Bar – Real Property

• Fee Simple Absolute
• Fee Simple Determinable
• Fee Tail
• Life Estate
• Term

• Joint Tenancy
• Tenancy in Common
• Tenancy by the Entirety

• Possibility of Reverter (FSD)
• Right of Reentry/Power of Termination (FSSCS)
• Reversion (LE)

• Executory Interests
• Remainder

Largest estate in land; person has all the rights available in land; may last forever

• Traditional: "A to B and his heirs."
• Modern: "A to B."

Estates may terminate before their maximum duration has run

• Durational Language
• So long as, as long as, while, during, unless

Immediately at the happening of a future event 

Possibility of reverter

Conditional language that could end the estate early

• Conditional Language
• Provided, however; however, if; but if; on condition that; in the event that

Condition is triggered and grantor attempts reentry

Right of Grantor to reenter land (must exercise duty)

Go with FSSCS

On the happening of an event, estate terminates and property will pass to someone other than the grantor

Either FSSCS or FSD language

Future interest following an FSSEL

Grantor conveys land to lineal descendants

Texas has abolished; convert to fee simple absolute

A to B and the heirs of his body.

Convert to FSA!

Lasts for duration of grantee's/3d person's life

Duration measured by the life of someone else

• Reversion in Grantor
• Remainder in 3d party

Yes.

"A to B for life, as long as B farms the land."

• 1. Maintain property in a reasonable state of repair;
• 2. Pay all ordinary taxes; and
• 3. Pay interest on any mortgages

Estate limited to a set duration

Essentially, LL/tenant relationship

Future interest in grantor that follows a defeasible estate

No words of creation; automatic

Statute of limitation begins to run against the grantee (and AP limit)

Freely transferable, devisable, and descendible

Created in grantor and follows an estate subject to condition subsequent

Not automatic; has to be spelled out in the conveyance

When stated event occurs, property DOES NOT automatically revert to grantor; grantor must attempt reentry

When event occurs, statute of limitations begins running against grantee

Modern law: Freely transferable

Future interest in grantor when he transfers less than a fee interest to a 3d person

Freely

• Life estate
• Remainder in A

• Life estate;
• Vested Remainder;
• Reversion

• Term estate
• Reverter back to A after 10 years

• FSSCS
• A has right of reentry (maybe, RAP may kill)

• FSD
• A possibility of reverter

• Life estate subject to divestment
• Possibility of reverter

• FSSEL
• A: Nothing
• C: Executory Interest

• FSSEL
• C has shifting executory interest

• Life Estate in B
• C has springing Executory Interest

Future interest in 3d party that cuts short previous estate before it would have naturally terminated

Dispositive word: Divest

Passes from grantee to grantee

Passes from grantor (after getting interest back from 1st grantee) to new grantee

Freely transferable

Future interest created in 3d party; takes effect after natural termination of the preceeding estate; no divesting

• B: Life estate
• C: Vested remainder

Freely transferable

Remainder that's not vested

• Vested when:
• 1. Created in an ascertainable person; and
• 2. Not subj. to a condition precedent (other than the termination of preceding estate)

• B: Life estate
• Oldest Child: Contingent remainder

• If at creation, C is 21: 
• B: LE
• C: Vested remainder

• If at creation, C < 21:
• B: LE
• C: Contingent remainder
• A: Reversion

Presently vested, but may be terminated on the happening of a future event

• B: LE
• C: Vested remainder subject to condition subsequent
• A: Right of Reentry

Remainder made ot a class of people and has at least one ascertainable member and who has satisfied conditions precedent, but others may join later

"My children..."

When C has child, it is ascertainable and no condition to taking other than B's death

Child: Vested remainder subject to open because other children may be born, lessening Child's interest

• 1. Inter vivos conveyance (class opens at conveyance)
• 2. Testamentary conveyance (class opens at testator's death)

NB: If potential class member dies before class opening, he's not a member of the class

• If inter vivos:
• B: LE
• Any child: Vested remainder subject to open, if C dies, interest will pass in probate

• If testamentary:
• B: LE
• Children alive at B's death: If at A's death, C's child D is alive, D is member of class. If D predeceased A, D is excluded from class (he died before it opened)

• Two ways:
• 1. Naturally (no more members of class can be born)
• 2. Rule of convenience (closes when one class member is entitled to immediate possession)

Naturally

Those two children would beentitled to take immediate possession of the property. 

