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Final Flashcards

1
Q

Concurrent rights of possession:

A

co-ownership (more than one person owning an interest in the property at the very same time [could be either a possessory or a shared future interest])

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2
Q

Types of Concurrent Interest

A

Tenants in common
Joint Tenants
Tenancy by the entirety

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3
Q

Tenants in common

A

separate but undivided ownership of property by two or more persons (preferred under modern law; general rule is to construe an ambiguous conveyance in favor of a tenancy in common) preferred because of their alienability

  • Each TIC has undivided right to use possess whole unit
  • Termination: T1 dies– his interest goes to his estate– transferred by will/inheritance
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4
Q

Joint Tenants

A

have the right of survivorship joint tenants together are regarded as a single owner. (preferred in common law)
* Each T owns undivided whole
* When T1 dies, interest disappears and other T’s absorb his interest
*Interest can be transferred during life– making it then a TIC however not transferable after death

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5
Q

Four elements of a Joint Tenancy

A

1) Time: must acquire interest at same time
2) Title: Must acquire title by same instrument
3) Interest: all must have equal undivided shares and equal measured by duration
4) Possession: Each tenant must have right to possess whole unit

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6
Q

Conveyance

A

Usually through deed– the transfer and assignment of any property right or interest from one individual or entity (the conveyor) to another (the conveyee).

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7
Q

Joint tenancy– Simultaneous Death Problem

A

Rule is that either clear and convincing evidence is used to demonstrate that one joint tenant survived the other by 120 hours or a governing instrument that provides for the distribution method. Or if joint tenants die close in time, we presume that each of them survive as to half. Treat it like a tenancy in common

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8
Q

Tenancy by the Entirety

A

can be created only in husband and wife( holding as one person); here the four unities plus a fifth unity: the unity of marriage, are required and the surviving tenant has the right of survivorship

  • One party cannot convey to third party and keep TBE, must both convey was they are considered one
  • Divorce/ death only way to sever
  • Insulate property held by the entirety from claims of creditors
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9
Q

Tenancy by the Entirety –creditors

A

MAJ: Interest of H or W in an estate by the entireties is not subject to the claims of his/her her individual creditors during the joint lives of the spouses

MIN(1) creditor can get to the interests of the debtor spouse, but cannot destroy the other spouse’s right to possession during life or survivorship right; if debtor spouse dies first, creditor has no interest.

MIN(2) Only the survivorship right can be attached

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10
Q

Multi-party bank accounts

A

Joint Account
Savings account trusts (trotten accounts)
Payable of Death accounts

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11
Q

Joint Accounts

A
  • A and B or A or B
  • Right of survivorship
  • A gift, arrangement for proportionate ownership; a convenience account; problematic probate avoidance device
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12
Q

Savings Account Trust “Trotten Trust”

A

Poor person’s trust, can use while alive, then goes to someone else upon death

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13
Q

Payable of Death (POD)

A

Only available where statutory authorized; during life I have and use the $

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14
Q

Partition

A

Division of concurrent interest in land
2 types: Partition in kind and Partition by sale
* If parties can agree on division, no partition needed
* Available to JT and TIC, not TBE

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15
Q

Partition in kind

A

occurs simply when the property is divided, equitably and fairly, between multiple owners. Property as unique/individual, more sentimental. Courts tend to favor this approach because it does not require someone to sell their property against their will

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16
Q

Partition by sale

A

Court sells the property and then divides up the proceeds amongst the parties according to their representative shares in the property. May result in owelty if one person gets more $ as a result of improvements made by other tenants. Economists like this because they argue that it leads to the most productive use of resources, property gets to its best use

*Rule: Partition by sale only applied when (1) physical attributes of the land are such that a partition in kind is impracticable or inequitable and (2) interests of the owners would be better served by a partition by sale

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17
Q

Exam tip on partition

A

Courts generally say that a partition in kind is preferred, but since partition is an equitable remedy courts will consider a variety of factors to decide whether to grant a partition in kind or partition by sale. Courts always try to find a reason to go with partition by sale

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18
Q

General rule for sharing land via cotenant

A

In absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property

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19
Q

Test for ouster

A

Created by either AD beginning to run or refusing other co tenant ability to enter

