Deck 47: Interests in Real Property

Question 1

In 1970, a deed for land in Pitt County, North Carolina, was executed and delivered by Joel and Louisa Tyson unto M. H. Jackson and wife Maggie Jackson, for and during the term of their natural lives and after their death to the children of the saidM. H. Jackson and Maggie Jackson that shall be born to their intermarriage as shall survive them to them and their heirs and assigns in fee simple forever.
Thelma Jackson Vester, a daughter of M. H. and Maggie Jackson, died in 2012, survived by three children. M. H. Jackson, who survived his wife, Maggie Jackson, died in 2013, survived by four sons. The children of Thelma Jackson Vester brought this action against M. P. Jackson, a son of and executor of the will of M. H. Jackson. The children of Vester contended that through their deceased mother they were entitled to a one-fifth interest in the land conveyed by the deed of 1970. The executor contended that the deed conveyed a contingent remainder and that only those children who survived the parents took an interest in the land. Discuss the contentions of both of the parties.

Answer 1

Case summary:
A deed was registered in the year 1970 to J and his family that the family has fee simple right to use the property tills the survivor of the family members. Daughter of J died in the year 2012 and three daughter claimed interest in her share that was denied by executor.
Fee simple estate:
The titleholder of the fee simple property can transfer or do anything with the properties. The holder of the assets gets the name of the ownership.
Justification:
In the above mentioned case, J received the ownership and his family members has equal interest in that. The executor of the contract clearly states that the legal heirs can take the interest in the share of the deceased. Since it is a fee simple estate legal heirs of J's daughter T has right to obtain her interest in the asset.

Question 2

Robert and Marjorie Wake owned land that they used as both a cattle ranch and a farm. Each spring and autumn, the Wakes would drive their cattle from the ranch portion of the operation across an access road on the farmland to Butler Springs, which was also on the farmland.
In December 1990, the Wakes sold the farm to Jesse and Maud Hess but retained for themselves a right-of-way over the farm access road and the right to use Butler Springs for watering their livestock. In 1997, the Hesses sold the farm to the Johnsons, granting them uninterrupted possession of the property ''excepting only that permissive use of the premises'' owned by the Wakes.
The Wakes continued to use the access road and Butler Springs until 1998, when they sold their ranch and granted the new owners ''their rights to the water of Butler Springs,'' but they said nothing about the access road. The ranch was subsequently sold several times, and all the owners used the access road and watering hole. In 2011, the Nelsons purchased the ranch. Shortly thereafter, the Johnsons notified the Nelsons that they had revoked the Nelsons' right to use the access road and Butler Springs. In 2013, the Johnsons closed the access road by locking the gates across the road. The Nelsons brought this action, claiming easements to both the access road and Butler Springs. The trial court ruled in favor of the Nelsons, and the Johnsons appealed. Does an easement in favor of the Nelsons exist? Why?

Answer 2

Case summary:
R and M owned a cattle ranch and a farm. W drove the cattle to the farm using the access road. After the sale of the farmland W continued to use the access road. Finally after so many transfers cattle ranch was transferred to N. J the possessor of the farm noticed the use of access road created a gate in the path. N took a legal action and got easement for the road.
Easement:
A right which is obtained by the third party to use the property either partially or fully without possessing the title is termed as easement.
Justification:
In the above mentioned case, N the possessor of the cattle ranch uses the access road in the farm of J to feed the cattle. The previous owners of the cattle ranch used the access road and it was implied that N also can continue using the path. The usage is minimal and it does not spoil the farm by any means. Therefore, the easement obtained by N can be considered as valid.

Question 3

Clayton and Margie Gulledge owned a house at 532 Somerset Place, N.W. (the Somerset property) as tenants by the entirety. They had three children: Bernis Gulledge, Johnsie Walker, and Marion Watkins. When Margie Gulledge died in 1985, Clayton became the sole owner of the Somerset property. The following year, Clayton remarried, but the marriage was unsuccessful. To avoid a possible loss of the Somerset property, Bernis forwarded Clayton funds to satisfy the second wife's financial demands. In exchange, Clayton conveyed the property to Bernis and himself as joint tenants. In 2006, Clayton conveyed his interest in the Somerset property to his daughter, Marion Watkins. In 2006, Clayton died. Bernis died in 2012, and Johnsie Walker died in 2012. Marion Watkins claims to be a tenant in common with the estate of Bernis Gulledge. The estate claims that when Clayton died, Watkins' interest was extinguished, and Bernis became the sole owner of the Somerset property. Who is correct? Why?

