Property Flashcards
FUTURE INTEREST
Shifting executory interest
A shifting executory interest shifts from grantee to executory interest holder.
FUTURE INTEREST
Defeasible fee
A defeasible fee has potential to last forever but can be cut short if a specified event or condition occurs.
FUTURE INTEREST
Fee simple determinable language
Fee simple determinable (FSD) uses durational language, such as “until,” “during,” “so long as.”
FSD’s can be followed by a grantor’s possibility of reverter or a 3rd party’s executory interest.
What future interest follows a FSD
A future interest that follows a FSD is either:
* possibility of reverter; or,
* executory interest
FUTURE INTEREST
Executory interest
An executory interest is a future interest where the estate automatically passes to a 3rd party when a stated event occurs (i.e., shifting or springing executory interest).
TENANCY
Consent among co-tenants
Co-tenant may transfer her own interest without other co-tenant’s consent. But, co-tenant cannot transfer other co-tenant’s interests or bind them under a contract affecting property (e.g., boundary-line agreements).
MORTGAGES
Equitable right of redemption
Tenants who jointly mortgage co-owned property are responsible for repaying their respective portions of the debt, unless they agree otherwise.
If mortgage goes into default, any tenant can avoid foreclosure by exercising the equitable right of redemption, which allows a tenant to cure the default by paying in full amount of debt, including any amount owed by other tenants.
mortgage as encumbrance on title
A mortgage is an encumbrance that can render title unmarketable. However, seller has the right to satisfy the mortgage up to the time of closing and will often use sale proceeds to do so.
Easement appurtenant
An easement appurtenant is where the holder of one parel–dominant estate–holds easement burdening a different parcel (servient estate).
i.e., benefit of other parcel of land and automatically runs with land.
This type of easement is attached to the land, so both subsequent owners of both dominant and servient estates are bound by easement.
Common example: right of way over servient estate that provides access to dominant estate.
when tenant can remove without landlord’s consent
Trade fixtures can be removed without landlord’s consent if the removal:
* occurs before, or within a reasonable time after, the lease ends; and,
* will not substantially harm the property.
However, the tenant must reasonably restore the property to its prior condition or pay restoration costs.
TENANCY
personal property
movable or intangible thing subject to ownership
tenant can remove this
TENANCY
trade fixture
removable personal property tenant attaches to (and for trade or business use)
tenant can remove this
TENANCY
fixture
personal proeprty so attached it is considered part of real property
tenant CANNOT remove this
TENANCY
real property
land and anything permanently attached to land.
tenant CANNOT remove this.
Lateral support
A landowner must provide lateral support to maintain adjacent land in its natural state–even if that land is improved.
An adjoining landowner who withdraws lateral support for improved land is:
* strictly liable if the landowner can show that damage to the land and improvements would have occured in the land’s natural state; or,
* liable for negligence if no such showing is made.
Adverse possession: continuous use
An adverse possessor may acquire title to the portion of land that was actually and continuously possessed.
To satisfy the continuous use requirement, an adverse possessor must either:
* constantly remain on property; or,
* consistently use property in same manner that usual owner would. (e.g., seasonlly if owner did same).
Adverse possession: when person enters property with facially valid deed that describes whole property
If a person enters property under color of title (e.g., facially valid deed that describes entire property), and actually possesses a reasonable portion of property for the statutory period, then constructive adverse possession gives person title to entire property.
Fee simple absolute with no future interest
“my church for the purpose of erecting a church”
Exception to statute of frauds: part performance
Exception entitles buyer to equitable relief (e.g., specific performance because oral agreement is enforceable) if buyer has:
* taken possession of property;
* substantially improved property; and/or
* paid any amount of the purchase price.
Title theory of mortgages
Under this theory, the lender is considered the owner of mortgaged property until the mortgage debt is fully satisfied.
Thus, the lender has the right to take possession of mortgaged property but is liable to the borrower for any waste that the lender commits during foreclosure proceedings.
adverse possession: “actual” requriement
In adverse possession, the “actual” requirement means physical presence by the adverse possessor OR another whole possession is attributable to adverse possessor (e.g., son of landlord).
nonjudicial sale/foreclosure; deed of trust scenario where debtor defaults on payments
When a debtor defaults on payments in a deed of trust scenario, the trustee can initiate a nonjudicial foreclosure.
