Attack Rule Statements Landlord/Tenant and Land Use

Types of Tenancies

(1) Tenancy for Years; (2) Periodic Tenancy; (3) Tenancy at Will; (4) Tenancy at Sufferance

Tenancy for Years

Must be in writing if longer than 1 year. Automatically terminates.

Periodic Tenancy

Default. Written notice is required one period in advance at common law

Tenancy at Will

No fixed period of time. Can be terminated at any time by either party. Created by express agreement or implication when there is no specified start date or time period.

Tenancy at Sufferance

When a tenant holds over after expiration of tenancy. Landlord can elect to hold the tenant to another term via periodic tenancy

Tenant Defenses for Payment of Rent

(1) failure to deliver possession; (2) breach of covenant of quiet enjoyment; (3) constructive eviction; (4) destruction of premises (faultless, modern law only); (5) contract defenses; (6) surrender by tenant accepted by landlord; and (7) duty to mitigate by re-letting

Holdover Tenant

At common law, landlord could use reasonable force to eject, but modern law says so self-help. Landlord must evict through the courts or continue the relationship, give notice, and sue.

Abandonment by Tenant Landlord Options

(1) Accept surrender and terminate lease; (2) re-let on behalf of the tenant (tenant must be notified); or (3) leave the premises vacant and sue for rent as it becomes due (modern duty to mitigate)

Condition and repair of premises Landlord duties

Common law: caveat emptor, no duty to repair or make premises habitable. Modern law: landlord duty to maintain common areas, fix latent defects of which L has knowledge; and if L makes repairs he must not be negligent

Implied Covenant of Quiet Enjoyment

Implied promise that the landlord, anyone acting for him or with superior title, will not interfere with the tenant’s use and enjoyment of the premises. Can be breached by constructive eviction, partial eviction, and actual eviction

Constructive Eviction

applies to residential and commercial leases. Requires: (1) premises are virtually uninhabitable for intended use because of substantial interference with use and enjoyment by the landlord or someone acting for him; (2) notice is given to L; (3) L fails to meaningfully respond; and (4) the tenant moves out within a reasonable time. Can also follow from duty to abate nuisance by other tenants

Partial Actual eviction

If L makes it impossible for the tenant to occupy some or all of the premises, T can withhold rent but does not have to move out

Implied Warranty of Habitability

Residential leases only. Premises must be fit for basic human habitation. If not, then the tenant can: (1) terminate the lease and move out; (2) make repairs and deduct from rent; or (3) pray reduced rent, remain on the premises, and sue

Landlord Tort Duties

(1) maintain common areas; (2) fix latent defects known to L; (3) repairs assumed must not be made negligently; and (4) duty to inspect for defects if premises are held open to the public

Tenant Tort Duties

Tenants have the same tort liability as owners for third parties on the premises

Waste

A tenant (or life tenant) must prevent waste and cannot damage the premises without effecting repair. Waste can be: (1) voluntary; (2) permissive (negligent); or (3) ameliorative.

Fixture Definition

A fixture is something that was once chattel but has become so attached to the premises as effectively be part of the real estate.

Fixture Factors

MARIA: (1) Method of attachment (firmly imbedded or permanently attached?); (2) adaptability (particularly adapted or fitted to estate?); (3) Removal (would removal destroy chattel or damage estate?); (4) Intention; and (5) Agreement

Trade Fixtures

Those affixed to real estate by a commercial tenant for business use. Strong presumption of removability, but tenant is responsible for paying for damages caused by removal

Assignment of Lease

(1) transfer of entire interest to new tenant; (2) new tenant is personally liable to L for rent because of privity of estate; (3) old tenant is also liable via privity of contract unless there was a novation

Sublease

Transfer of anything less than the entire remaining interest. New tenant is not personally liable to L. Old tenant is liable to L.