Answer 3

Case summary:
C and M bought a house under tenants by entirety and they had three children. M died and C remarried which ended in failure. The second wife was settled by cash to avoid a claim against the house. C conveyed his property to B and considered as joint tenants. In Late in 2006, C gave his stake to his daughter M. B, C and J died. M claimed as common tenant for the house.
Tenant by entirety:
A property purchased by husband and wife for a common value in a correct time and the asset cannot be cleared or modified without the consents of both husband and wife. The contract ends if the couple divorces.
Joint tenancy:
If a property is bought by more than two or more persons and each individual gets the equal right to maintain or dispose the assets is termed as joint tenancy. The individual owners are termed as tenants and they get the right of living in the property.
Justification:
In the above mentioned case, the house property is purchased by the C and M and after the demise of M, C gets the title of holder. Later C and B made them as joint tenant for the house and C gave his stake to his daughter M. After the demise of C, B, and J M claimed as owner as common tenant. In actual the legal heirs of deceased C and B can claim his right in the house and M cannot be considered as the common tenant.

Question 4

By separate leases, Javins and a few others rented an apartment at the Clifton Terrace apartment complex. When they defaulted on their rent payments, the landlord, First National Realty, brought an action to evict them. The tenants admitted to the default but defended on the ground that the landlord had failed to maintain the premises in compliance with the Washington, D.C., Housing Code. They alleged that approximately one thousand five hundred violations of this code had arisen since the term of their lease began. Discuss the merits of this case.

Question 5

Kirkland conveyed a farm to Sandler to have and to hold for and during his life and on Sandler's death to Rubin. Some years thereafter, oil was discovered in the vicinity. Sandler thereupon made an oil and gas lease, and the oil company set up its machinery to begin drilling operations. Rubin then filed suit to enjoin the operations. Assuming an injunction to be the proper form of remedy, what decision?

Question 6

On January 1, Mrs. Irene Kern leased an apartment from Colonial Court Apartments, Inc., for a one-year term. When the lease was entered into, Mrs. Kern asked for a quiet apartment, and Colonial assured her that the assigned apartment was in a quiet, well-insulated building. In fact, however, the apartment above Mrs. Kern's was occupied by a young couple, the Lindgrens. From the start of her occupancy, Mrs. Kern complained of their twice-weekly parties and other actions that so disturbed her sleep that she had to go elsewhere for rest. After Mrs. Kern had lodged several complaints, Colonial terminated the Lindgrens's lease effective February 28. The termination of the lease was prolonged, however, and Mrs. Kern vacated her apartment, claiming that she was no longer able to endure the continued disturbances. Colonial then brought this action to recover rent owed by Mrs. Kern. Will Colonial prevail? Has Mrs. Kern been constructively evicted? Explain.

Question 7

On June 30, 2004, Martin Hendrickson and Solveig Hendrickson were married, and on January 3, 2005, a home previously owned by Martin was conveyed to them as joint tenants and not as tenants in common. Solveig Hendrickson paid no part of the consideration for the premises. On August 3, 2012, Martin Hendrickson duly executed a Declaration of Election to Sever Survivorship of Joint Tenancy by which he endeavored to preserve an interest in the premises for Ruth Halbert, his daughter by a previous marriage. On the same day, he executed his last will and testament, by the terms of which he directed that his wife, Solveig Hendrickson, receive the minimum amount to which she was entitled under the laws of the State of Minnesota. Martin Hendrickson died with a valid will on October 9, 2012.
a. What are the arguments that the joint ownership was severed by Martin Hendrickson's declaration thus creating a tenancy in common?
b. What are the arguments that the joint tenancy was not severed by Martin Hendrickson's declaration and thus the property passed to Solveig Hendrickson by survivorship upon Martin Hendrickson's death?
c. Which argument should prevail? Explain.

Question 8

On January 14, 2009, Eura Mae Redmon deeded land to her daughter, Melba Taylor, and two sons, W. C. Sewell and Billy Sewell, ''jointly and severally, and unto their heirs, assigns and successors forever,'' with the grantor retaining a life estate. W. C. Sewell died on November 18, 2009, and Billy Sewell died on May 11, 2011. Mrs. Redmon died on February 17, 2013. Melba Taylor then sought a declaration that her mother had intended to convey the property to the grantees as joint tenants, thereby making her, by virtue of her brothers' deaths, sole owner of the property. Descendants of W. C. and Billy Sewell opposed the complaint on the ground that the deed created a tenancy in common among the grantees. Who is correct? Explain.

