Real Property: I. Ownership - 20%

I. Ownership C. Cotenancy 2. Severance

b. Severance The severance of joint tenancy may occur in several ways. The severance of a joint tenancy converts it into a tenancy in common. However, if there are more than two joint tenants, a severance does not automatically affect the joint tenancy of all joint tenants. Example 1: X and Y hold Greenacre as joint tenants. X's action results in a severance of the joint tenancy. After the severance, X and Y hold Greenacre as tenants in common. Example 2: X, Y, and Z hold Greenacre as joint tenants. X's action results in a severance of the joint tenancy. After the severance, X holds a one-third interest in Greenacre as a tenant in common with Y and Z, who each hold a one-third interest in Greenacre as joint tenants between themselves. 1) Conveyance a) At death A devise (i.e., a conveyance in a will) by a joint tenant of his property interest has no effect. The property passes automatically to the remaining joint tenants due to the right of survivorship. Example 3: Assume the same facts as those in Example 2. Y dies and leaves all of his property to C. C is not entitled to Y's one-third interest in Greenacre. Instead, Z, by virtue of his right of survivorship, owns a two-thirds interest in Greenacre as a tenant in common with X, who continues to hold her one-third interest in Greenacre. b) Lifetime transfer A lifetime (inter vivos) transfer by a joint tenant of his property interest effects a severance of the joint tenancy. Example 4: Assume the same facts as those in Example 2. Y, while alive, gives his property to C. This effects a severance of the joint tenancy that existed between Y and Z. As a consequence, X, C, and Z all hold a one-third interest in Greenacre as tenants in common. i) Contract to transfer: one joint tenant In most states, a joint tenant may effect a severance by executing a contract to convey his property interest. ii) Contract to transfer: all joint tenants In some states, a contract to convey property held in a joint tenancy that is executed by all of the joint tenants does not effect a severance. Severance occurs only upon the transfer of the property. In other states, severance occurs upon the execution of a contract to convey by all of the joint tenants. 2) Mortgages A joint tenant may grant a mortgage in her joint tenancy interest. In lien theory states (the majority), the mortgage is only a lien on the property; the granting of a mortgage does not sever the joint tenancy, and severance occurs only upon a foreclosure sale following a default. In title theory states (the minority), the granting of a mortgage by a joint tenant constitutes a transfer of title; the joint tenancy is between the mortgagee and the other joint tenants, and it is severed and converted into a tenancy in common; if there is more than one remaining joint tenant, however, they continue to hold their property interests with each other as joint tenants. 3) Judicial Lien A judicial lien is typically imposed as a consequence of an adverse judgment against a joint tenant stemming from a contractual or tort liability. In most states, a judicial lien imposed on the property interest of a joint tenant does not sever the joint tenancy. There must be a levy and sale of the property interest to effect a severance. If the joint tenant against whose property interest the lien is imposed dies prior to the sale, the remaining joint tenants are entitled to that property interest by right of survivorship. 4) Leases There is a split among jurisdictions with respect to how to handle joint tenancies when one joint tenant leases his interest. Some jurisdictions hold that the lease destroys the unity of interest and thus severs the joint tenancy, while other jurisdictions believe that the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease. 5) Intentional killings When one co-tenant intentionally kills the other co-tenant, some states allow the felonious joint tenant to hold the property in constructive trust for the deceased joint tenant's estate. This means that the surviving joint tenant does not profit from the felony but can keep his interest in the property. Other jurisdictions have statutes that sever the joint tenancy upon a felonious killing of one joint tenant by another joint tenant. 3. Tenancy by the Entirety Tenancy by the entirety is a joint tenancy between married persons with a right of survivorship. The same rules for joint tenancy apply to tenancy by the entirety, plus the joint tenants must be married when a deed is executed or the conveyance occurs (the fifth unity of person). Neither party can alienate or encumber the property without the consent of the other. Tenancy by the entirety is recognized in many jurisdictions, but not in community-property states.

I. Ownership C. Cotenancy 3. Partition

f. Partition 1) Who may partition A tenant in common or a joint tenant generally has the right to unilaterally partition the property, but a tenant by the entirety does not have this right. Property can be partitioned either voluntarily (if the co-tenants agree in writing on the division of land) or involuntarily (by court action). The holder of a future interest who shares that interest with another (e.g., jointly held remainder interest) does not have the right to immediate possession and therefore cannot maintain an action for involuntary partition. 2) Effect of partition In a "partition in kind" action, the court divides the jointly owned property into distinct physical portions. If physical division of the property is not practicable or fair, the court may order a partition by sale and distribute the proceeds among the co-tenants in accordance with their ownership interests. Courts prefer a partition in kind. 3) Agreement not to partition An agreement by co-tenants not to seek partition is enforceable. However, the agreement must be clear, and the time limitation must be reasonable.

I. Ownership D. The law of landlord and tenant 5. Habitability and suitability

1. Give Possession In most states, a tenant is relieved of the obligation to pay rent if the landlord fails to deliver actual physical possession of the leasehold premises. The minority rule requires only that the landlord deliver legal possession. 2. Duty to Repair The landlord has the duty to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant. In contrast, the duty to repair can be placed on the tenant in a commercial lease. 3. Warranty of Habitability There is an implied warranty of habitability in most residential leases, particularly when the dwelling is multi-family. The landlord must maintain the property such that it is reasonably suited for residential use. The landlord's failure to comply with applicable housing code requirements constitutes a breach of this warranty, particularly with regard to violations that substantially threaten the tenant's health and safety. This warranty generally cannot be waived by the tenant, either by express language in the lease or by taking possession of the property with knowledge of the conditions. If the premises are not habitable, then the tenant may choose to (i) refuse to pay rent, (ii) remedy the defect and offset the cost against the rent, or (iii) defend against eviction. Generally, before the tenant can withhold the rent or remedy the defect, she must first notify the landlord of the problem and give him a reasonable opportunity to correct the problem. The tenant is not required to vacate the premises. 4. Covenant of Quiet Enjoyment Every lease (both commercial and residential) contains an implied covenant of quiet enjoyment, which is breached only when the landlord, someone claiming through the landlord, or someone with superior title disrupts the possession of the tenant. Off-premises actions of third parties will not suffice. The landlord is not liable for acts of other tenants, but he has a duty to take action against a tenant's nuisance-like behavior and to control the common areas. Any actions by the landlord that breach this covenant amount to an actual or constructive eviction of the tenant. Not every interference with the use and enjoyment of the premises amounts to a constructive eviction. Temporary or de minimis acts not intended to amount to a permanent expulsion do not amount to constructive eviction. a. Actual eviction If the landlord removes the tenant from the premises, then the total eviction terminates the lease and ends the tenant's obligation to pay rent. b. Partial eviction If the tenant is prevented from possessing or using a portion of the leased premises, then the tenant may seek relief for a partial actual eviction. The type of relief granted depends on who prevented the possession. 1) Landlord The tenant is completely excused from paying rent for the entire premises if the landlord is responsible for partial eviction. 2) Third parties The tenant must pay the reasonable rental value of the premises occupied if the partial eviction is by a third party with a superior claim to the property. The tenant is not excused from paying rent if a third-party adverse possessor/trespasser partially evicts the tenant. c. Constructive eviction If the landlord substantially interferes with the tenant's use and enjoyment of the leasehold by breaching a duty to the tenant (e.g., fails to provide heat or water), then the tenant's obligation to pay rent is excused due to constructive eviction only if the tenant gives notice and vacates the property within a reasonable amount of time. d. Retaliatory eviction A landlord may not evict a residential tenant for failure to pay rent as retaliation for the tenant's reporting a housing code violation to the appropriate authorities. Tort Liabilities 1. Tenant The tenant is the possessor of the leasehold who owes a duty of care to invitees, licensees, and foreseeable trespassers and may be liable for dangerous conditions or activities on the leased property. However, this duty is not violated by a failure to remove a natural accumulation of snow or ice, unless an act or failure to act caused the condition to worsen. 2. Landlord Under common law, the landlord is responsible for injuries occurring only in common and public areas or in non-common areas under the landlord's control, or those occurring as a result of a hidden defect or faulty repair completed by the landlord or the landlord's agent. The modern trend is to hold landlords to a general duty of reasonable care. This means that a landlord may be liable for (i) existing defects prior to the tenant's occupation of the premises, (ii) failure to make repairs required by a housing code, and (iii) at times, the criminal activity of third persons who injure tenants.

