Property: Unit 3/4

An estate is a temporal slice of ownership rights in relation to a parcel of land

-Deed
-Will
-Intestate Succession

A living person may transfer their real property by deed. The completed transfer is called a conveyance, or a grant. The person who makes the transfer is called the grantor, and the reicipent is the grantee.

A conveyance or grant

The real property of a decedent may be transferred by will. The completed transfer is called a devise. The person whose will contains the devise is called the testator. The recipient is called the devisee.

A holographic will is a will written entirely in the handwriting of the decedent and signed by them, often without legal training or advice. These are valid in about half of states even though they don't conform to the formalities of a will.

If a person dies intestate (without a will), their real property is distributed according to state statutes, usually to the closest living relatives. The completed transfer is called instestate succession. The verb used to describe the transfer is descend. The recipients are called heirs.

Heirs

They died without a will

-Issue and surviving spouse: Issue are lineal descendants (children or grandchildren). If a decedent has a surviving spouse, then property is shared among the spouse and issue.
-Parents and their issue: Property is distributed to the decedent's surviving parents, or the children of the parents if the parents are not alive
-Ancestors and collaterals: Property is distributed to the decedent's surviving ancestors and/or collaterials (surviving blood relatives other than those already listed above)
-Escheat: If the decedent has no surviving relatives, then the decedent's property belongs to the state

A transferor can only convey what they have, not what they don't have. Therefore, any conditions on an estate transfer to the transferee.

-Fee simple absolute
-Life estate
-Fee tail
-Fee simple determinable
-Fee simple subject to a condition subsequent
-Fee simple subject to an executory limitation
-Term of years (leasehold)

FSA is the estate with the largest group of property rights recognized by our legal system. It may potentially endure forever, without limitation or condition. FSAs are freely alienable, devisable, and descendible.

Deeds or wills that restrain alienation on an FSA are generally void against public policy. However, partial restraints may be valid if they have reasonable duration, scope, and purpose.

FSA

False, entities and corporations have successors and assignees

FSA

A life estate is an estate measured by the lifetime of a particular person, such that when that person dies, the estate automatically terminates. Life estates are freely alienable, but not devisable or descendible. A future interest in a life estate is called a reversion, which becomes possessory upon the termination of the life estate.

Because a life estate can terminate at any time

The holder of a life estate

A reversion, which becomes possessory upon the termination of the life estate

Life estate

Life estate

Life estate

A life estate pur atre vie is a life estate measured by the life of a person other than the grantee. These are devisable and descendible. The future interest created in a life estate is a remainder.

Life estate pur atre vie

Life estate pur atre vie

Life estate pur atre vie

The duration of a fee tail is determined by the lives of lineal descendants of a particular person. Fee tails have a limited right to alienate, are devisable, but not descendible. The transferee may only alienate their right of possession until their death, because when they die, the transferee's lineal heir gets the estate, making it devisable, but not descendible. Most jx reject fee tails because they undermine democracy and impair freedom of alienation.

False, a fee tail has a limited right to alienate. The transferee may only alienate their right of possession until their death.

False, a fee tail is devisable because it vests to the lineal heir automatically, but that is also why it is not descendible.

It is either an FSA by default, or some jx will reserve the fee tail only for the first holder, and then treat the estate as an FSA afterward.

Fee tail

A transferor may restrict a fee tail so that it descends only to the transferee's descendants who are parented by a particular person.

Fee tail special

A form of fee tail which passes to only lineal male descendants

Fee tail male

An estate which may continue forever, or end upon the occurence of some future event.

True

An FSD is a fee simple estate that terminates automatically when a certain event or condition occurs, giving the right of possession to the transferor. In most jx, it is freely alienable, devisable, and descendible. The durational event or condition would apply to any transferee. The future interest created in an FSD is a possibility of reverter.

Fee simple determinable. The "and their heirs" is the words of limitation, and the "so long as used for residential purposes" is the words of duration.

A possibility of reverter is the future interest retained by the grantor when they convey an FSD. It may never actually vest if the durational condition in the FSD is not violated. If the condition of the FSD is violated, then the estate automatically reverts to the grantor or their heirs.

An FSSCS is a fee simple created in a transferee that may be terminated by the transferor when a certain event or condition occurs. If the condition is violated, the estate doesn't automatically revert to the grantor. The future interest creates is a right of re-entry, where the transferor would have to take action to terminate the estate within a reasonable time. FSSCS is freely alienable, devisable, and descendible, but any transferee is still bound by the condition.

Right of entry, where the transferor has to take action to terminate the estate in a reasonable time after the condition is violated

If a condition is violated in an FSD, the estate automatically reverts to the transferor, but in an FSSCS, it does not automatically revert to the transferor because the transferor has to take action to terminate the estate in a reasonable time

FSSCS. "to A and their hiers" are the words of limitation, "but if the land is ever used for commercial purposes" are the words of condition, "the grantor has the right to re-enter and re-take" is the power of termination

Power of termination refers to language in a deed for an FSSCS which signals the right of re-entry

An FSSEL is a defeasible fee simple estate created in a transferee that is followed by a future interest in another transferee. The estate terminates automatically when a certain even or condition occurs. Both the present and future interest are freely alienable, devisable, and descendible, but any transferee is bound by the condition.