Question 9

Smith owned Blackacre in fee simple absolute. In section 3 of a properly executed will, Smith devised Blackacre as follows: ''I devise my farm Blackacre to my son Darwin so long as it is used as a farm.'' Sections 5 and 6 of the will made gifts to persons other than Darwin. The last clause of Smith's will provided: ''All the remainder of my real and personal property not disposed of heretofore in this will, I devise and bequeath to Stanford University.''
Smith died in 2013, survived by her son Darwin. Smith's estate has been administered. Darwin has been offered $100,000 for Blackacre if he can convey title to it in fee simple. What interests in Blackacre were created by Smith'swill?

Question 10

FACTS Plaintiffs, Gene and Deborah Borton, owners of a home which was adjacent to golf course, brought nuisance action against country club seeking injunctive relief and money damages based on golf balls which were hit onto their property. The defendant, Forest Hills Country Club, filed a counterclaim seeking declaration of easement allowing members to enter the plaintiff's property to retrieve errant golf balls.
The developer of defendant's golf course began to sell lots for residential use adjacent to the golf course in 1963. The developer filed and recorded a set of deed restrictions on all the residential lots adjacent to the golf course. Paragraph 11 of these deed restrictions recites:
All owners and occupants of any lot in the Forest Hills Club Estates Subdivision shall extend to one person, in a group of members or guests playing a normal game of golf on the Forest Hills Golf and Country Club, or their caddy, the courtesy of allowing such person or caddy the privilege of retrieving any and all errant golf balls which may have landed or remained on any lot in the subdivision. However, care shall be exercised in the retrieving of such golf ball to prevent damage to any lawn, flowers, shrubbery, or other improvement on the lot.
Plaintiffs purchased a residence adjacent to the fairway on the eleventh hole on defendant's golf course in March 1994. The general warranty deed to plaintiffs provided that the property was subject to the set of deed restrictions and covenants. Because of the proximity of the tee boxes on the eleventh hole to plaintiffs' home, thousands of errant golf balls have been hit onto plaintiffs' property since they purchased their residence.
The trial court granted summary judgment in favor of defendant on plaintiff's claim and its counterclaim. Plaintiff appeals.
DECISION Affirmed in part and reversed and remanded in part.
OPINION Ahrens, J. Plaintiffs concede that paragraph 11 of the deed restriction gives defendant and its members some right with respect to retrieving errant golf balls. Plaintiffs argue, however, that the right created in paragraph 11 is simply a license. Defendant contends it has an easement over the Bortons' property, either by express grant via paragraph 11 in the deed restriction or by prescription.
Both a license and easement give the grantee the right to go onto the grantor's property for a limited use. [Citations.] A license is a personal right and as such, may be revoked at the will of the licensor. [Citation.] An easement, by contrast, gives the grantee an interest in the property of the grantor and thus runs with the land and is binding upon successive landowners. [Citations.]
In the instant case, since the original developer of the property properly recorded and filed the deed restrictions, those restrictions created property interests that run with the land and are binding on successive landowners. [Citations.] Thus, plaintiffs do not have the power to revoke or modify the rights granted to defendant in paragraph 11 of the deed restrictions. Therefore, the deed restrictions in paragraph 11 are in the nature of an easement in favor of defendant and its members to retrieve errant golf balls hit onto plaintiffs' property during a normal game of golf.
***
Since the terms of paragraph 11 are binding upon the parties and run with the land, we hold that defendant was granted an express easement by paragraph 11 of the deed restrictions.
***
Plaintiffs may recover *** if they can demonstrate that defendant's current use of the easement constitutes a greater burden to their land than what was contemplated or intended. [Citations.] The defendant did not address plaintiffs' [claims] in its cross motion for summary judgment, and did not submit summary judgment facts to demonstrate that there is no material issue of fact in dispute as to this issue. Thus, the trial court's dismissal of plaintiffs' [claim] was premature ***.
INTERPRETATION Most easements give the grantee an interest in property of the grantor and run with the land and are binding upon successive landowners.
CRITICAL THINKING QUESTION Should the plaintiff be able to get out of the deed restriction? Explain.

Question 11

Panessi leased to Barnes, for a term of ten years beginning May 1, certain premises located at 527-529 Main Street in Cleveland. The premises were improved with a three-story building, the first floor being occupied by stores and the upper stories by apartments. On May 1 of the following year, Barnes leased one of the apartments to Clinton for one year. On July 5, a fire destroyed the second and third floors of the building. The first floor was not burned but was rendered unusable. Neither the lease from Panessi to Barnes nor the lease from Barnes to Clinton contained any provision regarding loss by fire. Discuss the liability of Barnes and Clinton to continue to pay rent.