I. Ownership B. Future interests 1. Reversions

1. Reversion A reversion (or "reverter") is the future interest held by the grantor who grants a life estate or estate for years but does not convey the remaining future interest to a third party. Reversions are not subject to the Rule Against Perpetuities. 2. Possibility of Reverter A possibility of reverter is automatically retained by a grantor when a fee simple determinable is conveyed. 3. Right of Reentry A right of reentry (also called "right of entry" or "power of termination") is a future interest held by the grantor after a fee simple on condition subsequent is granted.

I. Ownership D. The law of landlord and tenant 1. Types of holdings: creation and termination a. Terms for years

1. Tenancy for Years A tenancy for years is an estate measured by a fixed and ascertainable amount of time. a. Term A tenancy for years may be any length of time (e.g., one week, six months, five years). b. Creation A tenancy for years is created by an agreement between the landlord and the tenant. The Statute of Frauds applies to a tenancy for years that is longer than one year; such agreements must be in writing. A lease subject to the Statute of Frauds is voidable until the tenant takes possession and the landlord accepts rent from the tenant. c. Termination 1) At end of term Termination occurs automatically upon the expiration of the term; no notice is required. Any right to renew the agreement must be explicitly set out in the lease. 2) Prior to end of term Termination may also occur before the expiration of the term, such as when the tenant surrenders the leasehold (i.e., the tenant offers and the landlord accepts return of the leasehold). In addition, although at common law the doctrine of independent covenants usually prevented the breach of a covenant in the lease by a tenant or landlord from giving the other party the right to terminate the lease, most states recognize that the breach of certain leasehold covenants (i.e., the tenant's payment of the rent and the landlord's covenants of quiet enjoyment and implied warranty of habitability) can give rise to a right to terminate the lease.

I. Ownership C. Cotenancy 1. Types a. Tenancy in common

1. Tenancy in Common Any tenancy with two or more grantees creates a tenancy in common (and is thus considered the "default" or "catch-all" co-tenancy when neither joint tenancy nor tenancy in the entirety exists). In most states, there is a presumption that a conveyance to two or more persons creates a tenancy in common rather than a joint tenancy. Equal right to possess or use the property (unity of possession) is required, and no right of survivorship exists. Each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the interest. Without the right of survivorship, each tenant can devise or freely transfer his interest to anyone. A tenant in common may also transfer his interest to another by a lease. The other tenants in common are entitled to share possession with the lessee and to receive a share of the rental profits from the lessor-tenant in common.

I. Ownership A. Present estates 2. Defeasible fees simple

2. Defeasible Fees As with a fee simple absolute estate, a defeasible fee is ownership of potentially infinite duration. But, unlike a fee simple absolute estate, a defeasible fee may be terminated by the occurrence of an event. a. Fee simple determinable A fee simple determinable is a present fee simple estate that is limited by specific durational language (e.g., "so long as," "while," "during," "until"), such that it terminates automatically upon the happening of a stated condition, and full ownership of the property is returned to the grantor. The fee simple determinable is freely alienable, devisable, and descendible, but it is always subject to the stated condition. EXAM NOTE: Be certain that the language limits the duration, not merely the purpose, of the transfer before concluding that a fee simple determinable was created. If the language limits only the purpose, it is treated as creating a fee simple absolute. 1) Possibility of reverter Upon the occurrence of the stated condition, the estate automatically reverts back to the grantor. The grantor's retained future interest is called a "possibility of reverter." A possibility of reverter is freely alienable by the grantor, both during his life and upon his death. Example: A conveys Blackacre "to B and his heirs, until B gets married." The estate reverts back to A if B gets married. Therefore, B has a fee simple determinable in Blackacre, with a possibility of reverter in A. b. Fee simple subject to condition subsequent A fee simple subject to a condition subsequent is a present fee simple that is limited in duration by specific conditional language. EXAM NOTE: Typical language that indicates a fee simple subject to a condition subsequent: "provided that," "on condition that," "but if." 1) Compare to fee simple determinable As with a fee simple determinable, the fee simple subject to a condition subsequent is freely alienable by the owner during his life, and upon his death, it is devisable and descendible. Unlike a fee simple determinable, termination of a fee simple subject to a condition subsequent is not automatic. Upon occurrence of the stated condition, the present fee simple will terminate only if the grantor affirmatively demonstrates intent to terminate (e.g., by bringing an action to recover possession). If the language in the conveyance is ambiguous, courts typically adopt a preference for the fee simple on condition subsequent. 2) Right to terminate In the conveyance, the grantor must explicitly retain the right to terminate the fee simple subject to a condition subsequent (known as the "right of entry," "right of re-entry," or "power of termination"). In most states, this right is devisable and descendible, but it cannot be transferred during the owner's lifetime. The owner may waive this right, but the mere failure to assert it does not constitute a waiver. Example: A conveys Blackacre "to B and his heirs, but if B gets married, then A can reenter Blackacre." B will retain ownership until A exercises his right to reenter. B has a fee simple subject to a condition subsequent in Blackacre, and A has a right of re-entry. (Even if B gets married, B will retain his current possessory estate in Blackacre until A exercises his right to terminate B's estate.) c. Fee simple subject to executory interest A fee simple subject to an executory interest (sometimes referred to as a "fee simple subject to executory limitation") is a present fee simple estate that is limited in duration by either conditional language or durational language, such that it will terminate upon the occurrence of the specified condition, and title will pass to a third party (i.e., someone other than the grantor). Upon occurrence of the stated condition, the present fee simple terminates automatically. The future interest held by the third party is an executory interest. Example: A conveys Blackacre "to B for as long as the property is used as a hospital, then to C." In Blackacre, B has a fee simple subject to an executory interest, C has an executory interest, and A does not have an interest. (Note: C's interest is subject to the Rule Against Perpetuities.) For a more detailed discussion, see § I.C.5. Executory Interests, below. EXAM NOTE: Be aware that a fee simple subject to an executory interest is a type of fee simple determinable, and it is sometimes referred to as a "fee simple determinable subject to an executory interest." It is more common to see an executory interest follow a fee simple subject to an executory interest, but be aware that all executory interests technically follow fee simple determinables.

