Property Flashcards
Joint tenancy has a right of survivorship, which means the deceased joint tenant’s property passes to the surviving joint tenant(s) by operation of law.
Joint tenancy property is not devisable or descendible (meaning, it cannot pass by will or inheritance).
A conveyance to married partners typically creates a tenancy by the entirety unless
the language of the deed clearly indicates otherwise.
Fee simple absolute
Full ownership of the land
Duration = infinite
You can sell, transfer, put it in a will, and pass it down to your heirs without a will
(Devisable, descendible, and alienable)
How is a fee simple absolute created?
“To Goat”
“To Goat and his heirs”
Lesser fee simples - defeasible fees
Not the highest level of property ownership
Fee simple estates that can be terminated UPON THE HAPPENING OF A STATED EVENT - so we need durational language
How is a defeasible fee created?
Durational language
“so long as,” “during,” “until”
What language creates a fee simple absolute on accident?
“I give this property to Goat, with the HOPE that he becomes a kitty”
“I give this property to the law school, for the PURPOSE of constructing a bar exam tutoring center”
“To Nancy, with the EXPECTATION that she uses this property as a podiatry surgical center”
Fee Simple Determinable needs clear duration language AND a condition
To A….so long as
To A….during
To A….until
To A….while
The property automatically reverts back to the owner if the condition is not met - possibility of reverter
The Fee Simple Determinable CAN be transferred
RAP does NOT apply to the automatic reverter
If the transfer happens AUTOMATICALLY AND IMMEDIATELY, RAP doesn’t apply.
RAP only gives a shit about UNCERTAIN CONDITIONS that MAY OR MAY NOT VEST
(This reversionary interest was vested the moment it was put into the contract)
Fee simple subject to condition subsequent
Same as fee simple determinable
BUT if the condition is not fulfilled, it does not AUTOMATICALLY go back to the grantor, the grantor has a CHOICE whether they want to take the land back or not
Grantor has an option right of re-entry
Executory interest
Future interest in someone other than the grantor that is not a reversion or right of re-entry
Executory interest can ____
spring or shift and ARE subject to RAP
Springing executory interest
Goes from the grantor to the grantee upon a specific condition happening
If the condition is violated, forfeiture of the land happens automatically
“To my beautiful goats, but only if you pass the bar”
so it SPRINGS directly from the grantor to grantee (the third party)
Shifting executory interest
Cuts off the grantee’s interest in favor of another grantee
SHIFT from one grantee to another
Life estate pur autre vie
a life estate measured by SOMEONE else’s life other than the person getting the land
Ex. “to Goat for the life of Rainbow Brown.”
Life estates are
devisable, descendible, and alienable.
What are the rights of a life tenant?
Exclusive right to use and enjoy the property before their death - BUT they cannot pass it to their heirs
can sell - but the conveyance can’t exceed the life of the original tenant
What happens when a life tenant dies?
The property reverts to the original grantor or their successors, or shifts to another grantee named in the deed or will
Grantee has a future interest - a remainder
Remainders and executory interest can be transferred to other people
When in doubt on the test just say to yourself, “is this a future interest? Yea, its probably able to be given to someone else.”
Life tenant has a duty
not to commit waste (not do any crazy shit that will harm the future interest holders)
Three kinds of waste which allow the future interest holder to sue for damages or injunctions
Voluntary waste
Permissive waste
Ameliorative waste
Voluntary waste (affirmative waste)
Can’t engage in conduct that lowers the economic value of the property.
May make reasonable repairs and knock down trees if they are in danger of falling on the house
Permissive waste
Happens when the life tenant has FAILED to act in some way and damaged the economic value of the property
Failing to make repairs to buildings
Failure to pay real estate taxes
Life tenant MUST pay
the mortgage interest
property taxes and special assessments - at least up until the fair rental value of the premises
Remainderman of life estate has to pay
Mortgage principal
Ameliorative waste
Most courts hold that a life tenant can engage in acts which IMPROVE the fair market value of the property
Cotenancy
Multiple people have the right to use, possess, and enjoy property together
Tenancy-in-common
When we have multiple grantees, the law assumes its a tenancy-in-common unless you show them otherwise
all tenants can use and possess the entire property
The “smallness” of your share only becomes relevant when the property is partitioned or the rents or profits are divided
Tenants in common can transfer their interest with a deed of conveyance.
can mortgage their side of the property - can grant a licensee access to it
Ouster is when you kick someone out who is entitled to be in possession of the property
Ousted co-tenant can sue you for money or for an injunction
*Tip for ouster - someone will change the locks - look for acts of hostility
What happens when a tenant-in-common dies?