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20
Q

AD beginning to run for cotenant

A

o Requires the offending co-tenant to assert a claim of absolute ownership

o If they file a bill for partition, argue it as an implicit acknowledgement of co-ownership

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21
Q

Refusing the other co-tenants the ability to enter

A

o Majority Rule: before an occupying tenant can be liable for rent, he must have denied his cotenants the right to enter; nonliability for mere occupancy, an occupying tenant is not liable for rent notwithstanding a demand to vacate or pay rent.

o Minority Rule: Establishes liability for rents on a continued occupancy after a demand to vacate or pay rent.

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22
Q

Cotenant affecting the land

A

General Rule: the act of one joint tenant without express or implied consent or authorization from his cotenant cannot bind or prejudicially affect the rights of the latter.
**Limitations arise in cases where one joint tenant in possession leases all of the joint property without consent of his cotenant and places lessee in possession.
**Joint tenant not joining in the lease not bound by its terms and can recover from the tenant of his cotenant the reasonable value of use and enjoyment of his share of the estate if the tenant under the lease refuses him the right.
**Usually a lease not going to work as a severance because generally without an outright conveyance there is no severance.

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23
Q

Remedies available to cotenant (plaintiff)

A

** Partition, ouster, accounting
* Majority Rule that a cotenant in possession need not account to cotenants out of possession for the reasonable rental value of the property
* rent and profits: T1 collecting 3rd parties rent must account to other co-owners amount received
* T paying more than fair share of taxes, mortgage, etc can get contribution from other T’s (unless in some jsx not if T1 has been is sole possession

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24
Q

Four types of Leaseholds

A

1) Term of years
2) Periodic tenancy
3) Tenancy at will
4) Tenancy at sufferance

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25
Q

Term of years

A

An estate that lasts for some fixed period of time or for a period computable by a formula that results in calendar dates for beginning and ending

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26
Q

Periodic Tenancy

A

lease for a period of some fixed duration that continues for succeeding periods until L or T gives notice of termination; must be appropriate/timely notice to terminate; notice must be given a full period in advance.
* Renews automatically from period to period

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27
Q

Tenancy at Will

A
  • Tenancy of no fixed period that endures so long as both L and T desire
  • Ends when one of the parties terminates it
  • Usually a period of notice is required; 30 days is the default
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28
Q

Tenancy at Sufferance

A
  • Holdovers; L has the right to terminate at any time, will be ended by eviction or something to that effect
  • T not a trespasser, but a holdover, had a right but no longer does.
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29
Q

If lease made that does not meet any tenancies

A

From Garner case: look at the intention from the lease
* Could also be a license or concession– look to following factors: intention, number of restrictions, exclusivity, rights and remedies

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30
Q

Selection of Tenants

A

Cannot discriminate under FHA
* Law exempts owners of single-family houses that own no more than 3 houses and not use brokerage service

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31
Q

Delivery of possession

A

Two rules: English rule and American Rule

  • English (MIN but growing popular) unless stipulated otherwise, in every lease there is an implied covenant that L should make premise be open for entry at start of lease
    **If not sue L
  • American rule (MAJ but declining) when L fails to make premise available to T at beginning of lease, sue tenant still occupying land
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31
Q

Delivery of possession

A

Two rules: English rule and American Rule

  • English (MIN but growing popular) unless stipulated otherwise, in every lease there is an implied covenant that L should make premise be open for entry at start of lease
    **If not sue L
  • American rule (MAJ but declining) when L fails to make premise available to T at beginning of lease, sue tenant still occupying land
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32
Q

Sublease and Assignments

A

Leasehold interests freely alienable by an assignment or sublease.
* Policy: free alienability serves economic advantages or society at large because property gets to its highest/best use.
* If L wants to restrict, he must spell that out in the lease

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33
Q

Sublease

A

creates a new Leasehold out of the main leasehold (not for full duration of lease)
** No privity in estate between T1 and L. T liable to L for both privity of estate and K; T1 subtenant of T

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34
Q

Assignment

A

T transfers his entire interest to another. Takes original leasehold interest between L&T and passes it along to assignee, T out of the picture as far as holding of estate concerned.

