Joint Tenancy - Severance – an involuntary destruction. Occurs whenever any one of the four unities is disturbed. *4 ways to sever for exam:

1. Conveyance –
2. Mortgage –
3. Contract of Sale –
4. Creditor Sale –
5. **These are THE ONLY ways to sever a joint tenancy

Joint Tenancy -Severance by Conveyence

1. Conveyance – by one of the JTs.
   1. One JT’s transfer of interest creates a severance that destroys just the seller’s joint tenancy, turning it into a tenancy in common in the buyer, w/ the other JTs continuing to hold their interests in joint tenancy.

Joint Tenancy Severance by Mortgage

1. Mortgage –                                                          

   Mortgage – In most states, a mortgage is a lien and does not sever a JT. Severence occurs only if the mortgage is foreclosed and the property is sold.

   1. Note: If no indication in question as to which theory applies, assume lien theory.

Contract of Sale – doctrine of equitable conversion means severance occurs when K of sale is signed.

Joint Tenancy Severance Creditor Sale

1. Creditor Sale – of the interest in the JT.
   1. No severance until the actual judicial sale - A creditor’s judgment lien is not enough.

Tenancies in Common- Characteristics

1. Characteristics:
   1. Right to Partition – any one tenant in common can force it
   2. NO Right of Survivorship
   3. Only one unity is required: Possession – all tenants must have equal rights of possession.
   4. Tenancy in common is a default tenancy – if a JT isn’t properly created, it’s a tenancy in common.

Allocating Rights & Duties Between or Among Co-Tenants (Incidents of Ownership)

Possession

Accountability

Contribution

Co-Tenants Incidents of Ownership

ACCOUNTABILITY

1. Accountability –
2. requirement that one co-tenant may have to account to another for a share of profits the co-tenant received.
   1. Getting an accounting means getting a share of the profits from a co-tenant.
   2. Gen Rule –  one co-tenant does NOT have to account to another co-tenant for a share of the profits.

Co-Tenants Incidents of Ownership

POSSESSION

1. Possession- each co-tenant has the right to possess all the property consistent w/ the other co-tenants’ rights to also possess it all.
   1. Not a right to exclusive to possession

Incidents of Ownership

Accountability Exceptions

1. 4 Exceptions: 
2. Ouster – when one co-tenant is either keeping a co-tenant off the property, or claiming a right to exclusive possession
3. Agreement to share
4. Lease of the property by co-tenant to a 3^rd party
5. Depletion of natural resources

OUSTER

when one co-tenant is either keeping a co-tenant off the property, or claiming a right to exclusive possession

Incidents of Ownership

Contribution

1. Contribution – right of one co-tenant to force others to pay their share of some expenditure co-tenant made.
   1. Improvements – NO (but, money spent may later be recouped at partition or sale of property)
   2. Repairs – Yes, but only for necessary repairs
   3. Mortgage payments – Yes
   4. Taxes – Yes

Tenancy in Years

1. 
   
   1. KEY PHRASE to remember is specified time – does NOT have to be for “years.”
   2. Any estate measure by a fixed period of time, no matter how short is a tenancy in years.
   3. Statute of Frauds – any tenancy for years over 1 year MUST be in writing (one year oral is ok, one year and one day is not)

Periodic Tenancy

1. KEY WORD is Repeating – an ongoing, continuing, repetitive estate, until one party gives valid notice (month-to-month; year-to-year, etc.)

Periodic Tenancy - Creation

3 Ways to Create:

1. Periodic tenancy by express agreement
2. Periodic tenancy by implication –
3. Periodic tenancy by operation of law –

Periodic Tenancy -Implication

1. where lease is silent as to its duration
   1. If the lease does not specify how long it is to last, then it is presumed to be a periodic tenancy measured by the rent payment (e.g., month-to-month, if rent paid monthly)

Periodic Tenancy -Operation of Law

1. 1. Oral Lease – violating Statute of Frauds
      1. Acceptance of rent by landlord creates a periodic tenancy by operation of law, even though the lease itself violates the S/F.
      2. The period is to be determined by the period covered by the rent check landlord accepted
   2. Hold-Over – tenant stays after expiration of lease, then landlord accepts rent.
      1. If hold-over sends check for another period’s rent, and L accepts it, there is a new periodic tenancy by operation of law.

