PROPERTY Flashcards
Severing a Joint Tenancy
SIMP — Sale, Inter vivos transfer, Mortgage in a title theory state, or a Partition action.
Constructive Eviction
A tenant may be actually or constructively evicted. When a landlord has allowed the conditions of the premises to deteriorate to the point that the tenant is essentially forced out or has substantially interfered with the tenant’s use and enjoyment of the property, they may have been constructively evicted.
Total constructive eviction is a complete defense to all payment of rent.
Partial constructive eviction will only result in a reduction in rent.
Holdover Tenant/Tenant at Sufferance
When a tenant does not move out at the end of their lease, they will become a periodic tenant if the landlord wants them to remain or accepts any further rent.
A tenant who does not move out at the end of their rent will become a tenant at sufferance if the landlord does not want them to remain/does not accept further rent.
Tenancy at Will
Must be created by express agreement, and terminated whenever either party decides.
Also terminates if either party dies or if either party attempts to transfer their interest.
60 days’ notice of termination is required for landlords and 30 day’s notice of termination if required from the tenant.
Periodic Tenancy
Has a set beginning date but no set end date until notice of termination. May be created expressly or by implication with a holdover tenant.
Notice of termination can be oral or in writing, and must be equal to the rental period but no longer than 6 months before.
Term of Years Lease
A lease with a definite beginning and end date that, in Georgia, is at least longer than five years.
Ends at the set date with no required notice.
Allows for anticipatory repudiationt. The tenant is liable for all unpaid rent if no defense applies.
Creation of a Lease
Leases may be created orally, but must be in writing if for more than one year.
Rights and Duties of Cotenants
Each cotenant has equal rights to possession and profits from 3rd parties.
They also have a duty to pay proportionate shares of taxes/expenses.
There is no duty to make improvements, but a co-tenant who does make improvements may be recompensated from profits.
Co-tenants who make repairs may also be compensated from rent or sale.
PPP = possession; profits; proportionate share of expenses.
Tenancy by the Entirety
Concurrent ownership only for married couples, including a right of survivorship. Not applicable in Georgia.
Joint Tenancy
TTIP — Tenants must take at the same Time, on the same Title, with equal Interest and equal Possession.
Includes a right of survivorship. May be severed by SIMP = sale, inter vivos transfer by either party, mortgage, or partition action.
Tenancy in Common
Each cotenant owns an undivided interest in the whole property.
Requires only the unity of possession, in which each cotenant has the right to possess 100% of the property at the same time.
Does NOT include a right of survivorship like joint tenancy.
Ameliorative Waste
Under common law, no alterations to the land could be made without authorization, and the tenant making alterations would be liable for the cost of returning the property to its original state.
Under modern law, ameliorative waste may be committed if the market value is not impaired and the remaindermen consent, or if a substantial change in the neighborhood justify the improvement.
Permissive Waste
Not taking reasonable steps to avoid damage to the property, such as cutting grass or paying bills.
Voluntary Waste
Intentionally or negligently damaging property.
Waste
The owner of anything other than a fee estate may not commit waste, AKA, they may not cause harm to the estate at the expense of the person who will hold it after them.
Includes voluntary, permissive, and ameliorative waste.
Covenants and Equitable Servitudes
A promise relating to the use of land that benefits and burdens the parties to the promise AND their successors.
Equitable servitudes are enforced via equitable remedies (injunctions), while covenants have monetary damages.
Easement
A nonpossessory right to use the land of another.
Can be either (1) express, (2) implied by prior use, (3) necessary, (4) by plat, or (5) by prescription.
Termination of a Covenant or Equitable Servitude
- Written release
- Estoppel/changed circumstances
- Abandonment with overt act
- Merger of the 2 estates
In Gross vs. Appurtenant Easement
If an easement benefits a person, it is an easement in gross. If an easement benefits a parcel of land, it is an easement appurtenant.
