Property Day 2

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The Tenancy for Years:: (estate for years, term of years) This is a lease for a fixed known period of time. Period could be in days, months, or years. When you know the termination date from the start, you have a tenancy for years.
Termination of an Easement by Necessity: Easements created by necessity expire as soon as the necessity ends. BUT, if the easement, attributable to necessity, was nonetheless created by express grant, it does not end automatically once the necessity ends.
Easement: the (1)grant of a (2)nonpossessory property interest that (3)entitles its holder to some form of (4)use or enjoyment of another's land.
L liability for the acts of other tenants: Not generally, but 2 exceptions. (1) L has the duty not to permit a nuisance on the premises (2) L must control common areas
The License: The license is a mere privilege to enter another's land for some delineated purpose. Licenses are NOT subject to SOF. Very informal. Don't need a writing to create a license. Licenses are freely revocable, at the will of the licensor UNLESS estoppel applies to bar revocation. Classic examples are theater tickets or "neighbors talking by the fence" b/c oral easement violates the SOF and is uneforceable - becomes a freely revocable license.
Termination of an Easement by Prescription: The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (COAH) - Continuous interference, Open and notorious interference, Actual interference, Hostile to the easement holder.
Type of Lease Resulting from Holdover.: (1)In a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease an implied periodic tenancy arises, measured by the way rent is now tendered. (2) In non-residential lease, if the original lease term was for a year or more, then a year-to-year tenancy results from holding over.
How would I construe a given promise as a covenant or as an equitable servitude?: Look to the Remedy. a) If P seeks money damages => construe the promise as a covenant (remedy at law) b) If P seeks injunctive relief => construe as an equitable servitude (remedy at equity)
Exceptions to caveat lessee at common law: CLAPS (when tenant learns of these exceptions to the harsh common law, he CLAPS) a) Common Areas >> L must maintain all common areas, such as hallways & stairwells b) Latent defects rule >> L must warn T of hidden defects of which L knows OR has reason to know. Not a duty to repair (just duty to warn!). c) Assumption of repairs >> NO duty to make repairs, BUT once undertaken, L must complete them with reasonable care. d) Public Use rule. L who leases public space (convention hall or a museum), and who should know, because of the nature of the defect and length of lease, that T will NOT repair, is liable for any defects on the premises. E.g. L leases the convention only for 3 days and the defect is substantial. e) Short term lease of furnished dwelling >> L is responsible here for any defective condition which harms / injures T.
Tenant's duty to not commit waste: (a) Voluntary or Affirmative Waste (actual overt harmful conduct, that causes a decrease in value). Includes law of fixtures! (b) Permissive Waste, or Neglect (occurs when lands is allowed to fall into disrepair OR tenant fails to reasonably protect the land) (c) Ameliorative Waste.
Termination of an Easement by Destruction: Destruction of the servient land, other than through the willful conduct of the servient owner will terminate the easement.
Landlord's Duties: 1)Duty to Deliver Possession. 2)The Implied Covenant of Quiet Enjoyment 4)The Implied Warranty of Habitability.
Termination of an Easement by Abandonment: The easement holder must demonstrate by physical action the intent to never use the easement again. (i.e, A erects a structure on A's parcel that precludes her from ever again reaching B's parcel. Non-use or mere words insufficient.)
Easement by prescription SOL: 15 years
Landlord's remedy on breach of T's duty to pay rent, T NOT in possession: (T vacates with time left on term of yrs lease) Landlords options - SIR. (Surrender, Ignore, Re-Let.) (1)Surrender. L could chose to treat T's abandonment as an implicit offer of surrender which L accepts. (2)(MINORITY RULE) Ignore the abandonment and hold T responsible for unpaid rent, just as if T were still there. (3) Re-Let the premises on the wrongdoer tenant's behalf, and hold him or her liable for any deficiency. L must at least make reasonably good efforts / try to find another to re-let.