Periodic Tenancy Termination

1. Termination of periodic tenancy occurs by giving proper notice. 2 requirements:
   1. Time – equal to the period. Exception: if tenancy is year to year, 6 mos. required.
   2. Right Effective Termination Day – last day of a period.

Tenancy at Will

1. 
   
   1. Either party can terminate at any time, without notice
   2. 5 other ways it terminates:
      1. Death of either party
      2. Waste by the tenant
      3. Assignment by the tenant
      4. Transfer of title by landlord
      5. Lease by landlord to someone else.

Tenancy at Sufferance

It’s the bare possession of a holdover T. At L’s sole option, L can either:

1. 1. Hold T as a wrongdoing trespasser and sue to throw T off property and recover damages for the holdover; OR
   2. Impose new periodic tenancy on T
      1. For Residential Property – new period will be month-to-month
      2. For Commercial Property – new period is determined as follows:
         1. If old expired tenancy was for a year or more, the new tenancy is year-to-year.
         2. If old expired tenancy was for less than a year, new tenancy is measured by the rent period of the old tenancy.

Duties of Landlord and Tenant

Tenant’s Duties

1. 1. If the lease is silent on the T’s duties, T must: (1) pay rent, and (2) not commit waste (cannot damages the lease premises).
   2. residential - If the lease says that T must repair and maintain then T is liable for ALL damage to the property, including even ordinary wear and tear unless that is specifically excluded from the promise to repair.
   3. Exception: T can terminate the lease if the premise is destroyed without T’s fault.

Landlord’s Remedies

1. 
   
   1. If T fails to pay rent, L can sue for both damages and to throw T off the property (evict).
   2. If T unjustifiably abandons the leasehold, L has 2 choices:
      1. Treat abandonment as an offer to surrender and accept the offer by retaking the premises; thus ending T’s liability as of that date.
      2. Re-rent the premises on T’s account and hold T liable for any deficiency (i.e., mitigation of T’s damages)

Duty to Deliver Possession of Premises

Implied Warranty of Habitability -residental

Quiet Enjoyment

Landlords Duty to Deliver Possession

1. Duty to Deliver Possession of Premises - To give T possession of the premises when the lease begins.
   1. If L cannot give possession, L has breached

Landlord's Duty

Implied Warranty of Habitability - To deliver residential premises in a habitable condition

1. There is an implied warranty of habitability in residential property: L must provide property that is reasonably suited for residential use.
2. If L breaches this implied warranty, then T has 4 options:
   1. Terminate the lease;
   2. Make repairs and offset the cost against future rent;
   3. Abate the rent to an amount equal to the fair rental value in view of the defects; or
   4. Remain in possession, pay full rent, and sue for damages.

Landlord's Duty of Quiet Enjoyment

in every lease, there is an implied covenant (promise) that L will not interfere w/ T’s quiet enjoyment and possession of the premises.  This covenant is breached in 3 ways:

1. TOTAL EVICTION

2. PARTIAL EVICTION

3. CONSTRUCTIVE EVICTION

Landlord's Duty Quiet Enjoyment

Total Eviction

 (Actual) Eviction – L excludes T from the entire lease premises. Actual eviction terminates T’s obligation to pay rent.

1. This terminates the lease

Landlord's Duty Quiet Enjoyment

Partial Eviction

1. occurs when T is physically excluded from only part of the leased premises.
   1. This relieves T from obligation to pay rent for the entire premises
   2. This does NOT terminate the lease
   3. If partial eviction is by person besides L, but someone w/ better title, T’s rent is apportioned to reflect rent taken away.

Landlord's Duty Quiet Enjoyment

Constructive Eviction

1. – Where L fails to provide a service L is supposed to provide, which renders the premises’ uninhabitable.
   1. For T to be excused, 3 requirements must be met:
      1. Result of L’s actions;
      2. Substantial interference w/ covenant of quiet enjoyment; and
      3. T must vacate w/in a reasonable time.

A license may be oral, written or implied.

A license is permission to use land of another; it is revocable and not subject to SOF.

Private Nuisance

A private nuisance is a substantial and unreasonable interference w/ use and enjoyment of one's land. (non-trespassory taking)

Estoppel By Deed

Estoppell by deed applies to validate a deed, in particular, a warranty deed.  A grantor who conveyus title to land they do not have title to, but subsequently obtain title - estoppel by deed estops grantor from claiming ownership.

