PROPERTY

(1) T1 has 10 months remaining on a two-year term of years lease. T1 transfers all 10 months to T2. Is this an assignment or a sublease? (2) What does LL and T2 have? (3) What does LL and T1 have?

(1) Assignment (2) LL and T2 are in privity of estate because T2 is in possession. Because L and T2 are in privity of estate, they are liable to each other for all of the covenants (promises) in the original lease that run with the land. (3) LL and T1 are no longer in privity of estate because T1 is no longer in possession of the premises. However, they remain in privity of contract because they shared the original words of contract that created the lease. T1 will be secondarily liable. Meaning of T2 cannot pay or breaks a covenant, T1 is liable.

(1) Kevin leaves the cabin voluntarily, for a three-month tour of Europe to promote his latest movie. On his return, he demands rent from Randall for the three months in which Randall enjoyed exclusive possession. Will Kevin prevail? (2) Randall leases the cabin's basement to William, a tenant. Is Kevin entitled to a portion of the rental income?

(1) No, unless there has been an ouster. A co-tenant in exclusive possession is not liable to the others for rent. (2) Yes, would be divided the same as their interests in the co-tenancy.

Creation of Easments (PING)

(1) Prescription (2) Implication (3) Necessity (4) Grant

(1) T rents an apartment from L, beginning June 1. Nothing is said about duration. T pays rent each month. What tenancy exists here? (2) L and T negotiate on the telephone for a commercial lease. They orally agree on a five-year lease with rent at $1,000 a month. Is this a tenancy for years? (3) What if T sends L a check for $1,000 and L accepts it? (4) T holds over after the expiration of her one-year lease but sends another month's rent check to L. L cashes the check. What kind of tenancy now exists

(1) T is an implied month to month periodic tenant. (2) No, it violates the statute of frauds (3) T's first rental payment renders his interest an implied periodic tenancy with the intervals based on how rent is tendered. (4) An implied month to month periodic tenancy.

Concurrent Estates

(1) The Joint Tenancy - Two or more own with the right of survivorship (2) The Tenancy by the Entirety - A protected marital interest between spouses with the right of survivorship (3) The Tenancy in Common - Two or more own without the right of survivorship

Types of Leasehold Estates

(1) The tenancy for years (2) The periodic tenancy (3) The tenancy at will (4) The tenancy at sufferance

(1) O conveys Blackacre: "To Phoebe, Ross, and Monica as joint tenants with the right of survivorship." Each owns what? (2) Phoebe then sells her interest to Chandler. What's the result? (3) What is the state of Ross and Monica's title? à Still hold 2/3 as joint tenants (4) What does Chandler have? (5) Later, Ross dies, leaving behind his heir, Rachel. What happens to the share that was held by Ross? (6) What is the final result?

(1) This is a joint tenancy. Each owns 1/3 plus the right to use the whole. JTs have presumed equal shares. (2) She is allowed to do this. Joint tenants have alienable right to sell their tenancy. Now, Chandler becomes a tenant in common because the unities have been disrupted. (4) 1/3 as a tenant in common (5) Monica takes Ross's share. Rachel takes nothing because no devisable/descendible (6) Monica holds 2/3 with Chandler who holds 1/3. Monica and Chandler are tenants in common

L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises. (1) Can L proceed against T3, the direct wrongdoer? (2) Can L proceed against T1, the original tenant? (3) Can L proceed against T2?

(1) Yes, LL and T3 share privity of estate (2) Yes, LL and T1 share privity of contract, 2nd liable. (3) No, LL cannot because never was privity of contract and privity of estate ended when T2 assigned to T3.

Easement Terminated by Destruction, Condemnation, or Release

1. Destruction - Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement. 2. Condemnation - Condemnation of the servient estate by governmental eminent domain power will terminate the easement. Courts are split as to whether easement holders are entitled to compensation. 3. Release - A release given by the easement holder to the servient land-owner will terminate the easement. (Note that this applies even to an easement in gross, which is otherwise inalienable.) Does the release have to be in writing? = Yes

Rights and Duties of Co-Tenants - Waste

A co-tenant must not commit waste. During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant. There are 3 types of waste: (1) Voluntary waste is willful destruction (2) Permissive waste is neglectfulness that harms premises (3) Ameliorative waste is unilateral change that increases value

Common Ownership Cases

A common ownership case is one in which the person who brings the chattel to the land owns both the chattel and the land, as when X installs a furnace in his home. That item is a fixture if the party who made the annexation objectively intended to make the item part of the realty. This intention is determined by: the nature of the article, the manner of attachment, the amount of damage that would be caused by its removal, and the adaptation of the item to the use of the realty.

Equitable Defenses to Enforcement of Servitudes

A court will not enforce an equitable servitude if: a. The neighborhood conditions have changed so significantly that enforcement would be inequitable. The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area or subdivision has changed. What's never good enough here is piecemeal change or mere pockets of limited change. b. The person seeking enforcement is violating a similar restriction on his own land (unclean hands) c. A benefited party acquiesced in a violation of the servitude by a burdened party d. A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel); or e. The benefited party fails to bring suit against the violator within a reasonable time (laches).

Fixtures

A fixture is a chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty. A fixture passes with the ownership of the land and must stay put. How to tell that a given chattel is a fixture and must stay put: (1) First, when items are incorporated into the realty so that they lose their identity (2) Second, a chattel affixed to realty is a fixture when its removal would cause considerable damage to the premises. Common examples here: elevators, plumbing, heating ducts, a furnace.

