Property

Three forms of ownership

Joint tenancy, tenancy by entirety, tenancy in common

Joint tenancy

Two or more people hold equal shares in property with the right of survivorship. When one joint tenant dies, their share goes to the surviving joint tenant. Can be transferable during lifetime (which destroys the joint tenancy) but it’s not devisable by will or intestacy

Creating a joint tenancy

Requires the four unities (Time: all tenants must acquire their interest at the same time. Title: All tenants must acquire title by the same instrument. Interest: All tenants must have equal, undivided interests in the property. Possession: all tenants must have the right to possess the whole property). There must be a clear expression of right of survivorship or else it’s presumed a tenancy in common.

The Four unities

Required for the creation of a joint tenancy: Time, Title, Interest, Possession

Severance of a joint tenancy

By sale (can be done without the other’s knowledge or consent. Turns into tenants in common) or by partition (done voluntarily or judicially (by partition in kind (physical division or forced sale (divide the proceeds))

Two kinds of joint tenancy partitions

Voluntary and Judicial (partition in kind or forced sale)

Partition in kind

A method the court uses to sever a joint tenancy. A physical division of the land if it’s in the best interest of all

Forced Sale

A method the court uses to sever a joint tenancy. A physical division of the land if it’s in the best interest of all

Transactions that won’t result in severance of a joint tenancy

Mortgages. The majority view is lien theory (no severance); the minority view is title theory (yes to severance)

Lien theory

The majority view to severances. The mortgage does not sever a joint tenancy, because the mortgage is viewed as merely a lien on the property, not a transfer of title. The right of survivorship remains intact unless and until foreclosure occurs

Title Theory

The minority view to severances. A mortgage severs a joint tenancy because the mortgage is seen as a transfer of title to the lender. The this breaks the unity of title, thereby converting the joint tenancy into a tenancy in common

Tenancy by entirety

Marital estate with right of survivorship. Any conveyance to a married couple is presumed a tenancy by entirety unless stated otherwise. Impervious to creditors of only one spouse and unilateral conveyance

Severances of a tenancy by entirety

Death, divorce (turns into a tenancy in common unless statute says otherwise), mutual agreement, execution of lien by both parties

Tenancy in common

Co-tenants owning individual parts and the right to posses the whole. No right of survivorship. Each interest is devisable, descendible, and alienable

Rights and duties of a tenancy in common

Use and enjoy the whole regardless of how shares are divided. No ouster. Taxes and mortgages must be paid fairly. Repairs get contribution for reasonable, necessary repairs with notice. A co-tenant cannot commit waste (voluntary, permissive, ameliorative)

Three kinds of waste

Voluntary, permission, ameliorative

Voluntary waste

Willful, overt destruction

Permission waste

Neglect

Ameliorative waste

Change without permission that increases the value of the property

Devisable

Interests that can be transferred by will at death

Descendible

The interest can be pass to heirs by intestacy

Alienable

The interest can be transferred during life, such as gift or sale

Four leasehold estates

Tenancy for years, period tenancy, tenancy at will, tenancy at sufferance

Tenancy for years

Lease for a fixed, determined period of time. When you know it will end from the outset. Even if it’s only a week. Ends automatically on the date, no notice required. If the term is over a year, it must be in writing

Period tenancy

Continues for successive intervals until properly terminated by either party

Creation of a periodic tenancy

Expressly showing successive nature or by implication (payment of rent at set intervals, orally against the statute of frauds, or a holdover tenant)

Termination of a periodic tenancy

Common law requires notice to be the length of the interval (unless it’s 1 year, then notice is 6 months). The restatement says 1 month notice. Notice requirements can be changed by agreement

Tenancy at will

No fixed duration, terminable by either party at anytime

Creating a tenancy at will

Expressly stated that it’s terminable at any time. If no express agreement, regular rent payments imply a periodic tenancy

Terminating a tenancy at will

Either party can terminate at anytime. Most states require reasonable notice

Tenancy at sufferance

Tenant wrongfully holds over past the expiration of the lease. Landlord can still recover.

Terminating a tenancy at sufferance

Landlord evicts or holds them to a new tenancy

Tenant’s duties

To repair and pay rent

Tenant’s duty to repair

Maintain the premises and make routine repairs other than ordinary wear and tear (only if the lease is silent). The common law holds the tenant responsible for all restoration even if a consequence of a force nature. The majority view says the tenant can end the lease when the premises is destroyed without the tenant’s fault.

