Prop Flashcards
Adverse Possession
One who wrongfully enters prop excludes gov’t owned land
Req of Adverse Possession
Continuous
Open & Notorious
Hostile
Exclusive
Continuous AP
For statutory period (CL 20 yrs)
Seasonal or infrequent if
Consistent w/ type of property
Open & Notorious AP
Used in manner such that
Reasonable true owner on notice
Seasonal sufficient if intended use
Hostile AP
W/ out true owner’s consent Ignores state of mind (Maj) Good Faith (Min) Hostile if thinks rightful owner Bad Faith (Min) Knows not his
Exclusive AP
Excludes owner and general public
Tacking AP
Can tack on predecessor’s time to satisfy statutory period if relationship such as transfer, contract, or deed
Disabilities AP
SOL stayed for true owner at time AP began infancy, insanity, prison at time AP began
Color of Title AP
SoL ran and entered w/ belief owned acquires AP for whole prop if significant portion
Formation of K for Sale of Land
Requires offer, acceptance, and consid
SoF Sale of Land
Writing Signed by party to be charged Essential terms: Parties Description of property Price and payment info
Exceptions SoF Sale of Land
Part Performance (need two): Payment Possession Improvements Detrimental Reliance (Estoppel): Reasonably relied upon k AND would suffer detrimental hardship Admission Rescission: can be oral
Risk of Loss & Equitable Title Sale of Land
Buyer Liable unless deed states otherwise
Marketable Title
Implied covenant title
Free from unreasonable risk of litigation
Have until closing to cure
Time of Essence Sale of Land
Unless k specifically states
Merger Sale of Land
K merges w/ deed
Extinguish all rights/obligations
Under k and following only
Terms under deed
Types of Deeds
General Warranty Deed
Special Warranty Deed
Quitclaim Deed
General warranty deed
Protects against all 6 warranties
For all defects
Special Warranty Deed
Protects against 6 warranties
For all defects caused by grantor
Quitclaim Deed
No warranties and
Receives same as grantor held
Covenants of Title
Seisin Right to Convey Against Encumbrances Quiet Enjoyment Warranty Further Assurances
Req of Deeds
Identify Parties Signed by Grantor (SoF) Words of Transfer Sufficient description of property Delivery Acceptance
Delivery of Deed
Retained by grantor, presumed no transfer
Given to 3rd party, once given ownership retroactive
Given to grantee, presumed valid
Acceptance of Deed
Presumed with land
Implied Warranty of Fitness or Suitability
Defects in new construction
Used adequate materials and good
Workmanship in working on residence
Duty to Disclose Sale of Land
Material physical defects
Material if substantially affects value safety of occupants or desirability
Not readily observable
Recording Acts Attach to
Deeds, mortgages, leases, options, judgment affecting title
Types of Recording Acts
Race
Notice
Race/Notice
Shelter Rule
Take as if subsequent purchaser
Estoppel by Deed
Transfers when not owned cannot repossess once owned
Mortgages
Security device used to secure payment of debt owed by party (mortgagor) to lender (Mortgagee)
Maj Lien Theory Mortgages
Borrower treated as owner
Lender holds lien
Min Title Theory Mortgages
Lender treated as owner
Purchase Money Mortgage
Loan obtained for purpose of
Purchasing property
Future Advance Mortgage
Line of credit or second mortgage after
Property purchased
Deed of Trust
Delivers title to 3rd party (Tee)
Until note paid
Installment Land K
Seller retains title until pmt
CL: if buyer breaches
Seller keeps installments and land
ML: some JDX must foreclose, or redemption, or restitution
Absolute Deed
Transfer of title for loan
Prove by clear and convincing evidence
Conditional Sale & Repurchase
Sells to lender who leases back w/ option to repurchase when paid
Transfer by mortgagor
Liability of mortgagor Remains liable Liability of transferee If assumes, personally liable Takes subject to, not personally liable and is default
Due on Clause Sale
Lender demand full pmt on transfer
Transfer by mortgagee
Mortgage follows note
Foreclosure
Forced sale of asset to pay debt when
Mortgagor in default
Types of Foreclosure
Judicial sale (by court) Power of sale (auction by mortgagee)
Equity of Redemption
Right of mortgagor to reclaim and prevent foreclosure by paying in full
Statutory Redemption
Deed in lieu of foreclosure
Convey property in exchange for release
Deficiency of Mortgage
Responsible for remaining after foreclosure
Priorities of Mortgage
First in time
Exceptions to Priorities of Mortgage