Equitable Conversion - risk of loss

risk of loss varies by jurisdiction, however, under the doctrine of Eq Conversion, the buyer has the risk of loss.

Merger

Marketable title is implied for the sale of land, the doctrine of merger provides that one can no longer sue on title matters contained inthe K after the deed is delivered and accepted.

Restrictive Covenant

To be binding, a RC MUST be placed on property at the time whenconveyed. The burden cannot be attached at a later time by one without interest inthe property.

Assumed Mortgage

A grantee who does not assume the mortgage, but rather takes subject to, is not personally liablefor the debt. The land is primarily liable and the grantor, theinvestor; is a surety for the debt.

Privity of Estate

Privity of estate exists when parties share a relationship with the land.

Joint Tenancy

A Joint Tenancy is NOT Devisable, inheritable, and not severable at will.

Marketable Title

A title is not marketable when a reasonable person would not purchase it. Such as a future interest that can become posessory.

Easement - Types

Affirmative

Negative

Appurtanant

Negative Easement

for light

air

support (lateral and subjacent)

flow (artificial stream)

Easement - General

An easement holder has the right to use another’s land, but not to possess or enjoy the land.  An easement is presumed to be of perpetual; duration unless the grant specifically limits it.

Easement Appurtanant

(it takes two baby)

An Easement is Appurtanant when it benefits the holder in his physical use or enjoyment of another tract of land.

there must be two tracts; DOMIANT and SERVIANT.

Easement Appurtanant

Passing of benefit

BENEFIT: An easement appurtanant passes with the benefited land, regardless of whether it is mentioned in the conveyence. 

Easement Appurtanant

The burden of the easement also passes automatically withthe serviant estate unless the new owner is a Bona Fide Purchaser with no actual or constructive notice of the easement.

Easement in Gross

The holder of an easement in gross aquires the right to use the servient tenement independent of possession of another tract of land. the easement benefits the holder.  An easement in gross is not transferable, unless serves economic /commercial interest.

Easement - Creation of

The basic methods are: GRIN Please

Express Grant

Express Reservation

Implication

Necessity

Prescription

Easement -Express Grant

Any easement must be in writing and signed by holder of the serviant estate; unless its duration is brief enough (one year or less) to be outside SOF. A grant of easement must complywith all formal requisites of a deed. (delivery and intent)

Easement - Express Reservation

Express Reservation arises when a grantor conveys title to land, but reserves theright to continue touse the tract for a special purpose.

(easement can only be reserved for grantor/ for anyone else and it is void.)

Easement by Implication

(operation of Law)

An easement by implication is created by operation of law; it is an exception to the SOF.

There are two types of easement by implication.

Quasi Easement - w/ existinguse

impliedw/o existing use

Easement by Implication- Existing Use

(quasi easement)

An easement maybeimplied if:

1. prior to the division of a single tract

2. an apparent and continous use exists on the servient part

3. That it is reasonably necessary for the enjoyment of the dominant part.

4. the court determines that the parties intended the use to continue after division of the land.

Easement by Implication

w/o existing use

1. subdividivision plat

2. profit a pendre

Easement by Prescription

1. open and notorious

2. adverse

3. continous and uninterrupted

4. for the statutory period

generally, prescriptive easements cannot be acquired on public land.

Termination of Easements

An easement canbe terminated in one of the following 8 ways:

1. stated condition occurs

2. merger

3. release

4. abandonment

5.estoppel

6. prescription

7.necessity

8. condemnation/destruction

Recording

License

A license isa privilege for holder to go upon land of another; but unlike aneasement, a license is not an interest inland. It is a privilege that is revocable at the will of the licensor.

Irrevocable License

A license becomes irrevocable in the following circumstances:

Estoppel

license coupled with interest

Irrevocable License

Estoppel

If a licensee invests substantial amounts of money or labor inreliance onthelicense, the licensor is estopped to revoke.The license becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures.

Irrevocable License

License coupled w/ interest

A license coupled with an interest is irrevocable as long as theinterest lasts.

Profits

Profits entitle the holder of the benefitto take some resources from the servient estate. Implied inevery profit is an easement entitling the benefit holder to enter the serviant estate to remove the resources.

