Property Flashcards
Master property law for the California bar
Joint tenancy - creation
T-TIPS!
Four unities:
- Time: JTs must take at same time
- Title: JTs must take by same title
- Interests: JTs must have identical interests
- Possession: JTs must have right to possess whole
With:
- Survivorship: JTs must have right of survivorship
Joint tenancy - severance
SPAM!
- Sale
- Remember equitable conversion
- To the extent that JT has more than two joint tenants the JT remains intact as between the other, non-transferring joint tenants - Partition
- By voluntary agreement, partition in kind, forced sale - Atypically, Mortgage
- Mortgage severs only in minority title theory jurisdictions
- To the extent that JT has more than two joint tenants the JT remains intact as between the other, non-mortgaging joint tenants
Landlord-tenant - tenant’s duties
- Duty to repair
- Not commit waste; if premises destroyed w/o fault, no duty to fix but under trad. rule, still liable for rent (modernly, can terminate)
- If T covenants to repair, enforceable in commercial lease; in residential lease, cannot waive implied warranty of habitability - Duty not to use for illegal purposes
- Duty to pay rent
Concurrent estates - co-tenants’ rights & duties
- Possession: each co-T has right to possess whole but no right to exclusive possession of any part
- Rents and profits:
- Co-T in possession has right to retain profits from own use of property
- Must share net rents from 3Ps and net profits from exploitation of land - Encumbrances: each co-T can encumber only his own interest
- Expenses
- Co-T who repairs entitled to contribution for any reasonably necessary repairs, so long as she gave notice
- Co-T who improves not entitled to contribution but at partition gets credit/liability for value change
- Co-Ts responsible for fair share of taxes or mortgage interest payments - Waste: Co-Ts must not commit waste.
- Partition: each co-T may bring action for partition
- Fair dealing: confidential relationship; no AP absent ouster
Landlord-tenant - landlord’s duties
- Duty to deliver possession
- Majority (“English”) rule: physical
- Minority (“American”) rule: legal - Implied covenant of quiet enjoyment
- Actual, partial, constructive eviction - Implied warranty of habitability
- Residential leases only - Retaliatory eviction
- Eviction 90/180/etc. days after T exercises rights - Discrimination
- Civil Rights Act 1866; Fair Housing Act
Landlord-tenant - landlord’s duties - quiet enjoyment
Actual eviction: If LL, paramount title holder, or hold-over T excludes T entirely, terminates T’s rent obligation
Partial eviction: If LL excludes T in part, terminates T’s rent obligation; if paramount title holder excludes T in part, apportions T’s rent
Constructive eviction: If LL’s actions/failure to act per duty render property uninhabitable, terminates T’s rent obligation if T gives LL notice, LL fails to act, and T vacates w/in reasonable time
- LL not liable for other Ts, but must control common areas and not allow nuisances
Landlord-tenant - landlord’s duties - implied warranty of habitability
Premises must be fit for basic human dwelling; if not:
- Move
- Repair and deduct cost from rent
- Reduce or w/hold rent until court determines fair rental value (usu. must place rent in escrow)
- Remain in possession, pay rent, and sue for damages
Landlord-tenant - tenant’s duties - duty to pay rent
If T breaches and is in possession:
- Evict through courts (T becomes tenant at sufferance and is liable for rent until vacates)
- Sue for rent
T breaches but is out of possession - SIR:
- Surrender: accept surrender, releasing T from duty; must confirm in writing if lease longer than yr
- Ignore: hold T responsible for rent; only available in minority of states
- Re-let: hold T responsible for deficiency
Landlord-tenant - landlord’s tort liability
CLAPS!
- Common areas: LL must maintain
- Latent defects: LL must warn if knows/should know
- Assumption of repairs: LL liable if voluntarily makes repairs negligently
- Public space: LL who leases public space (e.g., convention hall, museum) and who should know because of nature of defect and length of lease that T will not repair is liable for any defects
- Short term lease of furnished dwelling: LL liable for any defects which harm T
Servitudes - easements - creation
PING!
- Prescription
- Implication: implied from prior use; at time land is severed, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended
- Necessity: division of a tract deprives one lot of means of access out
- Grant: writing signed by grantor
Servitudes - easements - termination
END CRAMP!