I. Ownership C. Cotenancy 1. Types b. Joint tenancy

2. Joint Tenancy A joint tenancy exists when two or more individuals own property with the right of survivorship (i.e., upon the death of a joint tenant, the interest terminates and automatically goes to the surviving joint tenants). Modern law calls for a clear expression of intent along with survivorship language. EXAM NOTE: To determine if a joint tenancy was created, look for survivorship language. a. Four unities The joint tenancy must be created with each joint tenant having an equal right to possess or use the property (unity of possession), with each interest equal to the others (unity of interest), at the same time (unity of time), and in the same instrument (unity of title). [Mnemonic−"PITT"]. Unlike a joint tenancy, a tenancy in common requires only the unity of possession.

I. Ownership D. The law of landlord and tenant 1. Types of holdings: creation and termination d. Periodic tenancies

2. Periodic Tenancy A periodic tenancy is a repetitive, ongoing estate measured by a set period of time (e.g., a month-to-month lease) but with no predetermined termination date. a. Term A periodic tenancy automatically renews at the end of each period until one party gives a valid termination notice. The Statute of Frauds does not apply to a periodic tenancy because its nature is that it is for a non-fixed term. b. Creation A periodic tenancy can be created by express agreement, implication (e.g., the failure of an express agreement to mention a termination date), or operation of law (e.g., a holdover tenant, see § II.B.5.c. Holdover tenant, below). c. Termination Because a periodic tenancy automatically renews, notice is required to terminate. 1) At end of term Notice of termination must be given before the beginning of the intended last period of the periodic tenancy. Example 1: A landlord who wants to terminate a month-to-month tenancy as of March 31st must give notice of the termination to the tenant before the first day of March. Notice that is given late is generally treated as effective for the subsequent period. Example 2: A landlord who wanted to terminate a month-to-month tenancy that began on January 1st as of March 31st gave notice of the termination to the tenant on March 5th. The notice is effective to terminate the month?to?month tenancy as of the end of April. A notice of termination is generally effective only as of the last day of the period (e.g., the end of the month for a month-to-month tenancy that began on the first day of the month). Example 3: A landlord wanted to terminate a month-to-month tenancy that began on January 1st as of March 15th. The landlord gave notice of the termination to the tenant on February 14th. The notice is effective to terminate the month-to-month tenancy as of the end of March. EXAM NOTE: The termination of a year-to-year tenancy requires notice only six months, rather than one year, in advance. In addition, many states have reduced the advance notice period for all periodic tenancies (e.g., one month for a year-to-year tenancy). 2) Prior to end of term The same circumstances discussed with regard to a tenancy for years may also give rise to the termination of a periodic tenancy prior to the end of a term.

I. Ownership D. The law of landlord and tenant 1. Types of holdings: creation and termination b. Tenancies at will

3. Tenancy at Will a. Term A tenancy at will is a leasehold estate that does not have a specific term and continues until terminated by either the landlord or tenant. b. Creation A tenancy at will can be created by the express agreement of the parties or by implication if a person is allowed to occupy the premises, such as when the parties are negotiating a lease. Note that, unless this tenancy is expressly created, the payment of rent by the tenant converts a tenancy at will into a periodic tenancy. c. Termination At common law, a tenancy at will could be terminated by either party without advance notice, but the tenant had to be given a reasonable time in which to vacate the premises. By statute, most states now require that a party give advance notice in order to terminate a tenancy at will. A tenancy at will can also be terminated by operation of law upon the death of either party, because of waste or assignment by the tenant, or upon transfer or lease of the property to a third party by the landlord. Restatement (Second) of Property: Landlord and Tenant §1.6. If the agreement gives only the landlord the right to terminate at will, a reciprocal right of the tenant to terminate at will is implied. If the agreement gives only the tenant the right to terminate at will, the landlord is not given a similar right. Moreover, absent clear language in the lease that it is a tenancy at will, it may be construed as a determinable estate (e.g., an estate for years determinable). A tenancy that is terminable at the will of one party only may be unconscionable. Restatement (Second) of Property: Landlord and Tenant §1.6, cmt.g.