Question 12

FACTS In February 1989, Home Rentals agreed to rent a single-family residence to Chris Curtis, Ed Domaracki, Mike Fraser, and Carson Flugstad (tenants), all of whom were students at Southern Illinois University. The terms of the written lease stated that the lease was to commence on August 17, 1989, and to expire on August 13, 1990. The tenants were to receive the premises in ''good order and repair,'' rent was to be $740 per month, and a $500 deposit was required. The tenants initially paid $1,980 to cover the deposit and advance rent for the last two months of the lease. Although the house was fine when the tenants signed the lease in February, when they arrived on August 15, it was not. The electricity had not yet been turned on. Roaches had overrun the rooms, and the kitchen was so filthy and so infested by bugs that food could not be stored there. The carpet smelled, and one could see outside through holes in the wall. The bathrooms were unsanitary, no toilets worked, one of the bathtubs did not drain, and an open sewage drain emptied bathroom wastewater onto the basement floor. The tenants notified Home Rentals on the 16th that the place was uninhabitable because of the filth and roaches. Home Rentals responded that the tenants should just clean the place up and that it would reimburse them. Accordingly, the tenants attempted to clean the house, but the roach problem continued even after professional extermination, and Home Rentals did nothing about the plumbing. The tenants were never able to stay in the house. On August 21, the tenants finally sought housing elsewhere. They advised Home Rentals that they would not be living in the house, returned the keys, and reported the condition of the house to the city of Carbondale's Code Enforcement Division. The city notified Home Rentals on August 25, 1989, that it had found numerous city code violations and warned the corporation that the house would be posted ''occupancy prohibited'' unless all violations were corrected within 72 hours. By August 28, 1989, eleven days after the tenants' lease was to have commenced, Home Rentals had finally remedied all the violations. The city withdrew its threat, but Home Rentals did not rent the house to anyone else. Instead, it sued the tenants for breach of the lease and claimed $6,900 for all twelve months under the lease, less the deposit. The tenants denied the allegations and raised as affirmative defenses breach of the implied warranty of habitability and constructive eviction. Based on the latter theory, they asserted a counterclaim seeking the return of the $500 deposit and the $1,480 they had paid in advance rent. The trial court found for the tenants in the amount of $1,980, and Home Rentals appealed.
DECISION Judgment for the tenants affirmed. OPINION Harrison, J. A constructive eviction occurs when a landlord has done ''something of a grave and permanent character with the intention of depriving the tenant of enjoyment of the premises.'' [Citation.] Because persons are presumed to intend the natural and probable consequences of their acts, constructive eviction does not require a finding that the landlord had the express intention to compel a tenant to leave the demised premises or to deprive him of their beneficial enjoyment. All that is necessary is that the landlord committed acts or omissions which rendered the leased premises useless to the tenant or deprived the tenant of the possession and enjoyment of the premises, in whole or part, making it necessary for the tenant to move. ***
At oral argument, counsel for Home Rentals asserted that defendants did what they did simply because ''the premises did not meet their expectations.'' The inference, of course, was that defendants were overly particular and that their expectations were unrealistic. It is scarcely unreasonable, however, for tenants paying $740 per month to expect flushing toilets, sewage-free basements, and kitchens that are not overrun with roaches. These are things that Home Rentals failed to provide. What Home Rentals did provide was a house that was clearly and unquestionably unfit for people to live in. As a result, defendants had no alternative but to vacate the premises.
Home Rentals correctly points out that a tenant may not abandon premises under the theory of constructive eviction without first affording the lessor a reasonable opportunity to correct the defects in the property [citation], but such an opportunity existed here. Home Rentals' president, Henry Fisher, admitted that he actually inspected the premises as early as August 13. ***
Considering the magnitude of the problems, four days was opportunity enough for Home Rentals to act. Constructive eviction has been found in analogous circumstances where an even shorter period was involved. [Citation.] We note, moreover, that there is no indication that giving Home Rentals additional time would have made any difference. In the four days before defendants left, the only action the company took at all was to send someone out to spray for bugs, which did not work, and to dispatch a man with a plunger. In the end, it was only because of the intervention by the City of Carbondale that Home Rentals implemented the necessary remedial measures.
INTERPRETATION If a landlord's failure to meet any of his obligations under a lease causes a substantial and lasting injury to the tenant's beneficial enjoyment of the premises, that failure, in effect, is a constructive and wrongful eviction of the tenant.
ETHICAL QUESTION Did Home Rentals act unethically? Explain.
CRITICAL THINKING QUESTION Did the court correctly decide this case? Explain.

