Property Flashcards
Concurrent Ownership
Tenants by the entirety – cannot transfer without the other party.
Tenants in common – undivided share – no right of survivorship.
Joint Tenancy – 4 elements
4 elements TTIP
Time
Title
Identical Interest
Possess whole - right
JT rights when alive and severs the JT
SPAM- sale, partition and mortgage (minority-title theory)
Partition can occur by:
COW – JT or in common
C- COURT decree
O-ORAL agreement between all (100%) of the co-tenants provided they all (100%) go
into possession
W-Signed WRITING voluntarily partitioning property by exchange of deeds signed by all co-tenants
Landlord’s duties
Implied Warranty of Habitability
Implied Covenant of Quiet Enjoyment
Deliver Possession
Tenant’s duties – repair and to pay rent
Implied covenant of quiet enjoyment: Breach by constructive eviction: L renders premises unsuitable for occupancy. (3 following elements MUST be met:
[SI.N.G]). SING1. Substantial Interference: chronic/permanent problem attributable to L’s actions or failure to act; 2. Notice: T must notify L of the problem & L must fail to fix it (failure to respond). 3. Goodbye: T must leave within a reasonable time after L fails to correct the problem.
Implied warranty is breached: remedies for Tenant:
[M + 3R] (1) Move Out & end lease (*does not have to); (2) Repair & Deduct (T may make reasonable repairs and deduct cost from future rent—by statute in many J); (3) Reduce or withhold rent until Crt. determines fair rental value in view of defects. (must place any withheld rental sums into escrow for good faith)
Tenant Breach & is Out-of-Possession: (ie wrongfully vacates with time left on term of years lease. L can:
SIR:
1. Surrender - L could choose to treat T’s abandonment as an implicit offer of surrender which L accepts.
2. Ignore (Min) the abandonment & hold T responsible for unpaid rent, just as if T were still there.
3. Re-Let (Maj) the premises on the wrongdoer T’s behalf and hold him or her liable for any deficiency. Maj.
CL: caveat lessee (Let T beware): In tort, L was under no duty to make the premises safe.
Exceptions to:
CL [CLAPS]:
(1) Common areas: must maintain common areas (hallways, stairwells, etc);
(2) Latent defects rule: L must warn T of hidden defects of which L has knowledge or reason to know (duty to warn NOT repair).
(3) Assumption of repairs: L must complete repairs that he voluntarily undertakes with reasonable care (if made negligently and T gets hurt, L responsible);
(4) Public use rule: L who leases public space (convention hall or museum) and who should know, because of the nature of the defect and the short length of the lease, that T will not repair is liable for any defects on the premises.
(5) Short Term Lease of Furnished Dwelling: L is liable for any defective condition which proximately harms T (bc T has neither time nor inclination to make repairs).
Easements Creation
PING – Presumed perpetual if not state limit, passes automatically with transfer of the easement appurtenement (Dominant and servient)
Prescription (COAH): use that is Continuous, Open and notorious, Actual under a claim of right that is Hostile for reqd statutory period. *not exclusive.
Implication: implied from prior use; (preexisting use/quasi-easement).
Necessity: (landlocked) division of a tract deprives one lot of means of access out except over grant’s remaining lot
Grant: writing signed by grantor (must be in writing if for more than one year). – Deed of easement.
Exception: if outside of SOF (Less than 1y).
Negative easement – prevent owner to do something
Only for :
LASS:
1. Light,
2. Air,
3. Support, and
4. Streamwater
Can be created only expressly (writing)
Termination of easement
END CRAMP
1. Estoppel: servient materially changes her position in reasonable reliance on the dominant’s assurances that the easement will no longer be enforced.
2. Necessity: if easement by necessity, terminated when need ends unless created by express grant (writing)
3. Destruction of servient land: if not willful conduct of servient, then terminated
4. Condemnation of servient by eminent domain
5. Release: written release signed by servient & dominant
6. Abandonment: dominant demonstrates by physical action intent to never use the land again (mere nonuse or words are insufficient)
7. Merger Doctrine: title to easement & servient land become vested in same person
(not automatically revived) – Same person own both parcels in same manner.
– It can’t be one life estate and in the other fee simple.