Profits

rules and termination

All the rules governing easements are applicable to profits. A profit may be extinguished thru surcharge(misuse that overly burdens the servient estate)

Covenants Running with the Land

(Real Covenants)

A real covenant, normally found in a deed, is a WRITTEN PROMISE to do/or not to do something on the land. Real covenants RUN WITH THE LAND at law; meaning that subsequent owners may enforce or be burdened by the covenants

Requirements for the

BURDEN TO RUN

In order for the burden to run, any successor in interest to the  burdened estate will be bound by the covenant as if she expressely agreed to it. The following requirements must be met:

1. Intent

2. Notice

3. Horozontal Privity

4. Vertical Privity

5. Touch and Concern

Real Covenant - Burden to Run

INTENT

The original conveying parties must have intended that successors in interest to the covenant be bound by the terms of the covenant.  The intent may be inferred from circumstances surrounding creation of the covenant, but is usually found in the language itself.

Real Covenant - Burden to Run

NOTICE

Under modern recording acts, tobe bound by a covenant a subsequesnt purchaserfor value (BFP)MUST have actual, inquiry, or record notice at the time of purchase.

Real Covenant - Burden to Run

HORIZONTAL PRIVITY

At the time the promisor entered into the covenant with the promise, the two must have shared some interest inthe land independent of the covenant. (grantor/grantee/landlord/tenant/mortgagee/mortgagor)

Real Covenant - Burden to Run

VERTICAL PRIVITY

To be bound, the successor ininterest to the covenating party must hold the entire durational interest at the time he made the covenant.

Real Covenant - Burden to Run

TOUCH AND CONCERN

Negative covenants touch and concern the land if they restrict the holder of the servient estate in his use of that parcel of land. Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something, which increases his obligation in connection with his enjoyment of the land.

Real Covenant - Benefit to Run

Intent

Veritical Privity

Touch and Concern

Breach of Real Covenant

Abreach of covenant is remedied by an award of DAMAGES.

Termination of Real Covenant

As with all other non-possessory interests, a cavenant may beterminated by 1: WRITTEN RELEASE

2. MERGER of benefited and burdened estates

3.CONDEMATION of the burdened Property.

Equitable Servitude

An Equitable Servitude is a covenant that regardless of whether it runs with the land at law,equity will enforce against the assignees of the burdened land who have NOTICE ofthe covenant. The usual remedy is INJUNCTION

An equitable servitude is a nonpossessory interest in land that operates much like a covenant running with the land. But covenants and equitable servitudes should not be confused. One may tell the difference based on the remedy plaintiff seeks: Holders of a COVENANT seek MONEY damages whereas Holders of EQUITABLE SERVITUDES seek INJUNCTIONS.

Equitable Servitude

CREATION

Equitable servitudes must be created by a writing, unless it is a negative equitable servitude which may be implied from a common scheme for the development of a residential subdivision, so long as landowners have notice of the agreement.

RUNNING WITH THE LAND

These covenants "run with the land" which means that subsequent owners or successors may either be able to enforce the covenant or be burdened by it.

Equitable Servitude

Req's BURDEN TO RUN

INTENT - The parties intended that the servitude be enforcable by and against assignees.

NOTICE - The succesor of the promisor has Actual, Inquiry, or Record Notice;and

TOUCH AND CONCERN - The covenant Touches and Concerns the land

Equitable Servitude

The benefit of an equitable servitude runs with the land and thus is enforcable by the promisee's successors, if: the original parties so intended and the servitude Touches and Concenrs the benefited property.

Equitable Servitude Defenses

1. Unclean Hands

2. Benefited Party Acquiesed in violation of the servitude

3. Estoppel - Party acted in way that rx person would believe the covenant was ABANDONED.

4. Laches - Benefited party fails to bring suit inrx time.

5. Neighborhood has changed so significantly enforcement would be inequitable

ADVERSE POSSESSION ELEMENTS

To establish title by AP, the possessor must show; ACTUAL ENTRY; EXCLUSIVE POSSESSION; OPEN AND NOTORIOUS; ADVERSE; and CONTINOUS throughout the statutory period.

LAND SALE CONTRACTS

SOF

A contract must be in writing and contain the signature of the party to be charged and the essential terms.  Part performance can take a contract out of the statute.

Doctrine of Equitable Conversion

Once a K is signed, equity regards the buyer as the owner of the Real Property.  The seller's interest is considered personal property.