P Flashcards
An estate in land can be held concurrently by several persons, all of
whom have the right to enjoyment and possession of the land.
There are three forms of concurrent ownership:
The Joint Tenancy
The Tenancy by the Entirety
The Tenancy in Common
The Joint Tenancy
Two or more own with the right of survivorship
The Tenancy by the Entirety
A protected marital interest between spouses with the right of survivorship
The Tenancy in Common
wo or more own without the right of survivorship
joint tenancy
right of survivorship- deceased JT’s share goes automatically to surviving JT
alienable intervivos? (transferrable) yes
devisable?(passed by will) no
descendible? (pass thru intestacy) no
How to Create a Joint Tenancy
T- at same time
T-by same title
I-identical equal interests
P_right to possess whole
In addition to the four unities, to create a joint tenancy the grantor
must ____the right of survivorship.
clearly express
severance of joint tenancy
sale: JT sells/transfers during lifetime
(even w/o others knowledge or consent)
partition
voluntary:amicable end
judicial: in kind (phy division);forced sale (division of proceeds)
mortgage
maj of states (lien theory) no severance
minority of states (title theory) no severance
A tenancy by the entirety is a ___estate akin to a joint tenancy. It
can be created only between married partners, who take as a fictitious “one person” with the right of survivorship.
marital
how to sever tenancy by entirety
divorce (becomes tenancy in common)
death
execution of lien (of both spouses)
tenancy in common
no right of survivorship
cotenant owns individual part +right to possess whole
devisable, descendible, alienable
rights and duties of cotenants -possession
no ouster (wrongful exclusion from part/whole)
rights and duties of cotenants -rents and profits
none from co-tenant in exclusive possession (unless ouster)
fair share if leased to third party
rights and duties of cotenants -adverse possession
not unless ouster
rights and duties of cotenants -carrying cost
each pays fair share
rights and duties of cotenants -repairs
contributions for reasonable necessary repairs with notice
rights and duties of cotenants -unilateral improvements
no contribution (credit at partition)
waste: voluntary
willful destruction
waste: permissive
neglect
waste: ameliorative
unilateral change increasing value
judicial partition
partition in kind preferred
forced sale allowed if fair/equitable phys division not possible
A leasehold is an estate in land, under which the tenant has a
present possessory interest in the leased premises and the landlord
has a future interest (reversion). There are four leasehold estates:
- The tenancy for years
- The periodic tenancy
- The tenancy at will
- The tenancy at sufferance
This lease, also known as the estate for years or term of years, is for ____ That period could be, for example,
as short as one week or as long as 50 years.
a
fixed, determined period of time.
tenancy for years
termination automatic (on end date)
no notice needed to terminate
writing typically needed if >1year
periodic tenancy
continues for successive intervals until properly terminated
periodic tenancy
express (L to T from month to month)
by implication
no mention of duration but rent at set intervals
oral term of years violating statute of frauds
holdover tenant after lease ends
periodic tenancy: notice of termination
common law: atleast equal to length of period
month to month: 1 month
week to week: 1 week
year to year: 1 month under restatement
tenancy at will
no fixed duration
terminable at will of either party (To T as long as L or T desires)
tenancy at sufferance
t wrongfully holds over past lease expiration
L proceeds to recover rent
terminates when L moves to evict or holds T to new tenancy
T’s duty to repair if lease silent
maintain premises
make routine repairs
not ordinary wear and tear repairs
dont commit waste
A tenant’s duty to repair is linked to the doctrine of waste. A tenant
cannot damage (meaning, commit waste on) the leased premises.
There are 3 types of waste:
Voluntary (affirmative) waste:
It results when the tenant’s overt conduct damages the
premises.
Permissive waste:
It occurs when the tenant fails to take reasonable steps
to protect the premises from damage from the elements.
Remember, the tenant is liable for maintaining the premises,
excluding ordinary wear and tear. If the duty to maintain the
premises is shifted to the landlord (by lease or statute), the tenant has a duty to report deficiencies promptly.
