What are the req's for Joint Tenancy?

TTIP

Time, Title, Interest, Possession

Must be granted interest at the same time, in the same docutment, with each party receiving the same amount, and they take possession at the same time.

What words must be used to create a joint tenancy?

Must say as joint tenants with a right of survivorship

What happens if a joint tenant wants out?

He can partition the property and his portion becomes his own interest, and the remaining joint tenants will still have a joint tenancy.

*Must be done during lifetime, can't be donw by will.

Can you severe a joint tenancy by will?

NO

If a joint tenant mortgages his interest does it sever the joint tenancy?

Majority: In a lien theory state, there is no severance of the joint tenancy

Minority: In a Title theory state, there is severance

If you contract away your joint tenancy on May 1st, and it doesn't go into effect till August, when does the severance occur?

On May 1st!

How can you terminate a tenancy by entirety?

1. Death

2. Mutual agreement in writing (one party can't sever)

3. Divorce

4. Execution by a JOINT creditor

Do you have to share the profit you receive on the land with other co-tenants?

No, subject to 4 exceptions:

1. Ouster: if one tenant is claiming exclusive right of property or keeping other tenant off land

2. Agreemetn to share (if prior agreement says)

3. Lease of property by a co-tenant to a 3rd party

4. Depletion of natural resources

What is contribution?

What are some contributions required to be paid?

1. Mortgage

2. Taxes

3. Repairs

What are the four landlord-tenant estates?

1. Estate for years

2. Periodic Tenancy

Tenancy at Will

Tenancy at Sufference

How can you tell if a lease if a tenancy for years?

Does not have to actually be for a year, just has to have a specific starting date, and ending date. There does not have to be any notice to terminate the lease.

How can a tenancy for years satisfy the statute of frauds?

Any tenancy over one year must be in writing. A one year lease or less can be oral.

What is a periodic tenancy?

Key word: Repeating

The estate rolls on and on until one party gives proper notice.  They are created by express agreement, but there will be no agreement as to duration. Will be measured by the length of the rent payment. (ex: month to month, or year to year)

What happens if a landlord and tenant create an oral lease that doesn't satisfy the statute of frauds?

What type of tenancy do hold over tenants get?

They create a periodic tenancy, and if they pay another rent check, they can live for however long that check was for.

How are periodic tenancies terminated?

Notice. If you don't give proper notice, you are requried to pay the next months rent check.

Must give notice in the amount of time equal to that of the tenancy, except in year leases must give 6 month notice.

*Must also give the correct EFFECTIVE date the lease will terminate.

Tenancy at Will

Any party can terminate this tenancy at any time, without notice.  There can be termination by operation at law if: death of either party, waste by tenant, assignment by operation of law, or transfer of title by landlord, or leased by landlord to a third party.

Tenancy at Sufferance

Only occurs in one situation, when a tenant wrongfully holds over on the property.  The landlord can either:

Sue to evict, or Impose a new periodic tenancy.

What happens if you are a holdover tenant, but the landlord has now increased the rent?

What are the landlord's options if a tenant abandons the lease?

Can accept the abandonment and tenant isn't liable for any further payments, or

Can relet the property and tenant will be liable for any defeciency.

Implied Warranty of Habitability

Modern rule follows that landlord has a duty to provide a reasonably suited premises for RESIDENTIAL use only!

What can tenant do if they move into a place that is not habitable to live?

Since residential, it means landlord violated the implied warranty of habitability.  The tenant can move out and end the lease, or tenant can stay on property and sue for damages.

Some states allow tenant to make repairs and deduct costs from future rent payments.

Implied Covenant of Quiet Enjoyment

Applies to ALL leases whether residential, commercial, or otherwise.  Says that landlord won't interere with the tenant's quiet enjoyment of the leased premises.

The landlord can breach this 3 ways: total eviction, partial eviction, or constructive eviction.

What are the ways a landlord can breach the implied covenant of quiet enjoyment?

1. Total Eviction- throw tenant off property

2. Partial Eviction- don't allow tenant to use some portion of the leased property

3. Constuctive Eviction- the landlord has a duty to provide a service and they don't so it leaves the property so bad that it's uninhabitable.

What are the 3 requirements to establish a constructive eviction?

Must be landlord's failure to provide some service, not a third party

Must be a substantial interference with the tenant's quiet enjoyment of the property

Tenant must abandon within a reasonable time

Assignment

Sublease

Privity of Contract vs. Privity of Estate

The original landlord and tenant who create a lease have privity of K. Any parties that take assignments later will not have privity of K, UNLESS they make a specific agreement with the landlord.

Whoever is living on the premises at the time the rent is due has privity of estate. Previous or future parties do not have this, only current tenant.

What does a landlord need to sue for rent from a assignee of a lease?

Must have either: Privity of Estate or Privity of K with the person.

Is the assignee liable for any covenants in the lease?

Rent covenants are Always enforced.

Other covenants are enforceable if they "run with the land", which means it must touch and concerns the land. (i.e. does it make the land more valuable)

Can a tenant sue a new landlord for a covenant that was contained in the original lease with landlord 1?

There is no privity of K, but there may be privity of estate if the covenant runs with the land.

The second landlord could also be liable if he expressly assumed liability.

Can a tenant sue the original landlord to enforce a covenant in the lease, if the landlord has sold the property?

Yes, because there is privity of K.

How are subleases different from assignments?

An assignment grants the tenant privity of estate, which allows the landlord the right to collect rent. A sublease is not considered an actual transfer of the estate, so there is no privity of estate and no right to collect rent payments.

Can you waive a non assignment clause?

Yes, and once you have waived the right once, it is waived all together.

What happens when the state takes eminent domain over property that has been leased to a tenant.  Does the lease end, and  does the tenant get any condemnation money?

Partial Taking: If only partial taking, the rent is still due in full, and the renters will get a condemnation check equal to the portion taken from them.

Full Taking: The lease will be canceled, and they will get a condemnation check equal to the amount that the fair rental value of the property exceeds the amount due under the lease.

When is the landlord liable for injured parties at a tenant's premise?

1. Latent Defects

2. Short term lease of furnished dwelling (less than 3 months)

3. Common passageways under landlord's control

4. Negligent Repairs Undertaken by Landlord

5. Public Use Exception: landlord must know or should know of major defect, landlord must know or should that tenant will not fix defect, and landlord knows the public will be using the premises.

What are the four factors used to determine fixtures?

1. Degree of attachment

2. General Custom

3. Degree of Harm to premise if removed

4. Trade fixtures

When does a tenant have to remove personal property?