Express creation of a periodic tenancy?:: L conveys "To T, from month to month" "year to year" or "week to week"
Appurtenant Easement: When it benefits its holder in his physical use or enjoyment of his property IT TAKES 2 parcels of land. (1) A dominant tenement which derives the benefit. (2) A servient tenement which bears the burden.
Analysis of whether burden of a covenant runs with the land: "WITHN" i) Writing >> the original promise/covenant/servitude between the two landowners (dominant and servient tenements) must have been in writing. ii) Intent >> the original parties must have intended that the covenant would run. iii) Touch and concern the land >> The promise must affect the parties legal relations as land owners and NOT simply as members of the community. iv) Horizontal and Vertical privity (both required). v) Notice >> A1 must have some notice of the promise when he took.
The Tenancy at Will: a) This is a tenancy for NO fixed period of duration. i) Ex. "To T, for as long as L or T desires" b) Creation - Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat it as an implied periodic tenancy
Creation of an affirmative easement By Necessity: Typically, the land locked setting. An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out EXCEPT over some part of grantor's remaining land. MASS: standard of strict necessity.
The Implied Warranty of Habitability: a) Applies ONLY to residential leases (NOT on commercial leases!) b) It is NON WAIVABLE (Any disclaimer is void: "as is," "with all faults" doesn't work.) c) Standard is that the premises must be fit for basic human habitation, bare living requirements must be met. Specific standards may be supplied by local housing code, or independent court conclusion. Examples -- Failure to provide heat in winter, NO plumbing, NO running water.
The Periodic Tenancy:: This is a lease which continues for successive (continuous or open ended) intervals until L or T give proper notice of termination. Can be created expressly or by implication.
How to tell whether a tenant installation is a fixture?: (1) Express agreement controls - an agreement b/w L&T on the issue is binding (2) In the absence of agreement, T may remove chattel that she has installed so long as removal doesn't cause substantial harm to the premises (3) IF removal will cause substantial damage, then in objective judgment T has shown her the intent to install a fixture and the fixture must stay. T's subjective intent does not matter. Janet Jackson's chandelier.
Creation of a tenancy for years for a term greater than one year:: must be in writing b/c SOF.
A) Four Leasehold Estates:: (1) Tenancy for Yrs (2) Periodic Tenancy (3) Tenancy at Will (4) Tenancy at Sufferance
T's Entitlements upon a breach of the implied warranty of habitability: MRRR (Move, Repair, Reduce, Remain). (a) Move out & end the lease (b) Repair and Deduct their cost from future rent (c) Reduce rent or withhold all rent (must put in escrow) until the court determines fair rental value. (d) Remain in possession, pay rent and affirmatively seek money damages.
A has an easement entitling her to cut cross B's lawn to get more easily to her land. What kind of easement? Which is the servient and which is the dominant tenement?: A has an easement appurtenant to A's dominant tenement. B has the servient tenement.
Termination of an Easement by Merger: doctrine of unity of ownership. The easement is extinguished when title to dominant land AND title to servient land becomes vested in the same person. Once complete unity of title is achieved, the easement is extinguished AND is NOT revived simply because title is later separated. Grantor will need to start over to re-create the easement (i.e., comply w/ requirements).
Tacking for adverse possession: One adverse possessor may tack on to his time with the land his predecessor's time, so long as there is privity between the two AP-ers, which is satisfied by any non hostile nexus such as blood, contract, deed or will. However, tacking is not allowed when the tacker OUSTED his predecessor.
Duty to Deliver Possession. Majority/English Rule: L must put T in actual physical possession of the premises. Thus, if at the start of T's lease a prior holdover T is still in possession, L is in breach and is liable for damages >> T may terminate and get damages.
Affirmative Covenant: a promise to do something related to land. Ex. I promise to maintain common fence. I promise to paint our common fence.
Effects of an Assignment of a lease: Landlord and assignee tenant/tenant in possession (T2) are in privity of estate. L and assignor tenant (T1) are in privity of contract, unless T2 expressly assumes all promises in the original lease.