** Privity of estate between T1 and L; Privity of K between T and L

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35
Q

Determining sublease or assignment

A

MAJ: when lease conveyed for entire time left in lease: assignment; lease conveyed for a time not for full duration of lease: sublease
MIN: Look to intent of parties

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36
Q

Privity

A

Privity of K: exchange of promises
Privity of Estate: Mutual or successive relation to some eight in property; legal relationship two parties bear when their estates constitute one estate in law

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37
Q

Termination by Forfeiture

A

*Termination by forfeiture occurs when T breaches the lease, enabling a L to re-enter the property and terminate the lease

** If T terminates by surrender, then the assignment to T1 probably still okay, but if L terminates by forfeiture then T1 out of possession.

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38
Q

Restrictions of Assignments/Sublease

A

Majority Rule: a restriction on transfer of a T’s interest in a lease may absolutely prohibit transfer (makes the lease less attractive though)

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39
Q

Commercial Approval Clauses

A

MAJ: Can refuse a proposed assignee no matter how unreasonable refusal is
MIN (but trending): refusal of proposed assignee when there is a commercially reasonable objection (financial responsibility of proposed assignee, suitability of property, legality of new use, need for alteration, nature of the occupancy, competition between Ts or with L)
** Moral/personal convictions not reasonable
** shows good faith and fair dealings
** different for residential– can be unreasonable

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40
Q

Termination and recapture clause

A

lease provision common in commercial property that allows the L to terminate the lease if the T finds a new T and profit off of the new T

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41
Q

Tenants who default– Common Law

A

L may legally use self help to retake premise provided that (1) l is legally entitled to possession for reasons such as T holds over after lease termination or where T breaches the lease and contains a re-entry clause and (2) the L’s means of re-entry are peaceable

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42
Q

Tenants who Default– (MAJ) Modern Rule

A

self-help is never available to dispossess a T who is in possession and who has not voluntarily surrendered or abandoned the premises.

**In some jurisdictions, the prohibition of self-help only applies to residential leases

43
Q

Rights, Remedies, and limitations when T defaults

A

**Distraint or distress for rent– only in some states, L can seize a defaulting T’s property on premise until they receive overdue payment without all prior hearing
** Statutory remedies
** Forcible entry & unlawful detainer statute: eviction->judgment rendered-> T refuses-> writ issued and executed by law enforcement and removes T
** Summary Proceedings: most common intended to be quick & efficient way to recover possession after termination. After only few days notice to T to bring eviction status. T can raise condition of premise as defense. Can be expensive and time consuming

44
Q

Tenant who has abandoned possession

A

Modern (MAJ): L has duty(reasonable diligence) to mitigate damages when seeking to recover rent from defaulting T

Old (MIN): L has no duty to mitigate damages caused by defaulting T

**Think of case where engaged man end up single and tries to end lease

45
Q

T surrender

A

T’s offer to end a tenancy (look at T’s intent)
*Terminates this if L accepts
* extinguishes T’s future rent but liable for accrued rent or previous breach

46
Q

Eviction

A

If L breaches the covenant of quiet enjoyment, we have an eviction. Once evicted, T relieved of any obligation to pay rent.

2 types: Actual and Constructive

47
Q

Actual Eviction

A

L has done something to keep T from physically possessing the property (even a portion of the property); something like being physically removed or kept out by the L. Majority of jurisdictions treat a partial actual eviction the same as a full actual eviction.