Ameliorative waste:
It occurs when the tenant unilaterally alters the leased property, thereby increasing its value. Generally, the tenant is liable for the cost of restoration. There is a modern exception to this rule,
however, which permits a tenant to make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood
T’s duty to repair w express covenant
maintain in good repair/condition
T may terminate if premises destroyed w/o t’s fault
duty to pay rent; if T breaches and remains on premises:
evict
continue relationship and sue for rent
no self help
duty to pay rent; if T breaches and is out of possession
S- surrender: end lease
I- ignore: do nothing (hold T liable for rent)
R-Relet: new lease (hold T liable for deficiency)
duty to deliver possession
duty to place T in actual physical possession
implied covenant of quiet enjoyment
T has right to quiet use and enjoyment w/o interference from L (residential and commercial)
how L breaches IC of Quiet Enjoyment
breach by wrongful eviction: exclusion from whole or part of premises
breach by constructive eviction: L renders premises unsuitable for occupancy
SI- substantial interference (chronic/permanent problem)
N- notice (T must notify L)
G- goodbye/get out (T must vacate)
Actual eviction occurs when the landlord, a paramount title holder,
or a hold-over tenant
excludes the tenant from the entire leased
premises. Actual eviction terminates the tenant’s obligation to pay
rent
Partial actual eviction occurs when the tenant is
physically excluded
from only part of the leased premises. Partial eviction by the landlord
relieves the tenant of the obligation to pay rent for the entire
premises, even though the tenant continues in possession of the
remainder.
implied warranty of habitability
residental only
premises must be fit for basic human habitation
standard: case law and housing code
implied warranty of habitability
T’s options if L breaches (M R3)
move (doesnt have to)
repair and deduct
reduce or withhold rent
remain and seek damages
distinguish the implied promises : covenant of quiet enjoyment v warranty of habitability
1) T must vacate
2) T may but doesnt have to vacate
retaliatory eviction
L cant terminate/penalize T in retaliation for T’s exercise of legal rights
The Civil Rights Act bars ___ in the sale or
rental of all property.
racial or ethnic discrimination
The Fair Housing Act protects tenants and potential tenants from
discrimination based on ___
race, color, religion, national origin, sex, or
disability, as well as familial status (except in senior housing).
Except as relates to advertising (see c., infra), the Fair Housing Act
does not apply to
(1) owner-occupied buildings with four or fewer
units in which persons live independently of each other; and (2)
single-family homes sold or rented by an owner who owns no more
than three single-family homes.
FHA prohibited actions
Refusing to negotiate, rent, or sell housing or make available a mortgage loan or other financial assistance;
Providing different terms or conditions for the sale or rental
of a dwelling or for a mortgage or other financial assistance; and
Falsely representing that a dwelling is not available for
inspection, sale, or rental.
When the Fair Housing Act applies, landlords must permit disabled
tenants to make reasonable modifications to existing premises
to accommodate their disabilities at the tenants’ own expense.
Landlords must also make
reasonable accommodations in rules,
policies, and services when necessary to afford a disabled person an
equal opportunity to use a dwelling.
assignment
transfer of entire remaining term of lease
sublease
transfer of part of remaining term of lease
assignment
assignee T in privity of estate w/L
liable on covenants that run w land
original T in privity of K (but not estate) w/L
liable for org lease obligations
sublease; T2 has no privity (estate or k w L) … T1 and T2 ____
relationship b/w L and T1 ____
responsible to eachother
remain intact
Common Law of Caveat Lessee
The common law norm is: Let the tenant beware. In tort, a landlord
was under no duty to make the premises safe.
The five exceptions to caveat lessee: CLAPS
-Common areas
* Latent defects (L must warn)
* Assumption of repairs (L liable if negligent)
* Public use rule (short lease, significant defect)
* Short-term lease of furnished dwelling
Easement
grant of nonpossessory property interest entitling holder to use/enjoyment of anothers land
affirmative easement
right to go on to and do something on another’s land
negative easement
right to prevent landowner from doing something (light, air, support, stream water from artificial flow)
negative easement creation
must be express
easement appurtenant
benefits holder in use/enjoyment of own land
two parcels
dominant: derives benefits
servient: bears burden
An easement is in gross if it confers ____
upon its holder only some
personal or pecuniary advantage that is not related to their use or
enjoyment of their land.
servient land burdened
no benefited/dominant tenement
ex:
The right to place a billboard on another’s lot
The right to swim in another’s pond
The utility company’s right to lay power lines on another’s lot
The appurtenant easement passes _____ with transfers of
the dominant tenement, regardless of whether it is even mentioned in
the conveyance.
automatically
The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is ____
a bona fide
purchaser without notice of the easement.
