Property Flashcards
How to create a Joint Tenancy?
Joint tenants must take their interests:
* T: at the same time;
* T: by the same title (meaning, in the same deed, will, or other
document of title);
*I: with identical, equal interests; and
* P: with rights to possess the whole
Tenancy by the Entirety
A tenancy by the entirety is a marital 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.
One spouse, acting alone, cannot defeat the right of survivorship by
unilaterally conveying to a third party.
Creditors of only one spouse cannot touch this tenancy for satisfaction of debt.
Tenants in common
A tenancy in common is a concurrent estate with no right of survivorship. Today, multiple grantees are presumed to take as
tenants in common, not as joint tenants. Remember these two
features of the tenancy in common:
* Each co-tenant owns an individual part, and each has a right to
possess the whole
* Each interest is devisable, descendible, and alienable.
Waste by co-tenant
A co-tenant must not commit waste. During the life of the co-tenancy,
a co-tenant is permitted to bring an action for waste against another
co-tenant.
There are 3 types of waste:
* Voluntary waste is willful destruction
* Permissive waste is neglect
* Ameliorative waste is unilateral change that increases value
Leasehold or nonfreehold estates
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
Tenancy for years
This lease, also known as the estate for years or term of years, is for a
fixed, determined period of time. That period could be, for example,
as short as one week or as long as 50 years. A tenancy for years ends automatically at its termination date.
Periodic Tenancy
A periodic tenancy is a lease which continues for successive intervals
(for example, month to month) until either the landlord or the tenant
gives proper notice of termination. Thus, one of the hallmarks of the
periodic tenancy is that it is continuous until properly terminated.
The periodic tenancy can also arise by implication, in any one of
three ways:
* Land is leased with no mention of duration, but provision is
made for the payment of rent at set intervals.
* An oral term of years in violation of the Statute of Frauds creates an implied periodic tenancy, measured by the way rent is tendered.
* In a residential lease, if a landlord elects to hold over a tenant who has stayed on past the conclusion of the original lease
Tenancy at Will
This is a tenancy of no fixed period of duration–it’s terminable at the will of either the landlord or the tenant. For example, “To T for as long as L or T desires.”
Generally, a tenancy at will must be created by an express agreement that the lease can be terminated at any time. Unless the parties expressly agree to a tenancy at will, the payment of regular
rent will cause a court to treat the tenancy as an implied periodic
tenancy.
Tenancy at Sufferance
A tenancy at sufferance is created when a tenant wrongfully holds
over, meaning they remain in possession past the expiration of the
lease. In such cases, we give this wrongdoer a leasehold estate (the
tenancy at sufferance) to permit the landlord to recover rent. The tenancy at sufferance is short-lived. It lasts only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy.
No notice of termination is required.
Tenant Breaches but is out of possession. What are the landlord’s options?
Remember S I R
* Surrender: The landlord could choose to treat the tenant’s abandonment as an implicit offer of surrender, which the landlord accepts, thereby ending the lease. What is surrender?
* Ignore the abandonment (meaning, do nothing) and hold the tenant responsible for the unpaid rent until the natural end of the lease, just as if the tenant were still there. This option is available only in a minority of states.
* Re-let the premises on the wrongdoer-tenant’s behalf, and hold
the wrongdoer-tenant liable for any deficiency.
Under the majority rule, the landlord must at least try to re-let.
Implied Covenant of Quiet Enjoyment
This exceedingly important promise arises by implication in every
residential and commercial lease. It provides that a tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder (for example, a
prior mortgagee who forecloses).
Breach occurs with wrongful eviction and constructive eviction.
Constructive eviction
. To recall the elements of constructive
eviction, remember S I N G:
* Substantial Interference (chronic/ permanent problem)
* Notice (T must notify L and L must fail to fix it)
* Goodbye (t must vacate)
A tenant who has been constructively evicted may terminate the
lease and may also seek damages.
Implied warranty of habitability
Most jurisdictions imply a covenant of habitability into residential
leases. This important promise applies only to residential leases and
not to commercial leases. This warranty is nonwaivable.
If the implied warranty of habitability is breached, you can remember
the tenant’s options as M R 3: Move, Repair, Reduce, Remain:
* Move out and terminate the lease
* Repair and deduct (allowable by statute in a growing number of
jurisdictions; a tenant may make the reasonable repairs and deduct their cost from future rent)
* Reduce rent or withhold all rent until the court determines fair rental value (typically, the tenant must place withheld rent into an escrow account to show their good faith)
* Remain in possession, pay full rent, and affirmatively seek money
damages.
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
* Assumption of repairs
* Public use rule
* Short-term lease of furnished dwelling
Easement Appurtenant
An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land. How will you know when you’ve
got an easement appurtenant? Two parcels of land must be involved:
* a dominant tenement, which derives the benefit
* a servient tenement, which bears the burden
The appurtenant easement passes automatically with transfers of
the dominant tenement, regardless of whether it is even mentioned in
the conveyance.
Easement in Gross
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. Here, servient land is burdened. However,
there is no benefited or dominant tenement (because the easement
benefits the holder rather than another parcel). Some common examples of an easement in gross:
* 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
An easement in gross is not transferable unless it is for commercial
purposes.