I. Ownership A. Present estates 3. Life estates

4. Life Estate A life estate is a present possessory estate that is limited in duration by a life. The language must be clear, and must be measured in terms of a life, not a number of years (e.g., "to A for life"). Upon the end of the measuring life, title reverts to the grantor or specified remainderman. This future interest is known as a reversion. Example 1: A conveys Blackacre "to B for the life of B." B has a life estate in Blackacre, which terminates upon B's death. A has a reversion; upon B's death, ownership of Blackacre reverts to A. Example 2: A conveys Blackacre "to B for B's life, and then to C." B has a life estate in Blackacre, which terminates upon B's death. C has a remainder; upon B's death, ownership of Blackacre vests in C. The life estate is not subject to the Rule Against Perpetuities. a. Measuring life is the grantee To be a life estate, the interest granted must be measured by the life of a human being and be qualified only by non-time limitations. Unless otherwise specified, the measuring life is the grantee. Example: A conveys Blackacre to "B for life." B has a life estate that is measured by his own life. A life estate is fully transferable during the life of the person by whom the life estate is measured. Because the interest terminates at the death of the person by whom the life estate is measured, a life estate measured by the grantee's life is generally neither devisable nor descendible. If the life estate is received by will or intestacy, the life tenant may renounce the estate if he so chooses. In the states that have done away with the common-law curtesy and dower custom, a surviving spouse has a statutory right to take a portion of the estate. In states that continue dower and curtesy, a conveyance from the husband to a bona fide purchaser without the wife's joining in the conveyance does not defeat dower. Similarly, a wife's dower rights are not defeated by the husband's creditors. b. Measuring life is a third party A life estate measured by the life of a third party is also called a "life estate pur autre vie." Example: A conveys Blackacre to "B for the life of C." A granted a life estate to B for the life of C. c. Rights and obligations A life tenant has the right of possession, the right to all rents and profits during possession, and the right to lease, sell, or mortgage the property (right of alienation). To the extent that the property can produce income, life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage. If the property is not producing an income, the life tenant is responsible for taxes and mortgage interest to the extent of the reasonable rental value of the land. The life tenant also has the duty not to commit waste. The life tenant is under no obligation to insure the land for the benefit of the remainderman and is not responsible for damage caused by third-party tortfeasors. EXAM NOTE: Remember that the life tenant is responsible only for the interest of a mortgage on the life estate, whereas the remainderman is responsible for the mortgage itself. d. Waste The rights of a holder of any estate except a fee simple may be limited by the doctrine of waste. The particular rules of waste depend on the type of estate held by the present tenant and the type of waste created. Any remainderman or grantor with a reversionary interest may enter the land to inspect for waste and seek an injunction to prevent waste. 1) Affirmative waste Affirmative (or voluntary) waste is the result of overt conduct that causes a decrease in the value of the property. The holder of the vested remainder interest may bring suit for damages, and either a vested or contingent remainder holder may bring suit for an injunction. Limited exceptions exist for the exploitation of minerals and timber if such use was authorized by the grantor, was in effect at the time the tenancy began, or is necessary to maintain the property. 2) Permissive waste Permissive waste occurs when the tenant "permits" the premises to deteriorate through neglect, a failure to preserve the property, or a failure to reasonably protect the property. To maintain the property and avoid permissive waste, the tenant is required to make reasonable repairs but need not spend more than the amount of income generated by the property. The tenant's duties include paying any property taxes and mortgage interest associated with the property. 3) Ameliorative waste Ameliorative waste occurs when a change in use of the property increases the value of the property. At common law, a life tenant was prohibited from engaging in acts that changed the property's value (even those that enhanced the value), unless all future interest holders were known and consented. The current majority rule allows life tenants to physically alter structures on the property when a substantial and permanent change in neighborhood surroundings makes it necessary in order to continue reasonable use of the property, so long as the property value is not diminished.

I. Ownership B. Future interests 2. Remainders, vested and contingent

4. Remainder A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate of known fixed duration that is created in the same conveyance in which the remainder is created. A remainder can be either vested or contingent. If a survivorship contingency is stated in a conveyance, then the majority view is that the contingency applies at the termination of the interest that precedes distribution of the remainder. A minority approach interprets a survivorship contingency to require surviving only the testator and not the life tenant. a. Vested remainder A vested remainder is an interest that is not subject to any conditions precedent and is created in an ascertainable grantee. Example: A conveys Blackacre "to B for life, and then to C and his heirs." Here, the grantee, C, is ascertainable. 1) Vested subject to open (class gifts) A class gift consists of a group of unspecified persons whose number and identity and share of the interest is determined in the future (e.g., at the death of the donor). Usually, the group is of children. Example: A conveys a gift "to my children." Here, A conveys a class gift to an unspecified group because the recipients (i.e., those who will qualify as A's children upon A's death) are not known until A dies. If a conveyance grants a remainder to a class of grantees and at least one of the grantees receives a vested remainder at the time of the conveyance, then that vested remainder is subject to open (i.e., the property interest is uncertain because other grantees may become vested and able to share in the grant). Example: A conveys "to B for life, and then to B's children as they turn 18." B has three children upon death, X (10 years old), Y (15 years old), and Z (20 years old). Z has a vested remainder subject to open because the property interest may be shared if Y and/or X become vested (i.e., reach age 18). Once a class closes, any person who might otherwise have become a class member (e.g., later-born siblings) cannot claim an interest in the property as a class member. Although those born after the class closes are generally not part of the class, those already in gestation upon closing are included in the class. Absent a closing date, the rule of convenience closes the class when any member of the class becomes entitled to immediate possession of the property. Example: A conveys "to B for life, and then to C's children." If the conveyance does not specify when the class closes, then the class closes when B dies, regardless of any of C's children born after B's death. 2) Vested subject to complete A vested remainder subject to complete indicates that the occurrence of a condition subsequent will completely divest the remainder interest. Example: A conveys "to B for life, and then to C; but if C has no children, then to D's children." C has a vested remainder interest, but if he is not survived by his children at the time of B's death, then C's interest will be divested. b. Contingent remainder A remainder is contingent if it is created in a grantee that is unascertainable, or if it is subject to an express condition precedent to a grantee's taking. This situation normally occurs in one of two circumstances: (i) when the property cannot vest because the beneficiary is unknown or (ii) when the property cannot vest because the known beneficiary is subject to a condition precedent that has not yet occurred. Example: A conveys "to B for life, remainder to C's heirs." If C is alive at the conveyance, C's heirs are not yet ascertainable, and the remainder is contingent. Contingent remainders were destroyed at common law if they had not vested by the time the preceding estate terminated. In such a situation in most states today, the grantor's reversion becomes possessory, and the person holding the contingent remainder takes a springing executory interest (see below), which becomes possessory if and when the condition precedent is met. c. Rule in Shelley's Case At common law, the rule in Shelley's Case prevented contingent remainders in the grantee's heirs by defeating the grantor's intent and changing the interest that the grantor purported to give to the grantee and his heirs to a vested remainder in the grantee. The rule in Shelley's Case changes the state of the title to two successive freehold estates in the grantee. Under the doctrine of merger, both the present and future interests are merged so that the grantee takes in fee simple absolute. Most jurisdictions have abolished the rule in Shelley's Case, and the parties now take the present and future interests according to the language in the deed. Example: A conveys "to B for life, remainder to B's heirs." If the rule in Shelley's Case applies, then after the merger, B will receive the property in fee simple absolute. If the rule in Shelley's Case has been abolished, then B has a life estate and B's heirs have a contingent remainder in the subject property. d. Doctrine of Worthier Title The Doctrine of Worthier Title is a rule of construction similar to the rule in Shelley's Case, except that it prevents remainders in the grantor's heirs, and it still applies in some states. The presumption is in a reversion to the grantor, rebuttable by a showing of contrary intent.

