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Real property (Land) Lease & Interest (Interest in Land …
Real property
(Land)
Lease & Interest
Interest in Land
Enforceable rights
related to piece of land, include :
Possessory Interest
(Estates)
Exclusive right to
possession (NOT ownership)
of RP for a period of time
Fee simple Estate
Right to exclusive possession during own life (entire life)
Right to dispose or property on death
Cannot own 100% of an interest in land (land is still owned by the Crown)
Largest bundle of rights one can own; can dispose of land by way of sale, will or inheritance (i.e choose who gets it on death); generally unlimited use & abuse of property
Limitations on rights of Fee simple ownership:
Owner is still responsible for Tort associated with land (chap 5)
Gov regulation: environmental & zoning laws
Expropriation: forced sale to gov for public purposes
Escheat: The reversion of land to the Crown when person possessed of the fee dies intestate and without heirs
Life estate
Right to exclusive possession during life of someone (i.e last only while the person is alive; can be of 3rd pt)
No right to dispose of property on death (i.e lose right on death)
Person who is owner of fee simple interest takes the "remainder" of the estate
Interest automatically terminate upon death:
reversion
to pt with fee simple interest;
remainder
to 3rd pt selected by party with fee simple
Life estate holder liable (to person who hold reversion or remainder) for waste (act that significantly affect value of land: e.g dig pit, cut down tree): life tenant cannot commit waste; life tenant need not actively preserve the estate (may omit maintenance, need not to keep building in good condition)
Life estate make property harder to sell
Leasehold Estate
Right to exclusive possession during specified period
No right to dispose of property after lease
Period must be stated with certainty at outset
Landlord retain right of Reversion: full possession revert back to landlord on the termination of the tenancy
Lease are generally unenforceable unless evidenced in writing
Shared interests / ownership
Different pts own same piece of land
Each pt has undivided interest: each pt has the right to deal with the whole property (e.g lease to stranger), not just proportionately; no pt can exclude other from property (i.e cannot put a fence around any part of the land to keep other out); each pt entitled to share in general profits
Forms of Shared ownership:
Joint ownership
(joint tenancy): 2 or more pts have identical undivided interest (e.g if 4 joint tenants -> 1/4 interest each); generally profits split equally (even in case of death?);
Right of survivorship
: no right to dispose of interest on death; entire interest automatically pass to remaining tenants on death (i.e last surviving joint tenant takes the whole property - fee simple)
Joint tenant can
avoid
Right of survivorship through:
"
Severance
: Joint tenant does any act inconsistent with identical interests (sell his interest to outsider -> outsider is NOT a joint tenant with others)
"
Partition
: division of property or its sale proceeds; applicable to joint tenancy or co-tenancy; agreement between pts or court order
Co-Ownership
: 2 or more pts have undivided interest; pt need not have identical shares (VD if 3 co-tenants -> 1/2 1/4 1/4 interest each); profit split proportionately; no right of survivorship: general right to dispose of interest on death
Condominium
: combination of: individual ownership of single unit (apartment); co-ownership of common areas (pool, gym); Operation of Condo managed by condo corporation, financed by condo fees; Condo maintain the power to issue infraction notice or fine owner/tenants for non-compliance
Non-possessory
Interest in Real property
that do not include
right to possession
Easements
Right to use neighbour's land
Positive: allow one pt to do sth (VD cross other pt's property)
Negative: prohibit one pt from doing sth (vd obstruct view, sunlight)
Pt to easement: necessarily neighbour; need not to be next-door neighbours (reasonably close together)
Easement can run with land (ie extend to successor's ownership) if there is a:
Dominant tenement
: property that enjoys benefit
Servient tenement
: property that bear burden
Acquisition of easement
:
" Express: agreement between pts (K)
" Implied: necessary for practical convenience (VD mua đất without realizing it is cut off from highway, court will presume pts silently agree)
" Prescription: Land is used in a particular way, for a long time (often 20 years), without secrecy, without objection & without permission (VD A openly used a portion of B's land & B has done nothing about that) (only available in Registry System, valid without registration)
" Statutory: public utilities (no dominant tenement) (VD Uti company has the right to bury TV cables, dig sewer, run wires over your yard)
Easement vs License:
License
is permission to act in a way that would otherwise be prohibited; License does not run with land can can be revoked at any time (VD A allow B to temporarily park on A's lawn while B go to a stadium nearby); License is NOT an Easement
Restrictive Covenants
Promise limiting use of land
Require dominant and servient tenements
Owner may continue to exercise some control over its use after property has been conveyed to another
Differs from Easement in that: can only arise from agreement (pts can decide the Covenant to run with land or not); does NOT allow dominant's use of servient's land; limits servient's use of their own land
Enforcement
:
If pts still own property, dominant can sue servient for breaching promise (damage, specific performance, injunction)
If one pt sell its property to 3rd pt:
" General enforcement by
successor
of dominant (Miguel), as long as the original covenants were intended to run with land
" Limited enforcement against
successor