It goes to the dead person’s heirs
No right of survivorship with the other tenants
Joint tenancy
Right of survivorship
Has an undivided interest in the whole property
When one joint tenant dies, their share passes to the other joint tenant
Alienable, but not descendible or devisable
How to create a joint tenancy?
Must clearly state a Right of Survivorship AND
Same Time
Same Title (a deed or will)
Identical Interests (same fractional share of the property)
Same Possessory rights (each tenant has the same undivided right to possess the property)
Any disturbance in these four will sever the joint tenancy
How do you break up a joint tenancy?
SALE– this breaks the unities (new buyer is now a tenant in common) - one joint tenant can secretly transfer and break the joint tenancy, without even telling the other joint tenant
PARTITION - must be in possession to partition
MORTGAGE
What if there are three or more joint tenants?
one conveys their interest to a 3rd party - the joint tenancy for the other 2 stays in tact
Left with ONE tenant-in-common and TWO joint tenants
Partition in kind
The court physically divides up the property based on your percentage of ownership
Law prefers this type of partition - if the property can be fairly and equitably divided up, the law will do it
Partition by Sale
Court sells the property and each cotenant is taking a share of the net sales proceeds according to their percentage ownership interest.
If the MBE says there is a zoning issue which prevents the property from being physically partitioned
the answer will be a sale is more appropriate
LIEN theory state
does NOT break the joint tenancy and render everyone tenants-in-common
Mortgage DOESN’T break the joint tenancy
TITLE theory state
Mortgage BREAKS the joint tenancy (the four unities are broken)
In Joint tenancies, if a single tenant takes out a mortgage or lien in a joint tenancy in a lien theory state, only THAT tenant’s interest is
subject to the mortgage (mortgage or lien on their 1/2 interest)
when they die & the other joint tenant gets the property, the lien or mortgage is extinguished
Can a joint tenant’s interest be devised by a will?
No
Tenancy by the Entirety
Joint tenancy by a husband and wife with right of survivorship
Individual spouse can’t do a sneaky transfer like in a joint tenancy
Spouses must act together to sell, lease, or mortgage the property
Severance of the tenancy by the entirety requires either:
(1) the consent of both spouses
(2) the ending of the marriage by divorce
(3) death
(4) execution on the property by a JOINT creditor - not just one creditor
Joint Tenancy Summary
–Two or more people with right of survivorship
–FOUR unities: Time, Title, Interest, and Possession
–Terminated by Sale, Partition, Mortgage
Tenants in Common
–Default tenancy if not specified
–Terminated by Ouster, Merger, Death, Partition
Tenancy by the Entirety
–Joint tenancy held by husband & wife
–Four unities + Valid marriage
–Terminated by death, divorce, agreement
Who can bring actions for partition?
Joint tenants
Tenants in common
but NOT tenants by the entirety
If the tenant-in-common pays the mortgage for the other tenant to avoid foreclosure….
they can recover for this in a contribution action
Tenancy for years
Possession for a FIXED period of time then it terminates - CREATION by a written lease
TERMINATION surrender of lease holder
More than 1 year - has to be in writing
Periodic Tenancy
Fixed period of time which then REPEATS unless a party terminates the lease by giving notice (usually written notice)
Created expressly or implicitly
Automatically renewed unless there is a notice of termination - Notice must be given at LEAST one period in advance
How can a periodic tenancy be created by implication?
1) implied period month-to-month
2) If we have a term of years AND it violates the SOF
3) Holdover tenant = if the tenant stays beyond the stated lease date + landlord keeps accepting the rent every month - it is now a month-to-month tenancy
Tenancy at Will
Created by express terms , NO fixed duration
Terminated by either party at any time by giving notice to the other party
Notice to terminate is effective IMMEDIATELY upon receipt unless it states a future termination date.
Tenancy at Sufferance (Holdover Tenant)
Happens when a tenant has a lease of any of the previous categories AND he stays after the expiration of it
Causing the landlord to SUFFER = tenancy at SUFFERANCE
After a holdover we get either
1) tenant leaves
2) eviction
3) parties negotiate a NEW tenancy
4) landlord holds the tenant to a NEW lease term even though the tenant may object
What is a lease?