An easement in gross is not transferable unless it is for ____
commercial
purposes.
The basic methods of creating an easement can be remembered by
P I N G:
- Prescription
-continuous,
-open and notorious,
-actual,
-hostile - Implication (preexisting use/quasi-easement)
- Necessity
- Grant- signed writing (unless outside statute of frauds)
termination of easement
E-estoppel (servient owner materially changes positions in reliance)
N-necessity (when need ends unless writing)
D-estruction (of servient land)
C-ondemnation (of servient land)
R-elease (by holder to servient owner)
A-bandonment (physical action)
M-erger (easement and servient land held by same person)
P-rescription (by servient owner)
license
mere privilege to enter another’s land for narrow/delineated purpose
creation of license
no writing req’d
freely revocable at will of licensor
profit
entitles holder to enter servient land and take some resource
covenant
promise to do or not do something
negative/restrictive covenant
refrain from doing something
affirmative covenant
do something related to land
On the exam, the same set of facts could seem to give rise to either
a covenant or an equitable servitude. How will you know which
analysis to apply?
money damages: construe as covenant at law
injunction: construe in equity as equitable servitude
If the following requirements are met, any successor in interest to the
burdened estate will be bound by the covenant as if they themselves
had expressly agreed to it. For the requirements for the burden of a
covenant to run, remember W I T H N:
- Writing
- Intent
- Touch and concern
- Horizontal and vertical privity
- Notice
Both horizontal and vertical privity are required for
the burden to run
Horizontal Privity
Horizontal privity refers to the nexus between the original
promising parties (A and B). It requires that they be in succession of estate, meaning that they were in a grantor-grantee or
landlord-tenant or mortgagor-mortgagee relationship when the
covenant was created. In other words, at the time the promisor
entered into the covenant with the promisee, the two must have
shared some interest in the land independent of the covenant.
Horizontal privity is difficult to establish. Its absence is the
reason why many burdens will not run.
Vertical Privity
Vertical privity refers to the nexus between the successor in
interest (A-1) and the originally covenanting party (A). It simply
requires some non-hostile nexus, such as contract, devise, or
descent. The only time vertical privity will be absent is when the
successor acquired her interest through adverse possession.
req for benefit to run
writing
Intent
touch and concern
vertical privity
equitable servitude
promise equity will enforce against successors of burdened land (regardless of whether it runs w land at law)
Generally, as with real covenants, equitable servitudes are created by
promises contained in a writing that satisfies the Statute of Frauds.
To create an equitable servitude that will bind successors, remember
W I T N E S:
writing
intent
touch and concern
notice
equitable servitude
The two elements of the general or common scheme doctrine:
Scheme of development (including D’s lot) when sales began
D had notice of promise when they took
forms of notice
actual (literal knowledge)
Inquiry (lay of the land)
record (public docs)
A court will not enforce an equitable servitude if:
a. The neighborhood conditions have changed so significantly
that enforcement would be inequitable. The changed circumstances alleged by the party seeking release from the terms of
an equitable servitude must be so pervasive that the entire area
or subdivision has changed. What’s never good enough here is
piecemeal change or mere pockets of limited change;
b. The person seeking enforcement is violating a similar restriction
on his own land (unclean hands);
c. A benefited party acquiesced in a violation of the servitude by a
burdened party;
d. A benefited party acted in such a way that a reasonable
person would believe the covenant was abandoned or waived
(estoppel); or
e. The benefited party fails to bring suit against the violator within
a reasonable time (laches)
adverse possession
possession for statutorily prescribed time can ripen into title if elements met
continuous (uninterrupted, as owner might use)
open and notorious (apparent to put owner on notice)
actual and exclusive
hostile (permission defeats)
One adverse possessor may tack on to his time with the land his
predecessor’s time, so long as there is ____between the possessors.
privity
Privity is satisfied by
any non-hostile nexus, such as a contract,
deed, or will.
privity is absent when
the possessor
acquires possession by ousting his predecessor in possession.