of servient (Janet): Janet may be bound by a negative covenant, but not by positive one. She could be prevented from doing sth, but she could not be required to do sth. Janet will not be bound: unless the original covenants were intended to run with land, or if she bought land without any reason to suspect that there was a covenant (bound if she receive land for free)
Mineral Lease
Right to extract and retain minerals
Minerals are virtually any substance in the ground
No ownership of minerals until actually extracted
Mineral lease generally acquired from gov
Common law: mineral lease sometimes incidentally involve possession of small area of land
Statue law: mining company is now required to obtain separate surface lease with the surface owner in addition to Gov mineral lease
Profit à prende
(right of taking)
Similar to mineral lease
Right to extract sth of value from land: can cover minerals or other natural things (go on land, harvest timber, hunt for meat, orange)
No ownership of thing until actually extracted (vd harvest)
RP include land, things attached to land (fences & buildings), things attached to buildings (fixtures) on that land
Landowner can control
the airspace and ground
to a reasonable extent
Lease
Lease: estate in land for specific time created by K
Lease must be for a definite, determinable amount of time; unenforceable unless evidenced in writing (Statue of Frauds), exception for short term lease (3 years or less)
Pts to a lease:
" Landlord: pt with estate interest giving up possession
" Tenant: pt acquiring possession
Landlord cannot discriminate in tenancy based on a person's race, religion, physical or mental disability, legal source of income
Landlord can decide whether or not they will allow pets, can restrict the size, kind or number of pets
Minor can enter into Tenancy agreement (enforceable)
(Tenant Rights)
Tn has exclusive possession on the starting date of tenancy
Tn has quiet enjoyment: reasonable privacy & freedom from unreasonable disturbance
The unit must be reasonably fit for occupation: comply with health & safety standard
Ll must repair & maintain unit and keep it in a reasonable state
(Landlord Rights)
Tn is responsible for repairing any dmg they or their guest cause (some reasonable wear and tear is expected)
Tn cannot unreasonably disturb other occupants
Tn must pay rent on time
(Ending Tenancy)
Fixed term: specify tn will move out at the end of term
Consent: both mutually agree in writing to end tenancy
Frustration: an unforeseen event makes it impossible to meet terms of K (vd earthquake)
Late or unpaid rent
Disturb neighbour
2-month notice: applied when ll intend to move into a unit or has a close family member (parent or child) move into unit; or intend to sell property to new owner
Breach by ll: tn can end tenancy if ll breach a condition / material term. B4 ending, tn must:
Provide ll written notice indicating breach & decision to end tenancy
Give reasonable period for ll to correct problem
Lease duration
Fixed term tenancy: specified period
Periodic tenancy: specific period with automatic renewal; notice to quit requires one clear period of notice
Tenancy at will (not true lease): no specified period with right to quit at any time
Tenancy at sufferance (not true lease): occupation without permission (VD continue possess premise at the end of a lease); (therefore commit Tort of Trespass)
Terminating liability for Lease
If u no longer want to occupy premise for full length of lease, u may
Terminate lease early: with consent of ll (vd by introduce a new tenant); follow general K law
Assign lease
Lease may prohibit assignment or require consent; consent cannot be unreasonably withheld (e.g don't like flower)
Assignee would be bound by only the real covenants (which include promises that are directly related to land, VD obl to pay rent or repair), but NOT personal covenants (personal obl, VD original tenant's promise to buy goods from ll)
Assignor remains liable if assignee did not fulfill the lease
Assignment must cover entire duration of lease (if it falls short, even by 1 day, then it may be sublease)
Sublease to 3rd pt
Lease by tenant to 3rd pt
(Original) Tenant remains liable as tenant under head lease
Tenant become landlord under sublease
Head lease may prohibit sublease or require consent
Commercial Lease
Lease for business purpose
Freedom of K generally allows any terms
Standard term often include:
Rent: obl owed by tenant
" Gross lease: tenant pay a single sum which cover rent & cost
" Net lease: tenant pay rent & a proportion of cost (separately)
" Rent review: K allows for periodic review (VD negotiate a new rent price every 5 years, market value)
"
Independent obl
: obl to pay rent is generally independent of other lease obligations (ie Tn cannot refure to pay rent even if ll fail to honour a promise to keep property in good repair, Tn is expected to pay rent & sue ll for breach of K)
Quiet possession: obligation owed by landlord; prohibit ll from interfering with tenant's enjoyment (while ll is NOT responsible for other tenants' wrongful behavior, ll may be liable for granting a lease with an incompatible use)
Repair & maintenance: no obl by deault; but pts often agree on extensive obl, often ll take care of building & common area; tenant responsible for leased premises
Taxes: obl on ll
Insurance: sound risk management for both pts
Remedy
:
" General contractual remedy: compensatory dmg, discharge for breach of condition, injunction, specific performance; if tn wrongfully vacate premise, ll can let premise sit empty & recover rent value that would have been paid over the entire tenancy (ie
ll need not mitigate
)
" Special statutory remedy:
eviction
: repossession of premise by ll by the end of lease (possible if serious breach of rent obl VD not pay rent);
distress
: ll seize tn's belongings to pay rent
Residential lease
Lease premise for place to live
Termination: 90 days notice for monthly lease
Gov control rental rate
Distress is NOT available
LL has obl to repair & maintain
LL must mitigate
Name: LE TUAN LINH 300284930 CHAPTER 14
version 2