Affirmative Easements: The right to go onto and do something on servient land.
T1 transfers to T2 all of the 10 moths remaining on his 2 years lease. What is this? What relationships between T1, T2 and L?: An assignment. L and T2 = privity of estate, BUT NOT in privity of contact, UNLESS, T2 expressly assumed all promises in the original lease. L and T1 = privity of contract, BUT NOT privity of estate. Privity of estate ends when tenant assigns to T2.
Servitudes: Easements (Affirmative or Negative and appurtenant or in gross). Licenses. Profits. Covenant. Equitable servitude.
Law of Fixtures - Multistate: When a T removes a fixture, he commits voluntary waste. T must not remove a fixture even if T is the one who installed it. FIXTURES PASS WITH OWNERSHIP OF THE LAND.
Assignment of lease: T may freely transfer his interest in whole (in absence of some prohibition in the lease) However, once L consents to 1 transfer by T, L waives the right to object to future transfers by that T, unless L expressly reserves the right.
Restrictive Covenant: (negative covenant) a promise to refrain from doing something related to land. Ex. I promise not to build for commercial purposes on my land.
Privity of estate: Exists between LL and tenant in possession. Liable to each other for all of the covenants in the original lease, that run with the land. (promise to pay rent, to paint premises, to repair, to pay taxes, promise to keep premises in good condition.) Only exists while T2 is the tenant in possession of the property. Once T2 assigns to T3, privity of estate ends.
T rents an apt from L, beginning June 1. Nothing is said about duration. T pays rent each month. What kind of tenancy?:: T is an implied month to month periodic tenant
Landlord's Tort Liability at common law: At common law - Caveat Lessee - "let Tenant beware." In Tort, L is under NO duty to make premises safe.
Surrender: T demonstrates by words or actions, that T wishes to give up the lease. If the expired term is greater than one yr, surrender must be in writing to satisfy the SOF. (L writes a letter to say that he accepts the surrender to the last known T's address).
Vertical Privity: Refers to the nexus between A & A1/B& B1. Requires non hostile nexus such as contracts, devise, descent. The only time that vertical privity will be absent is if the landowner acquired her interest through adverse possession.
fixture (def'n and examples): Once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty. Ex. heating systems, customized storm window, furnace, certain lighting installations.
Creation of Negative Easements: Can ONLY be created EXPRESSLY, by WRITING SIGNED by the Grantor. There is NO natural or automatic right to a negative easement.
Adverse Possession: Possession, for a statutorily prescribed period of time can ripen into title, if certain elements are met. (COAH) 1) Continuous >> uninterrupted for given statutory period (15 yrs in Mich. 2) Open and Notorious >> visible occupation is required. (It can't be secretly. The sort of possession that the usual owner would make under the circumstances.) 3) Actual >> entry cannot be hypothetical or fictitious (must be literal + exclusive). 4) Hostile >> true owner did not permit or consent to the possessor to be there. NOTE - the Possessor's subjective state of mind is irrelevant.
Termination of an Easement: END CRAMP (these easements are cramping my style). Estoppel, Necessity, Destruction, Condemnation, Release, Abandonment, Prescription.
Notice for Implied equitable servitude: AIR -- Actual notice >> D had literal knowledge of the promises in the prior deeds. Inquiry notice >> Neighborhoods conforms to common restrictions (sometimes referred to the "lay of the land"). Record notice >> In publicly recorded documents. Minority view is that subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor. Majority view is that a subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor.
Creation of an affirmative easement By Prescription: an easement may be acquired by satisfying elements of adverse possession(COAH). (1) Continuous use for given statutory period (2) Open & notorious (3) Actual use (not hypothetical) (4) Hostile use, i.e. without servient owner's consent. (Permission defeats the acquisition of an easement by prescription.)
Termination of an Easement by Estoppel: Servient owner materially changes his position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced.