Creation of an Express Easement
Must be in writing per the Statute of Frauds, identify the parties, include words manifesting an intent to create an easement, and a description of the land.
Creation of an Easement Implied by Prior Use
- One parcel of land is now severed into more than one parcel.
- The use giving rise to the easement was in existence at the time of the split.
- The use was apparent.
- The easement was necessary for reasonable enjoyment of the land.
Creation of an Easement by Necessity
- Common ownership of a parcel that is split into two parcels.
- Strict necessity at the time of the severance.
Fixture
Personal property attached to land that transfers with the land.
Adverse Possession
CHANGE — Continuous (including tacking and tolling), Hostile/adverse, Actual, Notorious and Open, Goes on for the statutory period of time (20 years), and Exclusive.
Water Rights
The majority “riparian view” grants reasonable use to anyone who is within the watershed.
The minority “prior use view” grants use only to the first person who takes the water.
Requirements of a Land Sale Contract
- Writing
- Description of the property
- Description of the parties
- Price
- Any conditions on price or payment
- Signatures of the parties against whom enforcement is sought
Marketability of Title
Title must be reasonably free from defects at the time of closing.
Examples of defects include an unknown mortgage or lien, covenants or easements, claims of adverse possession or current zoning violations.
The “covenant of marketable title” is implied in all contracts of land sale, but cannot be enforced after the contract merges with the deed.
Under the merger doctrine, parties can only sue on the covenants of the deed after it merges with the contract.
Equitable Conversion
When the contract is formed, title to the land is bifurcated — the buyer takes the equitable title while the seller retains legal title until closing.
Under the majority rule, the risk of loss follows the equitable title, and therefore the buyer has the risk of loss until closing.
Actual Notice
Personal knowledge.
Record Notice
When a competing interest is in the public records/has been recorded, regardless of whether the party has actually checked.
In Georgia, the mortgage/deed must have been attested to/notarized, otherwise it does not constitute notice.
Inquiry Notice
When an examination of the property would lead a reasonable person to inquire into competing claims to the property.
Recording Statutes
Under common law, the general rule is first in time, first in right.
Georgia has a race-notice statute — bona fide purchaser who takes without knowledge and records first wins.
Race Statute
First to record wins.
Notice Statute
The first boa fide purchaser, one who pays value without notice, wins.
Race-Notice Statute
The first bona fide purchaser who records first wins.
3 Requirements to Convey a Deed
- Donative intent (immediate intent to transfer).
- Delivery (the mental intent to transfer).
- Acceptance (presumed if beneficial to the person to whom it is conveyed).
- Statute of Frauds requirements.
Statutory Right of Redemption
Within twelve months after a foreclosure sale, the borrower can force the lender to sell them back their property at the foreclosure price.
Equitable Right of Redemption
At any time between foreclosure and the sale, the borrower may redeem themselves by paying off the remaining debt owed to the lender. Cannot be waived EVER.
Deed in Lieu of Foreclosure
To discharge a mortgage debt, the borrower can issue a deed to the lender who then takes the property subject to other mortgages. Junior lienholders would not be affected.
Intermediate Theory
Borrower has rights to possession, rent, and profits until default, in which case the lender is entitled to possession, rent, and profits.
Title Theory
Georgia. The borrower retains possession until default, in which the lender takes the right to rents and profits produced by the property.
Lien Theory
The lender receives a lien on the property. The borrower retains possession and the right to rents and profits.
Mortgage Assumption and Novation
When a new buyer assumes a mortgage with a novation, the new buyer alone is personally liable for the mortgage. This is the only scenario in which the original buyer is completely off the hook.
Buyer “Assumes the Mortgage”
The new buyer becomes liable for the mortgage alongside the original borrower. The new buyer become primarily liable, but the grantor/seller remains secondarily liable.
Buyer Takes “Subject to” the Mortgage
The new buyer who takes “subject to” the mortgage has NO responsibility to pay it. The seller/original borrower remains primarily and solely liable. This is the default rule if the language is ambiguous.