Unlike an FSD and FSSCS, the future interest of an FSSEL is not held by the transferor, it is an executory interest held by a third party.

FSSEL. "to A and their heirds are the words of limitation. "but if the land is ever used for commerical purposes" are words of condition. "then to B and their heirs" is the executory limitation language

True

A term of years (leasehold) is an estate that has a fixed duration established in advance

If the language of a deed or will is ambiguous, courts interpret it in accordance with the transferor's intent. If intent can't be determined, the court applies its rule of construction to break the tie. Most jx presume it is an FSA.

If the language is ambiguous, courts interpret it in accordance with the transferor's intent. If intent can't be determined, then the court applies its rule of construction to break the tie. Most jx presume an FSSCS, because it presents a limited possibility of foreclosure compared to an FSD, which forecloses automatically.

Because a FSSCS presents a limited possibility of foreclosure compared to an FSD, which forecloses automatically.

Automatically, because the possibility of reverter transfers the estate back to the stranferor automatically. Therefore, the transferor must act quickly to remove unwanted persons from their land in ordet to avoid an adverse possession claim.

The SOL only begins running when the grantor exercises their right of entry, because the estate still technically belongs to the current possessor, as FSSCS's don't terminate automatically when the condition is breached.

The SOL cannot begin running against a future interest holder until their interest actually becomes possessory.
-FSD: SOL begins automatically at breach
-FSSCS: SOL begings only when the grantor exercises right of entry
-FSSEL: SOL begins automatically at breach; executory interestholder needs to go reclaim ASAP
-Life Estate: SOL begins when the measuring life dies

-Disabling restraint: A restraint that prevents the transferee from transferring their interest
-Forfeiture restraint: A restraint that leads to forfeiture of title if the transferee attempts to transfer their interest
-Promissory restraint: A restraint that stipulates that the transferee promises not to transfer their interest

Disabling restraint

Forfeiture estate

Promissory restraint

The separataion of legal title (held by trustee) and equitable title (held by beneficiary)

The party in a trust who holds legal title to the property. They manage, invest, and administer the property, but have a fiduciary duty to do so for the benefit of the beneficiary.

The party in a trust who holds equitable title to the property. They do not manage the property, but are entitled to receive the benefits, income, or proceeds from it.

An attested will is the most common method of transferring property at death. It is 1) in writing, 2) signed by the testator, 3) and signed by at least two witnesses.

A testamentary trust is a trust created by a will that takes effect at death. It requires testamentary intent, the intent to function as a will.

A revocable trust is a trust that takes effect during the owner's lifetime (inter vivos), unlike a testamentary trust which only activates at detah.

A testamentary trust is created by will and takes effect at death, whereas a revocable trust takes effect during the owner's lifetime. Both are commonly combined with an attested will as part of an estate plan.

The waste doctrine imposes a duty on a life tenant to use the property in a manner that does not significantly injure the rights of the future interestholders.

A life tenant and a future interestholder

Waste doctrine doesn't apply to defeasible fees because the right of re-entry, possibility of reverter, and executory interest are all seen as contingent, speculative interests because there is a chance they never actually vest.

-Voluntary waste
-Permissive waste
-Ameliorative waste

Voluntary waste results from an affirmative act that significantly reduces the value of the property. The future interestholder may recover damages or injunctive relief.

Damages or injunctive relief

Permissive waste results from failure to take reasonable care to protect the estate

Damages or injunctive relief

Ameliorative waste results from an affirmative act that leds to a substantial change in the property and increases its value. It is not recognized by most jx.

A non-possessory right that may become possessory in the future

-Reversion
-Possibility of reverter
-Right of entry

-Remainder
-Executory interest

A reversion is a vested future interest retained by the transferor that arises automatically whenever a transferor conveys a smaller estate than the one they hold. It is freely alienable, devisable, and descendible.

False, because reversions refer to only the transfer of smaller estates than what the transferor has

Yes, but it depends on the type of future interest

A possibility of reverter is a vested future interest automatically retained by a trnasferor when they convey an FSD. It becomes possessory automatically if the durational condition of the FSD is breached. In most jx, it is alienable, devisable, and descendible.

A right of entry is the future interest retained by a transferor when they convey an FSSCS. It does not end automatically upon breach of the FSSCS condition, and the trnasferor must affirmatively exercise their right of entry to reclaim the property. In most jx, it is freely alienable, devisable, and descendible.

True

A future interest in a transferee that 1) is capable of becoming possessory immediately upon the expiration of the prior estate, and 2) does not divest any interest in a transferee.

A remainder does not have to become possessory. The possibility of possession is enough.