8. Prescription: If servient uses Adverse Possession elements to take back (COAH)
Nonpossessory Interests are
Easements, profits, covenants, and servitude
Covenant- Benefit will run to successor of benefited lot if
WITV: Writing, Intent, Touch and concern; Vertical privity
Covenant- Burden of promise run to successor of burden lot if rqts satisfied
(WITHVN)
Writing, Intent covenant would run, Touch & concern the land; Horizontal Privity (succession of estate required), Vertical Privity (non-hostile way required); & Notice
remedy- money damages
Creation of Equitable Servitude when:
WITNES
Writing (gen in writing, not always)
Intent: orig intent to enforce
Touch and concern: affects as landowners
Notice: assignee of burdened land had notice of promise
ES Equitable Servitude
remedy - req. injunction
Types of Notice:
—Actual notice: D had literal notice of promises in prior deeds
—Inquiry notice: neighborhood conforms to common restriction
—Record notice: split! Someimputed to buyer based on constructive notice regardless of whether D checks records
Defenses to ES enforcement:
Doctrine of change conditions:
Changed circumstance must be so pervasive that the entire area or subdivision has changed
Unclean hands, laches, acquiesced, estoppel
Adverse Possession
Continuous: Uninterrupted possession for given statutory period. (if summer house, possession must be in consecutive summers.)
Open and Notorious: kind of possession the usual owner would make under the circumstances. (apparent)
Actual and Exclusive: Literal occupation! - Entry cannot be fictitious. (entered under color of title (by mistaken or fraudulent deed), if COAH satisfied, not only owner of physically occupied but surroundings parts described in defective deed).
**Hostile: **possessor doesn’t have owner’s permission to be there (State of mind irrelevant. If didn’t know, won’t defeat claim!) Permission defeats hostility.
Land Sale – statute of frauds reqs.
parties, describe property, state consideration
2 Promises in every Land Sale – b4 deed passes
- Seller will provide marketable title
- Seller will not make false statements of material fact
Exception to SOF: Doctrine of Part Performance: need two for equity to decree specific performance of an oral K for sale:
(i) B takes physical possession &/OR (ii) B pays all or part of purchase price &/OR (iii) B makes substantial improvements to the land. PIP – Paid, Improvements, Possession
For the deed to pass legal title from seller to buyer, must
LEAD (Lawfully Executed And Delivered)
Types of Deeds
Quitclaim Deed: Contains no covenants for title. Not even that Grantor has title to convey. Worst title for buyer. It does not in any way effect the implied covenant to provide marketable title – at the closing.
General Warranty Deed: warrants against all defects in title. Willingly assumes the transgressions, if any, from predecessors. Contains all six covenants.
Special Warranty Deed: Same 6 covenants as the general warranty deed. But grantor makes those promises only on behalf of himself.
6 Covenants
- Covenant of seisin (GW): grantor promises he owns the estate he now claims to convey. Can only be breached at time of delivery
- Covenant of rt to convey (GW): grantor promises he has the power to transfer (no temporary restraints on grantor’s capacity to sell). Can only be breached at time of delivery
- Covenant against encumbrances (GW): grantor promises there are no servitudes or liens on the land. Can only be breached at time of delivery
- Covenant for quiet enjoyment (GW): grantee will not be disturbed in possession by 3 party’s lawful claim of title.
- Covenant of warranty (GW): grantor will defend if there is any lawful claim of title asserted by others.
- Covenant for future assurances (GW): grantor promises to do whatever future acts are reasonably necessary to perfect title if it later turns out to be imperfect (ie sign in black ink)—ADMIN!
To be a BFP:
- Purchase Substantial economic consideration AND
- Without notice AIR (Actual, Inquiry, or Record)
Foreclosure Priority
Distribution: 1. Attorney’s fees. 2. Expenses of foreclosure. 3. Any accrued interest on bank bringing suit’s mortgage. 4. Look to priority of creditors—each claimant is entitled to satisfaction in full before a subordinated lienholder. 5. Any surplus to debtor. If senior mortgagor not joined: 1. Foreclosing party 2. Junior, 3. Mortgagor
Present Possessory estates:
Subject to condition subsequent – BOP, but, on upon, provided. (not automatic, right to entry)
Fee simple subject to an executory interest
Fee simple absolute
Fee simple determinable – (TIME) SUD – so, until, during – Possibility of reverter - automatic
Life estate
Future Interests (remainders)
DISCOS *subject to RAP
Divestment – needs to do something to keep it.