- Estoppel: Servient owner materially changes position in reasonable reliance on easement holder’s assurances that easement won’t be enforced
- Necessity: Easements created by necessity expire w/ necessity
- Destruction: Condemnation or destruction of the servient land, other than through the willful conduct of the servient owner
- Conditions: Original easement may specify conditions for termination
- Release: Deed of release from easement holder to servient owner
- Abandonment: Easement holder demonstrates by physical action intent to never use easement
- Merger: Same person acquires both easement and servient estate; most hold interest in servient estate greater or equal in duration to easement
- Prescription: Servient owner interferes w/ easement in accordance w/ elements of AP
Servitudes - easements - definition
A nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement
- In gross
- Appurtenant
Servitudes - real covenants - definition
A promise to do or not do something related to land; it is UNLIKE the easement because it is not the grant of a property interest, but rather a contract or promise regarding land
Servitudes - real covenants - requirements for burden and benefit to run
Burden: WITCH NV Benefit WIT(c) V
- Writing: original promise between A&B in writing
- Intent: A&B intended successors in interest to be bound; courts look to language in writing or infer from circumstances
- Touch & Concern: restrict servient estate holder in use of land or impose duties that increase obligations of enjoyment
- Notice: subsequent purchaser for value must have AIR notice
- Horizontal privity: A&B must have shared interest in land independent of covenant (e.g., grantor-grantee, LL-T, mortgagee-mortgagor)
- Vertical privity: non-hostile nexus between covenantor and successor in interest
Servitudes - equitable servitudes - requirements for burden and benefit to run
Burden: WITN(es)
Benefit: WIT
- Writing: original promise between A&B in writing
- Intent: A&B intended successors in interest to be bound; courts look to language in writing or infer from circumstances
- Touch & Concern: restrict servient estate holder in use of land or impose duties that increase obligations of enjoyment
- Notice: successor of promisor must have AIR notice
Servitudes - implied equitable servitudes - creation
Common scheme
- Recorded plat
- General pattern of restrictions
- Oral representations to early buyers
Notice
- AIR
Servitudes - real covenants - termination
a. Written Release
b. Merger of benefitted and burdened estates
c. Condemnation of burdened property
Servitudes - equitable servitudes (including implied) - equitable defenses
- Unclean hands, laches
- Changed conditions: So pervasive that the entire area has changed
- Acquiescence: Benefited party acquiesced in violation by burdened party
- Estoppel: Benefited party acted in way that reasonable person would think abandoned
Conveyancing - sale contract - requirements
- The land contract must be in (i) writing, signed by the party to be bound, (ii) describe Blackacre, and (iii) state some consideration.
- SOF exception: 2/3 PIP
Conveyancing - sale contract - implied promises
- Seller promises to provide marketable title (no adverse possession, zoning violations, encumbrances)
- Seller promises not to make any false statements of material fact
- Majority adds: Failing to disclose latent material defects. Seller is liable for material lies and material omissions
Conveyancing - deed - requirements for interest to pass by deed
LEAD: Lawfully Executed And Delivered!
- Lawful execution: the deed must in writing signed by the grantor; need not described land perfectly but must contain an unambigous description and good lead
- Note that ORAL conditions drop out - Delivery: legal standard that inquires whether grantor had the present intent to be bound
Conveyancing - deed - types of deed and covenants for title
- Quitclaim: no covenants (but land sale K did promise marketable title)
- General warranty deed: six covenants
- Statutory special warranty deed: covenants that grantor hasn’t (1) transferred to anyone else or (2) made any encumbrances
Conveyancing - deed - types of deed and covenants for title - covenants in general warranty deed
Present covenants: breached, if ever, at time of delivery
1. Seisin: grantor owns estate
2. Right to convey: grantor has power to transfer (under no disabilities; sound mind, requisite age, not subj. to temp. restraints on capacity to convey)
3. Against encumbrances: no servitudes or liens on estate
Future covenants: breached, if ever, only when grantee is disturbed in possession
1. Quiet enjoyment: Grantee won’t be disturbed in possession by a third party’s lawful claim of title
2. Warranty: grantor will defend grantee against any lawful claims of title brought by others
- QE/warranty VERY similar
3. Further assurances: grantor will do whatever is needed in the future to perfect the title if it turns out to be flawed
Freehold estates and future interests - “To A [and his heirs]”
- Fee simple absolute
- Absolute ownership.
- Devisable, descendible, alienable - Future interest: none
Freehold estates and future interests - “To A, [while/until/so long as]…”
- Fee simple determinable
- Potentially infinite, so long as event does not occur
- NOTE: Words of mere desire, hope, or intention are insufficient to create a defeasible fee
- Alienable, devisable, descendible, subject to condition - Future interest: possibility of reverter, held by grantor
Freehold estates and future interests - “To A, but if X event happens, grantor reserves the right to reenter and retake.”
- Fee simple subject to condition subsequent
- Potentially infinite, so long as condition not breached and, thereafter, until holder of right of entry timely exercises power of termination
- NOTE: Words of mere desire, hope, or intention are insufficient to create a defeasible fee
- Alienable, devisable, descendible, subject to condition - Future interest: right of entry/power of termination, held by grantor
Freehold estates and future interests - “To A, but if X event occurs, then to B.”
- Fee simple subject to an executory limitation
- Potentially infinite, so long as stated contingency does not occur
- NOTE: Words of mere desire, hope, or intention are insufficient to create a defeasible fee
- Alienable, devisable, descendible, subject to condition - Future interest: executory interest, held by third party.
Freehold estates and future interests - “To A for life” (OR: “To A for the life of B”)
- Life estate (OR life estate pur autre vie)
- Measured by life of transferee (OR by some other life)
- Alienable, devisable and descendible IF pur autre vie and measuring life is still alive - Future interest: reversion (if held by grantor); remainder (if held by third party).
Waste - types of waste
- Voluntary or affirmative waste: overt conduct that decreases value
- For natural resources, can consume if PURGE satisfied (Prior Use before grant, to make Repairs, Grant, Exploitation is only suitable use of land) - Permissive waste, or neglect: land falls into disrepair (must maintain)
- Ameliorative waste: acts that will enhance the property’s value, w/o consent of future interest holders, co-Ts, etc.
Remainders - types
- Vested: created in an ascertained person and is not subject to any condition precedent
- Contingent: created in an unascertained person or is subject to a condition precedent, or both