Severance of a Joint Tenancy

A joint tenant may sell or transfer her interest during her lifetime. A voluntary conveyance by a joint tenant of their interest destroys the joint tenancy. The transferee takes as a tenant in common. May a joint tenant transfer his interest secretly? = Yes, even without the others knowledge or consent One joint tenant's sale severs the joint tenancy as to the seller's interest. Why? = Because it disrupts the 4 unities. If we started with more than two joint tenants in the first place, remember, the joint tenancy remains intact as between the other, non-transferring joint tenants.

Effect of One Concurrent Owner's Encumbering the Property

A joint tenant or tenant in common may encumber her interest (for example, by mortgage or judgment lien), but may not encumber the interests of other co-tenants. If, for example, one tenant in common mortgages her interest, the mortgagee can foreclose only on the mortgaging co-tenant's interest. If a joint tenancy is involved, a mortgage (in a lien theory state) or lien does not sever the joint tenancy, but a foreclosure sale will. Small minority of states follow the title theory. The execution of a mortgage in title theory states, however, does sever a joint tenancy Note, however, that in the case of a joint tenancy, a mortgagee or lienor runs the risk that the obligated co-tenant will die before foreclosure, extinguishing the mortgagee's or lienor's interest.

Assignments by Landlords

A landlord may assign the rents and reversion interest they own. This is usually done by deed when the landlord conveys a building to a new owner. The tenants' consent is not required. a. Rights of Assignee Against Tenants—Attornment - Once tenants are given reasonable notice of the assignment, they must recognize and pay rent to the new owner as their landlord. The benefit of all tenant covenants that touch and concern the land runs with the landlord's estate to the new owner. b. Liabilities of Assignee to Tenants - The burden of the landlord's covenants that touch and concern the land runs with the landlord's estate to the assignee; thus, the assignee is liable for the performance of those covenants. The original landlord also remains liable on all of the covenants they made in the lease.

The Periodic Tenancy

A periodic tenancy is a lease which continues for successive intervals (for example, month to month) until either the landlord or the tenant gives proper notice of termination. Thus, one of the hallmarks of the periodic tenancy is that it is continuous until properly terminated. The periodic tenancy can be created expressly or By Operation of Law - The periodic tenancy can also arise by implication, in any one of three ways: (1) Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals. (2) An oral term of years in violation of the Statute of Frauds creates an implied periodic tenancy, measured by the way rent is tendered. (3) In a residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by the way rent is now tendered.

Easement Terminated by Prescription

A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. Remember C O A H.

The Sublease

A sublease arises when T1, the original tenant, transfers less than her entire interest to T2. A sublessee is the tenant of the original lessee and usually pays rent to the original lessee, who then pays the landlord. The result of a sublease is that the landlord and sublessee are in neither privity of estate nor privity of contract. Instead, T2 is responsible to T1 and vice versa. Thus, a sublessee is not personally liable to the landlord for rent or for the performance of any of the covenants in the main lease unless the sublessee expressly assumes the covenants. Remember, if there's a sublease, the relationship between LL and T1 remains fully intact. Thus, for example, if T2 fails to pay rent, LL proceeds against T1 and T1 in turn proceeds against T2 and vice versa.

Tenancy at Sufferance

A tenancy at sufferance is created when a tenant wrongfully holds over, meaning they remain in possession past the expiration of the lease. In such cases, we give this wrongdoer a leasehold estate (the tenancy at sufferance) to permit the landlord to recover rent. Termination - The tenancy at sufferance is short-lived. It lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy. No notice of termination is required.

Tenancy by the Entirety

A tenancy by the entirety is a marital estate akin to a joint tenancy. It can be created only between married partners, who take as a fictitious "one person" with the right of survivorship. In states that recognize the tenancy by the entirety, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise. a. Creditors - Creditors of only one spouse cannot touch this tenancy for satisfaction of the debt. b. Unilateral Conveyance or Encumbrance - One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party. An individual spouse also cannot encumber tenancy by the entirety property and a deed or mortgage executed by only one spouse is ineffective.

Tenancy In Common

A tenancy in common is a concurrent estate with no right of survivorship. Today, multiple grantees are presumed to take as tenants in common, not as joint tenants. Remember these two features of the tenancy in common: - Each co-tenant owns an individual part, and each has a right to possess the whole. - Each interest is devisable, descendible, and alienable. - Why? = No survivorships rights between tenants and common

The Assignment

An assignee stands in the shoes of the original tenant (assignor) in a direct relationship with the landlord; that is, the assignee and the landlord are in "privity of estate," and each is liable to the other on all covenants in the lease that "run with the land." After assignment, the original tenant is no longer in privity of estate with the landlord, but their lease contract remains in effect and enforceable. In other words, the original tenant remains liable on the original contractual obligations, such as to pay rent (privity of contract).

Easement by Necessity

An easement by necessity (another form of easement by implication) will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor's remaining land. The owner of the servient parcel has the right to locate the easement.

Additional Method-Express Reservation Easements

An easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose. Watch for fact patterns in which a grantor reserves an easement for someone else. Under the majority view, an easement can be reserved only for the grantor. An attempt to reserve an easement for anyone else is void.

Transferability of Easements in Gross

An easement in gross is not transferable unless it is for commercial purposes.