conveyancing: 2 step process
step 1
step 2
1) contract (conveys equitable title)
2)****
statute of frauds applicable
k must be in writing
signed by party against whom enforcement sought
must also:
identify parties
describe property
state consideration
preferred remedy for land k
specific performance
part performance
allows buyer to enforce oral K by specific performance if
1) **
2)
part performance
acts usually satisfied by 2/3 of following:
1) **
2)
3)
equitable conversion
**
marketable title
zoning
no false statements of material fact
no implied warranty of fitness or habitability
buyer beware (except sale of new home by builder)
to pass title, must be “LEAD” lawfully executed and delivered
lawful; execution requires
Writing signed by grantor
Unambiguous description
I**
W**
**no consideration needed
delivery req
legal standard testing grantor present intent (did they have present intent to be bound)
oral condition
3 types of deed
quitclaim
general warranty
special warranty
quitclaim
no covenants for title
general warranty
warrants against all defects in title (including by grantors predecessors)
6 covenants for title
special warranty deed
warrants against all defects in title (only for grantor themselves)
brightline rules for recording statutes
race
notice
race notice
race jx
notice jx
race notice jx
bonafide purchaser
purchaser
pay valuable consideration
take w/o notice of prior conveyance
actual notice
B learns of A (literal knowledge)
inquiry notice
B charged w what inspection wouldve revealed
record notice
B on notice of deeds properly recorded in chain of title
chain of title
sequence of recorded documents capable of giving record notice to later takers
shelter rule
anyone who takes from a bfp will prevail against any interest the BFP wouldve prevaield against
wild deed
recorded deed that isnt connected to chain of title (incapable of giving constructive notice)
estoppel by deed
grantor purports to convey to grantee realty they dont then own
grantor later acquires titles to the property
title automatically vests in grantee
grantor is estopped from denying validity of preacquistion conveyance
but watch out for BFP: early recording is outside chain of title
mortgagor
debtor (person owing money to lender)
mortgagee
creditor (lender)
purchase money mortgage
lender’s security interest in real estate that their loan enables debtor to acquire
mortage creation
debt (note) + lien in land to secure debt (mortgage)
in writing
transfers by mortgagor
recording statutes protect mortgagees
if recorded, mortgage sticks w land
whos personally liable on debt?
if O mortgagor sells blackacre to B
B assumes mortgage: both O and B
B takes subject to mortgage: only O but if recorded, blackacre can be foreclosed
foreclosure
effect of foreclosure on interests
junior interests terminated (paid in decending order from sale proceeds)
necessary parties: all junior lienholders +debtor\
senior interest unaffected (buyer takes subject to them)
priority of creditors
creditors must rceord
first in time first in right
purchase money mortgage: 1st priority in parcel financed
no clogging equity of redemption
debtor cannot waive right to redeem mortgage itself
Pursuant to its police powers, government may enact statutes to
reasonably control land use for the protection of the health, safety,
morals, and welfare of its citizens.
The variance is granted or denied by administrative action, typically
in the form of a zoning board. Usually, a variance will not be granted if
the hardship has been created by the applicant themselves
The variance is the principal means to achieve flexibility in zoning.
The variance grants a landowner permission to depart from the
literal restrictions of a zoning ordinance
What must a proponent of a
variance show?
show undue hardship + no diminution to neighboring property values
nonconforming use
prev allowed use cannot be eliminated all at once unless just compensation paid
cumulative zoning
land ranked and categorized to create hierarchy of uses (single family home is highest use)
noncumulative zoning
land may be used only for the particular purposes for which the land is zoned
special use permit
must be obtained even tho zoning proper for intended use (eg hospitals, drive ins)
In a condominium, each owner owns the interior of their individual
unit plus an undivided interest in the exterior and common elements.
Because condominium unit ownership is treated as fee ownership,
the ordinary rules against restraints on alienation apply. What are
some examples of common elements?
the common walkways, hallways, pool, community room, game room
homeowner association
each condo owner is member
oversee common elements
board enforces covenants conditions restrictions
special assessment= one time fee if dues dont cover an expense
lateral support
right to have land supported in natural state
if landowner causes adjacent land to subside
land in natural state: strict liability
land improved: liability if negligent
There are two major systems for determining allocation of water
in watercourses:
the riparian doctrine and the prior appropriation
doctrine. A boundary line also can be affected by accretion or
avulsion.
riparian doctrine
water belongs to those who own land bordering watercourse
riparians share right of reasonable use
prior appropriation doctrine
water belongs to state
right to divert/ use can be acquired thru actual use
common enemy rule
owner can take any protective measures to get rid of surface water/combat its flow