I. Ownership C. Cotenancy 4. Relations among cotenants

4. Rights and Obligations a. Possession Unless there is an agreement to the contrary, each co-tenant has the right to possess all of the property, and one co-tenant may not bind another co-tenant to a boundary line agreement. A co-tenant is generally not required to pay rent to the other co-tenants for the value of her own use of the property, even when the other co-tenants do not make use of the property. Similarly, a co-tenant is generally not required to share profits earned from the use of the property, such as from a business conducted on the property. As a consequence of each tenant's right to possess the entire property, a co-tenant's exclusive use of the property does not, by itself, give rise to adverse possession of the interest of another co-tenant. 1) Ouster When a co-tenant refuses to allow another co-tenant access to the property, the ousted co-tenant may bring a court action for ouster (e.g., seek an injunction) to gain access to the property and to recover the value of the use of the property for the time during which the co-tenant was denied access to the property. 2) Natural resources A co-tenant is entitled to the land's natural resources (e.g., timber, minerals, oil, gas) in proportion to her share. b. Third-party rents A co-tenant must account to other co-tenants for rent received from third parties, but she can deduct operating expenses when calculating net proceeds. Third?party rents are divided based on the ownership interest of each tenant. c. Operating expenses A co-tenant can collect contribution from the other co-tenants for paying more than his portion of necessary or beneficially spent operating expenses (e.g., taxes or mortgage interest). Note that a co-tenant in sole possession can collect only for the amount that exceeds the rental value of the property. d. Repairs and improvements A co-tenant does not have a right to be reimbursed by other co-tenants for repairs made to the property, even when those repairs are necessary. However, the majority view is that contribution for necessary repairs can be compelled in actions for accounting or partition. A co-tenant may, in some jurisdictions, maintain a separate action for contribution, as long as the other co-tenants have been notified of the need for the repair. Similarly, except in actions for accounting or partition, a co-tenant does not have a right to reimbursement for improvements made to the property. As noted, when a third party is occupying the property, the co-tenant who collects rent from the third party can subtract expenses for necessary repairs from the rent received before sharing the rent with the other co-tenants. e. Fiduciary obligation In general, co-tenants do not owe fiduciary duties to each other. However, co-tenants who became co-tenants at the same time (e.g., by the same deed or will) can have a fiduciary obligation to each other, such that if one co-tenant buys back his property at a tax or mortgage foreclosure sale, the other co-tenants can reacquire their original interests by paying their due contributions. Co-tenants share a duty of fair dealing, such that an acquisition by one co-tenant that affects the estate owned by all co-tenants is considered an acquisition by all co-tenants.

I. Ownership D. The law of landlord and tenant 1. Types of holdings: creation and termination c. Holdovers and other tenancies at sufferance

4. Tenancy at Sufferance A tenancy at sufferance (holdover tenancy) is the period of time after the expiration of a lease during which the tenant remains on the premises. During a tenancy at sufferance, the tenant is bound by the terms of the lease that existed before expiration, including payment of rent. EXAM NOTE: Know the difference between a tenancy at will, which is created by the agreement of the landlord and the tenant, and a tenancy at sufferance, which is created by the actions of the tenant alone. A tenancy at sufferance can be terminated if the tenant vacates the premises, the landlord evicts the tenant, or the landlord binds the tenant to a new periodic tenancy.

I. Ownership B. Future interests 3. Executory interests

5. Executory Interests An executory interest is a future interest in a third party that is not a remainder and that cuts the prior estate short upon the occurrence of a specified condition. Executory interests are transferable and are subject to the Rule Against Perpetuities. Most courts hold that executory interests are freely transferable, although they were not transferable inter vivos at common law. The two types of executory interests are shifting executory interest and springing executory interest. a. Shifting executory interest A shifting executory interest divests the interest of the grantee by cutting short a prior estate created in the same conveyance. The estate "shifts" from one grantee to another on the happening of the condition. Example: A conveys "to B and his heirs, but if C returns from Paris, then to C." This conveyance creates a fee simple subject to an executory limitation in B and a shifting executory interest in C. b. Springing executory interest A springing executory interest divests the interest of the grantor or fills a gap in possession in which the estate reverts to the grantor. Example: A conveys "to B for life, and one year after B's death to C and his heirs." This conveyance creates a life estate in B, a one-year reversion in A (in fee simple subject to an executory limitation), and a springing executory interest in C. EXAM NOTE: Any interest held by a third party that follows a fee is always an executory interest because a remainder never follows a fee. 6. Transferability of Remainders and Executory Interests Vested remainders are fully transferable inter vivos, devisable by will, and descendible by inheritance. Today, executory interests and contingent remainders are transferable inter vivos in most jurisdictions, although under common law they were not transferable; both are devisable and descendible. It is important to note that most states permit any transferable future interest to be reached by creditors, except for those interests held by unascertainable or unborn persons.