Easement Definition

An easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land. An easement holder has the right to use another's tract of land for a specified purpose but has no right to possess or enjoy that land. An easement is presumed to be of perpetual duration unless the grant specifically limits the interest. Common examples of easements include: - The right to lay utility lines on another's land - The right of way over another's land - The right to tap into a neighbor's drain

Easement Terminated by Merger

An easement is extinguished when title to the easement and title to the servient land become vested in the same person (because a person doesn't need an easement over their own land). So, if the same person acquires ownership of both the easement and the servient estate, those estates merge and the easement is destroyed. For there to be a merger which will extinguish an easement, the duration of the servient estate must be equal to or longer than the duration of the dominant estate (and therefore the easement). Watch out for situations where the same person owns the two parcels but with different interests. This will not constitute an extinguishment my merger.

Easement by Prescription

An easement may be acquired by analogy to adverse possession. For the elements to acquire a prescriptive easement, remember C O A H: C: Continuous and uninterrupted use for the given statute's period (usually 10 years) O: Open and notorious use (that is, it's discoverable upon inspection) A: Actual use that need not be exclusive H: Hostile use (meaning, use without the servient owner's consent) Generally, prescriptive easements cannot be acquired in public land.

Equitable Servitudes

An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser (meaning, a subsequent purchaser for value without notice of the covenant). The equitable servitude is accompanied by which form of relief?INJUNCTION

Easement Terminated by Estoppel

An oral expression of an intent to abandon an easement won't terminate an easement unless it's also committed to writing (a release) or accompanied by action (abandonment). But if the servient owner materially changes their position in reasonable reliance on the easement holder's assurances or representations (such as that the easement will no longer be enforced), the easement terminates through estoppel.

Easement by Grant

Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state's Statute of Frauds. So, most commonly, this means that easements to endure for greater than one year must be in writing to be enforceable. That writing must comply with all the formal requisites of a deed.

Partition of Property

Any tenant in common has a right to judicial partition of the property, either in kind or by sale and division of the proceeds (courts prefer in kind). When co-tenants are squabbling and cannot come to any agreement, the remedy of partition terminates the co-tenancy and divides the common property. Three types: (1) By voluntary agreement: An allowable and peaceful way to end the relationship. (2) By judicial action called partition in kind: An action for a physical division of the property, if in the best interests of all parties. - When would a partition in kind work best? = When it is a sprawling acreage (i.e., large tracts of land) (3) By judicial action called a forced sale: An action when, in the best interests of all parties, the land is sold, and the sale proceeds are divided up proportionately. - When would a forced sale work best? = When the property is a single building (i.e. home or commercial space).

Termination of Covenants

As with all other nonpossessory interests, a covenant may be terminated by: (1) a written release, (2) the merger of the benefited and burdened estates, or (3) the condemnation of the burdened property.

Tenant's Duty to Repair When Express Covenant in Lease

At common law, historically, a tenant was responsible for any loss to the property, including loss attributable to force of nature, such as hurricanes, earthquakes, or lightning strikes. However, today, the majority view is T may end the lease when the premises are destroyed without the fault of T. If a residential tenant covenants to repair, the landlord usually remains obligated to repair (except for damages caused by the tenant) under the nonwaivable "implied warranty of habitability." However, a nonresidential tenant's covenant to repair is enforceable, and a landlord may be awarded damages for breach based on the property's condition when the lease terminates compared with its condition when the lease commenced.

A grants B a right of way across A's land, so that B can more easily reach his land. What does B have?

B's land is benefited by the easement (dominant tenement) and A's land is serving B's easement (servient tenement) Notice that two parcels are involved. Easement appurtenant

Horizontal and Vertical Privity

Both horizontal and vertical privity are required for the burden to run. a. Horizontal Privity - refers to the nexus between the original promising parties (A and B). It requires that they be in succession of estate, meaning that they were in a grantor-grantee or landlord-tenant or mortgagor-mortgagee relationship when the covenant was created. In other words, at the time the promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant. Horizontal privity is difficult to establish. Its absence is the reason why many burdens will not run. b. Vertical Privity -refers to the nexus between the successor in interest and the originally covenanting party. It simply requires some non-hostile nexus, such as contract, devise, or descent. The only time vertical privity will be absent is when the successor acquired her interest through adverse possession.

Classic License Cases

Classic license cases: (1) The ticket cases (phantom of the opera): What does a ticket create? = A freely revocable license (1) Neighbors talking by the fence: Here, beware of seemingly oral easements.

Breach of QE by Constructive Eviction

Constructive eviction occurs when the landlord's breach of duty renders the premises unsuitable for occupancy. Suppose, for example, that every time it rains, Dido's apartment floods. She has a claim for constructive eviction if three elements are met. To recall the elements of constructive eviction, remember S I N G: (1) Substantial (2) Interference = chronic or permanent problem due to LL's actions or interference (2) Notice - T must notify LL of the problem and LL must fail to fix it (3) Goodbye - T must vacate within a reasonable time after LL fails to remediate A tenant who has been constructively evicted may terminate the lease and may also seek damages.

Party Walls and Common Driveways

Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon their land. Courts will also imply mutual cross-easements of support, with the result that each party can use the wall or driveway and neither party can unilaterally destroy it. Creation - A written agreement is required by the Statute of Frauds for the express creation of a party wall or common driveway agreement, but an "irrevocable license" can arise from detrimental reliance on a parol agreement. Party walls and common driveways can also result from implication or prescription. Running of Covenants - If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens, and benefits of those promises (which are deemed covenants) run to the successive owners of each parcel.

