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What is a term of years lease?
An estate that lasts for a fixed period of time or a computable period. It terminates automatically, but not at death. It is created by an express agreement.
What is a periodic tenancy?
A lease that continues over successive, defined periods, recurring until tenant or landlord give notice of termiation. e.g. month to month or year to year lease.
What are the rules for determining the period of a peroidic tenancy?
Majority: based upon manner in which rent is reserved.
Minority: based upon manner in which rent is paid.
When must notice be given to terminate a periodic tenancy?
Either a specificed time, or one period in advance, e.g. one month on a month to month lease. Max is 6 months. Many states now require a statutory 30 days.
What is a tenancy at will?
A tenancy of infinite duration, so long as the tenant and landlord desire. Death of a party terminates, or lease may specify who may terminate. If silent, both may.
What is a tenancy at sufferance?
Tenant's lease is over, doesn't leave, tenant is tenant at sufferance of landlord tolerating them staying. Landlord can either evict with damages, or consent to creation of a new tenancy.
What are the three legal grounds for landlord discrimination claims?
- Federal fair housing act: race, color, religion, sex, handicap, familial status, origin. selling discrimination. except if own under 3 homes or 4 units.
- 14th amendment: prohibits discrimination by the governmnet.
- 42 USC 1982 only racial discrimination, no exemptions.
What are the two different rights on first day of tenancy?
Legal right to possesion, physical right of possession. English rule is physical right, american rule is legal right.
What are the two kinds of transfer of lease? What are they?
Sublease or assignment. Sublease occurs when a tenant retains some of his rights in the property. An assignment occurs when the tenant has no more rights at all.
What does the difference between sublease and assignment mean for a T2?
A sublease means they can't be sued under privity of estate. An assignment means they can be sued under privity of estate.
What covenants run with the land?
Those that touch and concern the land. Pay monies, physical aspects of the property.
What does it mean for a assignment consent requirement to be reasonable?
It must be on commercially reasonable grounds, it can't be arbitry. Look at proposed used, need to alter premises, nature of occupancy. No denial on taste, convenience, or sensibilties.
Is there a residentially reasonable assignment requirement?
No, landlord has discrestion, except when violating fair housing law.
What are the three kinds of tenants who default?
Abandonment: Vacates without justification, no nintent to returning.
Surrender: offers to end tenancy, L accewpts.
Possible abandonment: No certainty from landlord of tenant will come back.
When can self help be used?
In an abandomnent, or when it can be accmopilshed in a peacable manner.
What is the landlord's duty to mitigate damages?
must accept a fair market offer, can't demand more than fair market.
What does the covenant of quiet enjoyment have to do with constructive eviction?
A constructrive eviction occurs when a landlord fails to make required repairs to the integrity of the premises, .resulting in a breech of the quiet enjoyment covenant.
Partial actual eviction vs. partial constructive eviction
Partial actual eviction: no paying of rent. Partial construtive, damages, but can't not pay rent.
Explain the implied warranty of habitability.
an unwaivable warranty that a code violation does not exist during the lease. Duty to repair. Tenant can stop paying rent and stay in property if there's an implied warranty of habitability breach.
What are the limitations on the implied warranty of habitability?
Not all jurisdictions use it, only applies to residential dwellings, some states, only apartments. Only health and safety issues, not ameneties.
What is retaliatory eviction?
an eviction of a tenant who doesn't have to pay rent due to IWH violation. Not legal.
What is a landlord's tort liability?
Liable for known dangeers, common area negligence, must use due care.
What is eminent domain?
intentional action initiated by government for taking of property for public use and paying just compensation.
What are the two big eminent domain issues
public use: Legislatures have authority to declare public uses, even if given to private parties. Rational basis test. Must merely have some public purpos, private benefit doesn't matter.
Just compensation: must be given fair market value, what a willing and knowledgable seller and buyer would agree upon. PErsonal value is meaningless.
What effect does the possibility of rezoning have on just compensation?
Value is based on uses, so a reasonable possibility of new uses that increases future value is taken into account.
What about a partial taking in eminent domian?
Must pay for the part taken. If the taking improves the property value, that value increase is set off the compensation.
What are the kinds of land use control created by private agreement
Easements and covenants
What are the types of implied easements
easement by strict necessity-can't use your property without this easement, e.g. surrounded by others property, easement by apparent existing use- the easement was there you both bought your property, easement by perscription, similiar to adverse possession, need not be exclusive.
What are the two kinds of easements
- Easement appurtenant: two propertyes, benefited and burdened
- Easement in gross: burdened property, connected to person.
What is a license?
Written or oral permission to occupy land that woudl otherwise be trespass. Similar to easement, but not an interest in land, and it's revocable.
When is a license irrevocable?
When it's a license incident to owning property (e.g. license to use dock comes with renting a house) and estoppel (representation made, reliance requireing expenditure of money, and inequitable not to enforce)
What are the requirements for apparent existing use?
Single ownership, one part benefits another part, exists when common owner divides property, one part is conveyed, parties reasonably expect the easement to continue, and benefit to one party is reasonably necessary.
What are the requirement for strict necessity?