I. Ownership E. Special problems 1. Rule Against Perpetuities: common law and as modified

8. Rule Against Perpetuities Under the Rule Against Perpetuities ("Rule"), specific future interests are valid only if they must vest or fail by the end of a life in being plus 21 years. Example 1: A conveys Blackacre "to B for life, and then to the first male descendant of B, then to C." This provision violates the Rule because it may be many generations before there is a male descendant of B, if at all. Example 2: A conveys Blackacre "to B for life, and then to B's first son who reaches the age of 18, then to C." This provision is valid because any son of B will attain age 18 within 21 years after B's death. Note the difference in the examples above. In Example 1, the opportunity for B to have a male descendant does not end after he dies. Because there is a possibility that the devise will neither vest nor fail within a life in being plus 21 years, the Rule is violated. On the other hand, in Example 2, once B dies, his opportunity to have children ends, and so the clock starts. If, when he dies, B has at least one son under the age of 18, then it is certain to be less than a life in being plus 21 years before the condition either vests (son reaches 18) or fails (son dies). a. Affected future interests The Rule applies only to the following interests: contingent remainders, vested remainders subject to open, executory interests, powers of appointment, rights of first refusal, and options. It does not apply to future interests that revert to the grantor (i.e., reversion, possibility of reverter, right of reentry). 1) Trust interests Even though a beneficiary of a trust holds only an equitable interest in the trust property, such an interest may be subject to the Rule. b. Measuring lives The application of the Rule is determined by one or more measuring (or validating) lives. A measuring life must be human, but there can be more than one measuring life, provided the number of such lives is reasonable. If a measuring life is not specified, then the measuring life is the life directly related to the future interest that is subject to the Rule. Example 1: A devises Blackacre "to B for life, and then to B's children who reach the age of 25." B's life is the measuring life. If there is no measuring life, then the applicable vesting period is 21 years from the time that the future interest is created. Example 2: A devises Blackacre "to a charity for so long as the property is used as an animal shelter, and then to C." Because there is no measuring life, C's interest must vest or fail within 21 years of the creation of C's interest in order to satisfy the Rule. Since there is no guarantee regarding the future use to which Blackacre is put, C's interest violates the Rule. c. Creation events The Rule tests the future interest as of the time that it is created. For example, a future interest created by a will is tested as of the testator's death. d. "Vest or fail" requirement The Rule requires that the future interest either vest or fail to vest within the applicable time period. If there is any possibility that it will not be known whether the interest will vest or fail within that period, then the Rule has not been satisfied. e. Effect of violation If a future interest fails to satisfy the Rule, then only the offending interest fails. In the rare case when the voiding of the future interest undermines the grantor's intent, the entire transfer is voided. EXAM NOTE: The MBE often tests the Rule by presenting answer choices relating to the result of a failed interest. Be sure to analyze the estate without the offending interest and to consider the grantor's intent. f. Special rule for transfer to a class (class gifts) If the transfer of a future interest is made to a class, and the Rule voids a transfer to any member of a class, then the transfer is void as to all class members, even those whose interests are already vested (i.e., "bad as to one, bad as to all"). Example: A devises Blackacre "to B for life, and then to B's children who have graduated from college." At the time of A's death, B had two children: X, who had graduated from college, and Y, who had not. X has a vested remainder subject to open; Y, as well as any afterborn children of B, has a contingent remainder. At the time of B's death, Y has also graduated from college, and B has had a third child, Z, who is in elementary school. Because it may take Z more than 21 years to graduate college and thereby vest his interest, not only is Z's interest void under the Rule, but X and Y's interests are also void. 1) Rule of convenience as a savior The rule of convenience can operate to prevent the application of the Rule to a class transfer. Example 1: A conveys Blackacre "to B for life, and then to C's children." At the time of the conveyance, C has one child, X. X has a vested remainder subject to open. Although C may have children more than 21 years after B's death, the class will close upon B's death since C has a child, X. Consequently, X and any other children born to C prior to B's death will take Blackacre. The Rule will not apply to void their interests in Blackacre. The application of the rule of convenience to a class transfer does not automatically forestall the application of the Rule. Example 2: In the example at §I.C.8.f Special rule for transfer to a class (class gifts), supra, (A devises Blackacre "to B for life, and then to B's children who have graduated from college"), although the class closes upon B's death because both X and Y have vested remainder interests, Z, as a child of B, is also a member of the class. Because Z's interest may not vest within 21 years of B's death, the remainder interests of all of B's children are void because of the Rule. EXAM NOTE: Beware of fact patterns with class gifts to grandchildren of an inter vivos grantor instead of a testator. An inter vivos transfer is more likely to violate the Rule because there is a greater chance that a donor will have later?born children than will a testator. 2) Exceptions There are two main exceptions to the "bad as to one, bad as to all" rule for class transfers. Both transfers of a specific dollar amount to each class member (e.g., "$50,000 to each grandchild who survives his parent") and transfers to a subclass that vests at a specific time (e.g., "to the children of B, and upon the death of each, to that child's issue") are tested separately. Any person who is entitled to the transferred interest is not prohibited from taking that interest simply because there are other members of the class who are prohibited from taking the interest. g. Exceptions to the Rule Against Perpetuities 1) Charity-to-charity exception If property passes from one charity to another charity, then the interest of the receiving charity is not subject to the Rule. Example: Blackacre is conveyed "to charity B, as long as the premises are used for a school, and then to charity C." The executory interest of charity C may not vest within the time allotted by the Rule, but, because the Rule does not apply to charity-to-charity transfers, C's executory interest is valid. EXAM NOTE: The Rule applies to property that passes between a charity and a non-charity. 2) Current tenant's option exception The Rule does not apply to an option to purchase the property that is held by a current leasehold tenant. If the current tenant can transfer such an option, then this exception does not apply to a subsequent holder of the purchase option. h. Common violations 1) Class transfers—"survival beyond age 21" condition If a transfer to a class is conditioned on the class members surviving to an age beyond 21 and the class is open, then the transfer to the class violates the Rule. Example: A conveys Blackacre "to B for life, and then to B's children who reach the age of 30." At the time of the conveyance, B has one child, X, who is 35 years old. X has a vested remainder subject to open; B's potential children have a contingent remainder. The contingent remainder violates the Rule because it is possible that B could have another child who would not attain the age of 30 until more than 21 years after B's death. Because the contingent remainder is invalid, X's vested remainder subject to open is also invalid as a consequence of the "bad as to one, bad as to all" rule for class transfers. 2) Fertile octogenarian Anyone, regardless of age or physical condition, including an 80-year-old woman (i.e., the fertile octogenarian) is deemed capable of having children for the purposes of the Rule. Some states have set an age limit (e.g., 55 years old) beyond which it is rebuttably presumed that a woman cannot have a child. Example: A conveys Blackacre "to B for life, then to B's children who reach the age of 30 years old." At the time of the conveyance, B is 90 years old, with one child, X, who is 35 years old. X has a vested remainder subject to open, since B, despite her age, is assumed to be capable of having another child. Because the contingent remainder in that child would violate the Rule, X's interest is also void under the "bad as to one, bad as to all" rule. 3) Unborn spouse If an interest following a widow's life estate cannot vest until the widow dies, then it violates the Rule. Example: A conveys Blackacre "to B for life, then to B's widow for life, then to B's children who are then living." The contingent remainder in B's children violates the Rule because B's widow may be someone who is not yet alive at the time of the conveyance. The contingent remainder would not violate the Rule if the life estate was conveyed to a particular person (e.g., B's current spouse) instead of "B's widow." 4) Defeasible fee followed by an executory interest An executory interest that follows a defeasible fee violates the Rule, unless there is a time limit on the vesting of the executory interest that satisfies the Rule. If the limit on the defeasible fee is durational (e.g., "so long as," "while"), then the striking of the executory interest leaves the grantor with the possibility of reverter. If the limit on the defeasible fee is a condition subsequent (e.g., "but if," "upon the condition that"), then the striking of the executory interest leaves the holder of the defeasible fee with a fee simple absolute interest in the property. Example 1: A conveys Blackacre "to B so long as the property is used for residential purposes; if it is not, then to C." B has a fee simple subject to an executory interest; C has an executory interest. Because C's executory interest could become possessory after the expiration of the testing period for the Rule, C's interest is stricken, and A has a possibility of reverter in Blackacre. Example 2: A conveys Blackacre "to B; but if the property is used for residential purposes, then to C." B has a fee simple subject to an executory interest; C has an executory interest. Because C's executory interest could become possessory after the expiration of the testing period for the Rule, C's interest is stricken, and B owns Blackacre in fee simple absolute. 5) Conditional passage of interest If there is a condition imposed on the passing of a future interest subject to the Rule that is not confined to a specified time limit that meets the Rule's testing period, such as probating the will or termination of a current military conflict, then the future interest runs afoul of the Rule. i. Statutory changes A majority of the states have adopted the Uniform Statutory Rule Against Perpetuities, which adopts a "wait and see" stance with respect to the applicability of the Rule. Under this stance, an otherwise invalid interest is valid if it does in fact vest within 90 years of its creation. A few states have simply repealed the Rule altogether.