Any more children born are out of the class

A conveys to B for life, remainder to A's heirs

Creates a rebuttable presumption that A intended to retain that interest in himself as a reversion. B gets a life estate and A retains reversion.

• Fee Estate: Do whatever you want.
• Less than Fee: Grantee cannot harm the property at expense of the holder of the future interest

• Voluntary
• Permissive
• Ameliorative

Life tenant cannot intentionally or neg. damage the property

Liable for damages

Mines open at time of conveyance can be exploited

Life tenant must take reasonable steps to avoid damage to the property

Liable for failure to do so

E.g., Hurricanes are common in Fla, not putting special windows up may be permissive

Life tenant making improvements to land

LT could not make substantial alterations unless authorized to do so

Liable for damages to restore to original state

• LT can if:
• 1. Market val. for remainderman isn't affected; and either
• 2. Remainder man permits; OR substantial/permanent change in the neighborhood that justifies the improvements

Sue for damages or injunction

Injunction

Condition placed on the ownership of real property that restricts its free conveyance

E.g., A to B, but if B ever tries to sell, reverter to A

• On Fee: Invalid
• On <Fee: Upheld if reasonable

[Commonly tested]

• 1. Purchase option (can buy back at any time)
• 2. Right of first refusal

Both valid if reasonable

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

Can you create a scenario in which somoen can claim possession of the future interest more than 21 years after the death of everyone alive when interest was created? If yes, RAP violation

COPER

• Contingent remainders / Class gifts (vested remainder, subject to open)
• Offer of purchase
• Power of Appointment
• Executory Interests
• Right of First Refusal

• B: FSSEL
• C: EI BUT, violates RAP because, if A, B, and C died, then 22 years later property was used for commercial purposes, RAP is violated.

Strike offending language back to where grant makes sense

RAP doesn't apply

TEXAS

Judges can reform RAP-violating conveyance to fulfill wishes of grantor that don't violate RAP

Two or more people hold either a present or future interst in the property together

• JT
• TiC
• TBE

Presumed from co-ownership

No special words of creation

Possession

Equal rights to access, use, and enjoy the property

• Voluntary:
• Conveyance; lease; mortgage; some other transfer of present/future possessory interest

• Involuntary:
• Foreclosure context; intestacy; devise

Each has undivided interest in property

Survivorship

To A and B, as JT and not as TiC, w/ full rights of survivorship

T-TIP

• Time
• Title (taken under the same instrument)
• Interest (equal shares of same type)
• Possession (equal possession of the whole)

Death of on JT, remaining JTs interests expand

Trumps everything, including a valid will

JT can transfer interest, but this will sever the JT into a TiC

Becomes TiC

• Done by an inter vivos act of party:
• 1. Partition
• 2. JT sells interest in property
• 3. JT mortgages interest in property (title theory only)

Must have explicit creation of right of survivorship

Married couples; gives undivided interest in whole of property

• Severs when:
• Either spouse dies; divorce

Entitles to possess entire property

• 1. Profits produced by co-tenant efforts: No right to share in profits unless ouster
• 2. Profits produced by land (e.g., O&G): All co-tenants get equal share of rent

Taxes/mortgage: Pro rata

• Repairs:
• Majority rule:
• – no duty; BUT if co-tenant makes a repair, entitled to set-ff of 3d party rents received in amount o repair; OR
• – set off in a partition action to recoup cost of repair

• Texas Rule:
• – Co-tenants can seek contribution

No duty to improve

No contribution

BUT, if property is sold, improving tenant gets amount his improvement increased property value

Legally sanctioned stealing of title to land

AH ON EC

• Adverse
• Hostile
• Open and Notorious
• Exclusive
• Continuously for the statutory period

Claiming land as your own

Claiming land as your own; non-permissive use; possession of the land that is inconsistent w/ the rights of the record owner

AP entered on the land, believing he had good title to the property, but deed is defective

Destroys hostility

Can only be accomplished through ouster

• Majority: Mistaken encroachment sufficient
• Minority: AP intended to encroach w/ intent to possess property

Based upon nature of property and its typical use

E.g., only spending 3 mos of the year in a house (adversely) that can't be accessed 9 mos a year due to snow.