Tenant’s duty regarding waste

No voluntary, permissive, or ameliorative waste. But long term tenants can make changes appropriate to changing circumstances

Tenant’s duty to pay rent

Tenant must pay rent. Failure to pay rent could mean eviction or continuing the relationship but suing for rent. Evictions must be loud and clear. No self help! If the tenant breaches and isn’t in possession (surrendering the lease either by words or actions), landlord can either (in the minority view) do nothing and hold them liable for rent or (the majority view) relet and hold the tenant liable for the deficiency

If the tenant breaches and doesn’t have possession of the property

Majority view: relet and sue for damages. Minority view: ignore and hold them liable for rent.

Rent deposits

Most states restrict it to one month. Statutes may require depositing it into an interest bearing account and informing the tenant of the status on the account

Landlord’s duties

Deliver possession, implied covenant of quiet enjoyment, implied warranty of habitability

Landlord’s duty to deliver possession

Landlord’s duty to place tenant in physical possession of the premises at the start of the lease

Implied covenant of quiet enjoyment

Tenant has a right to quiet use and enjoyment without landlord interference. Applies to both residential and commercial leases

Results of violations of the implied covenant of quiet enjoyment

Wrongful eviction (landlord excludes tenant from whole or part of the premises), partial eviction (relieves tenant of the obligation to pay rent), constructive eviction (landlord render the premises unusable for occupation)

Wrongful eviction

Landlord excludes the tenant from the whole or part of the premises. May relieve the tenant of the obligation to pay rent

Constructive eviction

Landlord renders the premises unusable for occupation. Requires substantial interference from the landlord’s actions or failures. Tenant must notify the landlord and landlord must fail to remediate in a reasonable time, and the tenant must evacuate after the landlord fails to fix in a reasonable time.

Landlord’s liability for acts of other tenants

Duty to abate known nuisances and control the common areas

Implied warranty of habitability

Premises must be fit for basic human habitation determined by case law or the housing code (heat in the winter, running water, plumbing). Only applies to residential leases, not commercial. Not waivable.

Tenant’s entitlement to a landlord’s breach of the implied warranty of habitability

Move (doesn’t have to), repair and deduct, reduce or withhold rent, remain and seek damages

Retaliatory eviction

When a landlord evicts, refuses to renew a lease, or otherwise penalizes a tenant in response to the tenant exercising a legal right, such as complaining to authorities about housing code violations. No retaliation against a tenant who reports housing code violations. Many states presume retaliatory motive if the landlord acts within 3-6 months. Landlord has the burden of proving good faith reason for acting.

Anti-discrimination legislation

No racial or ethical discrimination. Exception: Mrs. Murphy exception: An owner-occupied fourplex can discriminate in choosing tenants (under federal law) but can’t publish ads saying so. Some state laws are stricter and may not allow this exception.

Mrs. Murphy exception

An owner-occupied fourplex can discriminate in choosing tenants (under federal law), but can’t publish ads saying so. Some state laws are stricter and may not allow the exception

Leasehold transfers

Either assignments or sublease. Landlord can prohibit a tenant from transferring without the landlord’s prior written approval. Once they consent once, they waive all future rejections unless landlord says they reserve the right.

Assignments

Transfers interest in whole. Landlord and T2 are now liable to each other for all covenants that pertain to the lease but they are not in privity of contract. Landlord and T1 are/remain in privity of contract. Both are liable to the original lease obligations

Sublease

Transfers interest in part. No privity between landlord and sublessee. The relationship between the landlord and T1 remain intact

Landlord’s tort liability

A landlord has no duty to keep the premises safe. Exceptions: common areas, latent defects, if they undertake repairs and do so negligently, short-term lease of a furnished dwelling

Easements

Nonpossessory property interest entitling use/enjoyment of another’s land

Affirmative easements

The right to go onto and do something on another’s land

Negative easements

Preventing servient owners from doing something otherwise permissible regarding: light, air, support, stream from an artificial flow, and (rarely) the right to a view. Created expressly by a writing signed by the grantor

Two types of easements

Appurtenant and gross

Easement Appurtenant

A right to use land that benefits a particular piece of land (the dominant estate) and burdens another piece of land (the servient estate). The easement runs with the land (transfers automatically to future owners of both estates). IT TAKES TWO

Dominant tenement

The parcel that derives the benefit from the easement

Servient tenant

The parcel that’s burdened from the easement

Easement in gross

A right to use another’s land that benefits a person or entity, not a parcel of land. It involves only a servient estate and does not run with the land, unless it’s for commercial purposes, in which case it may be transferable.