A remainder cannot cut short a prior transferee's interest. It can only become possessory by waiting patientialy for the prior estate to naturally run out.

If "to A for life, then to B", then indefeasibly vested remainder (because third party)
If "to A for life", then reversion (because no third party)

Almost always an executory interest, because it necessarily divests the fee simple holder to become possessory

An executory interest is a future interest in a transferee that ust divest another estate or interest to become possessory

Vested remainder or contingent remainder

-Indefeasibly vested remainder
-Vested remainder subject to divestment
-Vested remainder subject to open

An indefeasibly vested remainder is a remainder that is certain to become a possessory estate. It is 1) created in an ascertainable person, 2) not subject to a condition precedent other than the natural termination of the prior interest, and 3) not subject to divestment

A person who is both alive and identifiable at the time of transfer. Unborn children and heirs are not ascertainable.

True, ascertainable persons must be alive

A condition that must be met before the remainder can become possessory, oher than the natural termination of the prior interest

A vested remainder subject to divestment is a remainder that is 1) created in an ascertainable person, 2) not subject to a condition precedent other than the natural termination of the prior interest, but 3) is subject to a condition subsequent that may divest before or after the interest becomes possessory

A vested remainder subject to open is a remainder that is 1) created in at least one ascertainable person, 2) meets any condition precedent, but 3) the class may expand to include additional members, making each class member's individual shares subject to diminishment if new class members are added.

An executory interest is a future interest in a transferee that can only become possessory by divesting another interest before it naturally expires.

A remainder waits patiently for the prior estate to naturally terminate, but an executory interest must cut short a prior interest to become possessory.

Shifting and springing

An executory interest that divests a prior trnasferee's interest

An executory interest that divests the transferor's interest

Springing executory interest, because A's interest "springs out" if A does a certain thing, divesting the transferor's possessory interest

Shifting executory interest, because B's interest can divest the possessory interest of A (the transferee)

True

RAP applies only to contingent remainders, executory interests, and vested remainders subject to open. It provides that those interests are valid only if they either will vest, or forever fail to vest, within the 21-year perpetuties period. Any possibility of the interest vesting beyond the perpetuities period makes that interest void.

-Contingent remainder
-Executory interests
-Vested remainders subject to open

We want to prevent future interests from becoming possessory too far into the future, or from never becoming possessory, to promote free marketability of land. RAP seeks to eliminate an owner's ability to create future interests that are too speculative or contingent.

A savings clause may be inserted into a conveyance to prevent a RAP violation. It provides that any interest that has not vested by the end of the 21-year perpetuities period shall automatically vest or terminate only at that point.

Life estates, leaseholds, and fee tails

A contingent remainder is a remainder that is either given to an unascertainable person, or subject to a condition precedent

-Tenancy in common
-Joint tenancy
-Tenancy by the entirety

A tenancy in which each tenant in common has an undivided, fractional interest in the property, which may be transferred to another person. Each tenant has the right to use and possess the whole parcel, even if their fractional interest is smaller than the interest of others. This tenancy is freely alienable, devisable, and descendible.

Tenancy in common, unless the deed or will contains language showing an intent to create a joint tenancy

A tenancy in which each joint tenant has an undivided right to use and possess the whole property, and a right of survivorship. A right of survivorship means that when a joint tenant dies, their interets in the estate is removed, giving the suviving tenant(s) the remaining interest in the property. In some jx, a joint tenancy is created only when the four unities of time, title, interest, and possession, are present.

-Time: They must have acquired their interests at the same time
-Title: They must acquire title by the same instrument (ex: deed)
-Interest: They must have the same shares in the estate, equal in size and duration
-Possession: They must have an equal right to possess, use, and enjoy the whole property

A tenancy in common is created

Because of the automatic right of suvivorship, a joint tenancy is cheaper than a will, and the assets wouldn't need to go through probate

In some jx, any conveyance or devise to a married couple is presumed to create a tenancy by the entirety. Other jx require language showing an intent to create this tenancy through the language of the instrument. Tenants by the entirety have an undivided right to use and possess the whole property, and a right of survivorship. The four unities of time, title, interest, and possession, plus a valid marriage, are required. This tenancy can only be terminated by death, divorce, or agreement of the spouses. Most jx that recognize this tenancy hold that neither spouse may transfer or encomber their interest.

Death, divorce, agreement by spouses

True

It allows a married couple to partially shield their assets from creditors

Severance occurs when a joint tenant ends their tenancy by conveying their interest to a third party. It refers to the destruction of one or more of the four unities that converts a joint tenancy, or a share of it, into a tenancy in common.

No, severance applies only to joint tenants

-Voluntary transfer: A joint tenant can voluntarily transfer their interest to a third party
-Partition: A judicial or voluntary division of the property
-Mortgage: Title theory

True

True

When a joint tenant mortgages their interest, some jx follow title theory, and others follow lien theory. Under title theory, the mortgage is treated as the conveyance of title to the mortgagee, which severs the joint tenancy because it destroys the unity of title, converting the joint tenant's share into a tenancy in common. Under lien theory, the mortgage is treated merely as a lien to secure repayment of debt, which does not sever the joint tenancy because the unities are preserved.

