CA Real Property Flashcards
What makes a DEED effective?
- Formality Requirements,
- Delivered
- Accepted/acknowledged
What are the deed Formality Requirements?
- A deed must be IN WRITING
- SIGNED by the grantor, and
- SPECIFY THE PARTIES AND LAND (within reason)
When does a Deed DELIVERY occur?
Delivery occurs when the grantor’s INTENT to make the deed presently effective is ascertained.
Intent can be inferred even if actual possession of the document itself is postposed.
When does ACCEPTANCE of a deed occur?
It occurs on the date the deed was delivered into escrow unless the parties expressly state otherwise
What is Adverse Possession?
Means of obtaining title to property through the operation of the statute of limitations for trespass.
How does Adverse Possession occur?
When the following elements are met:
- Running of statute
- OPEN and NOTORIOUS possession,
- ACTUAL and exclusive POSSESSION
- CONTINUOUS possession
- HOSTILE
When is Possession Open and Notorious?
When the occupation is sufficiently apparent or visible to put the true owner on NOTICE that a trespass is occurring.
What is Exclusive possession?
The possessor is not sharing with the true owner or the public
What is Actual possession?
The occupier made use f the property in the same way a regular owner would
What is a DEED?
A document that transfers title of real property from one party to another.
What is continuous possession? (element of adverse possession)
Possession must be continues throughout the statutory period; however, constant use by the claimant is not required as long as possession is of a type that the usual owner would take.
Under adverse possession, what is HOSTILE possession?
Without owner’s permission
What are the 3 types of waste?
- Voluntary
- Permissive
- Ameliorative
What is voluntary waste (aka affirmative waste)?
Voluntary waste occurs when the landholder intentionally or negligently damages the premises. It also excludes the exploitation of minerals and natural resources on the property, unless the property was previously used for that purpose.
What is a Bona Fide Purchaser?
A person who pays VAULE and has no NOTICE of the prior instrument.
What are the 3 types of recording acts?
- Race
- Race-Notice
- Notice
What are the 3 most important things to remember when discussing easements?
- TYPE of easement
- How the easement was created; and
- whether the easement was passed on or has terminated
What is an easement?
An EASEMENT is a NON-POSSESSORY interest in land that permits the holder to make limited use of another’s land for a specified purpose.
What are the 2 types of easements?
- APPURTENANT Easement
2. Easement IN GROSS
What is an APPURTENANT Easement?
An appurtenant easement is one that is CREATED TO BENEFIT and does BENEFIT the holder in his use of another tract of land and BURDENS the owner of the land.
What is an Easement IN GROSS?
An easement i gross is an easement that benefits an individual and is not tied to the land. An easement in gross does not transfer with the land when the property is sold.
Easements can be created through: (PING)
- Prescription
- Implication
- Necessity
- Grant
What is a Prescription Easement?
A prescriptive easement arises when someone uses or otherwise occupies another’s land without permission (adverse possession)
What is an Easement by Implication?
An easement by implication arises out of OPERATION OF LAW and need not be in writing. Most easements by implication arise out of a PRIOR EXISTING USE.
When does an easement by NECESSITY exist?
When the owner of a tract of land SELLS A PART OF THE TRACT, and by this division, one lot is deprived of access to a public road or utility line. This creates a RIGHT OF WAY BY ABSOLUTE NECESSITY over the lot with access to the public road or utility line.
What the elements of an express GRANT easement?
- Must be in writing
- Must identify the parties and affected land
- Must be signed by the grantor
- Must indicate intent on the part of the grantor
What is an EXPRESS RESERVATION easement?
Express Reservation easement occurs when the holder of the servient estate grants the easement holder TITLE to the land but reserves the right to continue to use the land for a specific purpose.
What are the tenants duties under every lease?
- Pay rent
- Not to commit waste, and
- Not to use the premises for illegal purposes.
If there is a breach of implied warranty of habitability what 4 remedies does the tenant have?
- Pay for repairs and offset the amount from the rent
- abate the rent
- vacate the premises and seek damages
- pay rent and sue for damages
What three events qualify as a breach of the Covenant of Quiet Enjoyment?
- Partial eviction
- Constructive eviction
- Actual eviction
What is Constructive Eviction?
This occurs when the landlord does something or fails to do something that renders the house uninhabitable.
Tenant must vacate before seeking damages.
An implied easement can arise out of prior existing use if:
3 elements
- Prior to the division of title of a single tract;
- An apparent and continues use of the “easement” existed when severance occurred;
- That was reasonably necessary for use at the time of severance.
What is a Real Covenant?
A Real Covenant is a WRITTEN promise concerning the use of real property. Real Covenants are either AFFIRMATIVE (a promise to do something) or negative/restrictive (a promise to do nothing)
What are the two sides to every Real Covenant? and What are the duties of each side?