Purchase money mortgage Recording act Subordination agreement Mortgage modifications Do not change priority Future-advance mortgages After-acquired property
Easement
Right by one to make specific, limited
Use of land owned by another
Types of Easement
Appurtenant
In Gross
Affirmative
Negative
Express Easements
Grant
Reservation
Grant Express Easement
Created by parties in writing
Reservation Express Easement
Conveys land but
Reserves easement for him/herself
Implied Easements
By Implication
By Necessity
Prescriptive
Easement by Estoppel
Easement By Implication
Prior use
Continuous and apparent after severance
Reasonably necessary to dominant land
Easement By Necessity
Common ownership in past
Strict necessity at severance
Prescriptive Easement
AP minus exclusive
Easement by Estoppel
Permission by someone to use land
Continuous reasonable reliance
Permission is withdrawn and
Reliance was detrimental
Scope of Easement
Defined by first instance of its terms
Change in Scope:
Reasonableness standard
If exceeds, trespasser
Termination of Easement
ENDCRAMPS: Estoppel Necessity Ends Destruction Condemnation Release Abandonment Merger Prescription Sub BFP
Release Term of Easement
Written and comply with SoF
Abandonment Term of Easement
Non-use PLUS
Demonstrating intent
Merger Term of Easement
Acquire full title to other property
Prescription Term of Easement
Fails to protect against AP
Sub BFP Term of Easement
No record, not enforceable
Profit Prop
Non-possessory right to enter land AND
Remove specific natural resources
License Prop
Revocable non-possessory right to
Enter land for particular purpose
Covenant Prop
Promise restricting right to use property or
Impose obligations on owner
Req of Covenant Prop
WITCH VaN: Writing Intent Touch and Concern Horizontal (Burden Only) Vertical Strict (burden) Relaxed (benefit) Notice (Burden Only)
Termination of Covenant/Equit Servitudes Prop
DREAM CC: Destruction Release Estoppel Abandonment Merger FSA Condemnation Changed Circumstances
Remedy of Covenant Prop
Damages
Equitable Servitudes Req
WITN: Writing Intent Touch and Concern Notice (Burden Only)
Remedy of Equit Servitudes
Injunctive Relief
Implied Reciprocal Servitudes
Planned scheme with mutual rights of enforcement
IRS Req to Run
Common scheme
Negative servitude
Notice (AIR)
Remedy of IRS
Injunctive Relief
Defenses to Covenants & Equitable Servitudes
Acquiescence: implied permission
Changed Circumstances: does not make sense due to drastic changes in surrounding area
Laches: unreasonable delay in claim and prejudicial to defendant
Unclean Hands: engaged in same conduct
Estoppel
Common Interest Ownership Communities
Property owners’ associations:
Required to pay dues by owning property
Condominiums:
Required to pay fee for maintenance and use of common areas
Cooperatives:
Owned by corp leases to shareholders and share fees for taxes and maintenance
Existing Nonconforming Property Zoning
Occurs when zoning is changed and
Existing structure no longer complies
Grandfathered in but
Cannot expand or switch use
Post-Ordinance Nonconformity Zoning
Request to use property in
Existing non-conforming way
Request: variance or special exception
Variance Types Zoning
Use:
Right use in manner not permitted
Area:
Restriction on manner property developed
Req of Variance Zoning
Result in unnecessary hardship Circumstances unique to property Not created by owner Keeping w/ overall purpose of ordinance Not substantial harm to general welfare
Special Exception Zoning
Receives a permit
Spot Zoning
Singles out for different treatment
Procedural DP Rights Zoning
Right to receive hearing
Present evidence
Receive explanation
Dedication Zoning
Gives use to gov’t but retains fee owner
Riparian Water Rights
Water flowing through or adjacent to land
Reasonable Use:
Cannot transfer separate from land
Prior-appropriation Doctrine:
Can transfer separate from land
Lateral Support Rights
Excavates:
Strictly liable for damage
Except: if contributed, then negligence
Subjacent Support Rights
Mineral rights owner strictly liable for failure to support
Except: if contributed, then negligence
Air Rights
Reasonable use UNLESS
Interferes with another’s reasonable use
Type of Tenancies
Term of Years
Periodic
At Will
At Sufferance
Term of Years Tenancy
Fixed and ascertainable time
Auto expires at end of term
Periodic Tenancy
Repetitive, ongoing by set period
Auto renews each period
Notice before end of last period
Based on length of period
At Will Tenancy
No specified term
30 day notice
At Sufferance Tenancy
Holdover tenancy
Can evict or if accepts money creates month to month periodic