AP's time can stack w/ another AP so long as there is privity

Only the portion of the land he actually occupied

E.g., AP an LE, you leave when remainderman gets the property

If record owner granted surface rights, AP only gets surface estate, not mineral esate

SoL can be suspended so long as disability existed at time AP began; begins when SoL is lifted

• 1. Minority
• 2. Insanity
• 3. Imprisonment

• 1. Minority
• 2. Insanity
• 3. Military service

• Until AP time has run:
• True owner: Eject AP and sue for damages (e.g., past rents)
• AP: True owner as against all others but record owner (AP can eject all but record owner from property)

• After AP time has run:
• AP: Full ownership
• True owner: No longer owner

Objective approach (no intent needed)

3, 5, 10, 25

Under color of title (chain of title that has defect in it at some point)

AP by someone who cultivates, uses, or enjoys property and claims it under duly registered deed, and pays taxes on it

Someone who cultivates, uses, or enjoys the property (no deed needed)

AP required; disability doesn't even factor in!

• Requires writing for a transfer of interest in real property, signed by the party charged and must have:
• 1. Property description
• 2. Party description
• 3. Price; and
• 4. Any conditions of price or payment agreed to

• Otherwise invalid oral K, provided acts of part performance unequivocally prove K existence
• 1. Payment of all or part of purchase price;
• 2. Taking of possession;
• 3. Making substantial improvements

TEXAS: Must have all three!

• 1. Equitable estoppel: Based on act or rep
• 2. Promissory estoppel: Based on a promise

• When land sale K is formed, point at which title bifurcates into:
• 1. Equitable title (buyer)
• 2. Legal title (selelr)

• Majority:
• Buyer bears

• Minority (Texas):
• Uniform Vendor and Purchaser Risk Act:
• Risk of loss placed upon the seller, unless buyer has legal title or buyer is in possession

All K’s for the sale of real property have an implied promise to convey marketable title to the buyer

This includes quitclaim deeds!

Does not mean perfect title!

Title is reasonable free from doubt; look for defects in title

• 1. Mortgage
• 2. Covenant/Easement
• 3. Title of AP until AP brings suit to quiet title
• 4. Existing condition that violates zoning ordinance

Seller must disclose materiial, latent defects known to the seller but not readily observable or known to the buyer

• Commercial builders
• New residential home developers

• 1. Disclosure must be in writing
• 2. Only to sellers of real property, not agents
• 3. Sellers of new or used homes

Affects health and safety of the occupants, judged by reasonable person

Physical or structural problem

Applies to contractors and commercial sellers

Covers significant latent defects caused by D's poor workmanship

• 1. Applies to first and subsequent purchasers
• 2. No disclaimer

At closing, K and deed merge, seller loses the ability to sue on K

Quitclaim (no covenants; buyer cannot sue on it; as-is)

General warranty deed (all 6 covenants and all the time before conveyance to the buyer)

Special warranty deed (all or some covenants, period covered is grantor's ownership)

• Seisin
• Right to convey
• Against encumbrances

NB: Present covs don't run with the land! Can only be breached at closing.