Every Real Covenant has two sides - the BURDEN side and the BENEFIT side. The BURDEN is the duty to perform and the BENEFIT is the privilege of forcing another party to perform.
In order for a Burden of a covenant to run with the land, what elements must be satisfied?
- Notice
- intent
- touch and concern
- vertical privity
- horizontal privity
“Burden of covenant to run with the Land”
What is Notice?
Actual notice refers to direct knowledge of the covenant
“Burden of covenant to run with Land”
What is constructive notice?
constructive notice is notice given to the public at large by virtue of the covenant being RECORDED with a public official. Constructive notice is often called record notice.
“Burden of covenant to run with Land”
What is Inquiry notice?
A party is said to have INQUIRY NOTICE when a reasonable inspection of the land would have revealed the covenant.
“Burden of covenant to run with the land”
What is intent?
Parties intended promise would bind successors
What is the covenant against encumbrances?
Guarantees that there exists no physical or title encumbrances.
(in majority of jurisdictions, the covenant against encumbrances (to title or physical) is breached even if grantee is aware of encumbrance during time of sale.
What is the covenant of quiet enjoyment?
Warrants that the grantee’s possession will not be disturbed by a third party’s claim.
What is the covenant of warranty?
Requires the grantor to defend against reasonable claims of title by third parties.
Under landlord tenant law, what is an assignment?
a transfer of a leasehold interest
Under Landlord and tenant law, What is a consequence of Assignment?
The assignee stands in the shoes of the shoes of the original tenant in a direct relationship with the landlord. Assignee and landlord would be in privity of estate and each liable to the other on all lease covenants that run with the land
When does a covenant run with the land?
A covenant runs with the land if the original parties to the lease so intend, and if the covenant touches and concerns the leased land. Covenants regarding duration of the lease run with the land.
When does assignment of lease occur?
Assignment occurs when the assignor assigns his entire interest under the lease to another.
Assignee stands in the shoes of the original tenant in direct realtionship with the landlord.
What covenant always runs with the land?
covenant to pay rent
Covenants in a lease are generally held to be independent of one another. What happens when one party breaches a covenant?
The other party can recover damages, but must still perform.
What is a quitclaim deed?
A quitclaim deed is a release of whatever interest, if any, the grantor has in the property. eg. if grantor only has 1/3 interest in the property, the quitclaim deed is only for that 1/3
What is joint tenancy?
- created between two or more co-tenants
2. Right of survivorship, giving survivor an undivided right in the property.
What is a tenancy in common?
- No right of survivorship
2. Each tenant owns a distinct, proportionate, undivided interest in the property
To have adverse possession the claimant’s possession must be….? 4 elements
- open and notorious
- actual and exclusive
- continues
- hostile
Under common law what are the 4 unities required to create a joint tenancy?
Unity of
- time
- title
- interest
- possession
In joint tenant with right of survivorship who takes possession if one joint tenant dies?
the other joint tenant takes possession and not the heirs of the dead joint tenant
A co-tenant in possession has the right to retain profits gained by his use of the property, but does he have to share such profits with co-tenants out of possession?
NO. Need not share profits with co-tenants out of possession, nor reimburse them for the rental value of her use of the land unless there has been an ouster or agreement to the contrary.
When is a co-tenant in possession of the land entitled to contribution from other co-tenants not in possession?
- For necessary repairs
- For mortgages, and
- taxes on the property
When is a co-tenant of land not entitled to contribution from other co-tenants?
Not entitled to contribution for losses suffered from his use of the land.
What is marketable title?
Marketable title is title reasonably free from doubt, ie., title that a reasonably prudent buyer would be willing to accept
When can separate periods of adverse possession be “tacked” together to make up the full statutory period?
If there is privity between the successive adverse holders
Is title acquired by adverse possession marketable?
No, because purchaser might be later forced to defend in court against the record owner the facts that gave rise to the adverse possession.
What options does a tenant have when the implied warranty of habitability has been breached?
If leashold is not suitable for human habitability, the tenant may:
- move out and terminate the lease
- Make repairs and offset the cost
- Reduce or abate rent, or
- Seek damages against the landlord
What is constructive eviction?
Constructive eviction occurs when the landlord, by failing to provide a service that he has a legal duty to provide, makes the property uninhabitable.
What is retaliatory eviction?
When landlord penalizes tenant for exercising her rights in a residential lease. When landlord’s act occurs within 6 months of the tenant’s exercising her rights, a retaliatory motive is presumed.
When there is a breach of the implied covenant of Quiet Enjoyment, the tenant may move out in a reasonable amount of time and seek damages, but the tenant cannot. . . . ?
refuse to pay rent
