Property Flashcards
Concurrent Estate
Estate that can be held by several persons at the same time.
Each has the right to use and enjoy the whole.
- Joint Tenancy
- Tenancy by the Entirety
- Tenancy in Common
Joint Tenancy
Bunch of people hold it, with:
- Right of Survivorship: Deceased’s share goes automatically to surviving Joint Tenant (JT)
- Alienability Inter Vivos: Transferable during the holder’s lifetime.
- Not Devisable: Not passable by will!
- Not Descendible: Not passable to heirs.
Last survivor takes all.
If original JTs are Phoebe, Ross, and Monica, and Phoebe sells to Chandler, then Ross dies, the remaining share goes to Monica only but not Chandler.
How Do You Create a Joint Tenancy?
The Four Unities.
- T: At the same time.
- T: By the same title, typically a deed; equal amounts! 2 JTs = 50%, 3 = 33%, etc.
- I: Identical equal interests.
- P: Right to possess whole.
How Do You Sever a Joint Tenancy?
- Sale: JT sells/transfers during lifetime, including as a collateral against another party for some kind of action. Can be secret, without other JT consent! Think The Likeness.
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Partition:
1. Voluntary Agreement
2. Partition in Kind: an action for a physical division of the property, if the best interest of all parties. Makes most sense if large tract, a huge farm - easily divisible.
3. Forced Sale: Land is sold and the sale proceeds are divided proportionately.
Tenancy By The Entirety
A protected marital interest between spouses with the right of survivorship.
Presumptively created in any conveyance to married partners.
Very protected. Can’t touch this.
Tenancy in Common
Two or more own without the right of survivorship.
Co-tenant owns individual part + right to possess whole. No rent between them.
Devisable, descendible, alienable.
Cannot oust co-tenant from some part of the property.
If leased to a third party, other CTs entitled to their portion.
Each pays taxes/interest/mortgage /repair costs equivalent to their share.
No right to contribution to improvements made by one party.
The Four Leaseholds
- Tenancy for Years
- Periodic Tenancy
- Tenancy at Will
- Tenancy at Sufferance
Tenancy for Years
Tenancy for known, fixed period of time.
Termination automatic at end date. No notice needed.
Writing needed if over 1 year (SoF)
Periodic Tenancy
Continues for successive intervals until properly terminated.
No end date. The lease goes on.
How to Create:
1. Express (L to T from month to month); or
2. Implication
- Rent set at intervals; or
- Oral term of years violating SoF. “L and T orally agree on a 5 year lease at $1,000 a month.” Has to be a tenancy for years, because otherwise, breaks SoF.
How to Terminate: Common Law requires notice at least equal to the length of the period. If year-to-year, 1 month needed.
Tenancy at Will
No fixed duration.
Terminable at will of either party.
Most states, though, require notice at reasonable time.
Tenancy at Sufferance
T wrongfully holds over past lease expiration. L proceeds to recover rent.
Terminates when L
1. Moves to evict; or
2. Holds T to new tenancy.
Tenant Duties
- Duty to Repair if Lease is Silent
- Duty to Repair with Express Covenant
- Duty to Pay Rent
Duty to Repair if Lease is Silent
- Maintain premises
- Make routine repairs
- Mold in the shower? → No
- Hair in drain? → Yes
- Don’t Commit Waste
- Voluntary
- Permissive (neglect)
- Ameliorative (unless long-term T and reflects neighborhood changes)
Duty to Repair with Express Covenant
- Maintain in good repair/condition
- T may terminate if premises destroyed without T’s fault
Duty to Pay Rent
- If T breaches and remains, L can:
- Evict
- Continue relationship and sue for rent - If T breaches and leaves, L can SIR:
- Surrender: L can treat the T’s abandonment as a surrender and accept it.
- Ignore the abandonment and hold T responsible for unpaid rent until the natural end of the lease. Minority of states.
- Re-Let the premises on the T’s behalf, and hold them liable for any deficiency.
BUT L MAY NOT SELF HELP. No forcing ouster, changing locks, removing T’s possessions, etc.
Landlord Duties
- Duty to Deliver Possession
- Implied Covenant of Quiet Enjoyment
- Implied Warranty of Habitability
- No Retaliatory Eviction
- Anti-Discrimination Legislation
Duty to Deliver Possession
Duty to place T in actual, physical possession
If another tenant is still there on the date the new Tenant is to move in, T gets damages
Implied Covenant of Quiet Enjoyment
this will be on the exam
T has the right to the quiet use and enjoyment of property without interference from L.
