Property Flashcards
Joint tenancy with the right of survivorship
Characteristics
- Alienable intervivos
- not descendible or devisable
4 unities - TTIP
- same time
- same title
- identical equal interests
- right to possess the whole
Common law - created when four unities
Modern - need clear expression of right of survivorship otherwise presumed tenancy in common
Severance - SAP
- sale and partition
by voluntary agreement, judicial action for partition in kind, or judicial action for forced sale
Mortgages
- lien theory - does not sever unless foreclose
- title theory
Tenancy by the entirety
Martial estate - right of survivorship
presumed when conveyed to married partners
Can’t touch this
- creditors of only one spouse
- unilateral conveyance or encumbrance
Severance
- death, divorce, mutual agreement, execution by a joint creditor of both spouses
- divorce makes it a tenancy in common
Tenancy in common
No right of survivorship
presumed
do not have to be equal shares, but right to possess the whole
- ouster - wrongly excluding from possession of the whole or any part
devisable, descendible, alienable
Waste
Voluntary - willful destruction/decrease in value
Permissive - neglect
Ameliorative - change that increases value
Rights and duties of co-tenants
No rent for exclusive possession
proportional rent from third parties
not adverse possession unless ouster
Fair share of carrying costs - taxes, mortgage interest
fair share of reasonably necessary repairs - must notify of need
No right to contribution for improvements, but gets credit at sale for inc in value
No waste
Right to partition - restraints for reasonable time are valid
Four leasehold interests
Tenancy for years
Periodic Tenancy
Tenancy at will
Tenancy at sufferance
3 concurrent tenancies
Joint tenancy
tenancy by the entirety
tenancy in common
Tenancy for years
fixed, determined period of time
know the termination date
terminates automatically, no notice needed
can terminate by surrender or breach of lease covenants
Periodic tenancy
Continues for successive intervals until proper notice of termination
Creation
- express
- implication - no mention of duration and payment of rent at intervals, oral term of years in violation of SOF, holdover tenant
Automatic renewal until termination notice
notice equal to one period, timed to terminate at end of period
- month to month - one month
- week to week - one week
- year to year - 6 mo at common law, 1 mo modernly
Tenancy at will
No fixed period - terminable at the will of either LL or T
Must be express agreement
If right only given to landlord, implied for tenant but not vice versa.
Termination - most states required notice and reasonable time to vacate, or by operation of law
Tenancy at sufferance
Wrongfully holds over
lasts until LL evicts or elects to hold a new tenancy
Tenant’s duties
Repair and pay rent
Repair
- maintain premises - routine repairs other than ordinary wear and tear
no waste
- exception to ameliorative - if T is a long term T and the change reflects changes in the neighborhood
Destruction
- Common law - any loss T responsible
- modern - t may terminate if premises is destroyed without T’s fault
No self help for failure to pay rent
Breach but out of possession - SIR
surrender, ignore (minority, relet (majority)
Landlord’s duties
Duty to deliver possession
- actual physical possession
Implied Covenant of quiet enjoyment
- residential and commercial
- right to quiet use and enjoyment without interference from the landlord or paramount titleholder
-wrongful eviction = breach
Acts of other tenant
- only to abate a nuisance on site and to control common areas
Implied warranty of habitability
- only residential leases and nonwaivable
- do not need to vacate
- premises must be fit for basic human habitation - case law and housing code
- remedies:
move out and terminate
reapire and deduct
reduce rent or withhold
remain in possession and seek damages
No retaliatory eviction
- rebuttably presumed if acts within 90-180 days after T exercises rights
Wrongful eviction - breach of implied covenant of quiet enjoyment
actual
- excludes tenant from entire lease - terminates obligation to pay
Partial
- partial eviction by LANDLORD relieves T for obligation to pay for entire premises
Constructive
- LL breach renders premises unsuitable for occupancy - SING
- substantial interference, notice, goodbye
-MUST vacate
Assignment v Sublease
Assignment - transfer of entire remaining term
Assignee and LL = Privity of estate (covenants that run with the land)
LL and T = Privity of contract (original contract covenants)
Sublease - tenant has retained some part of the remaining term other than a right to reenter
LL and assignee - no PE or PK
LL and T - PE and PK
Once LL consent to one transfer, waives right to object to future transfers unless expressly reserve right
if covenant against transfer by LL was aware and did not object - waived
Caveat lessee - common law
Modern - general duty of reasonable care
Common law:
Let the tenant beware
LL under no duty to make premises safe under tort law
Exception - CLAPS
- common areas