Single ownership, part is conveeyd, use of the burened parcel is necessary to enjoy access to benefited parcel. When need ends, so does easment.
What is the doctrine of merger?
If benefited and burdened estates come under ownership of single person, easemnt is extinguished.
How is an express easment created
Must comply with statute of frauds, describe rights and obligations, specify intent to run with land, and be recorded.
What is a public prescriptive easement
A public use or rifght of way that creates a public thoroughfare if reasonble notice of use by general public was given to owner.
Easement of way vs. easement of general access
Way allows only ingress and egress, general access allows laying of utilites and roads, etc.
who can modify easements?
Both parties must agree on a modification, neither can modify individually.
what are the ways that easements are terminated?
- Release- easement holder releases the servient holder
- Expiration: easement for a time, time expires
- Necessity ceases for with necessity.
- Estoppel, if position changes in reliance on representation.
- Prescription: same rules
- Abandonment: if you don't use, don't intend to return
- Merger: doctrine of merger
- Eminent domain: obvious
what are the accepted negative easements?
view from window, air flowing, support of building, flow of water, conservation easement, historic preservation easement.
What is the difference between a real covenant and an equitable servitude
Real is for money damages, servitude is for injunctive relief. Different rules for both.
What are the rules for real covenants
Itent to run with land, notice to burdened party, privity of estate-horizontal and vertical, written.
What are horizontal and vertical privity.
Horizontal privity is the original transaction. A to B. Vertical privity is the subsequent transactions. A's remaining interest to C or B's remaining interest to D.
What are the two standards for vertical privity?
- Burden side: must be the exact same estate, e.g. life estate for life estate.
- Benefit side: can be any estate.
What don't you need for an equitable servitude?
H"orizontal and vertical privity, but you do need some sort of interest to sue.
what is the changed conditions doctrine?
a stringent doctrine that says that a covenant may be voided if the conditions in the land have so changed that it's no longer useful.
what is nuisance?
a substnantial nontresspassory invasion of another's property.
Validity tests for indirect and direct restraints on land
- direct: reasonabless test
- Indirect: rational justification test.
What are the classifcations of nuisance?
- Public vs. p[rivate
- Intentional vs. uninteintoal.
what to show common law nuisance?
threshold test: substantial invasion of another's interest in private use and njoyment, unreasonble, either intentional or unintentional.
What are the three approaches to fashioning a remedy to nuisance
- Traditional: if threshold met, injunction
- Balancing test: injury to defendant if granted vs. injury to plaintiff if denied.
- Utilitarian test: Utility of conduct vs, harm to plaintiff.
What is coming to the nuisance?
When buildings begin to come closer to a long residing nuisance, they don't have claims for nuisance.
what is lateral and subadjacent support?
you owe aq duty to adjoining property to support their land to the esxtent that it avoids a cave in. Subadjacent is just right to dig under, can't cave in, though.
What are the mechanics of zoning
Local gov. creates comprehensive plan, zoning regulations adopted in accorance with plan, divide community into districts, provides regulatiosn for them.
how to successfuly challenge a zoning
prove that regulation is arbitrary and unreasonable, has no substantial relation to public health, safety, moreals, or general welfare.
what is a nonconforming use?
a use that was lawful before the zoning change, that is grandfathered into the law. Owner has vested rights in the property.
When do rights vest for nonconforming uses?
when the final plan has been accepted and money has been spend to build the property.
What is a variance?
an administrative approval of a use that isn't allowed under the zoning due to unnecessary hardship of practical dificulty that shows that spirit of the ordinance is observed, substantial justice is done, and there isn't a self-createde problem.
What is a special land use?
an administrative approval expressly listed in the ordinance, taht a designated board approves and authorizes.
What is spot zoning, and when is it invalid?
Spot zoning is the zoning of one particular parcel, it's invalid of the parcel is signeld out for special treatment, it ojly benefits the landowner to the detriment of surrounding property, it's not in accord witht eh comprehensive plan..
What is a regulatory taking?
not a taking, but a burden the government places upon property. The equivilent of an emiment domain exercise, owner demands just compensation.
what is inverse condemnation?
when a government action results in the devaluation of the plaintiff's property.
what is the penn central balancing test?
- Economic impact of the regulation
- Extent to which the regulation intereferes with distinct investment backed expecations and, the character of the government action.
what are the catergorical rules for takings?
- 1. permanent physical occupation is a taking.
- 2. regulation denied all economically benefit of land.
what is the nuisance rule in regulatory takings
must be a common law nuisance, not a legislatively created one.
what is the finality of decisions rule?
Plaintiff must have undergone all adnimistraitve. challenges and appeals before their case can be considered final enough to challenge as a regulatory taking.
What about a temporal restriction on land use>
as long as it's of limited duration, it's only a partial taking, that doesn't deprive of all economic use. must look at the :whole property: both in time and space.
What is an exaction?
A government measure imposed in the administration of law or ordiannce requiring a property ownher to provide a dedication of goods, services, or pay fees are a condition of getting project approval.
What is a recipricoal negative covenant
when a common owner divides a parcel, and a covenant is placed on all the parcels but one, the court holds that the covenant was ment for that part too.
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