Professional Documents
Culture Documents
Right To Alienate: For all except tenancy by the entirety (NY You can) 13
Partition (Co-owners no longer) :Voluntary or involuntary. Partition in Kind Preferred (never for chattel)
Partition by sale: 1)impracticable 2)interests better protected 14-15
Duty To Avoid Waste (Interferes with rights of co-owners) Active: Permanent Passive: Ordinary Repairs/Prudent
person 15
Duty to Account (Must share fruits proportional to interest) 15
o Equal Right to Occupy? MAJ: Yes, unless there is an an ouster. 15
o Expenses: Unless one owner pays all of the expenses, no sharing . if owner is sole occupier, cant
recover unless above fmv 1516
o Actual Eviction Partial Actual Eviction Constructive Eviction Partial Constructive 23-24
o Remedy: Unless waived or modified, damages, rent abatatement, or termination 24
Fitness and Habitability (Expectations/ Life, Health, Safety) 24
o Use Clauses: Not covenant of fitness. Look to intent/promise and breach/negligence
Remedy: Unless stated otherwise, they can only get damages
o Implied for Residential MAJ AND NY: 1) Safe and Clean 2) Human Habitation 3) Defects 25
o Breach: Landlord has a reasonable time to correct the deficiency after notification.
o Remedy: Dependent promise, so get rent abatement, damages, or termination. Or can cure. 25
Tenants Obligations to Landlord
Pay Rent:
Duty to Vacate
Return Property (Repairs avoid waste) 26
Duty to Avoid Waste: Active Waste(intentional permanent)
o When Waste Is Allowed: Prudent owner likely to make changes NY 803 26
o Remedy: Damages to repair unless waived or tenant cures.
Passive Waste (Only applies to commercial tenants.) Need to make ordinary repairs. 26
o Extraordinary Repairs: Neither tenant nor landlord responsible. 27
o NY: Right to terminate when premises are destroyed or injured due to the elements.
Landlord Remedies 27
Security Deposits: NY: Held in trust, not comingled. Landlord can use deposit for back rent, but duty to
replenish if unused 27
Forfeiture of Lease: None of the tenants obligations are essential, unless landlord makes it so. 27
o Strictly construed (Rent clause but no forfeiture next to it, no forfeit)
o Must enforce in reasonable time or waived 27. Must be Substantial violation of material promise
o Demand for rent and opportunity to cure.
o Automatic: May reenter with or without law. Non-Automatic: May declare such lease ended. 28
Self-Help: Requires Auto-forfeiture. 28
o MAJ: Reasonable force necessary without causing serious death or injury. Half make it unavailable for
residential 28
o NY: Cant be forcible or unlawful. Article 6 Proceeding: When lease does not end, but promise violated.
29
o Article 7: Much quicker. Lease must be at end. Holdover, or nonpayment always. 29
Duty to Mitigate: 29
o Common Law 1) Treat as surrender 2) ignore the abandonment and hold tenant 3) attempt to relet
(reasonable)
o MAJ: Duty to mitigate for residential, not for commercial NY: Not for either. Common law
rememedies.29
o Reasoable Diligence/Efforts When opting in or forced to mitigate. (Does not need to alter oblig. Or
take less) 29
Transferring Leaseholds Assignments and Subletting. (Common law freely alienable unless lease provides
otherwise)
Special Skill: Usually alienable unless landlord relied on special skill (luxury to non-luxury) 30.
Consent Clause: MAJ: Can be waived regardless. MIN: Must act reasonably
Reasonable: Financial responsibility, legality, nature of occupancy, unreasonable. 30
NY: Commercial can deny arbitrarily (unless it says not be unreasonably withheld) Residential, cant be waived,
but if refused free in 30 days. 31
Assignment: Entire term no rights left 31
o Pure: Original tenant only one making covenant Pure Assignment + Assumption, + Release 31
Bases for Cause of Action in Assignments or Sublet
o Privitiy of Contract (never with subtenant even w/ consent, but yes with assignee)32
o Privity Of Estate: 1) One party created estate 2) D holds a present interest 3) Promise attaches 32
Covenants of Title
Duty to disclose material defects. 33
Inspection/ MAJ: No warranties 33
Decision of Purchase. Satisfy Contingencies (seller right to cure) Closing Promises good title.
Good Marketable Title: Reasonable doubt of non-defect/ Magnitude of defect. May Refuse before
clothing.
o Remedy: Seller has right to cure by time of closing or reasonable time thereafter. 34
Closing/Merger Covenants of K merge into deed. Once closing finishes, cant sue for breach ofg title.
34
1. General Warranty Deed (FULL Warranty in NY)34
a. : Present Covenants MAJ: Dont run MIN DO RUn
o 1. Covenant of seisin (MAJ: DOES NOT RUN NY: DOES) 34
o 2. Covenant of right to convey 35
o 3. Covenant against encumbrances (right that exists in 3rd party, mortgage, easement, etc.) AT TIME OF
CONVEY
- Promises: Future Covenants. NORMALLY RUN W LAND AS LONG AS THEY STAY COVENANTS
o 4. Covenant of Warranty
o 5. Covenant of Quiet Enjoyment (Must be an ouster)
o 6. Covenant of Further Assurance (FIX TITLE)
Special Warranty Deed (Bargain and sale w/ covenants) 36 You are aying hey, Im only promising you I didnt fuck
up title.
Quit Claim Deed Bargain and sale w/o covenants You are saig hey, I can only promise nothing. 36
***********************Remember, if there is a QC in between or SW in between an original GW, it does not break
chain.
Recording Acts (Multiple purchasers)37
Race Recording: Protects Subsequent Purchaser who is the first to record
Notice Recording (No majority rule) Protects subsequent purchaser who paid value and without notice
o Actual Knowledge
o Constructive Knowledge (Check public records, legal obligation to check. Must be properly
recorded)37
o Inquiry Notice (Duty to investigate/ would be a reasonable person be suspicious) ex:actual possession 38
Race Notice: Protects subsequent purchaser who at time of purchase did not have notice and was the first to
record 37
IF NEITHER PROTECTED BY A STATUTE (Intestacy, will, etc, or if both dont record) First in time, first
in right 37