I. Ownership D. The law of landlord and tenant 3. Assignment and subletting

Absent any language to the contrary, a lease can be freely assigned or sublet. Because a lease is both a contract and a conveyance, these can be independent grounds for liability. 1. Assignment versus Sublease An assignment is a complete transfer of the tenant's remaining lease term. Any transfer for less than the entire duration of the lease is a sublease. 2. Assignee's Rights and Liabilities Assignee tenants are in privity of estate with the landlord, and thus they are liable to the landlord for the rent and any other covenants in the lease that run with the lease. However, if the assignee tenant reassigns the leasehold to a subsequent tenant, then the assignee tenant's privity with the landlord ends. Thus, he is no longer liable because the subsequent tenant is now in privity with the landlord. 3. Sublessee's Rights and Liabilities Because the sublessee is not in privity of estate or contract with the landlord, the sublessee is not liable to the landlord for the rent or any other covenants in the lease but is liable to the lessee. However, if the sublessee expressly assumes the rent covenant (or any other covenants), then he becomes personally liable to the landlord. While the sublessee can enforce all covenants made by the original lessee in the sublease, the sublessee cannot enforce any covenants made by the landlord. 4. Original Tenant's Rights and Liabilities The privity of estate held by the original tenant terminates upon a successful assignment by the tenant to the assignee (but does not terminate upon a sublease). Because the original tenant remains in privity of contract with the landlord (both are parties to the lease agreement), however, the original tenant remains liable for all the covenants in the lease—even after a successful assignment. Absent an agreement by the landlord to release the original tenant from liability (i.e., a novation), the original tenant remains liable to the landlord for the entire duration of the lease. 5. Landlord Assignments Unless the lease provides otherwise, a landlord may assign his rights under the lease, usually as part of a transfer of the landlord's ownership interest in the property, to a third party without the tenant's consent. The tenant owes rent, as well as any other burden imposed by a covenant in the lease that runs with the land, to the assignee landlord. Likewise, the assignee landlord is obligated to the tenant to perform any burden imposed by a covenant that run with the land. The assignor landlord remains liable to the tenant for all covenants in the lease. a. Attornment Attornment is the tenant's acknowledgement of a new landlord. While a tenant can do so formally in a writing, a tenant's payment of rent to the new landlord is deemed an attornment. At common law, the tenant's obligations under the lease did not come into existence until attornment. Today, a tenant's obligations to an assignee landlord arise automatically upon notice of the assignment, and attornment occurs primarily in the context of the transfer of ownership of leased commercial property. For example, a tenant in a commercial lease may be obligated under an attornment clause to acknowledge the tenant's lease obligations to a person who gains ownership of the property through a foreclosure sale. 6. Limitations on Assignment and Subletting a. Prohibition When a lease prohibits the tenant from assignment or subletting the leasehold, the tenant may nevertheless assign or sublet the premises. However, the landlord generally can then terminate the lease for breach of one of its covenants and recover any damages. b. Landlord's permission When a lease prevents assignment or subletting without the permission of the landlord, and the lease is silent as to a standard for exercising that permission, the modern trend imposes a requirement that the landlord may withhold permission only on a commercially reasonable ground. The traditional rule is that the landlord may withhold permission at his discretion. Non-assignment and non-sublease clauses are valid but narrowly construed. A clause that prohibits assignment does not automatically also prohibit subleasing. c. Waiver by the landlord An assignment or sublease may be waived if the landlord knows of either the assignment or sublease and does not object. When a landlord consents to an assignment or waives her right to object, she cannot then object to a subsequent assignment. This prohibition on an objection to a subsequent assignment does not apply to subsequent subleases, and a minority of jurisdictions do not impose such a prohibition even on a subsequent assignment.

I. Ownership A. Present estates 1. Fees simple

Present Estates To be categorized as a freehold, an estate must be (i) immobile (either land or some interest derived from or affixed to land) and (ii) for an indeterminate duration (as opposed to a leasehold, which is for a limited duration). The owner of a present estate has the right to currently possess the property. 1. Fee Simple Absolute Fee simple absolute is the most common form of property ownership and the broadest ownership interest recognized by law. It is absolute ownership of potentially infinite duration, is freely alienable (i.e., easily bought or sold), and has no accompanying future interest. Although common law required words of limitation (e.g., "and heirs"), conveyances that are ambiguous are now considered fee simple by default (e.g., "to B"). Example: A conveys Blackacre "to B and his heirs." C conveys Whiteacre to "B." Both conveyances give B a fee simple absolute estate in the property. The fee simple absolute is a present estate that does not terminate unless the owner dies intestate without heirs, in which case the property escheats to the state.

I. Ownership E. Special problems 3. Fair housing/discrimination

The Fair Housing Act (FHA) (Title VIII of the Civil Rights Act of 1968), 42 U.S.C.S. § 3601 et seq., prohibits discrimination in the sale, rental, and financing of homes and in other housing-related transactions (such as advertising, homeowner's insurance, and zoning). Owner-occupied buildings with no more than four units and single-family housing sold or rented without the use of a broker may be exempted from the FHA in certain circumstances. 1. Protected Classes The FHA prohibits discrimination on the basis of race, color, religion, national origin, sex, disability, and familial status. Protected familial status includes having or securing custody of children under the age of 18 and being pregnant. Exemption from familial status protection exists for certain housing for older persons. 2. Prohibited Practices The FHA prohibits taking any of the following actions on the basis of a protected characteristic: i) Refusing to rent or sell housing; ii) Making housing unavailable; iii) Providing different housing services or facilities; iv) Setting different terms for sale or rental of a dwelling; v) Falsely denying that housing is available; vi) Refusing to make a mortgage loan or imposing different terms or conditions on a loan; vii) Refusing to allow a disabled tenant to make reasonable modifications to the dwelling or common-use areas at his own expense; viii) Refusing to make reasonable accommodations in rules, policies, practices, or services if necessary for the disabled person to use the housing (e.g., refusing to allow a visually impaired tenant to keep a guide dog in an apartment with a "no pets" policy); ix) Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right; and x) Advertising or making any statement that indicates a limitation or preference based on protected characteristics. 3. Enforcement and Compliance The U.S. Department of Housing and Urban Development (HUD) plays the lead role in administering the FHA. A person who believes that a violation of the FHA has occurred may file a complaint with HUD and/or file suit in federal court (a court?appointed attorney may be available). Available relief includes actual damages (including humiliation, and pain and suffering), injunctive or other equitable relief (such as making the housing available), and reasonable attorney's fees and costs. If the case is resolved by an administrative hearing, then a civil penalty to vindicate the public interest may be assessed. A federal court may award punitive damages. 4. Complaint Process Complaints filed with HUD are first investigated by the Office of Fair Housing and Equal Opportunity (FHEO). There must be a causal connection between the prohibited behavior and the alleged violation. If FHEO finds reasonable cause to believe that discrimination occurred, then the case goes to an administrative hearing within 120 days, unless either party elects for the case to be heard in federal court. Before an administrative hearing is ordered, HUD attempts to reach an agreement among the parties, and any conciliation agreement will cease action on the complaint. For a conciliation agreement to cease action on the complaint, however, it must protect both the complainant and the public interest. The breach of a conciliation agreement may result in suit by the attorney general.