How Could LL Breach?
- Wrongful Eviction: literally excludes from all of (actual eviction) or part of (partial eviction) property. Both relieves T’s rent obligation.
-
Constructive Eviction: LL breach renders the premises unsuitable for occupancy. T must satisfy SING:
- Substantial Interference: e.g. every time it rains, apt floods.
- Notice: T must tell L; L must fail to fix.
- Goodbye: T must vacate.
Then they can sue for damages.
No Retaliatory Eviction
L cannot terminate/penalize T in retaliation for T’s exercise of legal rights
E.g. T lawfully reports L for housing code violations.
Zoning
you know
Enabled by local zoning ordinances
Variance
Permission to a property owner to depart from a zoning restriction. Must:
- Show undue hardship
- Show no diminution to neighboring property values
…granted or denied by the zoning board.
Nonconforming Use
Use previously allowed by zoning is now deemed nonconforming by a new ordinance.
The old use cannot be eliminated all at once unless just compensation is paid.
Types of Zoning Ordinances in the U.S.
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Cumulative Zoning: Land ranked and categorized to create hierarchy of uses.
- E.g. single-family home is the highest; next, two-family; next, apartment; etc.
- Higher uses are allowed into lesser-use districts, but not vice versa.
- Noncumulative: Land may only be used for the purpose for which it is zoned. So a single-family home is not allowed in commercial zones.
Special Use Permit
List of uses deemed appropriate according to zoning, but because they present certain safety/general welfare concerns, they must pass certain criteria.
E.g. required for hospitals, funeral homes, drive-in businesses, etc.
Condominium Association
Gated/walled community. Each owner owns the interior of their individual unit plus an undivided interest in the exterior + common elements (pool, game room, etc.)H
Homeowners’ Associations
Oversees common elements in the condo.
Each condo owner is a member.
Elects a board that enforces covenants, conditions, etc.
Special Assessment: one-time fee if dues don’t cover an expense; used for common elements
Association Rules are bundled into the **Declaration of Covenants, Conditions, and Restrictions (CC&R) that prescribe what owners can/can’t do. E.g. no pets.
Rights Incidental to Ownership of Land
Owner of real property has exclusive right to use and possess the surface, airspace, and soil
Lateral Support
Right to have the land supported in its natural state by adjoining land. No additional structures, shrubbery, etc.
Liability:
- If Your Land is Natural, and a neighbor excavates randomly → causes your natural land to subside → Strict Liability.
- *If Your Land is Improved, and a neighbor causes subside-ing → Negligence Standard.
Water Rights
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The Riparian Doctrine: Water belongs to who owns the land bordering the watercourse.
- Reasonable Use Theory: Riparians share the right of reasonable use. Use Unreasonably → Liable. -
Prior Appropriation Doctrine: Water belongs to the state.
- Priority of Beneficial Use: But one can acquire the right to divert/use if they actually use it, were the first, and for beneficial use.
Ground Water
Surface owner can make reasonable use of groundwaterr
Surface Waters
Waters that pass across your land (melting snow, etc.); hasn’t settled into natural resting place/basin.U
Use of Surface Waters
Landowners can use surface water within their boundaries for any purpose they desire.
What if you change the Flow? → The Common Enemy Rule: Owner can take any protective measures to get rid of surface water/combat its flow. E.g. build a levy. *But must not harm/unreasonably interfere with other peoples’ parcels of land.
Transfers of Leaseholds
Assignments and Subleases
Assignment
Transfer of entire remaining term of lease.
Assignee T is…
- …in privity of estate with the Landlord
- …not in privity of contract with the Landlord
Original T is…
-…not in privity of estate with the Landlord
- …in privity of contract with the Landlord
This determines who can proceed against whom.
Assignment Example
Say L leases to T1, T1 assigns to T2, T2 to T3. T3 then abuses the premises.
- L can proceed against T3, the direct wrongdoer, because of Privity of Estate
- L can proceed against T1, because of Privity of Contract
- L cannot proceed against T2, because they have neither privity.
Assignment (L)
If L leases property to T, and L subsequently assigns L’s interest to L2, T may hold either L or L2 liable when X, a paramount title holder, ejects T.
Sublease
Transfer of part of the remaining term of lease.
T2 has no privity, estate or contract, with L.