NB: SoL begins at closing

Promise by grantor that he owns property (closely associated w/ right to convey)

Promise that grantor can convey the property (closely tied w/ seisin)

No undisclosed encumbrances

• Quiet Enjoyment
• Warranty
• Further assurances

• NB: Runs with land, breach can be at closing or after
• NB: SoL starts when grantee is evicted by 3d party w/ good title

Grantee won't be disturbed by a 3d party asserting valid claim

Grantor will defend grantee against any valid 3d party claim

Grantor will do everything reasonably needed to perfect title

• Seller dies after K, before closing:
• Legal title passes to heirs, but they must honor sales agreement

• Buyer dies after K, before closing:
• Right to closing passes to heirs of the buyer

• 1. Writing
• 2. Delivery
• 3. Acceptance

• 1. ID parties
• 2. ID intent to make present transfer of propertiy
• 3. Sufficient description of the property
• 4. Grantors Signature (grantee's not needed)

• 1. Grantee's signature
• 2. Consideration
• 3. Notarization
• 4. Recordation

Grantor has mental intent to transfer property to grantee

• 1. Give deed to grantee
• 2. Retain deed
• 3. Give deed to agent in escrow

Forms rebuttable presumption of delivery

Rebutted through: Extrinsic evidence that grantor had no present intent to presently transfer property

Delivery is valid and condition unenforceable

E.g., Grantor gives deed to Grantee and says, “This property shall become yours if you graduate from law school.” Presumption controls.

Rebuttable presumption of non-delivery; rebutted through extrinsic evidence that delivery was intended

E.g., showing that Grantor wrote in an email, I'm giving the property to you now, but I want to hold on to the deed until the end of the year

Agent will give deed to grantee eventually

If agent eventually gives deed to grantee, conveyance relates back to date grantor gave deed to agent

B wins. The conveyance to B relates back to January 1, meaning that there is nothing for C totake.

Looks like C would win out. However, once B satisfies the condition, the conveyance to B will relate back to the date grantor gave X the deed, which was before the transfer to C.  B wins.

“X, give this deed to grantee when I die.”

Facially invalid, but cts construe that grantor gave himself LE w/ remainder in grantee 

No transfer of title through escrow

Buyer must accept for delivery to be valid

** Always mention acceptance in essays! **

Presume acceptance if the transfer is beneficial to the grantee

Not a requirement, but a great idea; protects record owner against claims by subsequent purchasers

Deeds; easements; covenants; servitudes; mortgages

First in time prevails unless subsequent purchaser protected by recording statute

First in time wins.

First to record wins

• Although B had actual notice of A’s deed, B prevails over A because B recorded before A,
• even with actual notice!

TEXAS

Subsequent BFP wins

Bona fid purchaser

• Purchases land:
• 1. For value (sliding scale)
• 2. Without notice

Paying purchase price (or reasonable amount) for the property

• Mortgagee is considered to pay value
• Judgment creditor is considered to pay value, but is protected only as to subsequent conveyances (that is, after lien has attached)

• Actual
• Constructive
• Inquiry

Knowledge actually possessed

E.g., you see the prior deed

Comes through recording acts; as soon as deed is recorded, constructive notice given to entire universe

Appearance of land is such that claimant should have asked more questions about the title of the land

Yep. Inquiry notice.

Nope. B didn't have any notice and, therefore, was a BFP  and wins.

Yes. Constructive.

• Subsequent purchaser wins if:
• 1. BFP
• 2. Records before prior interests

B. BFP who recorded first.

• A prevails over B because B did not
• record his deed and, therefore, A prevails under the common law rule of first
• in time, first in right.

(Minority)

Legal description of the property, followed by a chronological listing of all conveyances dealing w/ that property

• Two step process:
• 1. Grantee index search: Search backwards in time using grantee's last name, ID-ing each previous owner's name
• 2. Grantor index search: Come forward in time, ID-ing every conveyance by every owner

Someone transfers title to something they don't have, but later acquire title to; conveyance is valid under estoppel

• This is the application of the shelter rule.
• As between C and X, C defeats X’s claim. D can shelter under C’s title.