- latent defect - warn T of hidden defects - T could not discover with reasonable inspection and LL knows or has reason to know
- assumption of repairs - no duty to repair, but once do, must complete with reasonable care
- public use rule - liable for any defects that cause injury to member of the public for leases of public spaces
- short term lease of furnished dwellings - responsble for any defective condition which proximately injures T whether of not they knew of the defect
Easement
grant of a nonpossessory property interest that entitles holder to some form of use or enjoyment of another’s land
Affirmative and negative
Negative Easement
prevent servient landowner from doing something that would otherwise be permissible - LASS
- light
- air
- support
- stream water from an artificial flow
minority - scenic view
Only created expressly
Affirmative Easement
right to go onto and do something on servient land
Easement appurenant or in gross
Appurtenant
- benefits its holder in his physical use or enjoyment of own land
- two parcels - dominant tenement that derives the benefit and servient tenement that bears the burden
-passes automatically with transfer of dominant even if no notice
- passes with servient unless BFP with no notice of easement
In gross
- confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of the land
- not transferrable unless it is for a commerical purpose
Creating an easement
PING
- prescription
- implication
- necessity
- grant
Prescription
- COAH - like adverse possession
- continuou
- open and notorious
- actual
- hostile
Implication
- preexisting use/quasi easement - prev owner prior to division used apparently and continuously, and parties expected it to survive division because necessary to dominant use and enjoyment
Necessity
- no way out except over servient land
- owner of servient has right to locate the easement
Grant
-in writing and signed by holder of servient unless outside SOF
- deed of easement
Easement termination
END CRAMP
- estoppel
- necessity
- destruction
- condemnation
- release
- abandonment
- merger
- prescription
Estoppel
- material change in position in reasonable reliance of termination
Necessity
- when necessity ends unless reduced to express grant
Destruction
- not willful by servient
Condemnation
- by government
Release
- release in writing
Abandonment
- an intent to never use shown by a physical action
- mere words or non use is not enough without an action - but could lead to estoppel
- oral expression plus long period of non-use may be enough
Merger
- title of easement and servient land become vested in one person
Prescription
- COAH adverse possession
License
Mere privilege to enter another’s land for some delineated purpose
revocable at will unless estoppel
- investing substantial money or labor in reliance- estopped until receive sufficient benefit to reimburse for expenditures
not alienable - personal to licensee
no writing needed
- failed attempt at making an easement creates a license
Examples:
- tickets
- talking by fence - oral easements
Profit
Entitles holder to enter the servient land and take from it some resources
Same rules as easements
Surcharge - misuse that overly burdens land use may extinguish profit - but for easements, can only enjoin misuse, does not terminate
Restrictive covenants
Contractual limitation or promise regarding the land
Restrictive - promise to refrain from doing something related to the land
affirmative - promise to do something related to the land
Termination
- written release, merger, condemnation
Covenant v Equitable servitude
Money damages = covenant
Injunction = equitable servitude
When will covenants run with the land - burdened land
For burden to run - WITHN
- writing
- intent
- touch and concern
- horizontal and vertical privity
- notice
Writing
- original promise must have been in writing
Intent
- intent that covenant would run
Touch and concern
- use of parcel, affect legal rights as landowners
Horizontal and vertical privity
- horizontal - between original parties - grantor-grantee or LL-T or mortgagor-mortgagee when covenant created
-vertical - original party and successor - some non-hostile nexus - contract, devise, descent
Notice
- successor must have notice of promise when took
When will covenant run with the land - benefit
WITV
- writing
- intent
- touch and concern
- vertical privity - non hostile nexus between B and B1
Equitable servitude - to bind successors
a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land, unless successor is a BFP without notice
no privity required
Creation
- promise in writing - WITNES
-writing
- intent
- touch and concern
- notice - if not a purchaser, bound even if no notice
- equitable servitude
Implied ES - common scheme doctrine
- exception to promise in writing
-developer subdivides and some deeds contain restrictive covenant while others do not, covenant bind all parcels if common scheme of development and notice
defenses- neighborhood conditions have changed so significantly - not enough that it is pockets of limited change
termination
-written release, merger, condemnation
Adverse possession
COAH
- continuous
- open and notorious
- actual and exclusive