Secret severance permits a joint tenant to secretely convey their interest to themselves, transforming their interest as a joint tenant into a tenant in common. Secret severance preserves the shares among the joint tenant(s) and tenant in common, but the joint tenant(s) no longer have right of survivorship as to the tenant in common's share of the property.

Under title theory, the joint tenancy was already severed, so the surviving joint tenant takes no survivorship right to that share and the mortgagee may enfore against the estate. Under lien theory, the joint tenancy never severed, so the surviving joint tenant takes the whole property by survivorship, potentially free of the mortgage.

Courts increasingly focus on intent when determining whether a joint tenancy has been created or severed, rather than the traditional four unities.

When tenants can't agree how to end their tenancy, they may sue for partition of the property, and the judgment ends the cotenancy and distributes its assets. Partition in kind, the physical division of the property among co-tenants, is preferred in most jx. Partition by sale is more common in practice. Courts order partition by sale when 1) the property can't be physically divided conveniently, 2) the interests of one or more parties will be promoted by the sale, and 3) the interests of other parties will not be prejudiced by the sale.

Partition by sale and partition in kind

-The property can't be partitioned in kind conveniently
-The interests of one or more parties will be promoted by the sale
-The interests of other parties will not be prejudiced by the sale

True

-Right to occupancy (concerns ouster)
-Costs (concerns sharing rents and profits, costs, needed repairs, and improvements of the property)

In most jx, a co-tenant in possession does not owe any rent to a co-tenant out of possession, absent an ouster. Some jx take the opposite approach. Ouster occurs when a co-tenant in possession refuses to allow another co-tenant to occupy the property

Ouster occurs when a co-tenant in possession refuses to allow another co-tenant to enter the property

Once a co-tenant has been ousted, they must assert their interest within the statutory period or risk losing it entirely, given that the co-tenant remaining on the property may pursue adverse possession.

Adverse and hostile, because if you know whether the jx requires good faith, then you may be able to rule it out without doing a full analysis since the claimant knows the property doesn't fully belong to them.

Each co-tenant is entitled to their proportionate share of all rents and profits derived from the land

True

Generally, each co-tenant must pay their proportionate share of operating and maintenance expenses. If a co-tenant fails to pay their share, the other co-tenants may seek reimbursement for these expenses in a contribution action.

A claim brought by one co-tenant against another to recover a proportionate share of costs the co-tenant has paid in excess of their fair share of expenses related to the jointly owned property

Yes, but only if the costs exceed fair rental value

Mortgage payments, capital expenses, real estate taxes, sewer charges, homeowner's insurance, etc.

A co-tenant who pays for needed repairs, such as a leaky roof, can receive a credit for these costs in an accounting action or a partition action

A co-tenant who improves the proeprty receives a credit equal to the increased market value produced by the improvement in an accounting or a partition action

Immutable rules supercede any contrary provisions in a lease, usually in order to protect residential tenants

Default rules fill in the gaps that the parties did not address in their lease

True, but they cannot evade immuntable rules

False, landlords are subject to modern federal and state statutes, including the FHA and Civil Rights Act

Per the FHA, a landlord cannot refuse to rent to a tenant on the basis of race, color, religion, sex, handicap, familial status, or national origin. However, the FHA does not apply to 1) Owner-occupied dwellings with no more than 4 units where the owner lives in one of the units, or 2) single-family homes sold or rented by an owner who owns no more than 3 such homes and does not use a real estate broker/agent.

They can allege sex discrimination

The FHA prohibits discriminatory advertising on all dwellings

-Owner-occupied dwellings with no more than 4 units where the owner lives in one of the units
-Single-family homes sold or rented by an owner who owns no more than 3 such homes and does not use a real estate broker/agent

By using a burden-shifting framework as follows:
1) Plaintiff establishes prima facie case (P belongs to protected class under FHA, P applied for and was qualified to rent the unit, P was denied rental, the property remained available afterword)
2) Defendant must prove a legitimate, nondiscriminatory reason
3) Plaintiff must show that the reason is merely pretextual, using either a disparate treatment or disparate impact theory.

-Plaintiff belongs to a protected class under the FHA
-Plaintiff applied for and was qualified to rent the unit
-Plaintiff was denied rental of the unit
-Property remained available afterword

The plaintiff alleges that they were personally treated disparately as a result of the defendant's conduct

The plaintiff uses statistical evidence to show the defendant's conduct had a disparate impact on a group of people in a protected class

The Civil Rights act provides additional protection against rcial discrimination. It holds that all citizens of the US shall have the same right in every state and territory as those enjoyed by white citizens to inherit, purchase, lease, sell, hold, and convey real and personal property.

True

False, it is not unlawful to discriminate in the selection of a roommate

A dwelling is any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.