Conveyance of interest in real property made to secure repayment of debt (usually the purchase of land)

Owner of the property; the debtor

Creditor; lender

• Deed: Creates interest in real property that secures the mortgage debt
• Note: Represents the financial obligation of the borrower; creates personal liability for the named individual

NB: Thhe mortgage is deemed to follow the note; that is, whoever has the note also has the benefit of the mortgage (absent a specific agreement to the contrary)

Mortgagee receives legal title the property has a right to take possession and collect rent from the property

Mortgagee receives only lien on the property; holds equitable title. Mortgagor has legal title to property and has right to possession until there’s a foreclosure sale

Lien theory until default, then title theory applies

Creditor remedy on default

• Judicial process:
• 1. Creditor initiates foreclosure proceeding
• 2. Property is seized and sold at foreclosure sale
• 3. Proceeds pay debtors

• 1. Pay costs of sale
• 2. Pay debt that was foreclosed upon
• 3. Pay junior liens extinguished in sale
• 4. Pay borrower remaining amount

TEXAS

Trustee designated by lender sells property at public auction w/o court intervention

• 1. Power of sale clause must be included in mortgage docts
• 2. Sale must occur between 10 AM and 4 PM on first Tues, at county cthouse in county in which land is located
• 3. Notice given

21 days before the sale; must include earliest time a sale could occur and must be given to the general public and debtor

BUT, if debtor uses property as his residence, certified mail notice giving ≤20 days to cure defect before public notice can be given

None

The more junior mortgages are dissolved, but the purchaser of the land takes the land with the senior mortgages attached

In personam judgment on the amount of debt not recouped in foreclosure sale

Debtor's remedy

CL: Stopping foreclosure process by paying off entire amount due (all states, including TEXAS)

CL redemption existing up until the foreclosure sale takes place

Allows redemption after foreclosure; debtor has a fixed amount of time to go to the person who bought the land at foreclosure and pay them the same cost for the land

TEXAS DOES NOT recognize

Subject to: Grantee is not personally liable for previous grantee's mortgage; land still is and can be taken from new grantee

Assumption: New grantee is personally liable for previous grantee's mortgage; previous grantee can see exoneration from new grantee if previous grantee is sued

Look at other facts in problem to see if it clarifies; then

Treat as if grantee is only subject to mortgage

Type of trust relationship; 3d party holds on to a deed and will not give the deed to debtor until debtor repays lender

Purchaser of land will pay off the purchase price over a series of payments; the creditor retains deed until all payments are made

TEXAS: Contract for deed

Default before 40% of purchase price/48 mos of payments: Seller can rescind and keep all payments

Default after 40%/48 mos of payments: Seller must commence non-judicial foreclosure after 60 days notice

Interest in land of another person; usually an access right

• 1. Was easement created?
• 2. Scope of easement?
• 3. Was it terminated?

Estate burdened by the easement

Always present, regardless of easement type

Estate benefitted by easement

Not always present in easements

• Benefits a parcel of land
• Dominant and servient estates
• Runs w/ land

• Benefits person rather than land
• No dominant estate
• Doesn't usually run with the land

• Express
• Prescription
• Implied
• Estoppel
• Public use

• 1. Severance of title to land held in common ownership
• 2. Existing, apparent, and continuous use when severance occurs
• 3. Reasonable necessity for the use at the severance (courts may increase this to strict necessity [TEXAS])

• 1. Severance of title to land held in common ownership
• 2. Causing strict necessity for the use at the time of severance

• 1. Act or representation by the owner of the burdened estate indicating that the land may be used for access by the other party (license)
• 2. Justifiable reliance
• 3. Damages suffered by other party if easement is denied

No one person using the land for the statutory period

E.g., owner of beach-front property has public crossing his property to get to water for the statutory period; public use easement created

Extent that is reasonably necessary to do so

E.g., crossing someone else's land to reach a highway; allowing a second person to build on my land, causing two people to drive across land. This is okay.

Will not terminate the easement, but servient estate owner can enjoin excessive use or obtain damages

E.g., easement to drive across land, but I destroy home and build apartment complex, now 100 people drive across land, servient owner could seek damages

Allowed, even if they interfere w/ servant owner's use of his property

This includes reasonably contemplated upgrades!