Rights and Duties of Co-Tenants - Possession

Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part. If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, they've committed ouster. Ouster is an actionable wrong.

Easement Terminated by Abandonment

Easement holder must show by physical action (for example, building a structure that blocks access to easement on adjoining lot) an intent to never use the easement again. Mere nonuse or words are not enough.

Easement by Implication

Easements by implication are created by operation of law; they're an exception to the Statute of Frauds (which would otherwise require these easements to be in writing). a. Easement Implied from Preexisting Use - This is also known as a "quasi-easement." For the court to imply an easement on someones behalf it would have to find: (1) the previous (prior to division) use on the servient part was apparent and continuous AND (2) the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement's use and enjoyment. b. Easement Implied Without Any Existing Use - In two limited situations, easements may be implied without preexisting use. (1) Subdivision Plat - When lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots. (2) Profit à Prendre - The holder of a profit à prendre has an implied easement to pass over the surface of the servient land and to use it as reasonably necessary to extract from the servient property its minerals or some product of the servient property (such as timber, fish, or game), as specified by the terms of the profit.

Easement Terminated by Necessity

Easements created by necessity expire as soon as the necessity ends unless the easement was reduced to an express writing.

Tenant Breaches Duty to Pay Rent and Is in Possession of Premises

Evict or Sue for Rent - If a tenant is on the premises and fails to pay rent, the landlord can evict through the courts or continue the relationship and sue for rent due. If the landlord moves to evict (which they do under a state's unlawful detainer statute), are they nonetheless entitled to rent? = Yes, until the tenant vacates. b. Landlord Must Not Engage in Self-Help = It's important to remember that the landlord must not engage in self-help, such as changing the locks, forcibly removing the tenant, or removing any of the tenant's possessions. Self-help is flatly outlawed and is punishable civilly and criminally.

Requirements for Benefit to Run

For the benefit of a covenant to run, remember W I T V: · Writing · Intent · Touch and concern · Vertical privity Horizontal privity is not required for the benefit to run (that's why it's easier for the benefit to run than for the burden to run). Thus, where horizontal privity is lacking, the promisee B's successor (B-1) can enforce the covenant against the original promisor (A), but not against the promisor's successor (A-1).

Rights and Duties of Co-Tenants - Rents and Profits

From Co-Tenant in Exclusive Possession - In most states, a co-tenant in exclusive possession has the right to retain profits from their use of the property; that is, they don't need to share profits with other co-tenants absent ouster or an agreement to the contrary. From Third Parties - A co-tenant who leases all or part of the premises to a third party must account to their co-tenants, providing them their fair share of the rental income. Note: Co-tenants in exclusive possession must also share net profits gained from exploitations of the land, such as mining.

Creation of Equitable Servitude

Generally, as with real covenants, equitable servitudes are created by promises contained in a writing that satisfies the Statute of Frauds. To create an equitable servitude that will bind successors, remember W I T N E S: (1) Writing: Generally, but not always, the original promise was in writing (the common scheme doctrine, discussed below, is an exception to this requirement) (2) Intent: The original parties intended that the promise would be enforceable by and against successors (3) Touch and concern: The promise affects the parties as landowners (4) Notice: Subsequent purchasers of land burdened by the covenant had actual, inquiry, or record notice of the covenant when they acquired the land. = Equitable Servitude In contrast to real covenants, which require vertical and horizontal privity of estate for burdens to run, and vertical privity for benefits to run, no privity of estate is required for an equitable servitude to be enforceable by and against assignees.

The Hold-Over Doctrine

If a tenant continues in possession after their right to possession has ended, the landlord may: (1) evict the tenant, (2) bind the tenant to a new periodic tenancy. Commercial tenants - may be held to a new year-to-year periodic tenancy if the original lease term was for one year or more. Residential tenants - are held to a new month-to-month tenancy, regardless of the original term. If the landlord notifies the tenant before the lease expires that occupancy after the termination will be at an increased rent, the tenant, by holding over, is held to have acquiesced to the new terms (even if the tenant actually objected to the new terms). Holding over equals assent.

Condemnation Of Leaseholds

If the entire leasehold is taken by eminent domain, the tenant's liability for rent is extinguished because both the leasehold and reversion have merged in the condemnor and there is no longer a leasehold estate. The lessee is entitled to compensation. However, if the taking is temporary or partial, the tenant is not discharged from the rent obligation, but is entitled to compensation (that is, a share of the condemnation award) for the taking.

Requirements for Burden to Run

If the following requirements are met, any successor in interest to the burdened estate will be bound by the covenant as if they themselves had expressly agreed to it. For the requirements for the burden of a covenant to run, remember: W I T H N: (1) Writing (2) Intent (3) Touch and concern (4) Horizontal and vertical privity (5) Notice

T's Entitlements When Implied Warranty of Habitability Is Breached

If the implied warranty of habitability is breached, you can remember the tenant's options as M R 3: Move, Repair, Reduce, Remain: (1) Move out and terminate the lease (Does not have to but may) (2) Repair and deduct (allowable by statute in a growing number of jurisdictions; a tenant may make the reasonable repairs and deduct their cost from future rent) (3) Reduce rent or withhold all rent until the court determines fair rental value (typically, the tenant must place withheld rent into an escrow account to show their good faith) (4) Remain in possession, pay full rent, and affirmatively seek money damages

A owns 100 acres. She conveys two of those acres to B, right in the middle of A's remaining acreage. As a result, B is landlocked. What will the court do?