Question 13

Ames leased an apartment to Boor for $600 a month, payable the last day of each month. The term of the written lease was from January 1, 2012, through April 30, 2013. On March 15, 2012, Boor moved out, telling Ames that he disliked all the other tenants. Ames replied, ''Well, you're no prize as a tenant; I can probably get more rent from someone more agreeable.'' Ames and Boor then had a minor physical altercation in which neither was injured. Boor sent the apartment keys to Ames by mail. Ames wrote Boor, ''It will be my pleasure to hold you for every penny you owe me. I am renting the apartment on your behalf to Clay until April 30, 2013, at $425 a month.'' Boor had paid his rent through February 28, 2012. Clay entered the premises on April 1, 2012. How much rent, if any, may Ames recover from Boor?

Question 14

FACTS Fay and Loretta O'Connell were married in 1940 and owned their residence along with several bank accounts as joint tenants, with rights of survivorship. They had no children. Loretta had a sister, Mary Ann Raher, and two brothers, Milo Kettler and Robert Kettler. On November 21, 2005, the couple executed wills, both directing the residue of their estates pass to the survivor. On the second death, after certain specific bequests, the residual estate would pass to Milo and Robert. Loretta's sister was not included as a beneficiary in the residual estate of either Fay or Loretta, but was to receive $10,000 under Loretta's will. On that same date, Loretta signed a power of attorney form, appointing Fay as her attorney-in-fact, with Milo and Robert as successor attorneys-in-fact. In the summer of 2007, Loretta began suffering the debilitating effects of Alzheimer's disease, while Fay suffered from a terminal illness. Milo and Loretta's niece, Margaret Woolworth, filed an application alleging Fay was seriously mentally impaired. After an examination by a physician and a finding of no serious mental impairment, the application was dismissed. While Fay was involuntarily held for seventy-two hours, Milo and Margaret moved Loretta into a nursing home by. It appears this motivated Fay to take action to change his will and take full control of the couple's assets.
Fay requested Mary Ann come from her home in the state of Washington to Iowa and paid for her travel. While accompanied by Mary Ann, Fay went to the banks where he and Loretta had joint accounts and withdrew all the funds from those accounts. Fay deposited the funds into new accounts in his name alone and designated all but the money market account as payable-ondeath to Mary Ann. Additionally, Fay executed a general power of attorney designating Mary Ann as Fay's attorney in fact. He also changed his will by setting up a trust for the care of Loretta, if she survived him. If Loretta did not survive him or upon Loretta's death, after certain bequests, the balance of the trust assets was left to Mary Ann. Milo and Robert were no longer beneficiaries under the new will, and Fay's attorney later testified that Fay ''was very insistent he wanted nothing to go to them. And that was one of the reasons for the change in his will.'' The Security National Bank (SNB) was nominated as executor and trustee.
Fay died on August 9, 2007. In October 2007, Loretta, Milo, and Robert filed a petition naming the personal representative of Fay's estate, Security National Bank (SNB), and Mary Ann as defendants alleging conversion of Loretta's property by Fay and Mary Ann. In February 2009, the district court issued a summary judgment ruling. The district court found that because Fay did not intend to sever and could not destroy the joint tenancy, the assets remained held in joint tenancy with rights of survivorship in Loretta. The district court held that one co-tenant had no right to withdraw all or substantially all of the funds in an account, unless specifically authorized by the other joint tenants. An unauthorized, unilateral withdrawal of account funds is essentially a void action, and the parties' rights to the monies and the joint tenancy endure. The district court held that the transfers of ownership effectuated by Fay O'Connell prior to his death in regard to the bank accounts and certificates of deposit are void, and the ownership of these accounts and CDs shall be restored to the status existing immediately preceding the transfers. Mary Ann and SNB appeal from this order.
DECISION The district court's ruling invalidating the withdrawals is reversed and remanded; Loretta's claim for conversion is upheld for her proportional interest (50 percent) of the withdrawn funds.