BUT: T1 and T2 are responsible to each other. T2 can bring action against T1. And the relationship between L and T1 remains intact.
Landlord Tort Liability
Caveat Lessee: Tenant Beware. L has no duty to make premises safe, except: CLAPS:
- Common Areas
- Latent Defects, where L has a duty to warn of hidden defects they knew/should have known about + T could not have.
- Assumption of Repairs, where L has a duty to complete repairs that they started.
- Public Use Rule. L who leases public space (e.g. museum) and who should know, because of the significant nature of the defect and short length of the lease, that a T will not repair, is liable for any defects on the premises that cause injury to members of the public.
Think school that leases museum for prom.
- Short-Term Lease of Furished Dwelling. Landlord who rents a fully furnished premises for a short period (summer cottage) is responsible for any defective condition which proximately injures a Tenant.
Modern Trend in Landlord Tort Liability
General Duty of Reasonable Care.
Many courts now hold a L owes a general duty of reasonable care toward residential tenants and will be held tort liable resulting from ordinary negligence IF L had notice and opportunity to repair
Easement
A grant of nonpossesory interest entitling the holder to use or enjoy another’s land in some way. Must be in writing.
- Affirmative: Right to go on another’s land and do something.
-
Negative: Right to prevent landowner from doing something. Can only be created expressly, and only for LASS:
- Light (prevent neighbor from impeding your access to sunlight)
- Air
- Support
- Stream water from artificial flow
Types of Easements
- Easement Appurtenant: Benefits its holder in his physical use or enjoyment of his land.
- Easement in Gross: Confers upon its holder only some personal or pecuniary advantage that is not related to use/enjoyment.
Easement Appurtenant
Example: A grants B a right of way across A’s land, so B can easily reach his own land.
B = Dominant Estate; derives the benefit.
A = Servient Estate; bears the burden.
B has an easement appurtenant to his dominant parcel.
Whenever you see two pieces of land, think easement appurtenant.
Transfers:
- Benefit automatically transfers with the dominant tenement, regardless of whether it’s mentioned in the conveyance.
- Burden also automatically passes unless the new owner is a BFP without notice of the easement.
Easement in Gross
Confers upon its holder only some personal or pecuniary advantage that is not related to the use or enjoyment of their own land.
Servient land burdened, and there is no benefited land.
Neil has an easement in gross to use Suchita and Sunny’s pool.
Transfers: No, only for commercial purposes.
How Do You Create an Easement?
PING
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Prescription: Kind of like adverse possession. I cut across your front lawn for years, so after some time I convert from a trespasser to the holder of an easement in gross. Remember COAH:
- Continuous and Uninterrupted use for the given statute’s period;
- Open and notorious use, meaning it’s discoverable by the holder upon inspection
- Actual Use; need not be exclusive
- Hostile Use; without the servient owner’s consent -
Implication: Created by operation of law. Passes on if…
- Previous use on the servient’s part was apparent and continuous; and
- The parties reasonably expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment. - Necessity: Landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land.
- Grant: In writing and signed by the servient estate owner, unless its duration is less than one year (SoF).
How Do You Terminate an Easement?
You will get tested on one of these
END CRAMP
- Estoppel
- Necessity
- Destruction
- Condemnation
- Release
- Abandonment
- Merger
- Prescription
How Do You Terminate an Easement? Details. 1/3
- Estoppel. Servient owner materially changes positions in reasonable reliance of easement holder’s assurance that it will no longer be enforced. Enforceable if there’s reliance. **E.g.* A tells B they will no longer cross B’s land, B builds a swimming pool: A cannot enforce.
- Necessity: Easements created by necessity end when the necessity ends, unless it was in writing. E.g. A has E. Appurt. to cross O’s land. City builds a road A can get out through. Does A still have the easement? NO, because the necessity is gone; but YES if there was a writing!
- Destruction of the servient land, other than through willful conduct of the servient owner, will terminate the easement.
How Do You Terminate an Easement? Details. 2/3
- Condemnation of the servient estate by governmental eminent domain will terminate the easement. Courts are split on whether the easement holder is entitled to compensation.
- Release given in writing by the easement holder to the servient will terminate the easement. Applies to an easement in gross too.
- Abandonment. Easement holder shows by physical action, like building a structure, an intent never to use the easement again.