-Term of years tenancy
-Periodic tenancy
-Tenancy at will
-Tenancy at sufferance

A term of years tenancy has a fixed duration that is agreed upon in advance. Once the term ends, the tenant's possessory right automatically expires, and the landlord may retake possession of the premises.

A periodic tenancy is automatically renewed for a successive period unless the tenant or the landlord terminates the tenancy by giving advanced notice. For month-to-month tenancy, one month notice is sufficient. For year-to-year tenancy, 6 month notice is sufficient.

One month notice

6 month notice

A tenancy at will has no fixed ending point, and continues so long as both the landlord and the tenant desires. However, most jx require advance notice to end this tenancy. Tenancies at will may be formed either by express agreement or by implication based on the parties' actions, such as when a tenant remains on a property after a formal lease has expired, and the landlord continues to accept rent payments without a new lease.

Tenancy at will

True, this includes when a tenant remains on a property after a formal lease has expired, and the landlord continues to accept rent payments without a new lease.

A tenancy at sufferance arises when a person who rightfully took possession of land wrongfully continues possession after that right ends. The landlord then can either 1) treat the holdover tenant as a trespasser and evict, or 2) renew the tenancy for another term. Most jx have abolished or limited the option to renew tenancy, some requiring double rent during the holdover period, and others limiting the renewed tenancy to one year.

"Good cause". In a few states, a residential landlord may evict a periodic tenant only for good cause, such as failure to pay rent, engaging in criminal activity, or harassing other tenants.

Period tenancy, because it gives parties more notice to terminate the lease than a term of years, which has a fixed duration that may be more harsh on the tenant

Tenancy at at will, because tenancy at sufferance is more harsh on the tenant

True

A lease transfers the exclusive right of possession to the tenant

A license gives a personal privilege to use the land of another for some specific purpose

The cohabitor would likely be a licensee if they had no exclusive dominion and control over a particular part of the unit

Most jx have a SOF in which the leasing of real property for a term of more than one year cannot be enforced unless it is 1) in writing, 2) includes key lease terms (parties, property, duration, rent), and 3) is signed by the party to be charged. This does not apply to month-to-month periodic tenancies.

Party names, property description, duration of lease term, and rent fee

False, they apply to lease terms for more than one year

Landlords usually have tenants sign pre-printed standard lease forms without extensive negotiations, unlike with commercial leases, where negotiation is expensive

Some jx limit the amount of rent that a residential landlord can charge, having them select a "base rent" per unit, then having a capped automatic annual increase for the units. However, an individual landlord may seek discretionary rent increases for particular units based on special circumstances.

False, an individual landlord can seek a discretionary rent increase for a particular unit, under special circumstances

In majority of jx, the lessor implicitly covenants to deliver actual possesion of the premises to the lesee at the beginning of the lease term. This is because the lessor is not only more likely to know the status of the premises and the rights of any premise occupants, but also because they have the power to evict persons improperly remaining on the premises.

The tenant may either 1) terminate the lease and sue the landlord for damages, or 2) affirm the lease, paying no rent until the premises are vacant, and collecting damages from the landlord

In a minority of jx, a lessor only promises that possession of the premises will not be withheld by them or by someone with superior title.

The tenant may sue the holdover tenant to recover possession and damages, but they cannot sue the lessor.

If the federal government is the lessor of a property, the American Rule always applies.

All jx agree that the lessor is to deliver the legal right to possession when the lease term begins. If the lessor leases the same premises to multiple parties, the lessor is liable for damages.

At common law, promises made in leases to tenants were treated only as independent covenants, meaning that a breach of a promise was not a valid reason to terminate the entire lease.

Constructive eviction allows a tenant to vacate the premises and end the lease, avoiding liability for rent following 1) wrongful conduct, 2) by the landlord, 3) that substantially interfered with the tenant's beneficial use and enjoyment of leased premises. Generally, the tenant must 1) notify the landlord about the problem, 2) give the landlord a reasonable period to fix the problem, and 3) vacate the premises. Some jx allow the tenant to remain in possession and recover damages. The vacating of the premises cannot occur to suddenly or too late.

At common law, the implied covenant of quiet enjoyment meant that the landlord promised not to interfere with the tenant's possession of the land, but eviction would break this covenant. Constructive eviction arose when conduct other than actual eviction was argued to serve as the "functional equivalent" of eviction.

This element may be satisfied by an act or omission.

-Failing to perform a lease obligation
-Failing to maintain control of a common area
-Breaching a statutory duty to the tenant
-Failing to perform promised repairs
-Allowing nuisance-like behavior

-Blocking tenant's access to the premises
-Createing a nuisance affecting the tenant
-Harassing the tenant's customers
-Repeatedly trespassing the premises

Generally, the tenant cannot assert a constructive eviction agains the landlord for the acts of third parties, unless the landlord has a legal right to control the third party's conduct

In Kaminsky, substantial itnerference was found even though there was little evidence that the physican actually lost any business, his business was only affected one day per week, and he could have scheduled his abortions to a different day of the week to avoid the protesting.