Purchase Money Mortgage vs. Future Advance Mortgage
A PMM is a mortgage used to cover the purchase price of the property and, if recorded, has priority over all other types of mortgage. A FAM is a line of credit used for anything else.
Mortgage Note
The borrower’s personal promise to repay a loan. A creditor has the choice to sue the borrower personally (in personam) on the note, or to foreclosure the land through the mortgage.
Mortgage Definition
A security instrument created to secure repayment of a debt. Must be in writing to satisfy the SOF. Not to be confused with the mortgage note.
Quasi-Easement
In Georgia, a quasi-easement may be found when an implied easement is necessary to provide water or other essential resources to one parcel of land after partition of the tract by the common owner.
Notice Requirement to Terminate a Tenancy at Will
In Georgia, a landlord must give 60 days’ notice to terminate a tenancy at will. A tenant needs to give only 30 days’ notice.
Under Georgia law, when and how must a landlord communicate property damages subsequent a lease agreement’s termination?
The landlord must inspect the property and give the tenant a list of damages within three business days after the tenant leaves the premises, including an estimated dollar value of the damage.
Surface Water Rights/”Natural Flow Theory” and the “Reasonable Use” Provision
Every riparian owner is entitled to a reasonable use of the water, and to have the stream pass over their land according to it’s “natural flow”, subject to the reasonable use of the water by other riparian owners.
Georgia Specifications for Adverse Possession
Georgia requires adverse possessors to have a good-faith belief that they have a legal right to possess the property.
Under Georgia law, when is a landlord liable for tort damages?
In Georgia, a landlord is liable to third parties for damages arising from defective construction or failure to keep the premises in good repair.
However, a landlord may not be held liable for injury when the tenant had the same (or greater) knowledge of the alleged defect and failed to exercise ordinary care, unless the defects rendered the premises unsafe or uninhabitable.
Any liability on the landlord’s part for the criminal activity of third parties would have to stem from a breach of the duty to exercise ordinary care in keeping the property safe from foreseeable attacks (those that are substantially similar in type to prior crimes).
How is land recorded in Georgia?
Georgia uses a grantor-grantee index. Deeds are recorded in the county where the land is located.
Abandonment of an Easement
In Georgia, an easement is presumed abandoned if it remains unused for the prescriptive period.
The presumption of abandonment does not apply to easements acquired by grant, because the owner of an easement by grant has no duty to use the easement.
Abandonment of a granted easement requires clear evidence of intent to abandon (an overt act).
Termination of a Covenant in Georgia
In Georgia, termination requires that at least 51% of the record owners of the property execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated.
This document must be recorded in the office of the clerk of the superior court of the county where the land is located within the two years before the end of any 20-year period of the covenant.
Riparian Rights Doctrine
In dealing with water rights, the riparian doctrine states that water belongs to the person whose land borders a body of water. Riparian owners are permitted to make reasonable use of this water provided it does not unreasonably interfere with the reasonable use of this water by others with riparian rights.
Georgia follows the riparian-rights doctrine, BUT it does not allow landowners to divert water from its normal course in a way that would interfere with the enjoyment of it by the next owner.
Tenant Failure to Pay Rent
A landlord may demand possession from a tenant who fails to pay rent, and he may go before a court if the tenant refuses. The tenant may pay all rents owed plus the cost of the warrant within seven days from service of the summons. This is a complete defense to the suit, but the landlord does not have to accept the payment more than once in a 12-month period.
Under Georgia law, what rights or obligations do persons owning non-navigable waters possess?
The owner of a non-navigable stream has the same exclusive possession of the stream as any other part of the owned land.
Notice for Termination of an at-will tenancy
In Georgia, where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will.
60 days’ notice from the landlord and 30 days’ notice from the tenant is required to terminate a tenancy at will.