Four ways to create an easement
The basic methods of creating an easement can be remembered by
P I N G:
* Prescription - An easement may be acquired by analogy to adverse possession
* Implication - Easements by implication are created by operation of law; they’re an exception to the Statute of Frauds
* Necessity - An easement by necessity (another form of easement by implication) will be implied when a landowner conveys a portion of her land with
no way out except over some part of the grantor’s remaining land.
* Grant - Any easement must be memorialized in writing and signed by the
holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state’s Statute of Frauds.
How do you create an easement by prescription
An easement may be acquired by analogy to adverse possession. For
the elements to acquire a prescriptive easement, remember C O A H:
C: Continuous and uninterrupted use for the given statute’s period
O: Open and notorious use (that is, it’s discoverable upon inspection)
A: Actual use that need not be exclusive
H: Hostile use (meaning, use without the servient owner’s consent)
Note: Permission defeats the acquisition of an easement by prescription. An easement by prescription requires that the use be hostile.
Generally, prescriptive easements cannot be acquired in public land.
Easement implied from Preexisting use
This is also known as a “quasi-easement.”
For the court to imply an easement on a new owners behalf it would have to find:
* the previous (prior to division) use on the servient part was apparent and continuous AND
* the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s
use and enjoyment
Covenant v. Equitable servitude
What that means is that if the plaintiff wants money damages, you must construe the promise as a covenant. If the plaintiff wants an injunction, you must construe the promise as an equitable servitude.
Requirements for Burden to Run
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 (Restrictive
covenants touch and concern the land if they restrict the burdened
parcel owner in her use of that parcel of land.)
* Horizontal and vertical privity
* Notice
Equitable servitude
An equitable servitude is a promise that equity will enforce against
successors of the burdened land regardless of whether it runs
with the land at law, unless the successor is a bona fide purchaser (meaning, a subsequent purchaser for value without notice of the
covenant)
created through - Writing, Intent, Touch and Concern, and Notice
Doctrine of Part Performance
s an
equitable doctrine allowing a buyer to enforce an oral real estate contract by specific performance if:
* The oral contract is certain and clear, and
* The acts of partial performance clearly prove the existence of a
contract. This second requirement is usually satisfied if the buyer can prove two of the following three actions:
* Buyer has taken possession of the property
* Buyer has paid the purchase price or a significant portion of the
purchase price
* Buyer has made substantial improvements to the premises
If between closing, Blackacre is destroyed through no fault of either party, who bears the risk of loss?
The buyer, unless K specifies otherwise.
Marketable Title
Every contract contains an implied covenant that the seller will
provide marketable title at closing. Marketable title is title reasonably free from doubt and the threat of litigation. The common defects that render title unmarketable are:
* Defects in record chain of title—most often, adverse possession
* Encumbrances (mortgages, liens, easements, restrictive covenants)
* Zoning violations
Caveat Emptor for Land K
The land contract contains no implied warranties of fitness or habitability. Caveat emptor is the common law norm.
Exception - Most courts recognize a warranty of fitness or quality in the sale of a new home by the builder
Lawful Execution of a deed
Executing a valid deed requires the following:
* A writing signed by the grantor
* An unambiguous description of the land
* Identification of the parties by name or description
* Words of intent to transfer, such as “grant”
Note: The deed need not recite consideration, nor must consideration
pass to make a deed valid.
Quitclaim deed
Grantor isn’t even promising that he has title to convey. This is the
worst deed a buyer could hope for. It conveys only what the grantor has at the time of the conveyance.
Special Warranty deed
This deed contains the same covenants as the general warranty
deed, but here the grantor makes those promises only on behalf of himself. (Note: Grantor makes no representations on behalf of his predecessors in interest.)
General Warranty Deed
The best deed a buyer could hope for. It warrants against all defects in title, including those attributable to grantor’s predecessors. The general warranty deed typically contains all six of the following covenants. The first three are present covenants, meaning that the covenant is breached, if ever, at the time the deed is delivered.
Present Covenants
The three present covenants (breached at delivery):
* The covenant of seisin: grantor owns
* The covenant of the right to convey: grantor can transfer
* The covenant against encumbrances: No servitudes/liens
Future Covenants
Future covenants (breached if grantee disturbed in possession)
- Quiet enjoyment: No 3rd party lawful claims
- Warranty: Grantor will defend
- Further assurances: Grantor will perfect
Rules for Recording Statutes
Race: Whoever records first wins
Notice: Last BFP to take wins
Race-notice: Last BFP wins if they also records first
Bona Fide Purchaser (BFP)
To be a bona fide purchaser, a grantee must:
* Be a purchaser (or a mortgage lender), not one who received the
property by gift, will, or inheritance
* Pay valuable consideration
* Take without notice (actual, constructive, or inquiry) of the prior
conveyance
Define the three defeasible fees
Fee simple determinable - when and event automatically divests the possessor.
Fee simple subject to condition subsequent- when the original owner gets an option to divest the possessor when and event happens.
Fee simple subject to an executory interest - when an event divests the possessor in favor of someone other than the grantor.
Three types of revisionary interests
Possibility of reverter
Right of entry
Revision
always held by the original grantor