OPINION Vogel, J. ''Joint tenancy property is property held by two or more parties jointly, with equal rights to share in the enjoyment of the whole property during their lives, and a right of survivorship which allows the surviving party to enjoy the entire estate.'' [Citations.] A joint tenant's right to the joint tenancy property can be described as ''an undivided interest in the entire estate to which is attached the right of survivorship.'' [Citations.] There are two separate features of joint tenancy, the ''proportional interest'' in the undivided interest in the property and the ''accretive interest'' in the right of survivorship. [Citation.]
''Notwithstanding the undivided nature of the tenants' proportional interests, each tenant's precise share of the undivided interest may be determined.'' [Citation.]
The rights of the individual joint tenants must be determined from their agreement. Generally, the respective rights of the parties to a joint bank account are determined by the rules of contract law, and the intent of the parties with respect to the joint [bank] account is controlling. Each joint tenant is presumed to own an equal share in the joint bank account; however, this presumption is rebuttable.
[Citations.] A joint tenancy may be severed by the actions of one or both of the joint tenants. [Citations.] Any severance of joint tenancy creates a tenancy in common. Id.
Traditionally, Iowa followed the four unities of title test, that is to create a joint tenancy the four unities had to be present-interest, title, time, and possession. [Citation.] ''To sever or terminate a joint tenancy, a joint tenant simply had to destroy one of the unities.'' [Citation.] That changed with the Johnson opinion, when our supreme court rejected the ''four unities of title'' test and adopted an ''intent-based approach'' in determining whether a joint tenancy had been created, severed, or terminated. [Citation.] Under the intent-based test, a court is not permitted ''to determine the intent of a party under the facts and then fulfill it.'' [Citation.] ''Instead, it seems fundamental that intent must be derived from an instrument effectuating the intent to sever the joint tenancy.'' [Citations.]
***
In the present case, the bank accounts were held in joint tenancy, with both Fay and Loretta having an undivided interest in the entire estate. [Citation.] Each joint tenant was permitted to make withdrawals from the account, as was specified in the account agreement. Ultimately, one joint tenant was permitted to deplete the account. [Citations.] Consequently, the initial transactions- the withdrawals of funds-was valid and could support the termination of the joint tenancy ***.
''Under an intent-based test, it is fundamental that the underlying instrument must effectuate the intent to sever.'' [Citation.] *** Fay clearly demonstrated his intent that the funds no longer be held in the joint tenancies. First, he withdrew all of the funds. He then deposited both his and Loretta's proportional interests into accounts in his name only and payable-on-death to Mary Ann.
***
*** Each joint tenant has an undivided interest in the entire account, but each joint tenant's proportional share may be determined. [Citation.] In a case where a joint tenant makes a valid withdrawal, of more than his proportional share, the remedy is not to invalidate the entire transaction. [Citation.] Rather, the remedy is a suit between the joint tenants to recover the funds taken in excess of the withdrawing joint tenant's proportional share. [Citation.]
***
*** [Under] Iowa law *** each joint tenant retains a right to terminate the joint tenancy and to do what each wishes to do with his or her proportional share of the account.
From his actions it is clear Fay intended to terminate Loretta's right of survivorship to the joint tenancy funds. Even though the withdrawals from the joint tenancy accounts were valid transactions, this does not determine nor destroy the proportional interests as between Fay and Loretta. [Citation.] Fay had a right to withdraw all of the funds and even to take control of all of the funds. However, he did so at the risk of Loretta claiming her proportionate share. The presumption is that each party has an interest in one-half of the funds in a joint tenancy account. [Citation.] Although this may be rebutted, it was not rebutted in the proceedings below nor raised on appeal. Consequently, Loretta may recover the amount Fay withdrew from each of the accounts in excess of his fifty-percent share of the monies withdrawn, plus interest accrued.
INTERPRETATION In the case of a joint tenancy in personal property (which is severable), one of the joint tenants may sever the tenancy, putting an end to the incident of survivorship, by taking and using his share of the common property; if a joint tenant withdraws from the account in excess of his interest, he is liable to the other joint tenant for the excess amount withdrawn.
CRITICAL THINKING QUESTION Do you agree with court's decision in this case? Explain.

