Property Flashcards
Joint Tenancy with Right of Survivorship
JT with ROS is not descendible, devisable, or alienable. However, it can be severed by partition, operation of law, or mortgage in some states.
Created by TTIP
Valid Deed
A valid deed requires lawful execution and delivery. It identifies the property, adequately describes the property, and the person had the present intent to deliver the deed.
Tenancy in Common
A TIC is an undivided interest in the property where each tenant has a right to possession as a whole.
Can be result of severed JT
Quitclaim Deed
A quitclaim deed provides no guarantees except the implied promise of marketable title.
Race-Notice Jdx
A race-notice recording statute requires that the first bonafide purchaser, without notice, to record their deed will prevail
Bonafide Purchaser
A BFP is a good faith purchaser for value. Amount you spent is irrelevant, as long as you actually purchased.
Notice
Notice requires actual, record, or inquiry
Actual Notice
Actual notice requires that the grantee receive notice either expressly or impliedly prior to conveyance either by statement or conduct
Record Notice
Record notice requires that the person who had the property actually recorded and the buyer would have been put on notice had they checked
Inquiry Notice
Inquiry notice requires that the person would be able to tell by looking around the property that someone else owns the land or has an interest in it
Usually something obvious like physically residing on it
Tenancy of Years
a TFY is a lease for a specified period of time. While it may last for less than a year, if it’s more than 1 year it has to be in writing, per SOF
Assignment
An assignment is a total transfer of interest in property
Assignee is in privity of land with LL and the assignor remains in privity of contract with the LL
Privity of Land
Privity of land means that it is the assignees responsibility to uphold all the implied covenants as well as any other covenants in the land
Covenant
A covenant is a promise to do or to refrain from doing something in regards to land
Can be affirmative or negative
Affirmative Covenant
Requires a person to actually do something
Breach of Covenant
In order to see if the party breached a covenant, one must see if the burden runs with the land
For a burden to run, the covenant needed to be in writing, with the intent to run with the land, the covenant must touch and concern the land, must have privity (horizontal and vertical), and notice
Touch and Concern
The covenant must impact the party’s use and enjoyment of the land
Joint Tenants
JTs have a right of survivorship and is established by the four unities: title, time, interest, possession
JT - Title
JTs must establish title on the same instrument
JT - Time
JTs must take title at the same time
JT - Interest
Both must have an undivided interest in the property
JT - Possession
Both tenants must have equal possession to the property
Fee Simple Determinable
A FSD is when the conveyance is made but may be automatically terminated at the occurrence of a stated event
Upon the stated event,it will automatically go back to the grantor who holds a reverter
Fee Simple Absolute
A fee simple absolute is an unrestricted ownership of property that lasts indefinitely
Severing a JT Restriction of Conveyance
The court has a policy concern that a restriction on conveyance of property for an indefinite period of time puts a restraint on alienation
Courts do not like properties to be held to the point that you cannot freely transfer the property to another
Tenants in Common
A TIC has equal access to the property and each owns a dividend share. There is no right to survivorship and each tenant has the right to the entire property and each tenant’s portion can be sold or devised
Each take 1/3 or 1/2 or 1/4
Possibility of Reverter
Reverter is a future interest that will automatically vest upon the happening of an event in the previous FSD
Tenancy for Years
A tenancy for years is a lease for a specified period of time
More than 1 year = has to be in writing
Has right to possession and must pay rent
Holdover Tenant
A holdover tenant is a person who was in lawful possession but at the end of the lease remains on the property and does not pay rent
Periodic Tenancy
A periodic tenancy is when a tenant pays rent on a per period basis and must give notice to terminate the tenancy which must be the length of time of the period rent is paid
Accounting and Contribution between TIC
An accounting between TIC may be requested when there is rent being paid by a TP
Rent received may be shared equally between TIC
Easement
An easement is the right of a part to use or refrain from using a part of the land.
Affirmative: allows someone to use land
Negative: asks to refrain from using the land
4 Types of Easements
Express, Implied, Necessity, Prescription
Express Easement
An express easement has two types: by grant or reservation, and can be written or verbal.
Transfer of Servient Estate
When an easement is created, the burdened land is called the servient estate, and the benefitting land is called the dominant estate.
When servient estate is transferred, easement stays unless transferred to a BFP without notice
Easement appurtenant
When there are two lands and one tries to benefit over the other
Easement in gross
There is one land and it is the servient estate
Notice: express/record/inquiry
Express: easement is mentioned
Record: notice on the record
Inquiry: known by asking questions or observation
Land Sale Ks
LSK should satisfy the statute of frauds
Marketable Title
Title should be free of invalid zoning, easements, encumbrances, mortgages, assessments and invalid covenants
Merger
once the k enters escrow, everything on the land is accepted as is and the buyer may not sue for defects under warranties that are given
Present Covenants
Includes covenant of seisin (ownership of land), encumbrances and conveyances, future covenants, including warranties, assurance and quality title
Types of deeds a seller may issue
General Warranty: ensures all of present covenant claims
Special Warranty: covers only title defects
Quit Claim: does not warranty any defects
Recording Acts
First to record
Last BFP
First BFP to record
5A Takings Clause
Allows the government to take private property for public use as long as they provide just compensation
Actual Taking
Gov deprives the plaintiff of all economic and physical use of the property
Partial Taking
Gov has only condemned part of the property
Just Compensation
Depends on what type of taking occurred
Actual: property owner entitled to FMV of property at time of taking
Partial: property owner only entitled to the proportion of what was taken at the time of the taking
Tenant Duties
Duty to pay rent, tend to normal repairs of the unit, and avoid waste
In the event of failing to pay rent, LL may initiate judicial proceedings to evict, do noting, or allow lease to continue and sue for damages
Tenant’s Surrender of a Lease
In a TFY, a tenant may surrender the remaining term of the lease upon agreeing w the landlord.