Termination of an Easement by Release: a written release given by the easement holder to the servient holder.
Termination of Tenancy at Sufferance: i) Tenancy at sufferance lasts only until L either (a) Evicts T or (b) Elects to hold T to a new term
T's duty to repair IF T has expressly covenanted in lease to maintain property in good condition for the duration of the lease: At common law, T was responsible for any loss to the property including losses attributable to forces of nature. (hurricane, lightning, tornado). Today, the majority view (including Massachusetts) is that T is NOT responsible for losses attributable to forces of nature. T may terminate a lease IF the premises are destroyed w/o T's fault.
Fixtures in Michigan: Tenants allowed to remove so long as the building restored to the condition it was in at the beginning of the lease. Incl. removal of a building addition. Same for trade fixtures.
Adverse Possession Michigan SOL (in general): Generally - 15 years.
Requirements for a covenant to run with the Land: In order to bind successors, both the BURDEN and the BENEFIT of a covenant must run with the land.
The Tenancy at Sufferance: Created when T has wrongfully held over past the expiration of the lease. We give this wrongdoer a leasehold estate, to permit L to recover rent
The Implied Covenant of Quiet Enjoyment in Leases: Applies to both residential and commercial leases. T has a right to quiet use and enjoyment of premises without interference from L. Breach by wrongful actual, partial, or constructive eviction.
The Profit: Entitles its holder to enter the servient land and take from it soil or some substance from the soil (mineral, oil, timber). Profit shares all the rules of easements.
Effects of a Sublease on privity: L and sublesee are in NEITHER privity of estate nor privity of contact. BUT > T2 &T1 are responsible to each other.
Creation of an affirmative easement By grant: n.b. an easement to endure for more than 1 yr, MUST be in writing that complies with the formal elements of a deed. (SOF) (1) Easement is property interest, thus SOF applies. (2) The written evidence the easement is called "a deed of easement"
Estoppel to bar revocation of a license: ONLY when the licensee has (a) Invested substantial money or (b) Invested substantial labor (c) Or both > in reasonable reliance on the licensee's continuation
The Covenant: A promise to do OR a promise not to do something related to the land. It is unlike the easement because it is NOT the grant of a property interest, but RATHER a contractual limitation OR a promise regarding the land. (so, it starts as a contract.) Developed because negative easements can only apply in 4 situations (LASS). Covenant can be affirmative or negative/restrictive.
Horizontal Privity: Nexus between original promising parties. Original parties must be in succession of estate, i.e., they were in a grantor/grantee (A bought the land from B or vice-versa) or landlord/tenant or mortgagor/mortgagee relationships. Very difficult to establish, its absence is the reason why burdens don't run.
L leases to T1. T1 assigns to T2. T2 assigns to T3. T3 then engages in flagrant abuse to the premises. What liability and why?: T3 as the direct wrongdoer, liable to L. L wins because L and T3 are in "privity of estate." There is NO privity of contract unless T3 expressly assumed all promises in the original lease. L and T1 (the original tenant) - L wins because there is a "privity of contract". There is NO privity of estate. Because of privity of contract, T1 is secondarily liable to L. So if T3 cannot pay or T3 has left the jurisdiction, T1 is liable. No liability for T2 to L b/c "privity of estate" ended once T2 assigned to T3. Further, there is no "privity of contract" unless T2 expressly assumed all promises in the original lease.
Duty to Deliver Possession. Minority/American Rule: L only must give T legal possession, NOT actual physical possession
Equitable Servitude: a) A promise that equity will enforce against successors. b) It is accompanied by injunctive relief.
L and T negotiate on the telephone for a commercial lease. They orally agree on a five-year lease with rent at $1,000 a month. What kind of tenancy is created? What if T sends L a check for $1,000 and L accepts it?:: NOT a tenancy for years b/c it violates the Statute of Frauds. T's first rental payment renders his interest an implied periodic tenancy, with the intervals based on the way rent is tendered. When rent must first be accepted by L to create.