Nonjudicial foreclosures are allowed in about half of all states if the mortgage or deed of trust contains a power-of-sale clause.
However, the court can overturn the foreclosure if the auction of sales process violated due process or the purchase price was grossly inadequate.
non-conforming use
A non-conforming use arises when property was used in a lawful manner before a zoning law was enacted or amended and that use continues even though it is now prohibited by the zoning law. A non-conforming use may continue UNTIL:
* the owner enlarges, changes, or abandons that use; or,
* if provided in the zoning law, an amortization period has passed or the use has not been registered.
license
A license is a grant of perission to enter and use another’s land for a specific purpose. It can be revoked at any time and terminates automatically upon:
* death or either party; or,
* conveyance of the licensed property.
relocation of easement
Once the location of an easement has been established (terms must be clear), the servient estate owner may relocate the easement at her own expense to permit normal use or development of the servient estate. But the new location must be reasonable and may not:
* violate the easement’s terms;
* significantly lessen the easement’s utility;
* increase the burden of the dominant-estate owner’s use or enjoyment of the easement; or,
* frustrate the easement’s purpose.
Joint tenancy with judgment lien
Under a joint tenancy, a deceased tenant’s property interest disappears and is absorbed by the surviving tenants due to the right of survivorship. As a result, a judgment lien on the the deceased tenant’s interest also disappears.
who is protected under title insurance
Title insurance policies only protect named insureds who are affected by an undisclosed title defect. Therefore, insurance companies are not required to indemnify persons whose names do not appear on the policy.
when future interest following a life estate becomes possessory
“to his wife for life” = life estate
A future interest that follows a defeasible life estate becomes possessory upon the death of an individual or the happening of a stated event.
alienability of a future interest
Future interests are alienable, meaning that the future-interest holder (i.e., remainderman) can freely convey her interest.
types of title insurance policies
There are two types of the insurance policies:
* owner’s policy, which remains in effect as long as the property is owned by the insuranced or conveyed by warranty deed; and,
* lender’s policy, which ends once the mortgage is discharged.
fixtures
A fixture is an item that is:
* attached to the property with the intent that it remain attached; and,
* used for a larger component or function of the property.
mortgage
A mortgage is a lien against real property to secure repayment of a debt. This gives the recipient of the mortgage a legal interest in the mortgaged property and any fixtures later added to the property.
adverse possession of a mineral estate; when mineral estate has been previously severed
If a mineral estate has previously been severed from the surface estate (i.e., surface and minerals owned by different persons), then an adverse possessor can only acquire title to the mineral estate by actually possessing the minerals (e.g., by mining or drilling wells).
Implied warranty against latent defects
Although the implied warranty is typically called an implied warranty of habitability, in most states, it is not necessary for a buyer to prove that the house would have been uninhabitable but for his repair.
If a defect is major, given its nature and dollar value of the problem, that is enough to prove that a breach of implied warranty against latent defects occurred.
remote grantees & implied warranty against defects/of habitability
Many, but not all, jurisdictions extend the implied warranty against defects to remote grantees.
does a mortgage remain in effect after a sale? who is liable?
Mortgage liens run with the land. Whether a mortgage remains in effect after a sale depends on if the buyer:
* takes property subject to the mortgage; or,
* assumes the mortgage.
If a buyer takes the property subject to the mortgage, they are NOT personally liable for the debt. If a buyer assumes the mortgage, they are personally liable and become the primary debtor on the debt.
remote grantee’s obligation to mortgage
The predominant rule (express assumption) in the U.S. is that if a remote grantee takes subject to the mortgage, which the grantee does NOT assume, the remote grantee is not personally liable on the debt.
If the mortgagee forecloses on the property, it cannot hold the remote grantee personally liable on the debt or liable for any deficiency resulting from a mortgage foreclosure.
