Property Flashcards
Implied Covenant of Quiet Enjoyment & Remedy
Rule - The ICQE applies to all residential and commercial properties and is implicated when a LL takes actions that make the premise wholly or substantially unsuitable for their intended purposes.
Remedy = constructive eviction
Constructive Eviction
Rule - A constructive eviction has 4 elements:
1. Premises were unusable for their intended purposes
2. T notified LL of the problem
3. LL does not correct the problem in a reasonable time, AND
4. T vacates the premises after reasonable amount of time
Implied Warranty of Habitability
Rule - LL has an obligation to maintain the property such that it is suitable for residential use, mostly concerning conditions that threaten T’s health and safety.
Breach of Implied Warranty of Habitability
Rule - If LL does not fix the problem within a reasonable time, T can:
1. Withhold rent
2. Repair defects and deduct cost from rent
3. Sue for damages while T is staying in dwelling, OR
4. Terminate lease
Express Easement
Rule - An express easement is created by voluntary agreement by the owners of the dominant and servient estates by grant or by reservation.
Subject to SOF
Implied Easement by Implication (Prior Existing Use)
Rule - For an easement by implication, there must be
1. Severance of land held in common ownership
2. Existing, apparent, continuous use of 1 parcel for the benefit of another at time of severance, and
3. Reasonable necessity for that use.
Easement Appurtenant
Rule - An easement appurtenant is tied to the use of the land and is fully transferable with the land.
Easement in Gross
Rule - An easement in gross is an easement that benefits the holder personally and is only transferrable if there is an intent to transfer or if for commercial use.
Implied Easement by Necessity
Rule - An easement by necessity is created only when
1. Severance of land in common ownership and
2. At severance, one property became virtually useless without an easement.
Ends - when no longer necessary
Implied Easement by Prescription
Rule - Prescriptive easement is acquired by adverse possession, except does not require exclusivity.
ACHO - adverse, continuous, hostile, open & notorious
Implied Easement by Estoppel
Rule - An easement by estoppel is when (1) a neighbor 1 gives neighbor 2 a license, (2) neighbor 2 relies on the licence, and (3) neighbor 1 withdraws the license.
If reliance was detrimental to neighbor 2 (invested money on reliance), then neighbor 1 cannot withdraw permission
Types of Implied Easements
NIPE
- Necessity
- Implication (Prior Use)
- Prescriptive
- Estoppel
Terminating an Easement
RAMPSEE
RAMPSEE
- Release - express in writing
- Abandonment - non-use + act demonstrating intent to abandon
- Merger - holder gets title to servient estate
- Prescription - if owner fails to protect from S estate for statutory period
- Sale to purchaser
- Estoppel - S owner changes position based on holder’s statements/conduct
- End of necessity
Burden to Run - Real Covenant
Rule - For the burden to run for a real covernant, it must meet six requirements:
1. Satisfy SOF
2. Original parties intended to bind successors
3. Touch and concern the land
4. Notice of covenant
5. Horizontal privity
6. Vertical privity - successor must take original party’s entire interest
Benefit to Run - Real Covenant
Rule - For the benefit of a real covenant to run, 4 requirements must be met:
1. Satisfy SOF
2. Original parties intended to bind successors
3. Touch and concern the land, and
4. Relaxed vertical privity - successor need only take interest carved out of original party’s estate
Equitable Servitude Requirements
Rule - To bind successors, there must be:
1. SOF or common plan
2. Intent to bind successors
3. Touch and concern the land
4. Successors must have notice - actual, inquiry, record
Subject To Mortgage
Default - presumed if deed is silent
Transferee - not personally liable for default
Borrower - personally liable
If deficiency –> transferee not liable for deficiency
Public Nuisance
Rule - A public nuisance is an interference with the health, safety, or property rights of the community.
Private individual must show that they suffered a different kind of harm than the rest of the community.
Private Nuisance + Elements
Rule - A private nuisance is a substantial and unreasonable interference with another individual’s use or enjoyment of property.
Substantial - offensive, inconvenient, or annoying to average person in the community
Unreasonable - injury outweighs the usefulness of D’s actions
Termination of ES
Same as easement + Changed Circumstances Doctrine
Fee Simple Determinable + Future Interest
Defeasible Fee
Limited by specific durational language - while, during, until
Can be terminated by the occurrence of an event
“to A while the land is used as a farm”
Future interest - possibility of reverter in grantor
- If third party –> executory interest
Fee Simple Subject to a Condition Subsequent
Defeasible Fee
Limited by specific conditional language - provided that, on the condition that
Future interest - right of re-entry
Fee Simple Subject to Executory Interest
Upon occurrence of the event, the future interest vests in the 3rd person
“to A but if liquor is served on the permises, then to B”
Future interest - held by third person, not grantor
Life Estate Future Interests
Reversion - possession of land goes back to the grantor after LE ends
Remainder - possession of land goes to 3rd party after LE ends
Vested Remainder
A vested remainder is an interest that is
1. Given to an ascertained grantee, AND
2. Not subject to condition precedent
“to A for life, then to B”
Contingent Remainder
Contingent remainder exists if:
1. Grantee is NOT ascertainable, or
2. Subject to a condition precedent
“to A for life, then to A’s firstborn child.”
Vested Remainder Subject to Open
Class Gift
Vested remainder in a class gift and full class membership is unknown
At least 1 person in the class must be vested - if not, then contingent remainder
Shifting Executory Interest
Divests a prior grantee
1 grantor + 2 grantees
“to A but if the land is used for commercial purposes, to B”
Springing Executory Interest
Divests grantor
1 grantor + 1 grantee
“to A after she is admitted to the bar”
Equitable Conversion
Rule - Buyer bears the risk of damage to a property during executory period.
Contract = gives buyer equitable title
SoF Exceptions for Land Sale Contracts
- Part Performance - must show 2: (1) party took possession, (2) made substantial improvements, and (3) paid some or all of purchase price
- Equitable Estoppel - party reasonably relied on contract & would suffer hardship
Severing Joint Tenancy
- Lifetime transfer by 1 JT
- Mortgage in title theory state - severs JT