Imply an easement of right of way (necessity) on B's behalf over some part of A's remaining acreage. A gets to pick where the easement is located.

Divided Ownership Cases

In divided ownership cases, the chattel is owned and brought to the realty by someone other than the landowner (for example, by a tenant, licensee, or trespasser). a. Landlord-Tenant - Suppose that a tenant installs a chandelier onto the leased premises' ceiling. An agreement between the landlord and tenant is controlling on whether an annexed chattel is a fixture. Absent an agreement, a tenant is deemed to lack the intent to permanently improve the property, and thus may remove his annexed chattels if removal does not substantially damage the premises or destroy the chattel. Annexed chattels must be removed by the end of the lease term (or within a reasonable time after the termination of an indefinite tenancy), and the tenant is responsible for repairing any damage caused by the removal. b. Life Tenant and Remainderman - The same rules apply in the life tenant-remainderman context as in landlord-tenant situations, except that the life tenant's representative may remove annexations within a reasonable time after the life tenant's death. c. Licensee or Trespasser and Landowner - Licensees are treated much like tenants, whereas trespassers normally lose their annexations. Thus, absent a statute, an adverse possessor or good faith trespasser cannot remove fixtures (e.g., house erroneously constructed on a parcel that possessor believed she owned). Some courts, however, allow a good faith trespasser recovery measured by the value added to the land (not construction costs).

Transfer of Leasehold-The Assignment Versus the Sublease

In the absence of some prohibition in the lease, a tenant may freely transfer their interest in whole (thereby accomplishing an assignment, meaning a transfer of the entire remaining term of a lease) or in part (thereby accomplishing a sublease, meaning the tenant has retained some part of the remaining term, other than a right to reenter upon breach). In the lease, a landlord can prohibit a tenant from assigning or subletting without the landlord's prior written approval. However, once a landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant, unless the landlord expressly reserves the right.

Covenants Against Assignment or Sublease

In the lease, a landlord can prohibit a tenant from assigning or subletting without the landlord's prior written approval. A valid covenant against assignment is considered waived if the landlord was aware of the assignment and did not object (for example, by knowingly accepting rent from the assignee). Once a landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant, unless the landlord expressly reserves the right. Lease covenants restricting assignment and sublease are strictly construed against the landlord. (Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa.) If a tenant assigns or sublets in violation of a lease provision, the landlord usually may terminate the lease or sue for damages, but the transfer is not void.

Termination of a Tenancy at Will

In theory, a tenancy at will can be terminated by either party at any time. But today, in most states, notice and a reasonable time to quit (meaning, vacate) are required to terminate a tenancy at will. Alternatively, a tenancy at will can be terminated by operation of law (for example, due to death or commission of waste).

Modern Trend for Landlord's Tort Liability

Many courts now hold that a landlord owes a general duty of reasonable care toward residential tenants and will be held liable for injuries in tort resulting from ordinary negligence if the landlord had notice of a defect and an opportunity to repair it. a. Defects Arising After Tenant Takes Possession - A landlord generally is held to have notice of defects existing before the tenant took possession but is not liable in tort for defects arising after the tenant takes possession unless the landlord knew or should have known of them. b. Legal Duty to Repair - If the landlord has a statutory duty to repair (for example, housing codes), the landlord is liable in tort for injuries resulting from the landlord's failure to repair or negligence in making repairs. c. Security - Some courts hold landlords liable in tort for tenant injuries inflicted by the criminal conduct of third parties in cases where the landlord failed to comply with housing code provisions dealing with security, maintain ordinary security measures, or provide advertised security measures (for example, surveillance cameras).

Transactions that Will Not Result in Severance

Mortgages - Lien theory. In most states, a mortgage is a lien on title and does not sever a joint tenancy. Severance occurs only if the mortgage is foreclosed, and the property is sold. Small minority of states follow the title theory. The execution of a mortgage in title theory states, however, does sever a joint tenancy (because, under this minority view, giving a creditor a lien on one's share is the equivalent of transferring title to that creditor). · Effect of One Joint Tenant's Murdering Another Under the Uniform Probate Code and modern statutes, when a beneficiary unlawfully and intentionally kills a joint tenant, any joint property is transformed into a tenancy in common.

A grants B an easement to use A's private road to get to and from B's parcel, Blackacre. Subsequently, B purchases the adjacent Greenacre, with its small marina. May B unilaterally expand the use of the easement to benefit Greenacre?

No unilateral expansion exceeds the scope of the easement. When confronted with an exam question involving overuse or misuse of an easement, remember that such use does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse.

A tells B that A will no longer be using her right of way across B's parcel. In reasonable reliance, B builds a swimming pool on B's parcel, thereby depriving A of the easement. May A later enforce the easement?

No, A is estopped from enforcing it.

Neighbor A, talking by the fence with neighbor B, says, "B, you can have that right of way across my land." Is this oral easement enforceable?

No, because it violates the statute of frauds. A freely revocable license has been created instead.