A contract that governs the relationship between a landlord and tenant during the TERM of the lease
Tenants have certain duties
–Duty to avoid tortiously injuring 3rd parties
–Keep the premises in REASONABLY good repair for third parties the tenant actually invites to their home.
–Duty to repair (maintain the premises & make ordinary repairs + not commit waste)
–Duty to pay rent (if tenant stops paying - landlord can evict through the court system or continue the relationship as a tenancy in sufferance & suing for the rent due - cannot engage in self help)
If tenant stops paying rent & abandons the property
–Surrender to landlord (tenant acts like they don’t care - landlord can treat as surrender+accept.)
If the unexpired term is OVER a year, must be in writing. Tenant no longer on the hook to $$
–Ignore your tenant (ignore the abandonment+hold them responsible for unpaid rent as if they were there)
–Re-let (re-let the premises+hold tenant liable for the deficiency) Majority rule is that the landlord must make reasonably good faith efforts to re-let the premise
Landlord’s duties - re: possession of property
Modern view (English rule): Tenant has ACTUAL PHYSICAL POSSESSION of the premise when lease begins
Minority view (American rule): no duty to deliver ACTUAL possession when the lease begins, Just have to hand over the keys and give legal possession, not TRUE physical possession
Implied covenant of quiet enjoyment
Between a tenant+landlord
Tenant has a right to quiet use+enjoyment of their premises without interference from the landlord
How can the landlord violate the covenant of quiet enjoyment?
1) Breach by actual wrongful eviction
2) Breach by constructive eviction (failure to make necessary repairs, harassment of tenant, inference with essential services like water, electricity, etc)
Constructive Eviction Elements
–Substantial
–Interference (landlord’s actions or failures to act - ongoing problem)
–Notice (Tenant MUST give notice of the problem+landlord MUST fail to respond+fix the issue in a reasonable time)
–Goodbye (Tenant MUST vacate within a reasonable time after the landlord fails to correct the issue) IF the tenant waits too long to vacate, could be waiver of constructive eviction.
20 days - fine
6 months - no
Landlord is NOT liable for:
–Acts of third parties
–Acts of other tenants, except the landlord has a duty not to permit a nuisance+a duty to control common areas
Implied warranty of habitability
–Applies ONLY to residential properties, NOT commercial property leases
–Says that minimal living requirements must be met in ALL residential leases (plumbing, running water, heat in the winter, etc)
CANNOT be waived
If implied warranty of habitability is breached, the tenant has FOUR remedies
1) Move out + terminate
2) Repair + reduce
3) Reduce until judge figures out the price tag
4) Remain in possession, pay rent, then sue
Actual eviction
Landlord kicks you out and you don’t have to pay rent anymore
Partial eviction
Physically excluded from a large portion of the premise.
You don’t pay rent even if you still occupy the other portions
If a tenant asserts their rights and says they want a habitable place to live, the landlord is BARRED from penalizing them by either:
Ending their lease
Raising their rent
Harassing/bothering them
Presumption is this type of eviction is retaliatory if it happens within 6 months of a tenant bringing a claim for a non-habitable lease or a withholding of rent by the tenant for a LEGIT reason
Burden of proof is on the landlord to show it was not retaliatory
Absent a prohibition in the lease, a tenant can transfer their interest ….
in WHOLE (assignment) or in part (sublease)
If a landlord says you can’t assign, you can still sublease
If a landlord says you can’t sublease, you can still assign
Once a landlord consents to ONE transfer by a tenant
he waives the right to object to FUTURE transfers by that tenant
Who can the landlord sue under a sublease or assignment?
1) Privity of contract (you can sue someone because they signed a contract with you) AND
2) Privity of estate (who has the reversionary interest)
In an assignment, the landlord can sue
BOTH parties
The assignee (tenant 2) under privity of estate (Estate in common + tenant #2 has a right to live in it) Both have an interest in the estate - if Tenant #2 stops paying rent, the property will REVERT back to the landlord since Tenant #1 signed off his whole interest in it
If the assignee doesn’t pay the rent, the landlord can ____
sue tenant 1 and tenant 2
in a sublease, the original landlord cannot sue the sublessee (tenant 2) who got the place subleased to them
There is no contract (no privity of contract)
NO discrimination when selling or renting a dwelling on the basis of:
Religion
Race
Ethnicity
Gender
National origin; OR
Disability
NO discriminatory advertising!
