Property Flashcards
NC Fee Simple Determinable
Durational language not enough; NC requires the possibility of reverter to be express. Otherwise, FSA.
NC Rule Against Perpetuities
Uniform Statutory Rule Against Perpetuities:
1) CL RAP, or
2) Vests/terminates w/in 90 years of creation.
3) Possibility of reverter, right of (re)entry, or executory interest must vest in possession w/in 60 years if depends on events affecting use of land.
Applies to: (A) Executory interests (B) Contingent Remainders (C) Vested Remainders Subject to Open (class gifts) (D) Purchase options, and (E) Rights of first refusal.
Types of executory interests
1) Springing - automatically cuts off Grantor’s interest in favor of Grantee upon named event.
2) Shifting - automatically cuts off Grantee 1’s interest in favor of Grantee 2 upon named event.
NC Joint Tenancy
Doesn’t include right of survivorship unless explicit in conveyance.
Only requires unity of interest and possession. Not time and title.
NC TbyE
Presumption of TbyE for any conveyance to H&W, even if not described as H&W in deed. Can be opted out of by explicitly naming different cotenancy form.
NC Marketable Title Act
All Ks for sale of land contain implied promise that seller will deliver marketable title by default.
Person has marketable title when chain of title unbroken for 30 years, with exceptions:
1) rights/claims of person in present possession
2) rights of 3P who also has marketable title and listed on tax books as owner at time marketability is to be established,
3) rights of any owners of mineral rights
4) interests of fed govt that would otherwise be extinguished in violation of federal law
5) rights created by any security instrument, such as a mortgage or deed of trust, which is properly recorded
6) rights created under Torrens System, and
7) covenants running with land used to crate a general or uniform scheme of development.
NC Residential Property Disclosure Act
Seller/lessor of property (1-4 dwelling units), at or before time purchaser makes offer, must either:
1) State property is sold “as is,” OR
2) Disclose certain conditions of property of which the owner has actual knowledge:
(A) problems with water supply, sewage system, plumbing, electrical system, HVAC.
(B) probs/damage to structural componenets
(C) probs from past/current termites
(D) hazardous materials (asbestos, lead paint, radon/methane gas)
(E) encroachments and violations of zoning laws, restrictive covenants, building codes.
NC and Covenants of Title
NO IMPLIED COVENANTS OF TITLE; DEED MUST NAME ALL COVENANTS RESPECTING TITLE.
NC and Periodic Tenancies
Default rules:
1) Year-to-year periodic tenancy may be terminated by notice of one month or more prior to end of current year of tenancy.
2) Month-to-month periodic requires 7+ days notice..
3) week-to-week –> 2+ days
NC Tenant duties
1) Pay rent
2) Statutory duties:
- premises clean
- plumbing fixtures clean
- remove garbage
- not delib/neg destroy the premises
- be responsible for all damage inside dwelling unit in T’s exclusive control, and
- notify LL when need replace smoke/carbon monoxide detectors
NC Landlord duties
1) comply with current applicable bldg/housing codes
2) make repairs / keep fit and habitable
3) common areas in safe condition
4) maintain all electrical/plumbing/etc. systems and appliances.
5) provide and install operable smoke and carbon monoxide detectors, and
6) repair or remedy any imminently dangerous condition on the premises.
Constructive Eviction
CL: Tenant had to move out.
Modern: can be partial constructive eviction if covenant of quiet enjoyment breached and LL’s act substantially and temporarily interferes with tenant’s use and enjoyment of property.
Implied Warranty of Habitability
LL promises to deliver and maintain premises in safe, clean, and habitable condition.
Tenant Abandonment - NC
If T abandons, LL has duty to mitigate. Burden on T.
If T doesn’t pay rent w/in 10 days after demand by LL, implied forfeiture of term. LL can begin eviction proceedings, T must cure default to remain in possession.
Eviction Proceedings - NC
1) Only through judicial process.
2) Summary Ejectment proceedings available when T:
(A) holds over after lease term has expired
(B) has done or omitted an action for which the lease provides for forfeiture, or
(C) is in arrears in rent.
Tenant Security Deposits - NC
Security deposits for residential dwelling units capped at:
1) 2 weeks’ rent if week-to-week tenancy.
2) 1.5 months’ rent if month-to-month, and
3) 2 months’ rent for longer terms.
Security Deposits may be applied to:
1) nonpayment of rent
2) damage to premises
3) T’s nonfulfillment of rental period
4) unpaid bills that become lien on property
5) costs of re-renting premises
6) costs of removal/storage of tenant’s property, and
7) court costs for termination proceedings.
Landlord’s Liability
LL is only liable for injuries that occur from the following conditions:
1) undisclosed dangerous condition exists that LL know/should and T doesn’t know about
2) conditions exists that is dangerous to persons outside premises
3) premises leased for admission to public
4) parts of land are retained in LL’s control but are available for use by T
5) LL has contracted to repair, or
6) LL has been negligent in making repairs.
Tenant Remedies against LL
NC T cannot unilaterally withhold rent. Need judicial determination before doing so.
Fixtures
A fixture is a chattel that has become so connected to real property that a disinterested observer would consider the chattel to be part of the realty.
Mortgages extend to fixtures.
Trade fixtures may be removed by tenants w/in reasonable time after lease ends.
Recording Deeds of Gift
NC Deeds of gift must be recorded w/in 2 years, or they are void, even between Donor and Donee.
Tacking Adverse Possession
Allowed if there is privity.
Privity comes if there is a conveyance by a recognized means of transfer from AdvP1 to AdvP2.
NC Betterments Statute
If a person makes improvements to land she does not own and does so under color of title and with good faith belief that she owns the land, she may be able to recover the value of the improvements in an action by the true owner to reclaim the land.
Can’t be asserted against the State, though.
Methods of Creating Easements
1) Writing
2) Implication
3) Prescription
4) Estoppel
NC and Merger of Easements
NC alters CL rule; landowner may have an easement in his own land.
Easement by implication
Implication by prior use:
1) Severance of title to land held in common ownership
2) existing, apparent, and continuous use when severance occurs
3) parties intended use to continue after division of land since use is a reasonable necessity for the enjoyment of the dominant part at time of severance
NC implication
(A) dominant and servient parcels held in common ownership, and
(B) as a result of the subdivision, one of the parcels has not access to a public road.
Implication by necessity
1) Severance of title to land held in common ownership, and
2) strict necessity for the easement at the time of severance.
NC Necessity
(A) If no access to public road, landowner may seek easement through a court proceeding under certain circs (landowner will be using his land for cultivation, timber harvesting, mining operations, or industrial/manufacturing plants).
(B) Burdened landowner entitled to compensation.
Easement by Prescription
Same as easement through adverse possession.
NC
(A) Presumes use of another’s land is permissive, so need strong evid of hostile/adverse nature of use.
(B) Requires substantial identity of the easement throughout statutory period.
Covenants Running with land (NC: “real covenants”)
- *NC**
1) Privity: BOTH horiz and vert
2) Intent
3) Notice: recorded or in deed.
4) Touch and concern: Doesn’t have to have physical effect on land; sufficient if some economic impact on parties’ ownership rights.
5) In writing.
DEFENSE: Changed circumstances
Real covenants may be avoided when restricted area has undergone fundamental changes since covenant was established so that original object of restriction is essentially destroyed.
Equitable Servitudes - NC
If falls short of real covenant, may be enforced as equitable servitude when:
1) covenant touches and concerns land, and
2) original covenanting parties intended to bind the person against whom enforcement is sought as well as to benefit the person seeking enforcement.