Generally, the tenant must 1) notify the landlord about the problem, 2) give the landlord a reasonable period to fix the problem, and 3) vacate the premises. Some jx allow the tenant to remain in possession and recover damages. The vacating of the premises cannot occur to suddenly or too late.

Constructive eviction is generally a better claim for commercial tenants because residential tenants are more successful in claims for breach of implied warranty of habitability.

Some jx permit residential tenants with reasonable fear that abuse may continue if they remain in the unit t terminate their lease and avoid future rent liability, without obtaining the landlord's consent

In almost every jx, the implied warranty of habiltability allows residential tenants to pursue a claim against their landlord for inahbitability of the premises. Jx vary in their standards for habitability, but generally, housing must be clean, safe, and fit for human habitation. The tenant must 1) notify the landlord about the defects, and 2) allow a reasonable time for the landlord to make needed repairs. The tenant is not required to vacate the premises.

Waiver of the implied warranty of habitability is considered void against public policy

-Withhold rent
-Repair and deduct
-Sue for damages
-Terminate the lease

The tenant may remain in possession and withhold rent until the landlord cures the habitability problem. In most jxm the tenant can withhold all rent even for a partial breach. This is generally the most effective remedy, because the landlord has an incentive to repair the premises.

No, because the breach of implied warranty of haitability itself is a defense to a constructiv eviction claim.

In many jx, a tenant may withhold rent and use the funds to repair the defects on their own

The tenant may sure for damages while remaining in possession, or after vacating the premises. Courts apply different tests to determine how much damages are approoriate.

In most jx, the tenant may terminate the lease and vacate the premises, thus avoiding liability for future rent

A tenant and a landlord are generally entitled to transfer their interests to third parites, either by sublease or assignment. These transfers give rise to different privity relationships. Privity of contract is when the parties have rights and duties under contract law. Privity of estate is when the parties have rights and duties under property law.

When the parties have rights and duties under contract law

When the parties have rights and duties under property law

An assignment occurs when a tenant (assignor) transfers (assigns) their entire interest in the leased premises to a third party (assignee). This gives rise to a triangular landlord-tenant relationship. The assignor maintains privity of contract with the landlord, while the assignee has privity of contract with the assignor and privity of estate with the landlord.

The assignee and the landlord share rights and duties under property law, and contract law if the assignment required the landlord's permission. The landlord and assignee must perfom the original obligations of the lease that "run with the land" (relate to the use or occupancy of the premises).

Landlord has to make repairs and provide heat; assignee has to pay rent and use the premises in the way that they are intended for

The payment of attorneys fees, because it doesn't relate to the use or occupancy of the premises

True, in most jx, even a transfer of a rental interest that reserves a right of entry is still considered an assignment, even though assignments normally transfer the assignor's full interest to the assignee

No privity of contract, but privity of estate, because the assignee is the one using their land

Privity of contract, because the assignor and the landlord were parties to the original contract. No privity of estate because the assignor is no longer using the land.

Privity of contract, because the assignor and the assignee are parties to a contract between one another. No privity of estate, because the assignor does not own the land which the assignee is using.

A sublease occurs when a tenant (sublessor) transfers (subleases) part of their interest in the leased premises to a third party (sublessee). This gives rise to two separate landlord-tenant relationships. The sublessor maintains both privity of contract and estate with the landlord, whille the sublessee has both privity of contract and privity of estate with the sublessor. The sublessee has no relationship with the landlord.

The sublesee does not owe rent to the landlord, they owe rent to the sublessor, because the sublessee's privity of contract is with the sublessor and not the landlord.

The sublessee can still be evicted by the landlord for failing to pay rent, even though they have no privity with the landlord, because the landlord maintains superior title to the premises. However, the landlord would sue the sublessor for damages, and the sublessor would sue the sublessee for damages.

Using the terms "sublease" or "assignment" are not always dispositive. Most jx apply an objective test, asking whether the tenant transferred their right of possession for all of the remaining lease term (assignment) or not (sublease). In some jx, the distinction between assignment and sublease turns on the intent of the parties, and it is possible that a sublease lasts for the entire remaining term of the original lease.

A sole discretion clause permits the landlord to refuse transfer of possession of the property for any reason whatsoever in their sole discretion

A reasonableness clause permits the landlord to refuse transfer of possession of the property only on commercially reasonable grounds.

-Preserve the image of commercial housing
-Ensure a good mix of tenants
-Prevent business that may be unsuccessful at that location
-The amount of rent that a replacement tenant would generate is not desirable
-The ability of that tenant to run a successful business in general is not sufficient

When the lease requires the landlord's consent to transfer the property, but contains no guide as to how that decision is made, the modern trend is that the landlord has permission to refuse consent only on a commercially reasonable basis. This is also called the Kendall standard.