Exception to fair housing act - 1) Owner occupied
1) Owner occupied buildings that have four or less units
–4 apartments but owner does not live there = cannot discriminate
–4 apartments or less and the owner lives in one = you CAN discriminate
but not with advertising
Exception to fair housing act
2) a person SELLING or LEASING a single family home
2) IF: - They do not own more than THREE homes; They do not use a broker; AND They do not advertise in a discriminatory manner
Exception to fair housing act
3) Senior citizen community homes can discriminate against kids
Exception to fair housing act
4) Religious organizations or private clubs can discriminate
What is a real covenant?
a written promise to do or not do something with the land (essentially like a contract between two people relating to land)
remedy for breaking the promise is money.
What is an affirmative covenant?
A promise to DO something related to the land (like maintain a common fence or plant roses in your yard)
What is a negative covenant?
A promise to REFRAIN from doing something related to the land
Basic requirements to see whether covenants RUN with the land and bind future landowners or not
–Writing +
–Intent (original parties MUST have intended for the burden to run during the ORIGINAL conveyance)
Ex: This covenant shall BIND and BENEFIT the heirs…..etc.
–Touch & Concern (must bind people in their capacity as landowners, not individuals - i.e., the covenant must have something to do with the land)
–VERTICAL privity only!
–Notice (it would be unfair to impose a burden on someone if they had no way of knowing about the covenant that restricts it when they purchase it) Only the burdened party needs to know about the covenant *can be actual, inquiry, or record notice
What is a burden on land?
A restriction placed on the land in favor of another parcel of land
What is a benefit of a covenant?
It runs to the next landowner (whether they can enforce their benefit)
We have to figure out whether a real covenant transfers in three situations:
(1) the benefitted party transfers their land
(2) the burdened party transfers their land
(3) when both the benefitted and burdened party transfer their land
If both parties sell their land, we ALWAYS analyze whether the ____
burden runs FIRST since it has MORE elements than the benefits test and includes a lot of the elements of the benefits test
What is vertical privity?
It means you gave the person you sold the parcel to the FULL estate
Applies when we analyze whether a benefit AND burden runs!
Ex. I sell you a house. I sell you an entire parcel.
Is this land transfer an assignment? of the full interest?
What would NOT be vertical privity?
–Giving someone a life estate (NOT A FULL TRANSFER); or
–Giving someone a lease (NOT a FULL TRANSFER); OR
–ADVERSE POSSESSION
What is horizontal privity?
ONLY need when analyzing whether the BURDEN runs
It either exists or doesn’t exist the moment the covenant is entered into (you cannot acquire it later on)
It is all about the relationship between the ORIGINAL parties ….and to have horizontal privity the original parties must be in SUCCESSION OF ESTATE
When can horizontal privity happen?
(1) Instantaneous transfer (The covenant in the DEED at the outset)
(2) When have “simultaneous interests” in land & we have a promise related to that interest
Bona-fide purchasers
People that pay VALUE for land without (i) actual notice of the covenant, (ii) record notice of the covenant, (iii) inquiry notice of the covenant
Actual notice
This is when someone tells you about the covenant, read it in the newspaper, or there is sign on property that says “we have a covenant here”
Record notice
If the covenant is recorded in the public records, you are on NOTICE (even if you don’t look it up)
Inquiry notice
when you look at the land and you see it is burdened by a covenant
Covenants can be terminated by:
–Merger (benefitted & burdened lands join together as ONE)
–Abandonment or estoppel (if benefited party leads burdened party to believe the covenant was abandoned or no longer needed & the burdened party RELIES on it); OR
–Eminent domain
RAP doesn’t apply
What are the damages for equitable servitude?
The person is seeking an INJUNCTION for the violation of a promise
INJUNCTION = equitable servitude
What are the damages for a covenant?
MONEY DAMAGES
How do you create an equitable servitude?
–Writing
–Intent to bind subsequent owners when the servitude is created
–Equitable servitude promise to touch & concern the land
–Notice (actual, record, or inquiry)
NO privity required
How do you terminate an equitable servitude?
–Release by a party
–Abandonment or estoppel
–Merger
–The purpose of the servitude no longer existing or
–Condemnation
Implied equitable servitude
“Common plan” - like a subdivision
As long as the plot owner without the deed had AIR (actual, inquiry, or record notice) - they are bound by the negative covenant regarding the land - EVEN IF it wasn’t in their deed (if it was in the original subdivisions deed)
If a common plan or scheme arises AFTER your lot is sold NO IMPLIED SERVITUDE can arise with respect to your lot.
