Property Flashcards
Severance of Joint Tenancy
SAP (Sale and Partition)
- sale disrupts the four unities
- the buyer becomes a tenant in common
How to create a Joint Tenancy
T-TIP
T: at the same time
T: By the same title (same deed, will, or other document of title)
I: with identical, equal interests
P: with rights to possess the whole
May a joint tenant secretly transfer their interest?
Yes
What happens to a Tenancy by the Entirety upon divorce?
It becomes a tenancy in common.
Rents and Profits from co-tenants
Must share rent according to the co-tenants’ respective interests in the property.
3 types of waste
Voluntary waste
Permissive waste
Ameliorative
Tenancy for years:
1) Definition
2) Creation
3) Termination
1) Tenancy that lasts for some fixed period of time.
2) “to T for 10 years”
3) Terminates at the end of the stated period without either party giving notice.
Periodic Tenancy
1) Definition
2) Creation
3) Termination
1) Tenancy for some fixed period that continues for succeeding periods until either party gives notice of termination.
2) “To T from month to month”
3) Termination by notice from one party at least equal to the length of the time period (Exception: Only one month’s notice, or 6 months at common law, is required to terminate a year-to-year tenancy)
Tenancy at Will
1) Definition
2) Creation
3) Termination
1) Tenancy of no stated duration that lasts as long as both parties desire.
2) “To T for and during the pleasure of L)
3) Usually terminates after one party displays an intention that the tenancy should come to an end. May also end by operation of law (e.g death of party, attempt to transfer interest).
Tenancy at Sufferance
1) Definition
2) Creation
3) Termination
1) Tenant wrongfully holds over after termination of the tenancy.
2) T’s lease expires, but T continues to occupy the premises
3) Terminates when landlord evicts tenant or elects to hold tenant to another term.
Exception to the holdover doctrine
1) the tenant remains in possession for only a few hours
2) the delay is not the tenant’s fault
Tenant’s duty to repair when lease is silent
Tenant has a duty to maintain the premises , and tenant must not commit waste.
Tenant duty to repair with an express covenant in the lease:
Residential Tenant: even if resident covenants to repair, landlord still must repair under “implied warranty of habitability.”
Nonresidential Tenant: Covenant to repair is enforceable.
Note: repair covenants typically exclude ordinary wear and tear.
Landlord Remedies if tenant breaches but is out of possession:
SIR:
Surrender: Treat the tenant’s abandonment as an implicit offer of surrender, and end the lease.
Ignore the abandonment and hold the tenant responsible for the unpaid rent (minority of states allow this)
Re-let the premises on the wrongdoer tenant’s behalf, and hold the wrong-doer tenant liable for any deficiency (majority of states)
Ways to breach implied covenant of quiet enjoyment:
- Breach by wrongful eviction
- Breach by construction eviction
Implied Covenant of Quiet Enjoyment
A tenant has a right to quiet use and enjoyment of the premises with interference from the landlord or a paramount title holder
How can a landlord breach by constructive eviction?
SING
Substantial Interference
Notice
Goodbye
T’s entitlement if IWH is breached
MR3 = Move, Repair, Reduce, Remain
- Move out and terminate lease
- Repair and Deduct from rent
- Reduce rent or withhold all rent until the court determines fair rental value
Remain in possession and seek money damages.
Assignment by Landlord
1) Consent
2) Privity of estate
3) Privity of contract
4) Liability for Covenants in Lease
1) Tenant’s consent not required
2) Assignee and tenant are in privity of estate
3) Assignee and tenant are not in privity of contract; Original landlord and tenant remain in privity of contract.
4) Assignee liable to tenant on all covenants that run with the land. Original landlord remains liable on all covenants in the lease.
Assignment by Tenant
1) Consent
2) Privity of estate
3) Privity of contract
4) Liability for Covenants in Lease
1) Landlord’s consent may be required by lease.
2) Assignee and landlord are in privity of estate
3) Assignee and landlord are not in privity of contract. Original tenant and landlord remain in privity of contract.
4) Assignee liable to landlord on all covenants that run with the land. Original tenant remains liable for rent and ALL other covenants in the lease.
Sublease by tenant
1) Consent
2) Privity of estate
3) Privity of contract
4) Liability for Covenants in Lease
1) Landlord’s consent may be required by lease
2) Sublessee and landlord are not in privity of estate. Original tenant remains in privity of estate with landlord.
3) Sublessee and landlord are not in privity of contract. Original tenant and landlord remain in privity of contract.
4) Sublessee is not personally liable on any covenants in the original lease and cannot enforce the landlord’s covenants. Original tenant remains liable for rent and all other covenants in the lease and can enforce the landlord’s covenants.