Transferability of Appurtenant Easement: The BENEFIT of an appurtenant easement PASSES AUTOMATICALLY with the dominant tenement, regardless off whether it is even mentioned in the conveyance. The BURDEN of an appurtenant easement ALSO PASSES AUTOMATICALLY with the servient estate, UNLESS the new owner is a bona fide purchaser WITHOUT notice of easement.
Breach of Implied Covenant of Quiet Enjoyment by constructive eviction: T needs to prove 3 elements (SING) Substantial Interference - a chronic problem due to L's actions or failure to act. Notice - T must give L notice of the problem and L must fail to respond meaningfully. Get out/good bye! - T must vacate within a reasonable time after L fails to correct the problem.
Equitable Defenses to enforcement of an equitable servitude: Changed Conditions - (the neighborhood is so changed to a commercial). Must be so pervasive that the entire area or subdivision has changed. Limited or little change or mere pockets of limited changes is never good enough.
Creation of an equitable servitudes that will bind Successors: WITNES a) Writing >> the original promise usually in writing (Can be implied.) b) Intent >> Original parties intended that promise would bind successors (be enforceable by and against assignees). c) Touch and Concern >> Promise affects parties as landowners (promise relates to land) d) Notice >> the successors of burdened land must have had notice of promise * Actual notice - includes newspaper * Inquiry notice - neighborhood appears to conform to residential restriction * Record -- impute based on publicly recorded documents e) Note -- PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS "ES" for Equitable servitude.
Disabilities and Adverse Possession: The SOL will not run against a true owner who is afflicted by a disability **at the commencement** of the adverse possession. Common disabilities include insanity, infancy, imprisonment.
Adverse possession in Michigan - under color of title by a tax deed: 10 years
How much notice is needed to terminate the tenancy for years?:: None. (Because it tells you from the outset when it ends.)
L leases Blackacre to T "from January 1, 1996 to July 1, 1996. Which form of tenancy exists here?: Tenancy for years, b/c It is a leasehold for a fixed, known period of time.
Implied Equitable servitude or the General or Common Scheme Doctrine: Under the Common Scheme Doctrine, Court will imply an reciprocal negative servitude (= implied equitable servitude) in order to hold the unrestricted lot holder to the restrictive covenant IF -- 1) When the sale began, the subdivider (A) has a general scheme of residential development which included the D's lot now in question 2) The D lotholder had notice of the promise contained in the prior deeds (AIR - actual, inquiry, or record)
Privity of contract: T and L are secondarily liable to each other.
Creation of an affirmative easement By Implication: An easement by implication arises from the circumstances surrounding an grantor's dividing a piece of land into more than one parcel and conveying at least one parcel to another. Court will imply an easement IF a. the previous use had been apparent AND b. the parties expected the use would survive division because it is reasonably necessary to dominant land's use and enjoyment. A owns 2 lots, Lot 1 is hooked to sewer on Lot 2. Lot 1 is sold to B. no mention of B's right to continue and use the drain = implied affirmative easement.
Transferability of In Gross Easement: i) NOT transferable - it considered personal to its holder. ii) BUT an easement for commercial purposes IS transferable.
Landlord's remedy on breach of T's duty to pay rent, T in possession: i) Evict through the courts. If the landlord moves to evict, she is entitled to rent from the tenant, (now called tenant at sufferance), until T actually vacates. OR ii) Continue the relationship and sue for rent due. BUT iii) Landlord MUST NOT engage in self help.
Creation of a periodic tenancy by Implication?:: 3 ways > (a)Land is leased with no mention of duration, but provision is made for payment of rent at set intervals. (b)An oral term of years in violation of the SOF creates an implied periodic tenancy measured by the way rent is tendered. (c)Holdover.
Termination of Tenancy at Will in Massachusetts: By either party by three months' notice in writing or, if the rent is payable at periods less than three months apart, by notice equal to the interval between the days of payment unless such interval is less than 30 days. In the latter case, 30 days' notice must be given.
