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Property Rule Statements
Terms in this set (18)
Tenancy in Common
Tenants in common have unified possession of an estate, which means they have an undivided interest with unrestricted rights to possess the whole, and such interest is freely devisable or transferable. Unlike a joint tenancy, there is no right of survivorship.
To create a joint tenancy, you need express language creating a joint tenancy and presence of the "four unities:" equal rights to possess the whole, with identical equal interests, created at the same time and by the same title instrument. Joint tenants have a right of survivorship and the interest is alienable, but not devisable. A joint tenancy is severed by sale, partition, or a mortgage in a title theory jurisdiction.
Tenancy by the entirety
A tenancy by the entirety requires the same unities as a joint tenancy—time, title, interest and possession, plus the additional unity of marriage between two people. Tenants by the entirety have the right of survivorship, and neither cotenant can unilaterally defeat this right by conveyance to a 3rd party.
Rights and obligations of cotenants
A cotenant in exclusive possession of an estate is not liable to other cotenants for rents (unless from a 3rd party) or profits. Cotenants can collect for operating expenses, but not for contribution for reasonable repairs and improvements unless there is an accounting or partition.
Tenancy for years
A tenancy for years is a tenancy created by express agreement for a fixed period of time. It is subject to the statute of frauds if the period of time is greater than one year.
A periodic tenancy is a repetitive, ongoing estate measured by set periods of time that automatically renew at the end of each period unless there is a valid termination notice. A writing is not required.
Tenancy at Will
A tenancy at will has no fixed period of time, parties must expressly agree to it, or one can be implied by regular rent payment, and it may be terminated by either party at any time.
Tenancy at sufferance
A tenancy at sufferance is created when a tenant wrongfully holds over past the expiration of his lease, and lasts until the landlord evicts the tenant or converts the tenancy into a periodic tenancy.
Tenant's Duties and Landlord's Duties
A tenant has a duty to pay rent, avoid waste and to make reasonable repairs. A landlord can sue tenant for damages and evict him for failure to pay rent.
A landlord must deliver actual possession to tenant, and has a duty to make residential repairs. A landlord also owes to a residential tenant a warranty of habitability and a covenant of quiet enjoyment.
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.
An assignee tenant is liable to the landlord for rent and covenants that run with the land because he is in privity of estate with the landlord.
In contrast, a subtenant is not liable to the landlord for rent or covenants because he is not in privity of estate or privity of contract with him.
To obtain ownership over property by adverse possession, plaintiff's possession must be continuous, actual, open and notorious, hostile, and exclusive.
The possession must be continuous and uninterrupted through the statutory period. Plaintiff must also have actual entry giving exclusive possession that is open and notorious. The possession must be hostile and without owner's permission, and finally it must be exclusive and not shared with the true owner.
Valid Deed Requirement
To be valid, a deed must identify the parties involved, the deed must be signed by the grantor, there must be words of transfer, and there must be a reasonably definite property description.
Delivery of a Deed
At the time of transfer, the grantor must intend to make a present transfer of the property interest to the grantee.
In a notice jurisdiction, a purchaser for value without notice of the prior interest prevails over the prior grantee who failed to record.
In a race jurisdiction, the first to record prevails, regardless of knowledge of prior conflicting interests.
In a race-notice jurisdiction, a subsequent purchaser for value without notice is protected only if he takes without notice and is first to record.
Types of Notice
A grantee possessing actual, personal knowledge of a prior interest cannot prevail under a notice or race-notice recording statute.
If a reasonable investigation would have disclosed the existence of prior claims, then the grantee is considered to possess inquiry notice, and cannot prevail against those prior claims.
Grantees are held to have constructive notice of all prior conveyances that were properly recorded.
An easement is the right held by one person to make specific, limited use of land owned by another. The land that is subject to the easement is the servient estate, whereas the land that benefits from an easement on a servient estate is the dominant estate.
For a covenant to be enforceable, it must first comply with the Statute of Frauds.
The parties must intend for the rights and duties to run with the land.
The covenant must "touch and concern the land," which generally means that the person seeking enforcement must establish that the benefit or burden affects both the promisee and the promisor as owners of land and not merely as individuals.
Under the recording acts, a subsequent purchaser without notice of a burdening covenant is not bound by it.
For the burden to run, the original parties to the covenant must have horizontal privity of estate at the time the agreement creating the covenant is entered into.
The successor to property can be held to the covenant only if title to the entire servient estate can be traced back to the promisor through vertical privity.
For an equitable servitude to be enforced at equity, it must be in writing. There must also be intent, the servitude must touch and concern the land, and the person against whom the servitude is to be enforced must have notice of the servitude.
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