In other jurisdictions (implied assumption), a remote grantee who did not expressly assume a mortgage may be deemed to have impliedly assumed it.
when a seller conveys land on which there’s an unsatisfied encumbrance (e.g., mortgage)
If a seller conveys land on which there is an unsatisfied encumbrance, such as a mortgage, and that encumbrance has priority against the buyer, the seller is liable to the buyer for any loss borne by the buyer only if the seller warranted that there was no such encumbrances on the property.
quitclaim deed
A quitclaim deed contains no warranties of title, and the buyer taking under a quitclaim deed has no claim against the seller for damages resulting from encumbrances against the property having a priority over the buyer’s interest.
MEE
easement implied by prior use
To acquire an implied easement by prior use, the following requirements must be met:
* both parcels (the dominant and servient tenements) must have been owned by the same person at the time the prior use arose;
* prior use that was said to create an implied easement over the road across the servient parcel must have benefitted the other portion of land;
* the prior use must have been apparent;
* the prior ust must have been reasonably necessary for the use and enjoyment of the benefitted property.
An easement implied by prior use arises in favor of a grantee when:
* two parcels of land are in common ownership;
* one of the parcels is conveyed to the grantee;
* parcel conveyed had been receiving a benefit from the parcel retained prior to the conveyance of the grantee (i.e., there was a use over the retained parcel in favor of the conveyed parcel which could have been the subject of an express easement);
* the usage is reasonably necessary or convenient; and,
* the usage is apparent.
easement implied by prior use: “reasonably necessary” requirement
Most courts interpret the “reasonably necessary” requirement to mean that the easement must be important to the enjoyment of the conveyed land or highly convenient. Courts are likely to find that an easement is implied from prior use.
Timeline for sale of real estate
A seller need not transfer title at closing or a reasonable time thereafter, UNLESS time is of the essence–i.e., if the contract or circumstances strongly suggest that the parties intended the closing date to be strictly enforced.
Caveat emptor (minority/common law)
The common law doctrine of caveat emptor provides that a seller has no duty to disclose properly defects to the buyer, UNLESS otherwise agreed (buyer beware).
Transfer of promissory note and mortgage
To finance the purchase of real property, a borrower typically executes two documents that serve as evidence of the debt:
* promisorry note (formal “IOU”); and,
* mortgage (lien on real property that secures the loan–recorded in deeds).
A promisorry note can be assigned to another independent of the mortgage. Mortgage automatically transfers the note once the note has been properly assigned (unless parties agree otherwise).
A negotiable promissory note can be assigned by simply endorsing and delivering the note to assignee. However, a non-negotioable promissory note requires a separate assignment document to transfer ownership.
way to terminate easement: merger
Under the merger doctrine, an easement is terminated if the dominant and servient estate are united in common ownership. The terminated easement is not revived by re-severing the land into two parcels.
after-acquired title doctrine
The after-acquired title doctrine applies when a **grantor conveys property by warranty deed before acquiring title **to that property. Once the grantor receives title, it will automatically transfer to the earleir grantee. The grantor is then prevented from asserting ownership of the property under the doctrine of estoppel by deed.
Real covenant
A real covenant will bind successors in interest only if the following elements are proved:
* writing;
* intent to run;
* touch & concern;
* horizontal privity;
* vertical privity; and,
* notice
permissible use of easement
An easement holder may increase the manner, frequency, or intensity of an easement’s use so long as that increase does not unreasonably damage or interfere with the use and enjoyment of the servient estate.
fee simple subject to an executory limitation language
“to my daughter until she graduates college, and then to my son if he is 21.”
Son has springing executory interest and revverted back to grantor because daughter graudted college before Son turned 21.
recording acts
Most recording acts protect bona fide purchasers who lacked notice–actual (direct knowledge); record (prior recording in chain of title); or, inquiry (circumstances warrant investigation)—of a prior competing interest.
If a BFP doesn’t have any of these types of notice, she can take property free of other interests.
MEE
First-in-time principle
Under the common law, a grantor can convey only those rights in land that the grantor had at the time of conveyance. Thus, under common law, priority among successive transfers is dictated by priority of time–the so-called “first-in-time, first-in-right.”
MEE
recording statutes
All states have recording statutes that, when applicable, overturn the common law “first-in-time, first-in-right” principle.
MEE
notice recording statute
Under a notice-type recording statute, a bona fide purchaser (one wh pays value for land), without notice, prevails over a prior grantee who failed to record.