Assignment or sublease

-Surrender
-Abandonment
-Eviction

Surrender occurs when the parties mutually agree to terminate their lease prior to the lease term's expiration

Abandonment occurs when the tenant vacates the leased premises before the lease expires and defaults on rent, without any justification or intention of returning. If a tenant vacates the premises with justification, such as by constructive eviction, then no abandonment occurs.

When a tenant has abandoned their lease, the landlord may sue for all rent, terminate the lease, or mitigate damages, then sue for rent. However, under the Sommer approach the landlord must either terminate the lease or mitigate damages in almost all jx.

The landlord can keep the premises vacant until the lease term expires, and then sue the tenant for all accrued rent

The landlord can treat abandonment as an implied offer of surrender and terminate the lease

The landlord may mitigate their damages by reletting the premuses to another tenant, retaining that rent, and then suing the previous tenant for the balance difference

A landlord may pursue eviction when a tenant remains on the premises, but stops paying rent. To evict the tenant, the landlord may either use self-help, or sue the tenant, depending on the jx.

In most jx, the landlord may only evict the tenant through the judicial process. The judgment ordering the tenant's eviction could then be eforced by a law enforcement officer if needed.

In some jx, the landlord may physically enter the premises and use a reasonable amount of force to cause the tenant to leave.

A landlord may not terminate a periodic tenancy in violation of the FHA, which makes it illegal to make unavailable or eny a dwelling to any person for a discriminatory reason.

Most jx protect tenants from retaliatory eviction by statute, with varying scope as to what tenant conduct is protected and whether it applies to a refusal to renew a period of years tenancy, commercial tenants, increases rent, and/or decreases services.

In some jx, retalitatory intent is presumed if the eviction occured within a year of the tenant's protected conduct. This presumption is rebuttable by the landlord with evidence. If the eviction occured more than a year after the protected conduct, then the tenant bears the burden of proving intent. Some jx always require the tenant to prove retaliatory intent.

Some jx hold that a landlord may only evict a tenant for a good faith reason.

In most jx, a landlord is limited in how they can impose a security deposit. Limits may extend to the amount of the deposit and how it can be used. There may be a requirement for an itemized statement of how the deposit is used, deadlines and other process requirements, and remedy for damages available to tenants.

In CA, landlords must send the tenant's security deposit within 21 days of vacating, otherewise they may owe statutory damages up to twice the amount of the deposit, in addition to actual damages, if the deposit was held in bad faith.

The landlord must evict the trespasser. The new tenant can then sue the landlord for damages, and the landlord can recover those damages from the trespasser. The new tenant cannot evict or sue the trespasser for damages directly.

-The landlord doesn't have to maintain the premises in perfect condition, so minor defects are not recoverable
-The landlord isn't liable for any defects caused by the tenant
-The landlord must have a reasonable amount of time to repair material defects before breach can be established

False, they are sufficient to show breach, but not necessary to show breach

True

-Purchase contract
-Closing
-Title Protection

The parties negotiate and sign a written purchase contract, which is usualy standard, pre-printed form supplied by a real estate broker. The parties fill in the blanks on the form and customize it for their transaction. The contract sets force the price, method of payment, time for performance, etc.

After the purchase contract is signed, the contract is fully performed at the closing, when the buyer pays the purchase price, the lender advances the loan funds, and the seller transfers title.

After closing, the buyer protects their title through title covenants, a title opinion based on a search of public records, and/or title insurance policy.

The executory period is the period between the signing of the purchase contract and the closing. During this stage of the transaction, 1) the seller's title is examined, 2) the condition of the property is evaluated, 3) the buyer obtains financing from a bank or other lender, 4) an escrow is opened to consumate the transaction, 5) various documents are prepared, including the deed, mortgage, promissory note, and escrow instructions

-SOF issue
-Marketable title issue
-Equitable conversion
-Disclosure issue

All jx have an SOF requiring that a contract for the sale of real property is 1) in writing, 2) includes essential terms, and 3) is signed by the party to be charged. The failure to comply with SOF does not void the contract, but prevents the contract from being enforced.

Essential terms includes the identity of the parties, the price, and the property description. Some courts are flexible on price, accpeting a formula. An informal description of the property is okay, and may include a government survey, metes and bounds description, or a subdivision map. The writing can be an informal memo.

While oral contracts are generally not enforceable, a party may obtain specific performance to prevent estoppel, or if part performance has already occured. Some jx observe that acts of part performance may serve as evidence of both reasonable reliance on a contract under estoppel, and a change of position under part performance, necessitating enforcement of the contract.

A party may obtain specific performance, despite only having an oral contract for the sale of real property, if 1) they acted to their detriment in reasonable reliance on the other's oral promise, and 2) serious injury would result if enforcement is refused. This exception usually applies if the buyer relied on the oral agreement by selling another property or if the seller refused other offers for the property. Some jx require a showing of a hard degree of hardship.