Appurtenant: Transfers w/ underlying land, even if new owner didn't know of easement

In Gross: Transferable to another person if original grantor intended that outcome and the easement is commercial in nature

TEXAS: Express assignment provision needed to transfer easement in gross

• 1. Destruction (unless servient estate caused destruction)
• 2. Termination by Easement holder actions
• 3. Termination by Servient estate holder

• 1. Merger of title
• 2. Express written release
• 3. Abandonment (Intent coupled w/ affirmative act)
• 4. Termination by Estoppel
• 5. Owner tries to sever easement from dominant estate

• A owns Blackacre. Between Blackacre and a lake where A fishes, there is Whiteacre. A
• approaches the owner of Whiteacre and arranges to purchase an easement across
• Whiteacre. This easement is going to last for five years. Two years later, A doesn’t want to fish, but his neighbor C does. A offers to transfer the easement to C. This would be improper because the easement was to benefit Blackacre, and A is now trying to sever it from the dominant estate.

Owner of servient estate can detrimentally rely upon easement holder's stopping of use

• 1. Presciption (interfere w/ easement use for statutory period)
• 2. Servient estate sold to BFP w/o notice of easement

Super-easement

The right to enter someone else's property to take something off it

E.g., profit a prendre

Expressly or by prescription

Privilege to go on land

Personal right rather than interest in land

Nope. Can be oral.

Generally, yes.

• 1. License coupled w/ interest
• 2. Executed license (estoppel; arises when person getting license expends money or labor in reliance upon the license)

PINT

• Privity
• Intent
• Notice
• Touch and concern

Damages: Money damages

• 1. Servient estate: Restriction reduces use, enjoyment, or value of servient estate
• 2. Dominant estate: Restriction must increase use, enjoyment, or value of dominant estate

Writing must include language showing parties' intent that covenant run with the land and bind successors in interest

New owner of servient estate must take w/ notice of restriction

• 1. Horizontal Privity
• 2. Vertical Privity

• Relationship between original covenanting parties
• 1. LL/tenant relation
• 2. Grantor/grantee relation
• 3. Mortgager/mortgagee relaton

TEXAS requires horizontal privity

Relation between original party of the agreement and the successor in interest to that party

• NB: Holder of servient estate must transfer all interest in the servient estate
• e.g., B owns in fee simple and leases to D for five years, no vertical privity

TEXAS DOES NOT require

• TIN
• Touch and Concern
• Intent
• Notice

NB: No privity required

Damages: Equitable (injunctions, etc.(

• 1. Written release
• 2. Merger of dominant and servient estate
• 3. Abandonment
• 4. Estoppel
• 5. Changed circumstance so reason behind restriction is no longer valid (e.g., B&B sells some land to A but A can't build above x height; B&B burns down and is not rebuilt. Circumstances changed so A can build above x height)

SoF usually must be complied with

• 1. Negative restrictions only
• 2. Restriction must be part of common plan or scheme
• 3. Current servient estate owner must take estate w/ some notice of restriction

• E.g.,
• Owner has a large family estate that he
• subdivides into 10 lots. He sells off 9 of the lots and into their deeds writes, “This property can only be developed through single story residences.”

• When the owner sells off the 10th deed, the owner forgets to include the restriction. There is no express restriction but it can be implied since it is part of the common scheme and the current owner took with inquiry notice by
• seeing that everyone else is building only single story residences.

An estate in land that is terminable at the will of either the landlord or the tenant.

Even with a PMM, if a Senior lender modifies its mortgage and the modification materially prejudices the Junior lender, the Junior lender prevails.

• (1) increasing the amount of principal; or
• (2) increasing the interest rate (if the rate under the original mortgage was fixed)

State can regulate for health, safety, and welfare of its citizens

Gov't can take fee simple interest in property as well as an easement in property

Unreasonable interference w/ someone else's enjoyment of his land

Does the gravity of the harm outweigh the benefit of the conduct

Landowner must provide adjoining landowner w/ support from the sides

Absolute right to lateral support (unimproved land)

Adjoining landowner strictly liable for damages suffered

Dispositive Q: Would adjoining land have subsided anyways, or did the weight of the improvement contribute to subsidence?