MEE
constructive notice
A purchaser is placed on constructive notice of all information that is properly recorded on public land records whether he sees it or not.
MEE
inquiry notice
Inquiry notice exists when knowledge is imputed to the buyer from facts and circumstances suggesting the existence of a prior conveyance.
In a notice jurisdiction, a BFP without notice of an earlier proeprty interest will prevail.
A majority of courts reject the rule that a purchaser who takes by quitclaim deed is presumed to take with notice of any interests that could have been discovered by reasonable diligence. The better argument is that inquiry notice exists when someone other than the record owner is in possession of or use of property.
MEE
Wild deeds
Wild deeds are deeds recorded outside the chain of title. Courts have uniformly held that a wild deed is not “properly recorded” and therefore imports no constructive notice to a subsequent purchaser.
Termination of easement
Easements may be terminated in a variety of ways, such as by:
* their express terms,
* written release,
* merger of dominant and servient estates,
* prescription,
* estoppel,
* condemnation, and
* abandonment.
who is tenancy by entirety available to?
A tenancy by the entirety is available only to married couples.
can tenants in a tenancy by entirety partition the tenancy?
A tenancy by the entirety can only be partitioned if both spouses consent.
Does lack of acces to a public road render title unmarketable?
Lack of access to a public road may render title unmarketable. However, the time for a buyer to object to marketability of title is prior to delivery and acceptance of the deed. Once done, the sales contract merges with the deed and the sellers i no longer liable on the implied warranty of marketability.
Does lack of access to a private road render title unmarketable?
Lack of access to a private road is not a breach of warranty, quiet enjoyment, or any other title covenant.
Life tenant duties
Life tenant has a duty to pay current charges on the land that become due during the life tenancy (e.g., property taxes, mortgages interests).
But this duty is limited to the financial benefit that the life tenant receives from the property. Thus, there’s no duty to pay these charges if the life tenant is not in possession of the property and does not receive rent or other income from property.
Concurrent estates: beneficiaries
A lifetime transfer of a joint tenant’s interest severs that interest from the joint tenancy and it becomes a tenancy-in-common ownership interest. (i.e., beneficiaries of each can own).
i.e., transfer severs joint tenancy
Transfer of real property by deed
A deed effectively transfers an interest in real property when the deed is:
* delivered by the grantor; and,
* accepted by the grantee.
Consideration is not required, even when the deed states that consideration has been paid.
Right of first refusal
A right of first refusal is a contractual right to purchase property before any other person if the owner later decides to sell.
As a result, it is a contingent future interest that is subject to the Rule Against Perpetuities. Thus, rights of first refusal almost always violate RAP if they are not set to terminates–either temporarily (e.g., calendar date) or by referencing a life in being (e.g., within 21 years of grantee’s death)–within the perpetuities period.
Rule Against Perpetuities (RAP)
RAP renders a future interest void if there is any possibility that it could vest more than 21 years after some relevant life in being at the creation of the interest.
Thus, rights of first refusal almost always violate RAP if they are not set to terminates–either temporarily (e.g., calendar date) or by referencing a life in being (e.g., within 21 years of grantee’s death)–within the perpetuities period.
Equitable servitude implied from a common scheme
For an equitable servitude to be implied from a common scheme:
* the owner must have intended to impose a servitude on all lots in the subdivision;
* the servitude must be restrictive; and,
* the person to be bound must have had notice of servitude.
If the common scheme arises after some of the lots have already been sold, those preivously sold lots will not be incorporated into the common scheme or subject to an implied servitude.
repairing and maintaining easement
An easement holder has a duty to repair and maintain the easement. If the easement is shared by other easement holders or the servient estate owner, those parties are obligated to contribute to the reasonable costs of repair and maintenance.
buyback at tax/foreclosure sale
A tenant who buys back co-owned property at a tax or foreclosure sale takes the property subject to the other co-tenants interests. But the other co-tenants must contribute their proportionate share of the purchase price (not necessarily FMV) within a reasonable time to avoid forfeiting their interests to the purchasing co-tenant.