Oral contract exception applied despite non-compliance with SOF, because the buyer reasonably relied to their detriment as they no longer had a place to live.

A party may obtain specific performance, despite only having an oral contract for the sale of real property, if they 1) take possession, 2) pay at least part of the purchase price, and 3) make improvements to the property. Some jx differ as to whether one of these elements may be dropped.

The writing must be signed by the party to be charged. An e-signature is okay. An agent's authority to bind a party to a contract for the purchase of real property must be set forth in a writing duly signed by that party.

In every contract for the sale of real property, the seller expressly or impliedly promises that they will deliver marketable title, unless the contract specifies otherwise. Generally, marketable title is defined as title reasonably free from doubt as to its validity.

Title need not be perfect. Almost every title has minor imperfections. If a reasonable and prudent purchaser would pay fair market value for the property, then title is considered to be marketable.

Most jx hold that the seller is not required to produce a marketable title until the closing. Moreover, if the contact stipulates that time is of the essence, then the seller won't have time to cure defects. The failure of the seller to act timely is a breach of contract, which is grounds for the other party to terminate the contract.

True, if it's clear that the seller will not be able to convey marketable title.

Unless the parties agree otherwise, all rights under the purchase agreement are extinguished, or "merged" into the deed at closing. Thereafter, the rights of the parties are governed by title covenants in the deed, if any. After acceptance at closing, the buyer can no longer sue to enforce the seller's promise to deliver marketable title.

False, due to the merger doctrine

False

Generally, title is unmarketable if 1) the seller's property interest is less than what they purport to sell, 2) the title is subject to an encumbrance, or 3) there is reasonable doubt about 1 or 2.

False, because the seller's property interest is less than what they purport to sell

A right or interest in land, other than a freehold estate, that reduces the value or use of that land. This includes easements, leases, leans, mortgages, options, and water rights. Encumbrances make title unmarketable.

Some jx preume that, if there are visible encumbrances or the buyer's knew of an encumbrance, they impliedly agreed to accept title burdened by the encumbrance and took this into account when setting the purchase price.

True

No.Statutes, ordinances, and other public restrictions do not make title unmarketable, even if they severely restrict the use of the property.

Courts differ here

An insurable title is one that a title insurance company would be willing to insure at normal rates. Since title insurers evaluate risk, an insurable title standard may provide less protection than a marketable title standard.

Record title is the title that appears in the public land records. Even if a seller has record title, it may be invalid. Record title doesn't protect against title defects not reflected in the public records. For example, forged deeds are invalid, and adverse possession doesn't appear in the public record.

In many jx, unless the purchase contract contains a clause specifying otherwise, the buyer is considered an equitable owner of the property, and the seller is considered an equitable owner of the purchase price, after signing the purchase contract. This means that the buyer is still obligated to pay the purchase price even if the property is damaged or destroyed during the executory period.

True, because the buyer is confiered an equitable owner of the property unless the purchase contract contains a clause specifying otherwise

True, because the contract is still valid under equitable conversion, and can be enforeced by the heirs or devisees of either party

True

In most jx, the seller of residential real property must disclose on-site defects they know about that 1) materially affect the value of the property and 2) are not known to be readily discoverable by a buyer. Actual knowledge of a defect is generally required, whereas constructive knowledge is inconsequential. Many jx require the seller to provide a written disclosure statement to the buyer, which vary, but may extend to building code violations, zoning violations, structural defects, and drainage issues. In some jx, the seller has no duty to disclose, and the buyer is responsible for assessing the condition of the premises.

True, in many jx.

A seller must determine which off-site conditions are both material and not readily observable. Some jx require that anyone maintaining an off-site condition has to register it with the municipial clerk, and a seller must notify the buyer about the availability of that list.

Overhead transmission lines, underground gas lines, sewage stations, wastewater treatment plants, and a variety of other physical conditions

In some jx, the seller of real property has no duty to disclose defects on the property to the buyer, and the buyer is responsible for assessing the condition of the premises. The only exceptions to this would be fraud, or breach of implied warranty of quality.

In jx that follow caveat emptor for the disclosure of defects on the property, the seller would be liable if they affirmatively misrepresented the condition of the property, actively concealed its defects, or owed a fiduciary duty to the buyer

In jx that follow caveat emptor for the disclosure of defects on the property, the developer of newly-constructed residential property impliedly warrants that the property is fit for its intended use, and is liable for breach of this warranty, even if they have no actual knowledge of the defects. In most jx, this warranty runs from the original owner to subsequent purchasers.

-Fraud
-Breach of implied waranty of quality

The sale of real property is a sale of title to the property, not the sale of the property itself.

-Title covenants
-Title opinion based on a search of public records
-Title insurance
None of these provide complete protection, but may be combined.

A buyer can purchase a title insurance policy to supplement the title covenants in their deed.

Deeds usually contain title covenants, which are express promises by the grantor about the state of title. The buyer's rights will depend on 1) the type of deed they received and 2) the scope of any promises that the saller made in that deed.