Property Flashcards
Doctrine of Waste and its 3 types
A life tenant cannot commit acts that constitute an unreasonable use of land and/or injure the interests of future interest-holders. There are three types of waste:
- Voluntary waste: Life tenant cannot consume or exploit natural resources except a) where necessary for repairs or maintenance of land; b) when grant expressly allows them to exploit; c) if land was used for exploitation prior to the grant.
- Involuntary waste: harm to the property due to LT neglect such as failure to pay taxes, interests, or make necessary repairs
- Ameliorative waste: Life tenant act that economically benefits the land. Prohibited under common law but permitted under modern law.
Tenancy in Common
An estate with multiple tenants in which each co-tenant owns a distinct, undivided interest and each has a right to possession of the property.
- No right of survivorship
-freely transferable
-co tenant can lease their individual interest but must share rent paid by third parties with co-tenants
Joint Tenancy
In order to create a joint tenancy, the grantor must expressly INTEND to create a joint tenancy and tenants must take their interests (“TTIP”):
1) Time: JT must take their interests at the same time
2) Title: JTs must receive conveyance through the same instrument
3) Interest: JTs must take equal and identical instruments
4) Possession: JTs must take equal possessory rights
- There is a right of survivorship
- severance created a tenancy in common
- JT becomes tenancy in common upon transfer; this is not destroyed if two or more JTs remain
- be sure to analyze lien theory (no title passes) vs mortgage theory (title passes)
Tenancy by the Entirety
Created by a conveyance to a married couple and requires the same four elements as a JT (time, title, interest, possession) and express intent by grantor.
- property has right of survivorship
- absolutely no right to convey or partition unless both parties agree
- only creditors of both spouses can reach the interest; creditor of one cannot reach
-severed upon divorce, death, or foreclosure by joint creditor
Four types of leasehold estates
1) Tenancy for years: Lasts for period of time, requires fixed duration, (must be in writing under SOF if longer than a year)
2) Periodic tenancy: Repeats until terminated
3) Tenancy at will: Either party can terminate at any time for any reason
4) Tenancy at Sufferance: Tenant has possession by wrongfully remaining after termination of a lease (holdover tenant)
Fixtures
Chattel that is affixed to real property that a reasonable observer would believe that it is permanently part of the property. Fixtures remain on the property except a LTs representative can remove within a reasonable time upon death
Landlord duties and Warranties
1) Duty to deliver possession on first day of lease
A) Majority Rule: Landlord must deliver actual physical possession to the tenant
B) Minority Rule: Landlord delivers legal possession
2) Implied Warranty of Quiet Enjoyment
3) Implied Warranty of Habitability
Assignment vs Sublease
Assignment: Entire leasehold transfers from one tenant to assignee
-assignee is in privity of estate with landlord
-assignor remains in privity of contract with landlord
- assignee owes rent directly to landlord, but assignor is responsible for unpaid rent unless there was a novation
Sublease: Partial leasehold transfer from sublessor to sublessee
-sublessor is in privity of estate and contract with landlord
- sublessee pays rent to sublessor
- sublessee is not liable to landlord for rent and is not bound by any lease covenants unless expressly assumed
Covenant and its requirements
A promise to do or not to do something related to land
Requirements: (“WPINT”)
1) Writing
2) Privity - horizontal and vertical privity must exist between parties (horizontal = grantor/grantee) (verticle = convening parties and their successors)
3) Intent - parties intend to bind successors in interest
4) Notice: successors interest must have notice when they take their interest
5) Touch and Concern: Covent must impact their legal rights to do or refrain from doing something with the land
Two types of Easements and its creations
Easement: A non-possessory property interest that confers a right to use another’s land
Two Types:
1) Easement appurtenant: Interest in use of land of another (servient estate) that attaches to and passes automatically w/ benefited land (dominant estate)
2) Easement in gross: Holder has right to use servient land w/o owning any land (does not attach to land)
Creation: (“PINE”)
1) Prescription - similar to adverse possession except no exclusive
2) Implication
3) Necessity
4) Express - signed writing by the parties
Implied Promises in Land Sale Contracts
Every land sale contract contains two implied promises:
1) Promise to provide marketable title
- defects rendering title unmarketable:
a) acquired by adverse possession;
b) encumbered by future interests (servitude, mortgage, future interest) but seller has a right to satisfy mortgages or liens with sale proceeds
c) zoning ordinance violations at the time of sale
2) Promise to disclose known latent defects and make no material false statements
Remedy for breach: buyer must notify seller before closing and give reasonable time to cure defects.
- if seller fails to cure buyer can rescind and file for damages
-merger: if buyer fails to notify seller before closing, contract merges with the deed and seller is not liable for contractual promises
General Warranty Deeds (Present and Future Covenants)
General warranty deeds contains 6 covenants for title
Present - only breached at the time of delivery
1) covenant of seisin: promise that he owns title and possesses estate conveyed;
2) covenant of right to convey: grantor had right as valid owner;
3) covenant against encumbrances no easements, covenants, unpaid mortgages or liens
Future - breached upon third party interference
4) covenant for quiet enjoyment: promise that grantee won’t be disturbed by lawful claims of title;
5) covenant of warranty: promise to defend reasonable claims of title & compensate for any losses from superior claims;
6) covenant for further assurances: promise to take reasonable steps to perfect defects of title