O conveys a portion of his 10-acre tract to A, with no means of access out except over a portion of O's remaining land. In response, the parties reduce to express writing their understanding that A enjoys a right of way over a part of O's remaining acreage. Thereafter, the city builds a public roadway affording A access out. Is A's easement terminated?

No, because it was reduced to writing.

Kevin takes a can of white paint and divides up the premises. "Randall," he says, "you can use and enjoy that 10% on that side of the line, and only that." Are Kevin's actions permissible?

No, each co-tenant each gets to use and enjoy the whole regardless of the given co-tenant's individual share.

A has an easement of right of way across B's parcel, to enable A to better reach her parcel. Later, A buys B's parcel. As a result, the easement ends. When complete unity of title is achieved, the easement is extinguished. Thereafter, if title is separated again, will the easement return?

No. The easement is not automatically reinstated. To create it again, A would have to start from scratch.

Jack and Rebecca, married to each other, own Blackacre as tenants by the entirety. Jack then secretly transfers his interest to Miguel. What does Miguel have?

Nothing. Unilateral transfer by only one tenant of the entirety is void.

How is a periodic tenancy terminated?

Notice, usually written, must be given. Remember, this is because a periodic tenancy is automatically renewed until proper notice of termination is given. How much notice is needed to terminate a periodic tenancy? (1) Month-to-month periodic tenancy, how much notice is required? = One month (2) In a week-to-week periodic tenancy, how much notice is required? = One week (3) In a tenancy that is year-to-year or greater, how much notice is required? = Six months in common law, one month under the restatement (bar examiners preferred approach).

Covenants v. Equitable Servitudes

On the exam, the same set of facts could seem to give rise to either a covenant or an equitable servitude. How will you know which analysis to apply? = On the basis of the remedy the plaintiff seeks Money damages = covenant Injunction = equitable servitude.

Touch and Concern

Restrictive covenants touch and concern the land if they restrict the burdened parcel owner in her 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 that increases her obligations in connection with the land. Covenants to pay money to be used in connection with the land (such as homeowners' association fees) and covenants not to compete do touch and concern the land.

Tenant Breaches Duty to Pay Rent but Is Out of Possession

Suppose that a tenant wrongfully vacates with time left on a term of years lease. What are the landlord's options? Remember S I R (1) Surrender - The landlord could choose to treat the tenant's abandonment as an implicit offer of surrender, which the landlord accepts, thereby ending the lease. Surrender = T shows by words or conduct that she wants to give up the lease. (2) Ignore the abandonment (meaning, do nothing) and hold the tenant responsible for the unpaid rent until the natural end of the lease, just as if the tenant were still there. This option is available only in a minority of states. (3) Re-let the premises on the wrongdoer-tenant's behalf and hold the wrongdoer-tenant liable for any deficiency. Under the majority rule, the landlord must at least try to re-let. Why? = To mitigate damages

Fair Housing Act

The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (except in senior housing). Prohibited Actions - Under the Fair Housing Act, it is unlawful to take certain actions because of a person's race, color, religion, sex, disability, familial status, or national origin, including: (1) Refusing to negotiate, rent, or sell housing or make available a mortgage loan or other financial assistance (2) Providing different terms or conditions for the sale or rental of a dwelling or for a mortgage or other financial assistance; and (3) Falsely representing that a dwelling is not available for inspection, sale, or rental. Discriminatory Advertisements Also Prohibited - It is also unlawful under the Fair Housing Act to make, print, or publish any notice or advertisement that indicates any preference or limitation based on race, color, religion, sex, disability, familial status, or national origin. Reasonable Accommodations - When the Fair Housing Act applies, landlords must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities at the tenants' own expense. Landlords must also make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use a dwelling.

How to Create a Joint Tenancy

The Four Unities - The common law requires four unities, which you can remember with "T-TIP": Joint tenants must take their interests: (1) T: at the same time (2) T: by the same title (meaning, in the same deed, will, or other document of title) (3) I: with identical, equal interests; and (4) P: with rights to possess the whole In other words, the interests of joint tenants must be equal in every way. Grantor must clearly express the right of survivorship. For example, "To A and B as joint tenants with the right of survivorship." Otherwise, a conveyance to two or more persons, without more, is presumed to be a tenancy in common.

Transferability of Easement Appurtenants

The appurtenant easement passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance. The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.

Common Law of Caveat Lessee

The common law norm is: Let the tenant beware. In tort, a landlord was under no duty to make the premises safe. The five exceptions to caveat lessee: CLAPS: (1) Common Areas - A landlord has a duty of reasonable care in maintaining all common areas (for example, hallways, stairwells, elevators). (2) Latent Defects Rule - A landlord must warn a tenant of hidden defects (meaning, a dangerous condition that the tenant couldn't discover by reasonable inspection) of which the landlord has knowledge or reason to know. Otherwise, the landlord will be liable for any injuries resulting from the condition. If the tenant accepts the premises after disclosure, the tenant assumes the risk; the landlord is no longer liable in tort. Note that the landlord's obligation in tort is a duty to warn, and not a duty to repair. (3) Assumption of Repairs - While in tort a landlord is under no duty to make repairs, once repairs are undertaken, the landlord must complete them with reasonable care. If reasonable care is not used, and tenant is injured in tort, LL is liable. (4) Public Use Rule - A landlord who leases public space (for example, a convention hall or a museum), and who should know, because of the significant nature of the defect and the short length of the lease, that a tenant will not repair, is liable for any defects on the premises that cause injury to members of the public. (5) Short-Term Lease of Furnished Dwelling - A landlord who rents a fully furnished premises for a short period (for example, a summer cottage) is under a stricter duty. Such landlords are responsible for any defective condition which proximately injures a tenant (whether or not they knew of the defect).