- hostile
if enter under color of title - deemed to be in constructive possession of all the land the deed describes
Tacking
- one AP can tack his time to predecessor’s if there is privity - nonhostile and no ouster
Tolling
- statute of limitations will not run against owner with disability at the inception of the aP
Conveyance 2 steps
Contract - equitable title
Closing - legal title
Land contract
If overstates land - specific performance with pro rata reduction in price
Equitable conversion - after contract equity regards buyer as the owner, right to possess only with legal title
Risk of loss - buyer unless contract says otherwise
Implied promises
- seller will provide marketable title - title free from doubt and the threat of litigation - marketable on the day of closing - give reasonable time to cure
- seller will not make false statements of material fact - can not have general disclaimer but can have specific disclaimers
Closing - the deed
contract disappears - all rights now in the deed
transfers legal title - lawfully executed and delivered
- delivery = intent, not actual delivery and rejection defeats delivery
extrinsic evidence admissible to prove intent but not condition in deed
Covenants for title
General warranty deed
- warrants against all defects in title, include those attributable to his predecessors
- present covenants - breached at time the deed is delivered
-seisin - grantor owns this estate
-right to convey - grantor can transfer
-against encumbrances - no servitudes or liens - future covenants - breached when disturbed in possession
- covenant of quiet enjoyment - not disturbed by third party claiming title
- warranty - defend against all reasonable claims of title and compensate for loss
- further assurance - do whatever is needed to perfect title
special warranty deed
- same warranties as general, but only on grantor’s behalf, not predecessors
quitclaim deed
- non covenants
- conveys only what grantor has at time of conveyance
Race jurisdiction
whoever records first wins
… unless the conveyance is first recorded
Notice jurisdiction
Last BFP wins
- purchaser for value without notice
… without notice thereof, unless the conveyance was recorded
Race-notice jurisdiction
BFP and first to record wins
- purchaser for value without notice
… without notice thereof, whose conveyance is first recorded
Notice
Actual, inquiry, record
Actual - literal knowledge
Inquiry- whatever would be revealed in an examination of the property, or recorded instrument makes reference to an unrecorded transaction
Record - chain of title
The shelter rule
anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against
Wild deed
if a deed entered on the records has a grantor unconnected to the chain of title, the deed is wild and is incapable of giving record notice of its existence
O to A but a doesnt record
then A to B and b records - wild deed
Estoppel by deed
one who conveys reality in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer
Mortgage terms
Mortgagor - borrower
mortgagee - lender
Transfer by mortgagee
Indorsing the note and delivering it to the transferee
or
executing a separate document of assignment
can freely transfer the note and the mortgage automatically follows
Transfer by mortgagor
Assumption - agreements to be personally liable
subject to - only subject to the foreclosure action, not personally liable
mortgage remains on the land as long as it was properly recorded - recording statutes apply
Right to equitable redemption
up to the date of sale
not waivable
pay off missed payment and interest and costs
if acceleration clause - pay off entire balance plus interests and costs
Statutory right of redemption
right to redeem for a fixed period after the foreclosure sale
amount is the foreclosure sale price
The variance
means to achieve flexibility in zoning
grants landowner permission to depart from the literal restrictions of a zoning ordinance
must show undue hardship and no diminution to neighboring property value
Nonconforming use
if was once lawful existing use is now nonconforming- cannot eliminate all at once without just compensation
Cumulative zoning
hierarchy of uses
land zoned for that use may be used for the stated purpose and any higher purposes
Noncumulative zoning
land may be used only for that purpose
Special use permit
must be obtained even though zoning is proper for the intended use
Support of land in natural state
landowner strictly libale if their excavation causes adjacent land to subside
if the land is improved and not natural and that land caves in from excavation, only liable if negligent unless show that it wouldve happened in natural state
Water rights
riparian doctrine - water courses
- water belongs to those who own the land bordering
prior appropriation doctrine - water courses
- initially belongs to state but the right to divert it and use it can be acquired by individual’s actual use
ground water
- absolute ownership - owner of overlying land
surface water
- natural flow - cannot change natural drainage patters
- common enemy - owner can take protective measures ot get rid of the water or combat its flow
