Core Rules: Property

present estate types

fee simple absolute, defeasible, and life estate

When special taxes or assessments are levied for public improvements that will be enjoyed by the future interest holder, who pays?

equally apportioned between life estate holder and future interest holder

Is a total forfeiture restraint on a life estate generally enforceable?

Yes.

What is a key feature of a future interest?

It’s not possessory but may become so.

When does a grantor retain a reversion?

any time the grantor conveys less than the entire estate

reversions: alienability and accessibility

freely alienable; accessible by creditors

What is the default future interest for a grantor?

reversion

When does the possibility of reverter exist?

always when grantor transfers a determinable estate

When does a right of entry always exist?

with a fee simple subject to condition subsequent (FSSCS)

What is the effect of the doctrine of worthier title on “to neighbor for life, then to my heirs”?

• neighbor = life estate

• grantor = reversion

Are executory interests freely alienable?

Yes.

What do class gifts to heirs have?

implied right of survivorship

What must a condition of survivorship generally be?

express

What is the outcome when a testator’s share in a joint tenancy is left to the testator’s children?

Devise has no effect.

Is partition available to tenants in the entirety?

No.

Is a cotenant required to pay rent to another cotenant for exclusive use of the property?

No.

What happens when a lease terminates before the agreed-upon term?

Tenant must pay proportionate amount of agreed-on rent.

partial constructive eviction: remedy

rent abatement

Is a subtenant typically liable to the landlord?

No.

If the original tenant gets the landlord’s consent to transfer, is the landlord’s consent needed for future transfers?

No.

novation

landlord expressly agrees to release original tenant from further liability

What determines whether a lease is terminated when the government takes leased premises under eminent domain?

whether taking is a total condemnation

fee simple absolute (FSA): size and time

largest; infinite duration

fee simple absolute (FSA): creation

“grantor to grantee”

What happens if a grant is ambiguous?

It creates a fee simple absolute.

What is the default type of tenancy?

tenancy in common

Does a tenancy in common have a right of survivorship?

No.

joint tenancy: right of survivorship

Surviving joint tenants automatically get deceased’s interest.

tenancy by the entirety: defined

joint tenancy between married people with right of survivorship

When is the equitable remedy of partition available?

to all holders in a joint tenancy or tenancy in common

voluntary partition

in writing

involuntary partition

done by court action

Under what two circumstances will a partition by sale be ordered?

physical partition impossible or is unfair to all parties

How are the proceeds of a partition by sale divided?

by ownership interest

What does the FHA prohibit?

discrimination in sale/rental/financing/advertising of residential dwellings

What are the three exceptions to the FHA?

• single-family sold or rented w/o broker

• owner-occupied buildings w/4 units or less

• religious organizations/private clubs

What traits are protected under the FHA?

race, color, religion, national origin, and familial status

Does the FHA mandate reasonable accommodations for disabled people?

Yes.

What categories of action are prohibited by the FHA?

• refusal to sell/rent/finance

• different rents

• falsely denying available units

• different services/facilities

• discriminatory advertising

What two types of cases may be brought under the FHA?

• intent based on disparate treatment

• effect based on disparate impact

tenancy for years: duration

fixed, ascertainable amount of time

tenancy for years: creation

agreement by landlord and tenant

What is required if a tenancy for years will last more than 1 year?

in writing and signed per SOF

tenancy for years: termination and notice requirement

automatic on expiration of term; no notice

periodic tenancy: duration

renews automatically until one party gives notice of termination

periodic tenancy: termination

need proper notice

periodic tenancy: commercial lease proper notice

before what will be start of last term

periodic tenancy: residential lease proper notice (modern)

30 days

What is the default leasehold if there is no express agreement?

periodic tenancy

What happens if notice is given late in a periodic tenancy?

Notice is effective but applies to the subsequent period.

tenancy at will: termination

by either party at any time w/o notice

tenancy at will: creation

express agreement

tenancy at sufferance

tenant holds over after lease ends but prior to eviction or re-rental

implied covenant of quiet enjoyment

Landlord may not interfere with tenant’s right of possession.

constructive eviction elements

1. premises not usable for intended purpose;

2. Tenant notified landlord of problem;

3. Landlord did not correct problem; AND

4. Tenant vacates premises in a reasonable time.

implied warranty of habitability

Landlord has obligation to maintain property so it is suitable for human habitability.

When does the implied warranty of habitability apply?

only to residential buildings

May a tenant commit affirmative or voluntary waste?

No.

May a lease prohibit tenants from making improvements?

No.

duty of repair: commercial lease

may belong to tenant

How can a landlord treat a holdover tenant?

as a periodic tenant

When a landlord accepts rent from a holdover tenant, how much must the holdover tenant pay?

rent amount due under original lease

When may a landlord impose increased rent on a holdover tenant?

if landlord informed the tenant of increase before the original lease expired

duty to deliver possession: English (majority) rule

actual and legal possession

duty to deliver possession: American (minority) rule

only required to deliver legal possession

assignment

complete transfer of remaining term

sublease

transfer for less than duration of lease

subleases/assignments: majority view

objective test

rent responsibility: assignment

collect from original tenant or subtenant

rent responsibility: sublease

collect from original tenant only

sublease/assignment: permission if lease silent

can sublet/assign freely

sublease/assignment permission: modern rule

may deny permission for transfer only for commercially viable reason

sublease/assignment permission: traditional rule

deny permission for transfer at landlord’s sole discretion

tenancy in common: definition

Multiple cotenants have right to possess entire property.

For a tenancy in common, do cotenants need to acquire at the same time and/or for equal shares?

No.

How can a tenancy in common be involuntarily created?

severance or intestate succession

In a tenancy in common, may a cotenant encumber the property with a mortgage?

Yes.

Do transfers of interest end a tenancy in common?

No.

In a tenancy in common, may interests be transferred without the consent of other cotenants?

Yes.

Is a tenancy in common freely transferable?

Yes.

What are the two requirements for a joint tenancy?

words of survivorship AND the four unities

What are the four unities?

possession, intent, time, and title

What are the four ways to sever a joint tenancy?

• by deed during life

• contract

• mortgage

• express/implied agreement

To whom does severance by deed apply?

only the party causing the severance

If there is a contract but the deed has not yet been delivered, is the joint tenancy severed?

Yes.

joint tenancy: lien theory (default)

no severance

joint tenancy: title theory

Mortgage creates severance.

Does severance of a joint tenancy by agreement apply to partition actions or divorce decrees?

No.

When does a judgment lien sever a joint tenancy?

if executed

leasehold entry and joint tenancy (modern view)

no severance

leasehold entry and joint tenancy (traditional view)

Leasehold entry severs joint tenancy.

tenancy by the entirety: modern/default view

Conveyance to a married couple creates a tenancy in common unless the conveyance clearly creates a tenancy by the entirety.

partition: accounting

Each cotenant is entitled to adjustments based on expenses paid, improvements made, and/or excess profits/rent.

partition in kind: definition

property physically divided based on interest held by each party

During a partition in kind, who gets the improved portion of the property?

cotenant who made improvements

What are involuntary partitions presumed to be?

in kind

owelty

payments made by cotenants who receive a more valuable portion in a partition to other cotenants

Do leaseholds involve title?

No.

leasehold: general characteristics

• limited duration

• right of possession only

• Landlord and tenant both have duties.