The Covenant

The covenant is a written promise to do or not do something related to land (for example, to maintain a fence, or to not build a multifamily dwelling). It's unlike the easement because it is not the grant of a property interest. Instead, it is a contractual limitation or promise regarding land. Real covenants are normally found in deeds and when certain requirements are met they run with the land at law, which means that subsequent owners may enforce or be burdened by the covenants.

The Implied Warranty of Habitability

The implied warranty of habitability provides that the premises must be fit for basic human habitation. In other words, bare living requirements must be met. This important promise applies only to residential leases and not to commercial leases. This warranty is nonwaivable any attempt to try and get the tenant to waive this right is null and void. What sorts of problems trigger breach of the implied warranty of habitability? = No heat in winter, no working plumbing, no running water.

The License

The license is a mere privilege to enter another's land for some delineated purpose. Unlike an easement, a license is not an interest in land; it's merely a privilege, revocable at the will of the licensor. A license is personal to the licensee and, thus, inalienable. Any attempt to transfer a license result in revocation by operation of law. a. Creation - A writing is not needed to create a license. A failed attempt to create an easement result in a license. Thus, if a grantor orally grants an easement for more than one year, it is unenforceable because it is not in writing. The grantee does not have a valid easement but does have a license.

Landlord's Duty to Deliver Possession

The majority rule requires that the landlord put the tenant in actual physical possession of the premises at the beginning of the leasehold term. Thus, if at the start of the tenant's lease, a prior holdover tenant is still in possession, what's the result? = Landlord has breached and the new T gets damages

Scope of the Easement

The scope of an easement is determined by the terms of the grant or the conditions that created it. If there are no specific limitations in the grant, courts assume that an easement was intended to meet both present and future needs of the dominant tenement (so, for example, an easement may widen to accommodate new, wider cars). If, however, the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate.

Notice of the Covenant

The successor must have had notice of the promise when she took. Why? Because under the recording statutes, a subsequent purchaser for value will not be bound by the covenant if that purchaser for value took without either actual, inquiry, or record notice of the covenant

Termination of Easements

There are eight ways to terminate an easement. Remember END CRAMP: (1) Estoppel (2) Necessity (3) Destruction (4) Condemnation (5) Release (6) Abandonment (7) Merger (8) Prescription Note: In addition, an easement may be terminated under its stated conditions, meaning the original easement grant may specify when or under what conditions the easement will terminate.

The Implied Covenant of Quiet Enjoyment

This exceedingly important promise arises by implication in every residential and commercial lease. It provides that a tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder (for example, a prior mortgagee who forecloses). How might a landlord breach this covenant? = Wrongful or constructive eviction.

The Tenancy at Will

This is a tenancy of no fixed period of duration-it's terminable at the will of either the landlord or the tenant. For example, "To T for as long as L or T desires." Generally, a tenancy at will must be created by an express agreement that the lease can be terminated at any time. Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy. If the lease gives only the landlord the right to terminate, a similar right will be implied in favor of the tenant. However, if only the tenant has a right to terminate, a similar right will not be implied in favor of the landlord.

The Implied Equitable Servitude—The General or Common Scheme Doctrine

This issue will likely be on the exam The two elements of the general or common scheme doctrine: (1) When the sales began, the subdivider (A) had a general scheme of residential development which included the defendant's lot (the scheme may be evidenced by a recorded plat, a general pattern of restrictions, or oral representations to early buyers); and (2) The defendant lot-holder (B) had notice of the promise contained in those prior deeds when it took (actual, record, or inquiry). Note: If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold without express covenants.

The Tenancy for Years

This lease is for a fixed, determined period of time. That period could be, for example, as short as one week or as long as 50 years. Termination - A tenancy for years ends automatically at its termination date. How much notice is needed to terminate a term of years? = None, because it ends automatically. Watch for a termination date. Whenever you know the termination date from the start, you have a tenancy for years. Must be in writing if greater than one year (SoF)

Suppose A subdivides her land into 50 lots. She sells lots 1 through 45 through deeds that contain covenants restricting use to residential purposes. A then sells one of the remaining lots to a commercial entity, B, by deed containing no such covenant. B now seeks to build a convenience store on his lot. Can B be enjoined (equitable relief) from doing so?

Under the common scheme doctrine, the court will imply a reciprocal negative servitude (implied equitable servitude) to hold the unrestricted lot holder to the promise. Thus, if a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants.

Co-Tenants and Adverse Possession

Unless they've ousted the other co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant. The hostility element is missing.

Tenant Must Not Commit Waste

Voluntary (affirmative) waste: - It results when the tenant's overt conduct damages the premises. Permissive waste: - It occurs when the tenant fails to take reasonable steps to protect the premises from damage from the elements. Ameliorative waste - It occurs when the tenant unilaterally alters the leased property, thereby increasing its value. Generally, the tenant is liable for the cost of restoration. There is a modern exception to this rule, however, which permits a tenant to make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood.

Tenant's Obligation to Maintain Premises

When a lease is silent about a tenant's repair obligations, tenant need only maintain the premises. T must make routine repairs other than those due to ordinary wear and tear. Thus, it's important to distinguish between a routine repair (which a tenant is obliged to make) and a repair occasioned by ordinary wear and tear (which a tenant is not obliged to make).