I. Ownership D. The law of landlord and tenant 2. Possession and rent

The tenant has two basic duties: to pay rent and to avoid waste. The duty to pay rent arises as a consequence of the agreement between the tenant and the landlord (i.e., a lease), which usually takes the form of a written contract. The duty to avoid waste is the same duty imposed on any holder of a current possessory property interest with respect to the holders of other interests in the same property. The duty to avoid waste may be modified by contractual or other legal obligations regarding repair of the premises. 1. Duty to Pay Rent Although a tenant may enjoy a leasehold estate without having to pay rent (e.g., a tenancy at will), most tenants are required to pay rent. Although rent was not apportionable under common law, most states today allow the tenant to pay a proportionate amount of the rent if the leasehold terminates prematurely. In addition, the landlord may require a deposit (either as security or a future rent payment) prior to commencing the leasehold. This duty to pay rent is subject to two major exceptions: destruction of the premises and a material breach by the landlord. a. Destruction of premises The lease is terminated and the tenant is excused from paying rent if the premises are destroyed, such as by flood, as long as the tenant is not at fault for the destruction. At common law, the tenant's duty to pay rent was not excused simply because the leasehold premises were destroyed. b. Material breach of lease by the landlord At common law, the doctrine of independent covenants usually prevented the tenant from avoiding the obligation to pay rent despite the landlord's material breach of the lease. However, even at common law, a landlord who breached the covenant of quiet enjoyment could give the tenant the right to terminate the lease and cease paying rent. In addition, most states give tenants various options with regard to the payment of rent if a landlord violates the implied warranty of habitability in a residential lease (e.g., establishment of an escrow account into which the rent is paid, deducting the cost of repairs incurred by the tenant from the rent paid). 2. Duty to Avoid Waste At common law, a tenant was held to the same standards of waste imposed on a life tenant, including the duty not to commit affirmative waste (i.e., damage to the property), ameliorative waste (i.e., alterations to the property, even if the value of the property increases), or permissive waste (i.e., failure to prevent or repair damage). a. Affirmative waste A tenant is prohibited from committing voluntary waste. b. Ameliorative waste A tenant is entitled to make changes to the physical condition of the leased property that increase the property value if reasonably necessary for the tenant to use the property in a reasonable manner, unless the landlord and tenant agree otherwise. Restatement (Second) of Property: Landlord and Tenant §12.2(a). Landlords usually require advance permission. c. Permissive waste A tenant has a duty, unless relieved by the terms of the lease, state statute, or local ordinance, to repair the premises to the extent necessary to maintain the premises in their pre-rental condition. An exception exists for normal wear and tear, unless the tenant contracts otherwise. 3. Contractual Duty to Repair If a non-residential lease specifies that the tenant must "repair and maintain" the property, then the tenant is generally liable for all damage to the property, unless the landlord caused the damage. If the damage is significant (e.g., structural damage due to a fire) and such damage was not caused by the tenant, then the modern trend is to narrowly read the tenant's duty to repair and to find that it does not cover such damage. A residential lease provision that places the burden of repair on the tenant is generally void, but the tenant may be required to notify the landlord of the need for such repairs. 4. Other Duties A tenant may have other contractual duties, such as a duty to avoid excessive noise or to use the premises only for a specified type of business. In addition, a tenant who uses the premises for illegal purposes on a regular basis (e.g., drug distribution) may violate an implied duty. Violation of such duties can give the landlord the right to terminate the lease. 5. Landlord's Remedies for the Tenant's Breach a. Failure to pay rent If the tenant fails to pay rent, then the landlord can sue both for damages and to remove the tenant from the property. An agreement to pay rent on or by a certain date is a material term of a lease and, thus, late payment of rent is considered a material breach of the lease. Thus, a landlord may bring an action for damages. b. Abandonment At common law, if the tenant unjustifiably abandoned the leasehold, then the landlord could treat the abandonment as an offer of surrender and could accept by retaking the premises. 1) Duty to mitigate The majority rule today requires a landlord to mitigate damages by making an effort to re-rent the premises. The landlord may re-rent the premises on the tenant's behalf and hold the tenant liable for any deficiency. The minority rule does not require the landlord to mitigate damages and is more common in commercial leases. 2) Anticipatory repudiation Although the landlord can sue a tenant for rent as it becomes due, a landlord cannot sue for future rent due under the lease because the doctrine of anticipatory repudiation does not apply to leases. c. Holdover tenant When a tenant continues to occupy the premises without the landlord's agreement after the original lease expires, the tenant is considered to be a "holdover tenant." The landlord can continue the relationship by treating the holdover tenant as a periodic tenant or a tenant at sufferance. Alternatively, the landlord may evict the tenant by filing a lawsuit for unlawful detainer if the holdover tenant remains after serving a written notice to vacate (or "quit"). The tenant is not considered to be a holdover tenant if the tenant leaves a few articles of personal property behind or the tenant's occupation is only for a few hours. Circumstances out of the tenant's control (e.g., severe illness) and seasonal leases are also exempt from the holdover doctrine. 1) Periodic tenant By accepting rent after the termination of a lease, the landlord creates a periodic tenancy, even when the prior tenancy was a tenancy for years. The terms of the periodic tenancy otherwise generally mirror the terminated lease. a) Rent A landlord can impose a higher rent on a holdover tenant if the landlord informs the tenant of the new rent prior to the expiration of the old lease. Otherwise, the rent of the old lease applies. 2) Tenant at sufferance If the landlord refuses to accept rent from a holdover tenant, then the tenant is considered wrongfully in possession, and the landlord may evict the tenant without notice. See § II.A.4 Tenancy at Sufferance, above. 3) Self-help Most states no longer allow the landlord to use self-help (e.g., forcible entry to regain possession), but the landlord must instead (i) properly serve the tenant with notice of a lawsuit and (ii) obtain a court judgment of possession.