Tenancy Disputes
Pay Rent
Condition of Premises
Possession (Eviction)
Improvements (Fixtures)
Rent Dispute
Duty to Pay
Look to agreement or RRV
Maj: reasonable effort to rerent
Min: no duty to mitigate
Defenses to Rent Dispute
Failure to Deliver Possession Destruction Constructive Implied Warranty of Habitability K concepts Surrender and Acceptance
Failure to Deliver Possession Defense
Majority: legal and physical possession required
Destruction Rent Dispute Defense
CL: T responsible
ML: L responsible
Constructive Defense Rent Dispute
LL breaches duty to
Tenant that Substantially interferes
W/ T’s use and enjoyment
Implied Warranty of Habitability
Maintain such that
Property reasonably suited for
Residential use
Req of Constructive Eviction
Requires:
T notice
LL given time to fix
Vacates w/in reasonable time
Req of Implied Warranty of Habitability
Notice to LL May: Terminate and move Repair and deduct Pay reduced rent and sue
Condition of Premises Defense to Rent
LL maintain common areas for defects AND Make necessary repairs T avoid Waste Affirmative: voluntary Permissive: negligent Ameliorative: increases value
Possession (Eviction) Defense to Rent
CL: lock out and reasonable force
ML: no self help and use legal process
Retaliatory Eviction Doctrine
Cannot evict T for
Reporting housing code OR
Withholding rent due to habitability
Improvements (Fixtures) Defense to Rent
CL: stay w/ prop if attached UNLESS trade fixture
ML: Remove if does not damage AND done before end of lease
Transfers of Tenancy LL
LL can assign or delegate but requires supervision w/ out T approval
Assignment by Tenant
Complete transfer
New T: liable to LL
Old T: liable to LL
Sublease by Tenant
Partial transfer
New T: not liable to LL
Old T: liable to LL
Novation Tenant Transfer
Release OG from liability
Present Interests
FSA Life Estate FS Determinable FS Subject to Condition Subsequent FS Subject to Executory Interest
FSA
Largest possessory estate
Capable of lasting forever
“And his/her heirs”
Life Estate
Duration of life
Pur Autre Vie
Life of another
Obligations of Life Estate owner
Mortgage interest
Repairs reasonable
Taxes reasonable
No waste
FS Determinable
Limited by durational language
“While, during, until, so long as, unless”
FS Subject to Condition Subsequent
Limited by conditional language
“Provided that, on condition that, however if, but if”
FS Subject to Executory Interest
Upon occurrence of particular event
Auto passes to 3rd party
FI Transferor
Reversion
Possibility of Reverter
Right of Entry
Reversion
Future interest in grantor
Follows life estates or estate for years
Possibility of Reverter
Follows FS determinable
Auto reverts to grantor
Right of Entry
Follows FS Subject to Condition Subsequent
Must exercise right
Doctrine of Worthier Title
Remainder in grantor’s heirs
FI Transferee
Remainder or Executory Interest
Remainder
Future interest in 3rd party
Vested or contingent
Vested Remainder
Not subject to condition
Precedent AND ascertainable
Vested Subject to Open or Vested Subject to Complete Divestment
Vested Subject to Open
Class gift w/ one member vested
Rule of Convenience
Closes class when member Entitled to immediate possession
Contingent Remainder
Unascertainable OR subject
To condition precedent
Alternate Contingent
Two parties have contingent AND pivots on same condition
Rule in Shelley’s Case
Prevents remainders in grantee’s heirs
Executory Interest
Upon occurrence of condition Auto reverts to 3rd party Springing Divests interest of grantor Shifting Divests interest of grantee
Absolute Restraint on Alienation
Void
Rule Against Perpetuities
A life plus 21 years Applies to: Contingent Remainders Executory Interests Vested Subject to Open
Types of Concurrent Ownership
JT
TE
TC
JT
Two or more hold single, unified interest w/ right of survivorship
Req of JT
PITT: Possession Interest Title Time
Severance of JT
Transfer Title Theory Mortgage severs Lease on whole prop to 3rd party Split JDX Ouster Partition
TE
Only for married similar to JT
TC
No right of survivorship
Undivided interest w/ unrestricted access to prop
Default
Rights and Obligations of Concurrent Tenants
Ouster Profits Rent Operating Expenses Repairs & Improvements
Ouster
One co-tenant refuses to
Allow access to another
Profits from Concurrent Tenants
No required to share from use EXCEPT mining
Rent from Concurrent Tenants
Must share received from 3rd parties
Operating Expenses from Concurrent Tenants
Can collect for more than her portion
Repairs and Improvements from Concurrent Tenants
No right to reimburse