How Do You Terminate an Easement? Details. 3/3
- Merger: When title to the easement and title to the servient land become vested in the same person, the easement is extinguished. If it splits again, the easement isn’t reinstated; you start from scratch.
- Prescription: A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. COAH: Continuous Interference, open and notorious, actual, hostile to the holder.
E.g. A has an easement across B’s parcel. B erects a fence. With sufficient passage of time, B has extinguished A’s easement by prescription.
License
Mere privilege to enter another’s land for a narrow/delineated purpose.
Distinction from Easement: A license is not an interest in the land. It’s flimsy, narrow, revocable. No writing required; freely revocable.
Bar Tip: Licenses show up on the bar as:
- Tickets (like, to shows: creates a revocable license)
- Neighbors Talking By the Fence: Neighbor A says over the fence to B, “You can have right of way across my land.” Not an easement - it’s an oral license, revocable.
*Enforceable only by estoppel (reliance).
Profit
Entitles its holder to enter the servient land and take from it. E.g. minerals, timber, oil, fish, game…
Creating/Terminating Rules? Same as easements.
Surcharge: Profits may be extinguished through a surcharged - a misuse that overly burdens the servient estate.
Covenants
Promises to do or not do something with regard to the land.
Distinct from easements in that they are not ownership interests.
Restrictive Covenant
Refrain from doing something.
Most covenants are restrictive.
Affirmative Covenant
Promise to do something related to the land.
“I promise to maintain our shared fence.”
Remedies for Equitable Servitude v. Covenants
Equitable Servitude → Injunction
Covenants → Money Damages
Requirements for Burden to Run in a Covenant
WITHN
- Writing
- Intent to have the covenant run (look at the language)
- Touch and Concern the Land
- Horizontal and Vertical Privity
- Notice
Horizontal Privity
Original covenanters had to have had some shared interest in the land other than the covenant.
Most often because they were grantor and grantee.
Vertical Privity
Everything but adverse possession.
Requirements for Benefit to Run in a Covenant
WITV
- Writing
- Intent to have the covenant run (look at the language)
- Touch and Concern the Land
- Vertical Privity only
Equitable Servitude
Promise that the equity will enforce against successors of the burdened land (regardless of whether it runs with the land at law).
Created as a relief for covenants, because of how difficult covenants are to create.
Requirements for Creating an Equitable Servitude
WITNES
- Writing
- Intent
- Touch and Concern
- Notice
- (For) Equitable Servitudes
No privity required!! :D
The General or Common Scheme Doctrine
Courts will assume there was an implied equitable servitude even though there was nothing in the deed IF:
- There was, from the beginning, a
- Scheme of development to which
- Developer had notice, which can be AIR:
- Actual (literal knowledge)
- Implied (lay of the land)
- Record (public documents)
Keep in Mind for Common Schemes…
If the Common Scheme arose after some of the original lots are sold, there will be no implied equitable servitude. So, for example, if Lots 1-5 are sold without a restrictive covenant and the deeds to Lots 6-50 contain one, the covenant cannot be enforce as a servitude against the owners of Lots 1-5.
Defenses to the Enforcement of an Equitable Servitude
- The Neighborhood has Changed so significantly that enforcement would be inequitable.
- Unclean Hands. The person seeking enforcement is violating a similar restriction on his own land.
- Acquiesced. A benefited party acquiesced in a violation of the servitude by a burdened party.
- Estoppel. Burdened party has acted in such a way that a reasonable person would believe the covenant abandoned.
- Laches. The benefited party fails to bring suit against the violator within a reasonable time.
Adverse Possession
Possession for a statutorily prescribed time that can ripen into title.
Requirements for Adverse Possession
COAH
- Continuous and Uninterrupted.
- Open and Notorious.
- Actual and Exclusive.
- Hostile. (Permission defeats.)
An adverse possessor will only gain title to land they actually occupy.
Tacking
One adverse possessor may tack on to his time with the land his predecessor’s time, as long as there is privity between the possessors (any non-hostile nexus).
A AP’d B for 10 years, passed to C for 10 more, statute prescribes 20 years: belongs to C/A.
Exceptions to Adverse Possession
Will not run against a true owner who is afflicted with a disability at the inception of the adverse possession. E.g. insanity, infancy, incarceration….
Conveyancing Steps
- Contract conveys equitable title.
- Closing, where the deed passes legal title.
Requirement for a Land Sale Contract?
The Statute of Frauds!