When do covenants run with the land?
When they “touch or concern” the land (benefit the landlord and burdens the tenant or vice verse w/r/t their interest in the property).
Five Exceptions to caveat lessee:
CLAPS:
Common areas
Latent defects
Assumption of repairs
Public use rule
Short-term lease of furnished dwelling
Modern trend regarding caveat lessee:
Reasonable care standard
What is an easement?
A grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land.
Four categories where negative easements are recognized:
LASS
- Light
- Air
- Support
- Stream of water from artificial flow
Easement Appurtenant
Benefits the holder in his physical use and enjoyment of his own land. Two parcels of land must involve:
- a dominant tenement, which derive the benefit
- a servient tenement, which bears the burden.
*passes automatically with transfers of dominant tenement.
Easement in Gross
Confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land.
Example: Right to place billboard on another’s lot, right to swim in someone else’s pond, right to lay power lines on another’s lot.
*non-transferrable unless it is for some commercial purpose
Methods of creating an easement:
PING
- Prescription (adverse possession)
- Implication or Quasi - Easements (exception to SofF)
- Necessity (another form of easement by implication)
- Grant (memorialized in writing)
Ways to terminate an easement
END CRAMP
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
How to tell the difference between Covenant and Equitable Servitude?
Convenant: P asking for money damages
Equitable servitude: P asking for injunction
What does it mean for a covenant to run with the land?
The covenant is capable of binding successors
Requirements for the burden to run:
WITHN
Writing
Intent
Touch and concern
Horizontal and vertical privity
Notice
What is horizontal privity?
The nexus between the OG promising parties. They must be in succession of estate, meaning they were grantor-grantee, landlord tenant, or mortgager mortgagee.
In other words: At the time the promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant.
What is vertical privity?
The nexus between the successor in interest (A-1) and the original covenanting party (A). Simply requires some non-hostile nexus. The only time it will be absent is when the successor acquired through adverse possession.
Requirement for the benefit to run
WITV
Writing
Intent
Touch and concern
Vertical privity
Equitable servitudes
A promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser.
Creation of Equitable servitude?
WITNES
Writing
Intent
Touch and Concern
Notice
ES, for equitable servitude
Elements of Common Scheme Doctrine
- When the sales began, the subdivirder (A) had a general scheme of residential development which included the defendant’s lot
- The defendant lot holder (B) had notice of the promise contained in those prior deeds when it took.
Three forms of notice
AIR
Actual notice
Inquiry notice
Record notice
Equitable defenses to enforcement
- The neighborhood conditions have changed so much that enforcement would be inequitable.
- person seeking enforcement is also violating
- A benefitted part acquiesced in a violation of the servitude by a burdened party
- A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel) OR
The benefited party failed to bring suit against the violator within a reasonable time.
Adverse possession and future interets
The SofL does not run against a holder of a future interest until the interest becomes possessory.
Doctrine of Equitable Conversion
Once the contract is signed, equity regards the buyer as the owner of the real property. The contract conveys equitable title to the buyer, and the right to possession rests with the part who holds legal title.
Passage of title on death
The interests of the departed party pass to their estate.
What are the two promises in every land sale contract?
- the seller will provide marketable title
- The seller will not make false statements of material fact.
Common defects that render title unmarketable are:
- Defects in record chain of title
- Encumbrances
- Zoning violations
When must title be marketable?
On the day of closing
What is the remedy if title is unmarketable?
The buyer must notify the seller and give the seller reasonable time to cure the defects.
If the seller fails to cure the defects, the buyer’s remedies include rescission, damages, specific performance with abatement, and quiet title suit. But if the contract closes, buyer is stuck with title.
To be liable for failure to disclose a defect:
- The seller must know or have reason to know of the defect,
- The seller must realize that the buyer is unlikely to discover the defect; and
- The defect must be serious enough that the buyer would probably reconsider the purchase.
To pass legal title from grantor to grantee, the deed must be…
LEAD
Lawfully Executed And Delivered
Executing a valid deed requires:
- A writing signed by the grantor
- An unambiguous description of the land
- Identification of the parties by name or description
- Words of intent to transfer, such as “grant”
If a deed, absolute on its face, is transferred to the grantee with an oral condition, what is the effect of the condition?
It is void.
Which covenants does a quitclaim deed contain?
Grantor isn’t even promising that he has title to convey. This is the worst deed a buyer could hope for. It conveys only what the grantor has at the time of the conveyance.
The General Warranty Deed
The best deed a buyer could hope for. It warrants against all defects in title, including those attributable to grantor’s predecessors.