Indefeasible vested remainder
*Shifting Executory Interest – watch for B mistake otherwise go to C (shifting)
*Contingent remainder – needs to do something to gain “To A if marries C”
*Open
Springing executory interest- cut short
Waste - 3 types
Voluntary
Permissive
Ameliorative
Amelirorative waste - LT alter or even demolish building if:
(i) Market value of future interest is not diminished, and either
(ii) Remaindermen do not object
(iii) A substantial and permanent change in the neighborhood conditions has deprived the property usefulness
Types of Tenancy - TAPS
Tenancy for years
Periodic
at will
at sufferance
Retaliatory Eviction:
L can’t penalize T by raising rent, ending lease, harassing T, taking other reprisals. (Usually bw 90 to 180 days) – If L doing one of the priors, must show good valid honest reason that is not retaliatory.
Fair Housing Act
Protects Ts and potential Ts from discrimination on basis of race, color, religion, sex, disability, familial status, national origin.
Prohibited actions: 1) refuse to negotiate. 2) Provide diff. terms for sale/rent. 3) Falsely represent dwelling is not available (to discriminate).
Easement in Appurtenant
explain
benefits its holder’s physical use or enjoyment of property. (useful to, helpful to)
Involves 2 parcels.
Dominant tenement: derives the benefit
Servient tenement: bears the burden.
transferred automatically with dominant tenement.
Easement in gross
holder only receives some personal or pecuniary advantage not related to his use or enjoyment of land. Servient land is burdened but there is NO dominant parcel.
Licenses
Permission to enter another person’s land for some delineated purpose.
*Personal, thus, inalienable.
Profit
Holder of servient land has right to take from it some resources: soil or some substance of the soil. Creation: PING
A profit may be extinguished through surcharge
Tacking
One adverse possessor may tack on to his time with the land his predecessor’s time so long as there is privity. (any nonhostile nexus, ex: blood, K, deed, will).
NOT ALLOWED WHEN THERE IS AN OUSTER. – possession by co-tenant.
Doctrine of Part Performance- SF exception
oral agreement in land sale enforceable if: (i) B takes physical possession &/OR (ii) B pays all or part of purchase price &/OR (iii) B makes substantial improvements to the land. PIP – Paid, Improvements, Possession
Implied Promises - Land Sale
- Marketable Title
- Seller promises to not make any false statements of material fact
Deed must contain:
(i) in writing signed by grantor, (ii) unambiguous description, (iii) identification of parties, (iv) words of intent.
Types of deeds
-Quitclaim
-General Warranty deed (6 covenants)
-Special warranty deed (6 covenants on his behalf)
6 covenants in a deed (SRA FEW)
- Covenant of Seisin
- Rignt to convey
- Against encumbrances
- Future assurances
- Enjoyment (quiet)
- Warranty
Covenant of seisin
grantor promises he owns the estate he now claims to convey.
Covenant of warranty
grantor will defend if there is any lawful claim of title asserted by others.
Covenant of Future Assurances
grantor promises to do whatever future acts are reasonably necessary to perfect title if it later turns out to be imperfect.
Recording system
Race - first to record
Notice- last BFP wins
Race-notice - first BFP to record w/out notice
Shelter Rule
One who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against. (Purpose: protects BFP to transfer successfully).
Wild deed
If a deed, entered on the records has a grantor unconnected to the chain of title, the deed is a wild deed because it is incapable of giving record notice of its existence.
Estoppel by Deed
One who conveys realty in which he has no interest is estopped from denying validity of that conveyance if he later acquires the previously transferred interest.
Mortgage
conveyance of a security interest in land, intended by the parties to be collateral for repayment of a monetary obligation.
Equitable Mortgage
Creditor lends O a sum of money. Parties understand Blackacre is collateral for the debt. Instead of executing a note or mortgage deed, O hands creditor a deed to Blackacre that is absolute on its face.
If suit bw O and Creditor, parole evidence is freely admissible to show the parties’ true intent.
Clogging redemption
A debtor/mortgagor may NEVER waive the rt to redeem in mortgage itself. (“clogging” redemption in equity is prohibited)
Zoning variance
Req: (1) Permission to depart from zoning restriction & (2) undue hardship the way the land is + no diminution neighboring property values.
Lateral support
- Support of Land in Natural State - Landowner is strict liable if their excavation causes adjacent land to subside.
- Support of Land with Budlings- If land is improved by buildings and an adjacent landowner’s excavation causes improved land to cave in, excavator is only liable if acted negligently.
Who pays the mortgage if someone owns for life then passes to her children?
The person who owns for life must pay the interest on the mortgage (encumbrances) from the income she receives from the property, and the remainderman must pay the principal.