• If yes: Strict liability
• If no: Negligence required

CL: One who owns mineral estate is strictly liable to surface owner

MBE: Strict liability, too

TEXAS: Generally follows strict liability, BUT, Texas treats mineral estate as dominant, so mineral owner can use as much of surface as is reasonably needed to enjoy minerals

Anyone in watershed can make reasonable use of water

Unreasonable use: Injunction/damages

First beneficial user gets superior water rights to later beneficial users

• UCC:
• Crops severed form land before delivery: Goods
• Crops still attached to land: Real property

Prop. used for residential/biz purposes that is exempt from the claims of certain creditors

• Family
• Single adult

• 1. Formal Designation; or
• 2. Showing two factors:
• – Intent to use land as home
• – Overt acts consistent w/ using land as your home

• Rural
• Urban

When designation is made, property is not w/in city limits and not served by police or fire protection

Family: ≤200 acres; no need for contiguity

Single: ≤100 acres; no need for contiguity

NB: No business use in the property (contra urban homesteads)

Located in a city and consists of not more than 10 acres used as a home or home and business

One lot or multiple contiguous lots

Protected from forced sale for payment of debts

• 1. Purchase-money liens
• 2. Taxes
• 3. Owelty of partition
• 4. Refinancing valid lien
• 5. New construction improvements on property
• 6. Credit secured by voluntary lien
• 7. Reverse mortgage
• 8. Conversion and refinance of personal property lien

PORT CIRCle

One spouse can't sell, convey, or encumber property w/o consent of other spouse

E.g., O&G lease agreed to by only one spouse isn't valid

• 1. Death of owner (unless survivors include spouse, minor child, unmarried daughter)
• 2. Divorce (BUT, single people can have homesteads)
• 3. Abandonment (moved w/ intent of not returning to property)

Nope. Can't get new homestead unless you abandon old one.

• 1. Years
• 2. Periodic
• 3. Will
• 4. Sufferance

Definite beginning and end

LL/tenant agreement

Can be oral unless duration is >1 year

Set duration

Terminates automatically; no notice needed

Set beginning date and will continue from period to period w/o set termination date until proper notice given to terminate tenancy

• Expressly: LL/tenant agreement
• Implication: Holdover tenant, LL accepts rent

Indefinite

Either LL or tenant can terminate after giving appropriate notice

• 1. Written
• 2. Be equal to the rental period up to a maximum of six months

• One Month
• Three months
• Six months

CL: Notice must be given at start of rental period or its invalid

• Modern: Notice good whenever given, BUT, tenancy cannot end until the last day of a period (and tenant is responsible for rent until then)
• E.g., Month-to-month tenancy w/ rent due first of month. Tenant gives notice Aug. 15, allowed to stay (and must pay) until Sept. 31.

Often a default; created expressly

• 1. As soon as either party decides, no notice needed
• 2. Either LL or tenant dies
• 3. Either party attempts to transfer his interest

LL expressly given right to terminate: Cts will read tenant as having right, too.

Tenant expressly given right to terminate: Cts WON'T read in LL right, too.

Holdover tenant  doesn't leave at the end of the tenancy

LL accepts rent: Tenant become periodic tenant (period is that for which rend is reserved)

LL rejects rent: Tenant at sufferance; LL may evict tenant

TEXAS: LLs must give holdovers 3 days notice before filing suit to evict

Tenant liable for all unpaid rent in lease (e.g., 5 year lease, leave at 1 year, liable for rent for last 4 years)

• CL: Could only get money as it came due
• Modern: Anticipatory Repudiation (w/ duty to mitigate)

LL may sue for the rental obligation up until notice given to terminate

E.g., $1000/mo rent on first of month. March 31, tenant moves out, tenant liable for May's rent.