Transferability of easements

Appurtenant passes automatically with the dominant tenement regardless of if it’s mentioned in the transfer. Unless the new owner is a bona fide purchaser without notice of the easement. Easements in gross are NOT transferable unless it’s for a commercial purpose

Four ways to create an easements

Prescription, implication, necessity, grant (most common)

Creating an affirmative easement by prescription

Similar to adverse possession. Continuous, open and notorious, actual (doesn’t have to be exclusive), and hostile

Creating an affirmative easement by implication

Look to preexisting use

Creating an affirmative easement by necessity

Landlocked parcel with no reasonable means of entry

Creating an affirmative easement by grant

Signed writing complying with all the regulations of a deed

Scope of easements

Bound by the terms of the grant or conditions that created it. No unilateral expansion

Ways to terminate an easement

Estoppel, necessity, destruction of the servient land, condemnation of the servient land, release, abandonment, merger

Terminating an easement by estoppel

The servient owner reasonably relies on the easement holder’s words or conduct indicating the easement will no longer be used or enforced and the servient land owner changes position in reliance on that representation (e.g. builds a structure blocking the easement)

Terminating an easement by necessity

Ends when the necessity giving rise to the easement ends unless the easement was in writing

Terminating an easement by destruction

If the servient land is destroyed

Terminating an easement by condemnation

If the servient land is condemned

Terminating an easement by abandonment

Physical action showing they don’t intend to use the easement again

Terminating an easement by merger

When title to both the dominant and servient land become held by the same property

Terminating an easement by period of non-use

That alone will not terminate an easement

License

A revocable, temporary privilege to enter and use another’s land for a specific purpose, but it does not create an interest in the land. It’s not transferable and it can generally be revoked at any time unless estoppel applies

Differences between a license and an easement

Interest in land: an easement creates a property interest in the servient estate, a license does not

Transferability: easements are usually transferable (especially if appurtenant); licenses are personal and not transferable.

Duration: easements are typically permanent or long-term; licenses are usually temporary and revocable at will.

Revocability: A license is generally revocable at any time (unless estoppel applies); An easement is not revocable by the servient owner once validly created

Creating a license

No writing required and not subject to the statute of frauds

Two kinds of licenses

Tickets (freely revocable license) and oral easement (since easements are required under SOF)

License revocation

Can freely be done at will of the licensor unless estoppel applies (when licensee invested substantial money/labor on the expectation the license would continue)

Profit à prendre

A nonposessessory right to enter another’s land and remove natural resources such as minerals, timer, oil, or game. It’s similar to an easement but involves taking something from the land

Terminating a profit à prendre

A misuse that overly burdens the servient estate

Covenant

Promise to do, or not do, something related to land. Either affirmative or negative

Negative/restrictive covenants

Promises to not do something related to land

Affirmative covenant

A promise to do something related to land

Covenants v. Servitudes

Look at the basis of relief the plaintiff is seeking. If the plaintiff wants money damages to be made whole, it’s a covenant. If they want an injunction, it’s an equtable servitude

Burden in covenants

The duty or restriction imposed by the covenant (e.g. “you must maintain a fence”)

Benefit in covenants

The advantage or entitlement a party gains (e.g. “my neighbor must maintain a fence that gives me privacy”)

Requirements for a covenant burden to run

Writing: The covenant must be in a valid written document (SOF)

Intent: The original parties must intend for the covenant to bind successors (often shown in language like “heirs and assigns”)

Touch and concern: The covenant must relate to the use or value of the land

Notice: The successor must have actual, inquiry, or record notice of the covenant for the burden to run

Horizontal Privity: There must be a relationship (like landlord-tenant, grantor-grantee) between the original covenanting parties

Vertical privity: There must be succession of estate (i.e. the party claiming the benefit or burden must hold the same interest or a carved-out version of it)

Writings pertaining to covenants

The covenant must be in a valid, written document (see statute of frauds)

The intent requirement for covenants

The original parties must intend for the covenant to bind successors (like “heirs and assigns”)

The Touch and Concern requirement for covenants

The covenant must relate to the use or value of the land

The notice requirement for covenants

The successors must have actual, inquiry, or record notice of the covenant

The horizontal privity requirement for covenants

A relationship between the original covenanting parties

The Vertical Privity requirement as it pertains to covenants

A non-hostile relationship between the originally burdened party and the successor

Requirements for a covenant benefit to run

Writing, intent, touch and concern, vertical privity. (horizontal privity not required)

Equitable servitude

A promise concerning the use of land that, even if it doesn’t meet all the requirements of a real covenant, can still be enforced in equity (i.e. through an injunction) against successors

Creating an equitable servitude

Writing, intent to be bound, touch and concern, notice of the promise when they took, equitable servitude