Landlord-Tenant 1
Name 3/4 categories of tenancies.
x2 points if you can define the categories you name.
Tenancy at will, periodic tenancy, term of wills, tenancy at sufferance.
What is a covenant/negative servitude?
A restriction on the use of the land held by non-owners.
May the landlord sue a subletter for covenants in the leasehold?
No, subleases are not real covenants that run with the land. The landlord must sue the original tenant.
What is a race recording act?
Between successive purchasers, the person who records first prevails, even if the person who records first knows about an earlier conveyance to someone else.
What are the two categorical takings?
Permanent physical invasion and regulations that deprive all economically viable use of the property.
What is the majority rule for transferrance of a leasehold/eviction?
The landlord must deliver rented premises at the beginning of the leasehold and has a duty to evict the previous tenant.
What are the five elements of a real covenant?
In writing, intended to be binding on future interests, touches and concerns the land, notice, and privity.
If a landlord evicts a tenant within ________ (amount of time), the tenant may have a claim for retaliatory eviction.
6 months
Which two statutes are the plurality statutes/approaches to recording acts?
Notice and race-notice.
What is the denominator problem?
In partial takings, the court must determine whether the denominator is the portion taken (to find a total economic deprivation) or the entire property, including the portion not taken (to find partial economic deprivation and therefore no regulatory taking).
What is the majority rule for assignments and assignees?
Where a lease contains an approval clause, the lessor may arbitrarily refuse to approve an assignee.
Are the remedies for negative and equitable servitudes different?
Yes, the remedy for negative servitudes is damages, and for equitable servitudes is an injunction.
When is the landlord liable to the tenant for injuries in a situation of constructive eviction?
When they have behaved negligently.
What is a wild deed, and what case is illustrative of this?
A wild deed is one recorded outside of the chain of title. Sabo v. Horvath.
Magnitude of the harm to an owner, balancing public interest against private harm, when it’s fair to concentrate harm rather than placing the burden on the general public.
Name two examples of constructive eviction.
Breach of the covenant of quiet enjoyment, breach of the implied warranty of habitability.
There are six elements courts consider in determining whether there is a common plan in an implied reciprocal negative easement. Name four.
Presence of restrictions on all or most deeds
A recorded map plat that shows the restrictions
Presence of restriction on last deed
Observance by owners of similar development of their land and conformity to the writer restriction
Language stating the covenants are intended to run with the land
Recording of declaration stating that covenants are intended to be mutually enforceable
Name 5/7 factors that help a landlord overcome the presumption of retaliation.
Reasonable exercise of business judgment, desire to dispose of the leased property, desire to make different use of the leased property, lack of financial ability to repair the leased property, lack of awareness of tenant’s activities protected by statute, not acting at first opportunity upon learning of tenant’s conduct, lack of discrimination.
What is a bona fide purchaser?
Someone who purchased in good faith without notice of a conflicting interest, and who paid value for the interest.
What comprises severance damages? (2 elements)
The fair market value of the portion of the premises taken, and the loss in value of the remaining property.
Name 6/8 remedies available for a breach of the covenant of habitable premises.
Recission of the lease, rent withholding, rent abatement, repair & deduct, specific performance, administrative remedies, criminal penalties, compensatory damages.
What happens to the covenant if there are changed conditions with an estate?
Covenants will not be enforced if conditions have changed drastically inside the neighborhood that enforcement will have no substantial benefit to the dominant estate
Name two arguments on each side for the problem of whether tenants may be able to waive the implied warranty of habitability.
For: freedom of contract, the landlord still has to abide by building codes, lack of affordability without the waiver.
Against: landlord has greater bargaining power, lack of financial resources for tenant, withholding rent provides incentive for landlord to act quickly, creating this norm could be a problem for those who don't want a waiver and narrow their options.
Explain the shelter doctrine.
A bona fide purchaser may convey property to a third party even if the third party is on notice of an earlier conveyance.
There are four versions of what qualifies as “public use” in different jurisdictions. Name three.
Version 1: the public benefits and characteristics of the intended use must substantially predominate over the private nature of the use.
Version 2: property cannot be taken and transferred unless the nature of the property itself justifies the taking. Economic development takings are prohibited unless the property is causing harm.
Version 3: the public purpose could not be achieved in any way other than through taking and transfer of property.
Version 4: public use means public ownership or use by the public.