Easement in gross
i.e., for benefit of easement holder personally and does NOT automatically run with land.
when easement in gross is apportioned
When an exclusive easement in gross is apportioned (i.e., divided up), the “one-stock” rule applies. This rule limits the collective use that the transferees can make of the easement to the use that the transferor made of the easement.
when tenancy in common deeded to a non-existent co-tenant
When a tenancy in common is deeded to a non-existent (e.g., deceased) co-tenant, the deed is void as to that co-tenant and the grantor retains the co-tenant’s interest.
As a result, a tenancy in common forms between the grantor and the other co-tenants named in the deed.
Statute of Frauds requirements for real estate contracts
Under the Statute of Frauds, a contract for the sale of land is enforceable only if it is in writing, is signed by the party against whom enforcement is sought, and contains all essential terms–i.e., identifies the parties, contains words of intent to buy or sell, describes the property, and lists the sales price.
marketable title: easements
An easement is an encumbrance that can render title unmarketable. However, the buyer can choose to waive the encumbrance and insist the sale be completed.
i.e., the decision to terminate the contract for title not being marketable belongs only to the buyer.
prohibited landlord conduct
Most jurisdictions prohibit a landlord from terminating a residential lease when:
* the landlord is in the business of renting residential property;
* the tenant has complied with her lease obligations; and,
* the landlord is retaliating against the tenant for exercising a legal right in good faith and with reasonable care.
e.g., tenant successfully defended suit challenging apartment’s habitability (exercise of legal right). As a result, no rent was owed (compliance with lease obligation). The landlord then attempted to terminate the tenant’s lease (retaliation).
right to light
A landowner only has a right to light if:
* this right is protected by statute; or,
* the landowner enters into an express agreement with the other landowner to create a negative easment or covenant.
Conflict of laws
When there is a conflict of law issue in a case involving real property, the general rule is that the applicable law should be determined by the conflict of laws rule of the state where the property is located (i.e., situs state). This usually results in the application of the situs state’s local law on that issue.
interpreting ambiguous survivorship conditions
If a remainder is subject to an ambiguous survivorship condition (e.g., “if she survives”), the majority rule is that the remainderperson must survive the owner of the immediately preceding estate (e.g., the life tenant) for the interest to become possessing.
The minority rule is that the remainderperson must survive the transferor (i.e., the person devising/transfering the property).
Shelley’s case
Under the rule in Shelley’s case, an instrument that grants a freehold estate to a person and a remainder to that same person’s heirs gives that person both interests, and the heir takes nothing under the granting instrument. If there is no intervening interest, then the merger doctrine consolidates those interests into a fee simple absolute.
MEE
Unrecorded easements
Recording acts do not apply to implied easements. The holder of an implied easement has no document that can be recorded, and to subject him tot he recording act would effectively require that he bring a quiet title action (or the equivalent) to establish his interest in the land.
However, courts are divided. In a jurisdiction that does not subject implied easements to the recording act, a subseequent purchaser takes an easement subject to the existing implied easement because the implied easement is an encumbrance on the property conveyed even though it is unrecorded.
transfer of mortgage and deficiency judgment
A grantee who assumes a mortgage is primarily responsible for a deficiency from a foreclosure sale, and the debtor is secondarily liable as a surety in the absence of a release from the lender. The lender can sue the grantee, the debtor, or both to recover the deficiency amount, and the debtor can seek reimbursement from the grantee.
riparian doctrine
Under the Riparian doctirne (favored in eastern states), water rights belong to the owners of the land that borders the watercourse (i.e., riparians).
A riparian may make any reasonable use of water that does not unreasonably interfere with downstream use, and domestic (“natural”) use of water trumps commercial (“artificial”) use of it.
one stock rule
The one stock rule applies to the division of profit. Under this rule, the transferees are limited to the amount of materials taken by the transferor (i.e., her stock), and this quantity is divided up by the transferees taking the profit.
example: farmer gives local gun club exclusive right to hunt geese on his property. Club disbands, farmer doesn’t let individual former club member hunt. they should be allowed under one stock rule.
equitable servitude
Equitable servitudes are express or implied convenants (i.e., promises) regarding land that are enforceable in equity (ususally by injunction) against the promising parties and their successors in interest.
express equitable servitude creation
To create an express equitable servitude:
* the covenant must be in writing;
* the promising parties must intend for it to run to their successors in interest;
* it must touch and concern the land; and,
* the servient-estate owner must have notice.
future interests following fee simple estates
A fee simple determinable (FSD) is followed by either a possibility of reverter (if it reverts tothe grantor) or an executory interest (if it passes to a 3rd party).