Termination of Tenancy at Will: i) The tenancy at will may be terminated by either party at any time. ii) BUT, a reasonable demand to quit/vacate premises is typically required.
Creation of an affirmative easement: PING - Prescription, Implication, Necessity, Grant
Retaliatory Eviction: Prohibited. If T lawfully reports L for housing code violations, L is barred from penalizing T by, for ex, raising rent, ending the lease, harassing T, or taking other form of retaliatory measures.
Right to transfer T's interest/Sublease: T may freely transfer his interest in part (in absence of some prohibition in the lease) However, once L consents to 1 transfer by T, L waives the right to object to future transfers by that T, unless L expressly reserves the right.
T's duties in tort to third parties: T is responsible for keeping the premises in reasonably good repair and T is liable for injuries sustained by TP that T invited, even where L has expressly promised to make all repairs. BUT, T may seek indemnification from L.
Elements required for the benefit of a covenant to run with the land:: WITV = Elements for benefit to run. (a) Writing >> Original promise between A & B was in writing. (b) Intent >> The original parties intended that the benefit would run to the successor. (c) Touch and concern >> the promise must affect the parties in their capacity as landowners (d) Vertical Privity >> Only need some non hostile nexus between B-B-1 (K, devise, descent) (e) NOTE, Horizontal privity is not needed for the benefit side to run. That's why benefit side is easier to run than burden side.
Massachusetts penalty for and def'n/examples of landlord engaging in self-help: (a) NO: Changing the locks, forcibly removing T, removing any of Ts possessions (b) Self help is punishable civilly and criminally (c) In MASS, in addition, tenant is entitled to treble damages OR three months rent + attorneys' fees.
Adverse possession of state lands: not possible in Michigan
Negative Easements: Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. The holder is entitled to prevent the servient tenant from ONLY 4 categories => LA-SS(S) (a) Light (b) Air (c) Support (d) Streamwater from artificial flow (e) Scenic View
Adverse possession in Michigan under color of title by court decree or deed of a ministerial official: 10 years
Termination of a Periodic tenancy:: Notice, usually written, must be given. At common law, notice must be at least equal to the length of the period itself, unless otherwise agreed. Thus in month to month periodic tenancy => 1 months notice. In a week to week periodic tenancy => 1 weeks notice. BUT if tenancy is from yr to yr or greater => ONLY 6 months notice. By private agreement, the parties may lengthen or shorten these common law prescribed notice provisions b/c "freedom of contract". NOTE - Periodic tenancy must end at the conclusion of a natural lease period. If the notice given on the 15th - the lease will end at the end of the 30th of the next month = "at the end of the natural lease period"
Termination of an Easement by Condemnation: Condemnation of the servient estate, by eminent domain, terminates the easement.
Tenant's Duties: In tort to third parties injured via T's failure to keep the premises in reasonably good repair. No waste. Duty to repair when the lease is silent - maintain the premises and make ordinary repairs. Duty to repair if express covenant to maintain the property in good condition for the duration of the lease.
In Gross Easement: Takes ONLY one parcel. it confers upon its holder only some personal or commercial gain that is NOT related to his use or enjoyment of his land ("servient land" is burdened. BUT there is NO "dominant land"). Ex. right to place a billboard on another's lot; right to fish / swim in another's pond; utility co.'s right to lay power lines on another's land.
Four types of notice (of covenant): (1) if common scheme filed - everybody on notice; (2) record notice; (3) Actual; (4) Inquiry. Exception -- IF A1 is donee OR heir, he is not protected by the recording statue (cannot be BFP) > thus, he does not need notice > he is subject to covenant even w/o notice!
Scope of an Easement: Fixed by the terms of the grant or conditions that created it. Unilateral expansion to benefit a dominant tenement, is NOT allowed. Excessive use (B uses beyond the scope) does NOT extinguish the easement. The easement as it was originally created, still exists.

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