- Writing
- Signed by the defendant; iow, the against whom enforcement is sought.
- Identify the Parties.
- Describe the Property.
- State the Consideration ($ term).
Bar Tip: What if the Size Amount in the Writing is Greater than the True Size of the Parcel?
Specific Performance with a pro-rata reduction in price.
E.g., “Be enters a contract to purchase a farm. The contract says the farm is 100 acres. When B has a survey done, B learns it is actually 98 acres. What is B’s remedy? Pro-rata reduction for the 2 acres.
Part Performance
An equitable doctrine that allows the buyer to enforce an oral contract by specific performance if:
- The Contract is certain and clear; and
- Acts prove the existence of the contract: 2/3 of the following—
- Buyer took possession
- Buyer paid purchase price or significant portion
- Buyer made substantial improvements
E.g. A and B orally agree on a purchase of B’s land. B dies. B’s estate does not want to sell. What can A do? Show the contract is clear and certain, show that they took possession and made improvements.
Equitable Conversion
Once the contract is signed, equity regards the buyer as the owner of the real property.
By contrast, closing gives legal title to the buyer.
Right to Possession rests with…
…the party that holds the legal title.
Difference between Legal Title and Equitable Title
Equitable Title: Contract—Risk of Loss
Legal Title: Deed—Right to Possession
Implied Promises in Every Land Sale Contract
- Seller will provide Marketable Title
- Seller will not make False Statements of Material Fact
Seller Will Provide Marketable Title
Promise that the title is reasonably free of doubt/threat of a lawsuit on closing. Will be tested!!
What Renders a Title Unmarketable?
- Defects in Record Chain of Title, e.g. adverse possession or no good record title.
- Encumbrances, e.g. mortgages, liens, covenants, easements
- Zoning Violations seller is guilty of.
If buyer determines title is unmarketable, must notify the seller and give reasonable time for them to cure.
Closing date may be extended to allow time to cure.
Seller Will Not Make False Statements of Material Fact
Seller may be liable to the purchase after closing for defects, e.g. leaky roof, if they knowingly made a false statement the buyer relied upon, actively concealed a defect, or failed to disclose one.
General Disclaimers are No Good. But if the disclaimer identifies specific types of defects (e.g. the roof) it will likely be upheld.
Implied Warranties of Fitness or Habitability in Land Contracts?
None. Buyer Beware. This is what the escrow period is for.
One Exception: Sale of new home by a builder.
Deeds
At closing, deeds become the document.
Seller therefore is no longer liable for the promises in the contract.
To Pass Legal Title from Grantor to Grantee, the **Deed* must be:
LEAD:
Lawfully
Executed
And
Delivered
Lawful Execution requires:
WUIW
- Writing signed by grantor;
- Unambiguous description of the land (“O conveys all of O’s land”; not, “some of his land).
- Identification of Parties
- Words of Intent
No consideration needed.
Delivery Requirement for Deeds
Legal standard testing grantor’s present intent. Did they have present intent to part with legal control?
Does not require physical transfer.
Mail, agent, messenger, etc. fine.
Transfer to Third Party with Conditions
Escrow Transaction
Grantor may deliver an executed deed to an escrow agent, with instructions that title is to pass from escrow agent to grantee once certain conditions are met.
Dad gives deed to escrow agent, to be delivered to Rohit once he passes the bar.
Types of Covenants for Title
- General Warranty Deed.
- Special Warranty Deed.
- Quitclaim.
General Warranty Deed
The Best Deed.
Warranties against all defects in title.
Contains All Six Covenants:
-
Present Covenants:
- Seisin (grantor owns this estate, can vest it)
- Right to Convey (grantor can transfer this estate, she is under no temporary defects)
- Against Encumbrances (no servitudes/liens on this land) -
Future Covenants:
- Quiet enjoyment
- Warranty (even if 3rd party claim, grantor will defend against reasonable claims of title + compensate for loss)
- Further Assurances (grantor will perfect title if deed turns out to be imperfect)
Special Warranty Deed
Warrants against all defects in title but only for grantor themselves.
Statutory Special Warranty Deed: When the deed is ambiguous as to which deed-type it is, statutory special warranty will be presumed.
Two Promises:
1. Grantor hasn’t conveyed to anyone else (not a dirty double dealer)
2. Grant is free of encumbrances
Quitclaim
The Worst Deed.
No covenants for the title.
Taking a Quitclaim = Taking Nothing.