48
Q

Constructive Eviction

A

If (a) condition of property amounts to breach of covenant of quiet enjoyment and (b) the breach is so substantial as to justify T absenting the premise and (c) T thereafter leaves within reasonable time

CIRCO** Need provision for this to work

** Partial constructive evictions, T not relieved of obligation to pay rent but right to abatement of rent

49
Q

Covenant of quiet enjoyment

A

In every lease their is an implied covenant that T shall have undisturbed right of possession, occupancy, and beneficial use of every portion of the leased premises
IN CL: only duty to not interfere, no duty to repair. T has more rights now

50
Q

Illegal Lease Doctrine

A

under K law, if the leased premises violated codes/laws then it is illegal to lease the premises
* K illegal and uneforceable
** Precursor to IWH

51
Q

Implied Warranty of Habitability (res only)

A

L will deliver over and maintain, through period, premises that is safe, clean, and fit for human habitability.
** Code violation a breach; mere annoyance not enough
** Warranty cannot be written out

52
Q

Damages for violation of IWH

A

T can raise it as a defense for to summary eviction
T can terminate and sue
bed faith & intentional award of punitive damages
Basic K remedies: recission, reformation, damages for discomfort and annoyance
T may withhold rent, retain possession, and have the agreed upon rent reduced by virtue of L’s breach

53
Q

Retaliatory Eviction

A

MOD- forbid retaliatory action by Ls renting res space
CL gave L’s unlimited freedom to terminate (reason’s irrelevant)
Doctrine inapplicable if a T is in default on rent payments

54
Q

Law of waste

A

T has a duty not to commit waste.
Two types: Permissive and Voluntary
Permissive: refers to an injury caused by an omission
Voluntary: waste caused by destruction or carrying away of something attached to the property

Duty breached if T makes such change as to affect a vital and substantial portion of the premise (changing characteristic appearances, purpose of erection, change of realty)

55
Q

Types of servitude

A

Easements and Covenants

56
Q

Easements

A

Usually created by a grant; grant of a nonpossessory property interest (right of use of someone else’s land; but no ownership)

57
Q

Covenants

A

Promise about the use of the Tenement that creates in someone who doesn’t own that tenement certain rights (EX. HOA)
* Whoever owns the tenement is subject to the restriction (two types)

58
Q

Tenement

A

Piece of land held by an owner

59
Q

Two types of Covenants

A

Real covenants: recognized/ enforce at common law, breach results in damages
Equitable servitudes: kind of covenants that courts of equity would enforce usually by injunction

60
Q

Types of Easements

A

Affirmative easements; Negative Easements; Appurtenant Easements; Easements in Gross

61
Q

Affirmative easements

A

granted by a servient owner, gives a neighbor the right to enter or perform an act on the servient T.

62
Q

Negative Easements

A

easements forbidding one landowner from doing something on his T that might harm a neighbor (CL hated these because of preference of free alienability)

63
Q

Appurtenant Easements

A

(tied to the land) gives the right to the owner of the T that the easement benefits; requires both a dominant tenement and a servient tenement (benefits a dominant tenement, burdens a servient tenement); usually transferable along with the dominant tenement to successive owners.

64
Q

Easement in Gross

A

(tied to the person) not tied to the title of the T; belongs to a person/entity, not associated with ownership of the T; may be alienable or inalienable (personal); benefits the easement owner personally rather than in connection with the use of T that the person owns; involves no dominant estate, only a servient one

65
Q

Creation of Easements

A

main way is by written grant, subject of SOF
* MOD rule: Our primary objective in construing a conveyance is to try and give effect to the intent of the grantor (grants to be interpreted in the same way as other Ks)

66
Q

Stanger to the deed Rule

A

one cannot reserve an interest in property to a stranger to the title (Rule prevents creating easements in third parties because of the principle that only parties to a deed can take advantage of it)

67
Q

Reservation

A

Creation of easement: a provision in a deed creating some new servitude (new property interest) which did not exist before as an independent interest, retained by the grantor while the rest of the property is given to the grantee

Ex: O to A reserving a 20-foot easement of way along the southern boundary
68
Q

Exception of creation of easement

A

An exception is a provision in a deed that excludes from the grant some pre-existing servitude on the T.