Easement

An easement is the right to use the land of another. It is a nonpossessory property interest

Nature of Easement

Can be affirmative, entitling the holder to do something on another’s land, or negative, preventing the landowner from doing something. Negative easements are not common

Type of Easement

Easement Appurtenant or Easement in Gross

Easement Appurtenant

Benefits a particular parcel of land and is only created when the easement benefit is tied to a particular piece of land. The possessor of the dominant estate must benefit in the use and enjoyment of his own land. The servient estate is the burdened estate

Easement in Gross

The benefits are provided to an individual. Not transferable at common law

Creation of Easements

(1) express creation; (2) implication from prior use; (3) easement by necessity; (4) easement by prescription; and (5) easement by estoppel

Creation By Implication from Prior Use

(1) land was originally one parcel with common ownership; (2) land was severed into more than one parcel; (3) the use existed prior to the severance; and (4) the easement is reasonably necessary to the dominant land’s use and enjoyment of the property

Easement by Necessity

(1) common ownership of the two parcels; and (2) the easement must be strictly necessary at the time of conveyance

Easement by Prescription

(1) continuous for statutory period; (2) actual use; (3) open, notorious, and visible; and (4) hostile

Easement by Estoppel

Arises where the servient parcel allows use such that it is reasonable that the user will substantially change position in reliance on the belief that the permission will not be revoked

Scope of Easements

(1) accommodate present and future needs due to normal, foreseeable development; (2) excessive use is not permitted (surcharge); and (3) remedy is injunction or damages but not termination

Maintenance and Repair of Easements

(1) servient owner is not required to repair and maintain; (2) dominant owner has implied right to repair and maintain unless both estates make use of the easement, where the court will apportion costs

Easement Transfer Servient Estate

Runs with the land except if the purchaser of the servient land is a BFP without notice (visible use provides notice)

Easement Transfer Dominant Estate

Appurtenant easements run automatically. Easements in gross cannot transfer at common law, but many states allow transfer of commercial easements in gross

Methods of Terminating an Easement

END CRAMP: (1) estoppel; (2) end of necessity; (3) non-willful destruction of servient land; (4) condemnation of servient estate; (5) release in writing; (6) abandonment demonstrated by physical action of intent to never use the easement again; (7) merger of the estates; and (8) prescription (must interrupt use for whole period)

Real Covenant Burden Running With Lane

(1) writing between original parties; (2) intent to have covenant run; (3) touch and concern the land (restricts use of servient parcel); (4) horizontal privity (shared interest in land for original parties apart from the covenant itself); (5) vertical privity; and (6) notice.

Real Covenant Benefit Runs with the Land

(1) Writing; (2) intent; (3) touch and concern (increases use and enjoyment of dominant land); (4) vertical privity (but no horizontal privity or notice)

Termination of Covenant

DREAMCC: (1) Destruction; (2) Release; (3) Estoppel; (4) Abandonment; (5) merger; (6) condemnation; and (7) change in condition (so significant as to frustrate purpose or make impossible)

Equitable Servitude Requirements

(1) Writing unless implied; (2) Intent to run; (3) touch and concern the land; (4) notice (no privity needed)

Implied Reciprocal Servitude/Common Scheme

(1) common plan or scheme evidenced by recorded plat, general pattern of restrictions, or oral representation to early buyers; (2) notice (actual, inquiry, record. Inquiry can be visual characteristic of neighborhood); (3) no SOF required

Profit (profit a prendre)

Entitles holder to right to enter servient estate and remove soil or a product of the land itself. May be appurtenant or in gross and is created and terminated like an easement

License

Mere right to use the licensor’s land for some specific purpose and revocable at will. Can create an easement by estoppel

Surface Water Rights

landowner can use as he pleases. Can get rid of by 3 different approaches: (1) common enemy (cast onto others’ land); (2) natural flow (cannot obstruct natural flow, strict liability); and (3) reasonable use

Riparian Rights

(1) reasonable use (courts consider extent and purpose); or (2) prior appropriation (California uses): an owner must obtain a permit to use water, and priority is determined by permit date

Ground Water

Reasonable Use

Lateral Support

Right to lateral support is absolute. If the land is in its natural state, whoever damages it is strictly liable. If developed, then the standard is negligence unless the landowner can show that the land would have collapsed in its natural state

Subjacent Support

Landowner has a right not to have the surface subside. This includes buildings and land in its natural state

Zoning: Purpose

Protection of health, safety, comfort, morals, and general welfare of citizens

Zoning Regulation Standard

Reasonable and not arbitrary. Substantially? related.

Cumulative Zoning

Hierarchy of land use, and a plot can be used for a stated purpose or for any higher use

Variance

A landowner can seek a variance if he can show unnecessary hardship due to unique features of the property or practical difficulty.

Nonconforming Use Zoning

Previously conforming use is allowed to persist in some jurisdictions and is subject to amortization (reasonable time to comply) in others. The majority of Jxs require that any change or improvement must comply with new regulations, and any rebuilding must comply