Under a lease assignment, who can the landlord collect rent from between a tenant and a subletter?
Either the tenant or the subletter, because…
- tenant is in privity of contract with the landlord
- subletter is in privity of estate with the landlord
Under a sublease, who can the landlord collect rent from?
Only the tenant because the tenant is in privity of contract and estate with the landlord
Does a landlord need a tenant’s permission before transferring their interest?
NO.
What standard is applicable is the lease requires the landlord’s permission to transfer but is silent as to the standard?
- Majority rule: landlord may deny permission to transfer only for a commercially reasonable reason
- Minority rule: Landlord may deny permission at her discretion, for any reason at all
What are the three present implied covenants in a general warranty deed?
Covenants of…
- seisin
- right to convey
- against encumbrances
What are the three future implied covenants in a general warranty deed?
Covenants of…
- quiet enjoyment
- warranty
- further assurances
Covenant of seisin
Warrants that the deed describes the land in question
Covenant of the right to convey
Warrants that the grantor/seller has the right to convey the property
Covenant against encumbrances
Warrants that there are no undisclosed encumbrances on the property that could limit its value
Covenant of quiet enjoyment
Grantor promises that the grantee’s possession will not be disturbed by a third-party claim
Covenant of warranty
Grantor promises to defend against future claims of brought by a third party
Covenant of further assurances
Grantor promises to fix future title problems
Protections of special warrant deed
Same six covenants as general warranty deed, but only applicable to the acts or omissions of the grantor as to the health of the title
Implied warranty of fitness or suitability (new homes): applicability and protection
- Implied in almost all jurisdictions in a contract for the sale of a newly constructed residence
- Seller warrants that he used adequate material and good workmanship in working on the residence
Proper plaintiffs of implied warranty of suitability or fitness
- Initial home purchaser
- Subsequent purchasers who di not contract directly with the commercial developer or builder to recover damages
Three elements that must exist for an assignee-landlord to have the right to enforce a covenant
- original parties to lease intend to bind assignee-landlord
- covenant touches and concerns the land (affects the land’s use or value)
- transfer brings the assignee landlord into privity of estate mutual or successive relationship in the same property interest) with the tenant
Between the original landlord and the assignee-landlord, who can enforce a covenant that runs with the land if all three elements are not met?
Only the original landlord
Lien state (majority)
Treats a mortgage as a lien that does NOT sever a joint tenancy
Title state (minority)
A mortgage does sever a joint tenancy and coverts it into a tenancy in common
Elements of adverse possession
- Open and notorious, use that would put a reasonable true owner on notice of the adverse use
- Exclusive
- Hostile, claim of competing title
- Continuous (seasonal or infrequent use may suffice)
- Statutory Period
Five elements of real covenants
- Writing (SOF)
- Intent to run with the land
- Touch and concern
- Notice
- Privity (horizontal and vertical)
Horizontal privity
Privity of estate where the estate and covenant are contained in the same instrument (the deed)
Vertical Privity
Relationship between the original party to the agreement and his/her successors to the property
What specific types of privity are required to run a burden?
- Strict vertical privity (successor must take the original party’s entire interest)
- Horizontal privity