Your lot needs to have been sold AFTER the common scheme arose to be bound by the INVISIBLE implied covenants that aren’t expressly listed in your deed
To argue that servitude should not apply to you anymore (from a common scheme), you need to show:
Covenants are no longer applicable
Character of the subdivision has changed
The buildings surrounding the subdivision has changed
The change must be SO pervasive that the ENTIRE area or subdivision has changed!
Unclean hands
Can act as a defense when the person seeking enforcement of a covenant is violating a similar restriction on their own land
Lateral support
Inherent right to not have a neighbor mess up your soil by doing some weird excavation on your land or mess up the buildings by doing some kind of weird excavation on your land
***If you do this, you’re strictly liable for any damage to the land IN ITS NATURAL CONDITION
It is not really a servitude, it is more like an invisible servitude
Common interest groups
Property owners associations where a bunch of units get together and agree to subject themselves to certain restrictions
–HOAs
–Condos (any restrictions within condos are presumptively valid unless they are void for being too arbitrary or void for public policy reasons - RULES for noise, pets, number of occupants, are ALL allowed)
–Cooperatives or “co-ops” (Title is held by a corporation and each shareholder (cooperator)+ has a lease to a designated unit - The cooperator is a tenant of the corporation and the lease is basically the STOCK of the corporation)
Look for answer choice “reasonable arbitrary”
Easement
–A property interest that entitles its holder to use/enjoy another person’s land
–An easement CANNOT be unilaterally expanded
–Misuse of an easement does NOT terminate the easement, but can get an INJUNCTION
Affirmative (positive) easement
Allows you to go onto someone’s land to DO something, like walk across a little path.
–Protects you from a trespass action
Negative easement
Prevents a parcel from performing certain actions on their property, such as building a structure which blocks a neighbors view or sunlight
–can’t do anything that interferes with your parcel of land
Negative easements can only be created EXPRESSLY, by signed writings, there is no______
Natural or automatic right to
Light
Air
Support
Streamwater
Negative easement v. covenant
Conveying an easement uses conveyancing language
Covenant will use promise style contractual language about benefits and burdens running with the land
Easements can be appurtenant or gross
(most are appurtenant)
Easement appurtenant is simply when an easement benefits its holders in their physical use or enjoyment of property
Servient tenement SERVES the dominant tenement
One Parcel of land –> dominant land –> receives the benefit
One Parcel of land –> the servient land –> bears the burden of the easement
Easements transfer with ____
the sale of the dominant estate
–Pass automatically (regardless of whether the easement is mentioned in the new deed) when the dominant land is sold. –If you benefit from the easement, just sell your land…it will pass to the next owner.
It passes automatically, by implication
If the servient land is transferred, the new servient owner is bound by the easement UNLESS
they have no notice
(1) someone tells them
(2) the easement is recorded in the public records
(3) inquiry notice
When the exact location of an easement appurtenant is not set at the outset,
The owner of the servient estate has the right to fix it in a reasonable manner.
ONCE they fix it, it cannot be moved without the consent of the dominant owner
The servient estate is NOT under a duty to repairment the easement -
The costs are split between both the dominant and servient owner for repair
Easement in gross is owned by an individual person
no dominant estate
Easements are created through
Prescription
Implication
Necessity
Grant
Easement created by GRANT is an EXPRESS easement
Expressly granting it by words - SOF applies so we need a WRITING
(Other easements are created through CONDUCT)
Easement IMPLIED BY PRIOR USE
1) The use of the easement must have existed before the lot was divided in an OBVIOUS AND OPEN WAY (apparent & continuous)
2) The court must determine whether the easement on the servient land is REASONABLY necessary (convenient) for the enjoyment of the dominant land
Apparent. Continuous. Reasonable.
Always. Carry. Raincoats
Easement by Necessity
1) Need common ownership before severance
2) At the time of severance, one of the plots to be landlocked (grantor OR grantee can be landlocked after the severance, doesn’t just have to be the grantee’s parcel)
3) Right of way easement MUST BE STRICTLY necessary (“without the easement, the land couldn’t be effectively used.”)
*If the parcels later get united under a single owner, the easement by necessity will be extinguished under the merger doctrine