LL may sue for rent that is fixed in agreement and is already owed

LL may sue for reasonable rental value of property (e.g., rent was $1000, but value of space increased to $1500, LL can get $1500)

If made into periodic tenancy, look to rent in expired lease

Majority (TEXAS)

Must deliver actual possession on first day of tenancy

Minority rule

LL must deliver right of possession, not actual possession, on first day of lease; new tenant must begin eviction proceedings against holdovers

Excused from paying rent

Physically removing tenant from property

Excuses tenant from all rent

Rent abatement in amt attributable to the part evicted from

Breach of covenant of quiet enjoyment

• The use and enjoyment of the property has been substantially interfered with; and
• Tenant must actually move out w/in a reasonable time following substantially interfering act

CE can still be triggered; LL should have known that interference would cause CE

• Total: Defense to payment of all rent
• Partial: Rent abatement

• 1. Keeping premises habitable
• 2. Disclose known latent defects unknown to tenant
• 3. Maintaining common areas; and
• 4. Abate nuisances on neighboring properties owned by LL

LL must accept surrender and retake possession

VERY RARE; LL will typically be required to mitigate

CL: NO effect on rent (unless only leasing a portion of a building that was destroyed)

Modern: No distinction between leasing all or part of a property; destruction = complete defense to non-payment of rent UNLESS tenant caused the destruction

Usually applies only in residential leases (TEXAS)

LL must maintain premises in habitable condition; failing to may = Constructive Eviction

• 1. Tenant can notify LL of problem and correct it
• 2. If LL hasn't fixed it w/in reasonable time, Tenant can repair and deduct

• If breach occurs, tenant may:
• 1. Stay in possession and w/hold rent
• 2. Treat lease as cancelled and get damages
• 3. Repair and deduct

Comercial properties have no latent defects in vital facilities

Impossibility, impracticability, frustration

• E.g., Tenant leased a second floor studio to use as a dance studio. In the second year, a student broke through a floorboard and a
• contractor discovered that the floor was not strong enough to be used as a dance studio. This would constitute frustration of purpose and would discharge the lease.

• CL: None
• Modern: Implied warranty of habitability

• CL: None
• Modern: No voluntary, permissive, or ameliorative waste

• NB: Ameliorative waste:
• CL: No improvements; LL could hold tenant liable for improvements
• Modern: Tenant can improve if expressly authorized or in change of circumstances 

Tenant has exclusive right of possession

When tenant commits a material breach that terminates the lease

• CL: Reasonable force (self-help)
• Modern: No force; must give notice and hearing to determine if there was a breach before eviction

Not allowed

• 1. Preserve right in lease
• 2. Provide notice to tenant as to amount he must pay to avoid having locks changed; and
• 3. Notice tenant of his right to get a new key at any hour, regardless of whether he pays the delinquent rent

Failing to do these things can = civil damages

CL: Anything affixed to land became part of the land and had to stay unless a trade fixture (equipment attached to real property used for tenant's business)

Modern: Treat all fixtures the same (no residential vs. trade); can remove fixture if premises left in substantially the same condition as when tenant arrived

Usually must be removed before expiration of lease, but some states allow post-lease removal

Presumption that the premises cannot be returned to substantially the same condition as when tenant arrived when change is structural; can't be removed

• E.g., Tenant wants to remodel a downstairs
• bathroom and places the spa in that bathroom. Upon leaving, he wants to take
• it. This would be a structural change and cannot be removed.

Only if 3d party's entry and injury were reasonably foreseeable to the LL

Not liable to tenant for injuries caused by condition of the property

Tort exceptions exist (e.g., undisclosed dangerous condition known to LL but not disclosed to the tenant)

Tenant gives 3d party all right, title, and interest in leased premises

Privity is maintained

Privity of estate between assignee and LL

LL can sue assignee AND original tenant if rent is unpaid

BUT, if assignee assigns to another person, LL can't get first assignee anymore

Tenant transfers less than all right, title, and interest in property

None; LL can't get rents, can only evict subtenant

Generally, freely transferable but LL can prohibit

Allowed but narrowly construed

E.g., LL must prohibit assignments and subleases expressly

Statutory prohibition against assignments/subleases w/o LL consent (can be K'd around)

BUT, LL has duty to mitigate

Whoever is LL of record on the date rent is due is entitled to the rent