Ex: after the above conveyance A to B except for easement previously reserved by O

An easement can have a duration comparable to any possessory estate

69
Q

Licenses

A

Oral or written permission given by the occupant of the T allowing the licensee to do some act that otherwise would be a trespass

Revocable, whereas an easement is not; two exceptions to revocability:
* A license coupled with an interest (one that is incidental to ownership of a chattel on licensor’s T) cannot be revoked [ex: O grants A the right to take Timber]
* A license that becomes irrevocable under the Rules of Estoppel [reliance key]

70
Q

Acquiring an easement through estoppel

A

Rule: Must have substantial reliance and/or investment and owner know/have reason to know of the reliance/investment

71
Q

Implied Easements

A

With easements by implication, there must have been a common ownership at the time of the implication

Two types: Implied easement based on prior use and Easement Implied by Necessity

72
Q

Requirements of Implied Easement based on Prior Use (Quasi Easement)

A

Requirements: (1) severance of the title to T initially undivided (2) an apparent existing and continuing use of one parcel at the time of the severance and (3) reasonable necessity for the use at the time of the severance

  • relaxation apparent for underground use
    *Chronology of transfer important
  • Reasonable necessity = alternative access cannot be obtained w/o a substantial expenditure of $/labor
73
Q

Implied easement based on prior use (quasi easement)

A

Some jsx distinguish between implied reservation (in favor of grantor) and implied grant (in favor of the grantee)
* quasi easement endure forever

74
Q

Requirements of Easement Implied by Necessity

A

(1) that there was a unity of ownership of the alleged dominant and servient estates (2) that the easement is a necessity, not mere convenience and (3) the necessity existed at the time of the severance of the two estates

  • MAJ strict necessity MIN reasonable necessity
  • Only endures as long as necessary
75
Q

Easement by Prescription

A

MOD: analogous to AD (exclusive, open and notorious, adverse, and continuous) Ex: neighbor uses path on your land w/ objection for 8 years.

  • Exclusive for this means there must not be a dependance on a similar right in others
    Usually rely on lost grant theory

** to prevent this, owned must effectively interrupt or stop the adverse use

76
Q

Lost grant theory (used in easement by prescription)

A

To secure an easement under the lost grant theory the claimant must show that the use was not permissive and that the owner didn’t object
MAJ: presumption is that an unexplained, open, or notorious use of land, continued for prescriptive period, is non permissive i.e., adverse

MIN(growing) initial presumption of permissive use applied, at least to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence

77
Q

Public Prescriptive Easement

A

obtained by long continuous use by the public under claim of right. Owner must be put on notice AD right being claimed by public

78
Q

Assignability of Easements

A

Appurtenant easement: benefits and burdens pass automatically
In gross: may not be assignable. Assignable if parties intended so

79
Q

Divisibility of Easements

A

One Stock rule: an easement in gross, though assignable, must be exercised as if owned by one person/entity (largely abandoned rule, makes sense in the context of profits though, mining rights for example)

Modern rule: an easement in gross is divisible when the parties so intend or when the easement is exclusive (meaning that the easement owner has sole rights to engage in the activity the easement permits) also look to the nature of the easement (would division overburden the servient estate?)

80
Q

Scope of Easements

A

MAJ: holed of an appurtenant easement cannot use the easement to benefit a non-dominant parcel and that any such use is subject to an injunction

MIN: appurtenant easement may be extended to non-dominant land so long as no unreasonable burden on the servient estate results and so long as the benefits to the dominant estate outweigh the burden on the servient estate

81
Q

Termination of easements

A

(1) owner agrees to release easement
(2) If fixed duration, and duration ends
(3) if agreeance of ending after event and event happens
(4) easement by necessity ends when no longer necessary
(5) Merger- easement owner becomes owner of servient estate
(6) End through estoppel if servient owner relied upon statement or representation by the easement owner
(7) gov ends by condemnation
(8) end by prescription if servient wrongfully and physically prevents easement from being used for the prescriptive period
(9) by abandonment
(10) easement would survive tax foreclosure, but not mortgage if made after mortgage happened
(11) TRAD - no end for changed condition however, is significant changes termination by frustration of purpose

82
Q

Negative Easements

A

the right of the dominant owner to stop the servient owner from doing something on the servient land (most commonly some sort of use restriction)
* broadly not enforce but some that are enforced are view easements and solar easements