Both future interests are freely transferrable during life, devisable by will, an descendible by inheritance.
“as is” clauses
Sellers of residential property have a duty to disclose known material defects that the buyer cannot reasonably discover. However, the seller can disclaim this duty (e.g., with an “as is” clause) so long as the seller has not fradulently misrepresented or concealed the condition of the property. This is true even if the seller provided a warranty deed. A warranty deed promises that title is free from defects, but it makes no promises regarding the physical quality of the property (e.g., termite damages).
seller’s duty to disclose in sale of real property
Sellers of residential property have a duty to disclose known material defects that the buyer cannot reasonably discover. However, the seller can disclaim this duty so long as the seller has not fraudulently misrepresented or concealed the condition of the property.
profit a prende
A profit a prende is a nonpossessory interest in land that allows the profit holder to remove natural resources from another’s land. This interest entitles the profit holder compensation if the government condemns the property.
if recording act does not apply, what priority interest law will apply? when do recording acts apply?
If a recording act does NOT apply, priority will be assessed under the common law “first in time” rule, which prioritizes earlier property interests over subsequent ones.
Recording act will apply if there is a subsequent purchaser for value. If someone receives it by gift, they are not a purchaser for value.
due on sale clause
A due on sale clause allows a lender to demand full payment of the remaining mortgage debt if the debtor transfers the mortgaged property without permission. If the debtor is unable to pay, the lender may bring a foreclosure action to force the sale of the property to satisfying remaining debt.
Assignment of a tenant’s interest
Assignment is a transfer of a tenant’s entire interest to a 3rd party (assignee) for the remainder of the lease term.
liability of tenant and assignee for harm arising from a breach of the lease
The tenant (through privity of contract) and the assignee (through privity of estate) are jointly and severally liable for the landlord’s entire harm arising from a breach of the lease.
marketable title: competing property interests
Under a land sales contract, a buyer must receive marketable title–i.e., title that is free from substantial defects at the time of closing.
Competing property interests render the title unmarketable unless the buyer’s interest has priority over those competing interests. For example, a buyer with a recorded equitable interest has priority over a subsequent judgment lien.
periodic tenancy termination
Either party can terminate a periodic (e.g., week to week) tenancy at the end of a full period by giving the other party notice before the period begins. This means that notice given during the correct period is effective to termiante the tenancy on the last day of the following period.
co-tenants’ right to natural resources
Each co-tenant’s right to natural resources on the land (e.g., timber) is limited to the size of the co-tenant’s ownership interest (e.g., 75%).
rights of recipient of transferred promissory note
The recipient of a transferred promisorry note and mortgage securing that note acquires the right of foreclosure. However, the recipient can lose this right if the note and mortgage are subsequently conveyed to a bona fide purchaser–i.e., one who pays value without notice of another’s interest.
permits: proof of unnecessary hardship
Proof of unnecessary hardship is NOT needed to obtain a special use permit. However, such proof is required to obtain a variance.
MEE
Severance by mortgage in title theory states
In title theory states, the grant of a mortgage by one joint tenant severs a joint tenancy because the mortgage severs the “unity of title” requirement as between the mortgagee lender and the joint tenant, who did not enter into the mortgage agreement. Thus, the former joint tenants become tenants in common with each other and each holds the half tenancy in common interest. If the mortgagor co-tenant dies, the morgage survives on the half tenancy in common interest.
Fact trigger: joint tenant grants mortgage to someone outside of the joint tenancy.
MEE
Severance by lease
At common law, a lease was treated as a conveyance of real property. Because of this, the grant of a lease by one joint tenant severed the unity of both title and interest, thereby destroying the right of survivorship. Most states continue to follow the common law approach while others hold that a lease does not sever a joint tenancy.
Fact trigger: husband unilaterally executes lease to a new tenant.