Question 15

Jay signed a two-year lease containing a clause that expressly prohibited subletting. After six months, Jay asked the landlord for permission to sublet the apartment for one year. The landlord refused. This angered Jay, and he immediately assigned his right under the lease to Kay. Kay was a distinguished gentleman, and Jay knew that everyone would consider him a desirable tenant. Is Jay's assignment of his lease to Kay valid?

Question 16

FACTS Robert Hayford bought a lot and mobile home in Kennewick, Washington, from Mike Kirby in 1994. The water to the home was supplied by a well, which was tested on December 8, 1993. On March 15, 1994, the Benton Franklin District Health Department wrote to Mr. Kirby that (1) the nitrate level of the well water was elevated, (2) the well was free of bacterial contamination, (3) the sanitary seal was improperly installed and maintained, and (4) chemicals were stored within one hundred feet of the well. To protect and improve the water system, the health department recommended that (1) the sanitary seal be properly installed, and (2) the chemicals be stored at least one hundred feet from the well. The health department also recommended that the well be tested yearly for bacteria.
Hayford leased the home to Don and Shalee Tucker in October of 1998. The Tuckers asked if the well water was drinkable. Hayford said it was as long as a water filter was used. He said that the nitrates were a bit high.
The Tuckers signed a written residential lease prepared by Hayford. They ultimately extended the tenancy through August 1, 2000. The Tucker family, including their four children, all became ill. The family's pediatric nurse practitioner suggested that they test their well water. The test, dated March 28, 2000, showed bacteria in the water. The Tuckers told Hayford of the problem, and Hayford had the well repaired. The Tuckers, nevertheless, moved out of the home on May 15, 2000. They sued Hayford for damages for personal injury arising from contaminated water. Hayford moved for summary judgment. The trial court granted the motion.
DECISION The trial court's summary judgment order is reversed.
OPINION Sweeney, J. The Tuckers sued for damages based on their contract (obligation to perform major maintenance and repair, and covenant of quiet enjoyment); violation of the Landlord-Tenant Act; and negligent misrepresentation as to the water quality. We evaluate the viability of each claim.
***
CONTRACT CLAIMS
Obligations Imposed by This Contract. *** The tenant may recover for personal injuries caused by the landlord's breach of a repair covenant only if the unrepaired defect created an unreasonable risk of harm to the tenant. The Restatement (Second) of Torts § 357 (1965) provides that the lessor of land is liable if (a) the lessor has contracted to keep the land in repair; (b) the disrepair creates an unreasonable risk that performance of the lessor's agreement would have prevented; and (c) the lessor fails to exercise reasonable care in performing the agreement. [Citation.] The contract defines the extent of the duty when a landlord's duty arises out of a covenant.
***
Notice then under this provision of the Restatement becomes an issue when the particular condition under consideration is inside the residence where the landlord has no right to enter. But that is not the case here. The source of water here was an outside well, which the landlord had physical access to. Actual notice is not then required.
Here the lease includes (1) an express covenant of quiet enjoyment and (2) requires that the lessor maintain and repair the leased premises.
Quiet Enjoyment. *** It is well settled that unsafe drinking water renders a home uninhabitable. And that by definition interferes with the quiet enjoyment of the home. The Tuckers have made out an actionable claim for breach of the covenant of quiet enjoyment if we look at the evidence in the light most favorable to the Tuckers.
Major Maintenance and Repair. A health inspector recommended that this well be tested at least annually for bacteria. The question then is whether a reasonable person knew or in the exercise of ordinary care should have known that this well should have been tested annually- as part of the major maintenance of this home. Again, the evidence, viewed in a light most favorable to the Tuckers, includes high nitrate levels together with a recommendation for yearly bacteria testing. That is a sufficient showing to support a breach of the major maintenance and repair covenant of this lease, if proved.
DUTIES AT COMMON LAW
Traditional Common Law Landlord Liability. Common law landlord liability requires a showing: ''(1) latent or hidden defects in the leasehold (2) that existed at the commencement of the leasehold (3) of which the landlord had actual knowledge (4) and of which the landlord failed to inform the tenant.'' [Citation.] The landlord need not discover obscure defects or dangers, nor does the law impose any duty to repair defective conditions. [Citation.] A ''landlord is liable only for failing to inform the tenant of known dangers which are not likely to be discovered by the tenant.'' [Citation.]
The Tuckers moved into this home in 1998. The well was last tested in 1993. It was not tested again until after the Tuckers tested it in 2000. But this was after the Tuckers got sick. It had not then been tested for the five years prior to the Tuckers' moving in despite a recommendation by the health department that it be tested annually. This well was not then maintained at the time the property was leased to the Tuckers. And the condition of the water was certainly hidden or latent as to the Tuckers. Mr. Hayford did not warn the Tuckers. Mr. Hayford was aware of the report that required the annual testing. The Tuckers have then raised an issue of fact-whether Mr. Hayford knew or should have known of this latent defect.
***
Implied Warranty of Habitability. A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied duty of habitability; or
(2) a duty created by a statute or administrative regulation. Restatement (Second) of Property § 17.6 (1977).
***
RESIDENTIAL LANDLORD-TENANT ACT
*** The purpose of the Uniform Landlord-Tenant Act was twofold: '''simplify, clarify, modernize and revise''' landlord and tenant law, and to '''encourage landlords to maintain and improve the quality of housing.''' [Citation.]
Washington's Landlord-Tenant Act. The Landlord- Tenant Act requires the landlord to ''keep the premises fit for human habitation'' and to particularly maintain the premises in substantial compliance with health or safety codes for the benefit of the tenant. [Citation.] It requires the landlord to make repairs, except in the case of normal wear and tear, ''necessary to put and keep the premises in as good condition as it by law or rental agreement should have been, at the commencement of the tenancy.'' [Citation.]
It lists the landlord's obligations. [Citation.] And it lists the tenant's remedies: (1) terminate the rental agreement; (2) ''[b]ring an action in an appropriate court, or at arbitration if so agreed, for any remedy provided under this chapter or otherwise provided by law;'' or (3) pursue the other remedies available under the Landlord-Tenant Act. [Citation.]
*** We conclude that the Washington Residential Landlord-Tenant Act of 1973 provides a cause of action for the injury sustained here.
INTERPRETATION Most states require leased residential premises to be fit for ordinary residential purposes.
ETHICAL QUESTION Did the court fairly decide this case? Explain.
CRITICAL THINKING QUESTION When should the law require that premises be habitable? Explain.

