Property Flashcards
Easement by reservation
Arises when a landowner convey land but reserves the right to continue to use the trafter after conveyance
Trespass (Land)
Trespass to land occurs when (1) defendant’s intentional act (2) causes physical invasion (3) of the land of another without their permission
Servient Parcel Transfer
When a servient partcel is tranferred, its new owner takes it subject to the easement unless she is a BFP with NO NOTICE of the easement
Private vs Public Nuisance
Private nuisance: Intangibles substantially and unreasonably interfere with use and enjoyment of property
Public Nuisance: intangibles unreasonably interfere with health/safety/ property right of a broad segement of community
How is interference substantial
(Nuisance)
when if would be offensive, inconventient, or annoying to an average person, as opposed to somoenes hypersensitivity
Interference is unreasonable when
the severity of the injury outweighs the utility of the defendant’s conduct
Trespass (Intent)
A trespass only occurs if the trespasser actually intended to occupy the land. The trespasser’s knowledge about the ownership of the land is irrelevant. A mistaken belief that they had the right to enter the land is not a defense.
NECESSITY Trespass Defense
Private necessity exists when exigent circumstances cause the trespass. However, can recover actual damages to the land
Public necessity exists when the trespass is necessary to prevent harm to the public at large. CANNOT recover actual damages
Waste
(1) Affirmative or voluntary waste—actual overt conduct that decreases value ofestate.
(2) Permissive waste or neglect—failure to protect or preserve land.
(3) Ameliorative waste—change that economically benefits property.
Rights and Duties of Co-Tenants
(1) Possession—each co-tenant has right to possess the whole but no right to exclusivepossession of any part.
(2) Co-tenant in possession has right to retain profits from own use of the property and must share net from (i) third-party rent and (ii) exploitation of the land.
(3) Each co-tenant responsible for fair share of taxes or mortgage interest payments.
(4) Co-tenant who repairs is entitled to contribution for any reasonably necessary repairs, solong as she has given notice.
(5) Co-tenant who has made improvements has no affirmative right to contribution unlessthere is a partition.
(6) Co-tenant must not commit waste.
Main Tenant Duties
(1) Duty to Repair
(2) Duty to pay-rent
(3) Potential liability to 3rd parties
Main Landlord Duties
(1) deliver posession of property
(2) implied covenant of quiet enjoyment
(3) implied warrany of habitability
Covenant of Quiet Enjoyment
T entitled to quiet enjoyment, without landlord interference.
(1) Actual eviction—landlord excludes tenant from entire premises and tenant doesnot have to pay rent.
(2) Partial eviction—landlord excludes tenant from part of leased premises and tenantdoes not have to pay rent.
(3) Constructive eviction—landlord’s conduct causes premises to be uninhabitable.
(i) Tenant must vacate within a reasonable time after giving landlord noticeand time to repair.
(ii) Tenant can terminate lease and sue for damages.
Joint Tenancy
TTIP
Time
Title
Interest
Possession
must be conveyed with ‘right of survivorship’
Joint Tenancy - Termination
(1) conveyance
(2) murder
(3) simultaneous deaths of co-tenants
(4) partition (voluntary or involuntary)
Tenancy in Common
Only unity is required at creation
All tenants possess right to ownership UNLESS ouster
Tenants Rights if Implied Warranty of Habitability Breach
MRRR
(1) Move
(2) Reduce / withold
(3) Repair and deduct
(2) Remain - seek damages
Burden will Run
WITHN
Writing
Intent
Touch & Concern
Horizontal and Vertical Privity
Notice
Benefit will Run
WITV
Writing
Intent
Touch & Concern
Vertical Privity
Equitable Servitude
Successors bound if WITN
Writing
Intent
Touch & Concern
Notice
Reciprocal Negative Servitude
Based on common scheme doctrine (e.g. a lot and surrounding area all have the same scheme). Sometimes does not requires a writing, may arise by implication
Majority: In a subdivision, residential restrictions in prior deeds by common grantor bind subsequent grantees whose deeds don’t have the restriction, if athe the start of the subdivision (1) grantor had common scheme and (2) unrestricted lot holder had notice
Minority: Not binding on subsequent grantees unless their lots are expressly restricted in writing
Ways to Terminate Easement
END CRAMP
(1) Estoppel - if servient state detrimentally relies on statement from dominant tenement
(2) Necessity - once necessity ends
(3) Destruction
(4) Condemnation
(5) Release
(6) Abandonment
(7) Merger
(8) Perscription
Profit
Entitles a holder to enter a land to take some resources (minteral, timber, oil)
Profit may be extinguished in the same way easements can as well as by surcharge (MISUSE)
Horizontal Prvity
Requires parties to be in succession of estate
meaning (1) GRANTOR-GRANTEE
(2) LESSOR-LESSEEE (3) MORTGAGOR-MOTGAGEE
they must have shared some interest in the land, other than the covenant
Doctrine of Equitable Conversion
Once signed contract for sale of land, risk of loss passes to buyer
However, if after contract, property destroyed, seller must credut any fire of casualty insurance proceeds to buyer
Duty to Repair
Generally, a tenant has a duty to keep the premises in good order and repair, unless otherwise agreed to by the parties. The landlord, however, has a duty to repair common areas of use.