83
Q

Covenants running with the land

A

Covenants enforceable by law: real covenants
* two sides: burden and benefit

84
Q

Requirements for real covenants

A

Intent
Touch and concern
Privity of estate

85
Q

Touch and concern

A

having a close relationship to ownership of he land, not personal

86
Q

Privity of estate

A

Two types: Horizontal and Vertical

87
Q

Horizontal privity

A

P/E between the original covenanting parties, requires the covenants to be a part of a conveyance
* TRAD if we don’t have this at time promise made covenant does not run with the land
* No P/e w/ neighbors without a conveyance
P/K not enough to run

88
Q

Vertical Privity

A

P/E between one of the original covenanting parties and a successor in interest
* no vertical privity if the title is created by AD

89
Q

Equitable servitudes

A

covenants enforceable in equity
* both affirmative and negative covenants enforceable in equity

90
Q

Requirements for equitable servitudes

A

(1) intent (2) touch and concern (3) notice
Parties to the covenant intended it to run
*not just personal promise between a & B
* No privity required here
The subsequent purchaser had notice (actual, constructive, inquiry) of the covenant in order to be bound
The covenant touches and concerns the land

91
Q

Touch and Concern requirement

A

Covenants restricting the use of land almost always have been held to touch and concern the land
* Courts have been wary about enforcing affirmative covenants against successors, they don’t like issuing orders to perform a series of acts requiring continuing judicial supervision
o Annual fees for example, however, if the purpose/function of the payment is the ultimate benefit of the land involved, then that is okay
 After the original promisor has conveyed the burdened land, the promisor cannot be sued on the covenant, either in law or in equity

92
Q

Exam Tip

A

Analyze the running of the covenants both as real covenants and as equitable servitudes; the privity requirements makes the law of real covenants complex; the law of equitable servitudes is generally easier to apply, but the burden only runs in equity against those on notice

93
Q

Covenants running with the land

A
  • 3rd restatement lumps real covenants and equitable servitudes together

** discards vertical privity requirement and touch and concern requirements

***Not widely adopted

94
Q

Creation of real covenants

A

Must be in writing and signed by covenantor

  • cannot arise by estoppel, prescription, or implication
95
Q

Creation of equitable serviudes

A
  • implied under certain limited circumstances
    ** LOOK AT OUTLINE

** Not obtained by prescription

96
Q

Discriminatory covenants

A

may not enforce racially discriminatory covenants it would violate EPC

97
Q

Termination of covenants

A

(1) merger on basis of unity of ownership of the benefit and burden by the same person
(2) formal release- usually written
(3) Acquiescence p failed to enforce servitude against other breaches then seeks to do to against D
(4) abandonment
(5) equitable doctrine of unclean hands - refusal to enjoin violation of a servitude that P previously violated
(6) equitable doctrine of laches unreasonable delay by P to enforce servitude
(7) estoppel D relied on P conduct making it inequitable to allow P to enforce the servitude
(8) eminent domain
(9) Prescriptions: not sued for lonf enough, covenant goes out of existance
(10) changed conditions
(11) relative hardship doctrine

98
Q

Types of ways to create easements

A

Deed–most typical
Easement through estoppel
Implied easement from prior use (quasi easement)
Implied easement by necessity
Easement by prescription

99
Q

General Warranty Deeds

A

the grantor essentially warrants that the deed conveys to the grantee fee simple title to real estate free of liens, encumbrances, and other adverse claims or defects.

100
Q

Special warranty deeds:

A

limited warranty deeds) do not warrant against title problems that predate the grantor’s ownership, but they do warrant against liens, encumbrances, and other title defects attributable to the grantor

101
Q

Quitclaim deeds:

A

warrant nothing, but they are fully effective to transfer whatever interest the grantor may have at the time the deed is delivered.

102
Q

Pure race statutes:

A

first claimant to record wins

103
Q

Notice statutes

A

generally protect a BFP who has no notice of prior, unrecorded claim

104
Q

Race notice statutes

A

generally protect a BFP who has no notice of a prior, unrecorded claim and who records first

105
Q

Types of notice

A

Actual (even if not recorded)
Constructive(Anything recorded)
Inquiry (certain circumstances raise red flags

106
Q

Requirements for valid deed

A

Identify grantor/grantee
Show intent to convey
include lengthy land description
Signed by grantor (and usually notarized)
Delivered

property (2 decks)

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