If a period of more than 1 year remains on the lease, surrender must be done in writing
Tenant’s Abandonment of Lease
Where a tenant stops paying rent and vacates the unit, the tenant has deemed to have abandoned the lease
LL may sue for damages for unpaid amount and amount due on lease terms
LL’s Duties
A LL has a duty to provide possession of the residence within the lease, make all necessary repairs within a reasonable amount of time, maintain timely responsiveness to a tenant’s concerns and requests for repairs
Implied W of Habitability
A LL has an implied warranty that the LL must not fail to make a leased residence habitable for a tenant
In the event that the LL breaches, tenant can sue for damages, abate the rent or end the lease
Covenant of Quiet Enjoyment
In every lease agreement. LL’s covenant to tenants that tenants will not live in uninhabitable conditions
Adverse Possession
Property may be acquired by adverse possession if there is hostile possession without permission, open and obvious to others, actual possession, and continuous for the statutorily prescribed time
Right to Contribution - Property Taxes
JT are jointly responsible for taxes owed on the property
One tenant can seek proportional recovery from the other tenants for property taxes that he has paid himself
Rental Fees
WHen there is a JT or TIC and one tenant is in possession of the premises, income including rental fees earnedby one tenant can be revocered by the other tenants in proportion to their interest
Tenant Duties
Tenants have a duty to pay rent, tend to normal repairs of the unit, and avoid waste
Failing to pay rent, a LL may initiate judicial proceedings to evict the T, do nothing, or allow the lease to continue and sue for damages
Tenant’s Surrender of Lease
In a TFY, a tenant may surrender the remaining term of the lease upon agreeing with the LL
If at the time of surrender, a period of longer than a year remains on the lease, the surrender must be done in writing
Tenant’s Abandonment of Lease
Where a tenant stops paying rent and vacates the unit, the tenant has deemed to have abandoned the lease
A LL may sue for damages for the unpaid amount as well as the remaining amount due
LL must mitigate
Hold-over tenancy/tenancy at sufferance
When a T stays over the agreed-upon rental term, the tenancy becoems s tenancy at suffereance and the LL may choose to either evict the tenant or allow a periodic tenancy
LL Duties
A LL has a duty to provide possession of the residence within the lease, make all necessary repairs within a reasonable amount of time, maintain timely responsiveness to a tenant’s concerns and requests for repairs
Implied Warranty of Habitability
In urban settings, a LL has an implied warranty of habitability to not fail to male the leased residence habitable to the tenant
If the LL breaches this warranty, the LL may sue for damages, abate the rent if the LL fails to make repairs, or end the lease
Covenant of Quiet Enjoyment
In every lease agreement, there is a covenant of quiet enjoyment. LLs promise that tenants will not live in uninhabitable conditions
Can be breached in the case of an actual or constructive eviction
Nuisance
A nuisance is an interference with a person’s use and enjoyment of their home.
Public: person’s activities have een deemed by a locality or state to be a disrution to HSWM
Conveyance of part of JT
Conveyance will sever the JT ad becomes TIC
JT - Property Taxes
JTs are jointly responsible for property taxes. One tenant can seek proportional recovery from other tenants for property taxes that he has paid himself
JT/TIC Rental Fees
When there is a JT or TIC and one tenant is in possession of the premises, income including rental fees earned by one tenant can be recovered by the other tenants in proportion to their interest
Restraint on Alienation
A clause in the conveyance that prevents the recipient from selling or otherwise transferring
CL: void for public policy
Modernly: some allowed
Severance of a JT
A JT may be severed when one tenant conveys her interest in the property. Once severed, the interest between the transferee and the remaining tenant converts to a tenancy in common (“TIC”).
Rights to 3P Rents
A co-tenant must account to other co-tenants for rent received from third parties. Each tenant is entitled to an amount of the rents proportionate to his ownership interest.
Right to Lateral Support
Ira has the right to have his land supported in its natural state by the adjoining land. There are two basis for a right to lateral support cause of action: Strict Liability and Negligence.
Strict Liability Theory
Right to Lateral Support
An adjacent landowner is strictly liable for damages to buildings caused by excavation only if it is shown that the land would have collapsed in its natural state.
Example: In other words, Donna, as the adjacent landowner whose property was undergoing construction, will be strictly liable for not supporting the land in its natural state if the land would have subsided without the improvements.