Question 17

In 2001, Roy Martin and his wife, Alice; their son, Hiram; and Hiram's wife, Myrna, acquired title to a 240-acre farm. The deed ran to Roy Martin and Alice Martin, the father and mother, as joint tenants with the right of survivorship, and to Hiram Martin and Myrna Martin, the son and his wife, as joint tenants with the right of survivorship. Alice Martin died in 2009, and in 2012, Roy Martin married Agnes Martin. By his will, Roy Martin bequeathed and devised his entire estate to Agnes Martin. When Roy Martin died in 2014, Hiram and Myrna Martin assumed complete control of the farm. State the interest in the farm, if any, of Agnes, Hiram, and Myrna Martin on the death of Roy Martin.

Question 18

In her will, Teressa granted a life estate to Amos in certain real estate, with remainder to Brenda and Clive in joint tenancy. All the rest of Teressa's estate was left to Hillman College. While going to Teressa's funeral, the car in which Amos, Brenda, and Clive were riding was wrecked. Brenda was killed, Clive died a few minutes later, and Amos died on his way to the hospital. Who is entitled to the real estate in question?

Question 19

Otis Olson, the owner of two adjoining city lots, A and B, built a house on each. He laid a drainpipe from lot B across lot A to the main sewer pipe under the alley beyond lot A. Olson then sold and conveyed lot A to Fred Ford. The deed, which made no mention of the drainpipe, was promptly recorded. Ford had no actual knowledge or notice of the drainpipe, although it would have been apparent to anyone inspecting the premises because it was only partially buried. Later, Olson sold and conveyed lot B to Luke Lane. This deed also made no reference to the drainpipe and was promptly recorded. A few weeks later, Ford discovered the drainpipe across lot A and removed it. Did he have the right to do so?

Question 20

At the time of his marriage to Ann, Robert owned several parcels of real estate in joint tenancy with his brother, Sam. During his marriage, Robert purchased a house and put the title in his name and his wife's name as joint tenants, not as tenants in common. Robert died; within a month of his death, Smith obtained a judgment against Robert's estate. What are the relative rights of Sam, Smith, and Ann?

Question 21

In 1986, Ogle owned two adjoining lots numbered 6 and 7 fronting at the north on a city street. In that year, she laid out and built a concrete driveway along and two feet in front of what she erroneously believed to be the west boundary of lot 7. Ogle used the driveway for access to buildings situated at the southern end of both lots. Later in the same year, she conveyed lot 7 to Dale, and thereafter in the same year, she conveyed lot 6 to Pace. Neither deed made any reference to the driveway, and after the conveyance, Dale used it exclusively for access to lot 7. In 2013, a survey by Pace established that the driveway overlapped six inches on lot 6, and he brought an appropriate action to establish his lawful ownership of the strip on which the driveway approaches, to enjoin its use by Dale, and to require Dale to remove the overlap. Will Pace prevail? Why?

Question 22

Temco, Inc., conveyed to the Wynns certain property adjoining an apartment complex being developed by Sonnett Realty Company. Although nothing to this effect was contained in the deed, the sales contract gave the purchaser of the property use of the apartment's swimming pool. Temco's sales agent also emphasized that use of the pool would be a desirable feature in the event that the Wynns decided to sell the property.
Seven years later, the Bunns contracted to buy the property from the Wynns through the latter's agent, Sonnett Realty. Although both the Wynns and Sonnett Realty's agent told the Bunns that use of the apartment's pool went with the purchased property, neither the contract nor the deed subsequently conveyed to the Bunns so provided. When the Bunns requested pool passes from Temco and Offutt, the company that owned the apartments, their request was refused. Discuss whether the Bunns have a right to use the apartment's pool.