A has an easement entitling her to cut across B's lawn to get more easily to her land. Now A sells her parcel to Mr. X, with no mention of the easement. Does Mr. X enjoy the easement?

Yes it automatically passes with the dominant tenement.

L and T entered into a written lease to endure from June 1, 2017, to June 1, 2024 (tenancy by years). T operates her jewelry business on site (commercial lease). Several months ago, the building's sprinkler system began going off in error, ruining some of T's inventory. She complained to L, who promised to correct the problem. L never did. Last week, when the sprinkler system malfunctioned yet again, T vacated. Was T within her rights?

Yes, if the SING for constructive eviction were met (Substantial interference, notice, goodbye) Does the implied warranty of habitability apply? = No, WoH does not apply in commercial leases.

Breach of QE by Wrongful Eviction

a. Actual Eviction - Actual eviction occurs when the landlord, a paramount title holder, or a hold-over tenant excludes the tenant from the entire leased premises. Actual eviction terminates the tenant's obligation to pay rent. b. Partial Eviction - Partial actual eviction occurs when the tenant is physically excluded from only part of the leased premises. Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder. Ex) Ceiling collapses only in one room

Affirmative v. Negative Easements

a. Affirmative - Most easements are affirmative. An affirmative easement is the right to go onto and do something on servient land (meaning, the land that is imposed upon by the easement). b. Negative - The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in only four categories: Remember L A S S: o Light o Air o Support o Stream water from an artificial flow A minority of states also allow a negative easement for scenic view. Creation of a Negative Easement - Negative easements can only be created expressly, by a writing signed by the grantor. There is no natural or automatic right to a negative easement.

Rights and Duties of Co-Tenants - Carrying Costs, Repairs, Improvements

a. Carrying Costs - taxes and mortgage interest payments. Based upon the individual co-owners share in the property. a. Repairs - The repairing co-tenant enjoys a right to contribution during the life of the co-tenancy for reasonable, necessary repairs, provided they gave notice to the other co-tenant(s) of the need for the repairs. Contribution is also based on the individual shares. a. Improvements - During the life of the co-tenancy, there is no right to contribution for "improvements" made by one co-tenant. One improvement by a co-tenant may not be beneficial to another co-tenant. What about at partition? = The improver gets a credit based on whatever improvement he caused. Also, at partition, improver suffers a debit for any loss of value the improvement created.

Easements Appurtenant or in Gross

a. Easement Appurtenant - An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land. How will you know when you've got an easement appurtenant? = Two parcels of land must be involved: (1) a dominant tenement, which derives the benefit (2) a servient tenement, which bears the burden b. Easement in Gross - An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. ONLY ONE PIECE OF PROP INVOLVED. Here, servient land is burdened. However, there is no benefited or dominant tenement (because the easement benefits the holder rather than another parcel). Some common examples of an easement in gross: o The right to place a billboard on another's lot o The right to swim in another's pond o The utility company's right to lay power lines on another's lot

Licenses by Estoppel or Coupled with an Interest

a. Estoppel - When will estoppel apply to bar revocation? Only when the licensee has invested substantial money or labor or both in reasonable reliance on the license's continuation. The license becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures. b. License Coupled with an Interest - A license coupled with an interest is irrevocable as long as the interest lasts. For example, the buyer of a chattel may enter the seller's land to remove the chattel, or a future interest holder may enter and inspect the land for waste.

Negative and Affirmative Covenants

a. Negative Covenants - Covenants can be negative. These are known as restrictive covenants. A restrictive covenant is a promise to refrain from doing something related to land. Ex) I promise not to build for commercial purposes, I promise not to have a basketball hoop in my driveway. b. Affirmative Covenants - the affirmative covenant is a promise to do something related to land. Ex) I promise to maintain our common fence, water our shared garden

The Joint Tenancy

a. Right of Survivorship - A joint tenancy's distinguishing feature is the right of survivorship. So, when one joint tenant dies, the entire interest goes to the other joint tenant. b. Alienability - A joint tenant's interest is alienable inter vivos. Transferable during the lifetime (will create a tenant in common) c. Not Descendible or Devisable - A joint tenant's interest is neither devisable (passing by will) nor descendible (to pass to heirs through intestacy).

Termination of Tenancy for Years

a. Termination upon Breach of Lease Covenant - In most leases, the landlord reserves a right of entry, which allows them to terminate the lease if the tenant breaches any of the lease's covenants. Failure to Pay Rent - In many jurisdictions, a landlord may, by statute, terminate the lease upon the tenant's failure to pay the promised rent—even in the absence of a reserved right of entry. b. Termination upon Landlord's Acceptance of Tenant's Surrender - A tenancy for years may also terminate if the tenant surrenders the tenancy, and the landlord accepts. The same formalities required for creation of the leasehold (see below) are required for surrender (for example, if the unexpired term exceeds one year, surrender must be in writing).

Writing & Intent

a. Writing - The original promise (between A and B) must have been in writing. b. Intent - The original covenanting parties (A and B) must have intended that the covenant would run (meaning they intended that the successors to the originally promising parties would be bound by the covenant). Usually found in the language of the conveyance itself (for example, "A promises on behalf of herself, her successors, and assigns..."). Courts are generous in finding the requisite intent.