MEE
Joint tenancy
Under the common law four-unities test, for title to be valid in a joint tenancy, there must be unity of time, title, interest, and possession, as well as a right of survivorship.
If no right of survivorship, then NOT joint tenancy.
However, when one joitn tenant, acting alone, leases the property to a third party, each joint tenant is entitled to half of the rental income. If the leasing joint tenant to whom rent is paid does not share that rent with the other joint tenant, the other joint tenant may bring an accounting proceeding to compel a sharing of the rent.
Trigger facts: wife did not know about husband’s mortgage and lease.
MEE
Joint tenancy: equal rights of possession
Joint tenants have equal rights of possession. Possession by one tenant is not wrongful if the other tenant is not excluded. But the exclusion of one joint tenant by the other is wrongful.
Because possession by one joint tenant alone is not wrongful in the absence of exclusion, a joint tenant in possession is not liable to the joint tenant out of possession for the rental value of a property.
MEE
joint tenancy: when on joint tenant leases property to a 3rd party
When one joint tenant, acting alone, leases the property to a 3rd party, each joint tenant is entitled to half of the rental income. If the leasing joint tenant to whom rent is paid does not share that rent with the other joint tenant, the other joint tenant may bring an accounting proceeding to compel a sharing of the rent.
duties and rights of co-tenants
Co-tenants in common must proportionately share their rights (e.g., receiving rent) and duties (e.g., paying property taxes, mortgages, agreed improvement costs). A court must grant a co-tenant’s request to partition (i.e., divide) the co-tenancy and may require an accounting when one co-tenant seems to be indebted to the other.
Fair Housing Act: advertisements
The Fair Housing Act prohibits discrimination in the sale or renting of a dwelling on the basis of race, color, religion, sex, handicap, national origin, or familial status. This includes advertisements that indicate any preference or discrimination with respect to buyers or renters.
This applies to landlords who place an advertisement AND to publishers of the newspaper in which the advertisement is placed.
MEE
Six title covenants
A warranty deed carries with it six covenants of title:
* covenant of seisin: covenant that the grantor owns the land that the deed purports to convey to the grantee;
* covenant of right to convey the land;
* covenant against encumbrances: there is no outstanding right or interest in a 3rd party;
* covenant to fight against other lawful claims of title;
* full assurances; and,
* quiet enjoyment.
The first three are present covenants and apply to all easements on the land except to the extent that they have been excepted by the terms of a deed.
MEE
merger doctrine in land sale contracts
Under the merger doctrine, the sales contract merges into the deed and the deed will ultimately control. In other words, the only promises relating to title that survive the closing are those in the deed.
MEE
damages for breach of a covenant
Assuming there is a breach of the covenant of encumbrance, a party can recover damages from the breaching party depending on if the nonbreaching party had notice (actual, record, or constructive) of the encumbrance.
Implied warranty of habitability
The implied warranty of habitability requires that the property be reasonably suitable for human residence.
easement implied by necessity
fact pattern: since rear tract has no access to a public highway or any other raod, an easement over the man’s tract is absolutely necessary. Thus, an easement will be implied.
can buyer sue seller for lack of performance on land sales contract?
Once a sales contract of real property is executed, the exchanged promises become binding. Therefore, if the seller acquires marketable title at clsoing but is unwilling to perform, the buyer can sue.
commercial landlords: duty to repair
Absent a statutory or contractual duty, a commerical landlord has no duty to make repairs unless the repair:
* is so substantial that it falls outside the tenant’s common law duty to repair; or,
* would primarily benefit the value of the landlord’s proeprty.
covenant of warranty
The covenant of warranty is an assurance that the grantor will defend and compensate the grantee for lawful claims made against the grantee’s title–e.g., when a 3rd party prevails against the grantee in a quiet title action.
If the claims against the grantee are unlawful (e.g., grantee wins and successfully defends her claim), the grantee will not be able to recovery any compensation from the grantor.
option contract assignment in lease
An option to purchase gives the option-holder the exclusive right to purchase the property during a specified time. If the option is contained within a lease, it cannot be assigned separately from that lease in most jurisdictions.
life tenant duties
A life tenant has a duty to prevent waste so that the property can be delivered in essentially the same condition it was in when the life tenant took possession.
Fact triggers: demolition of building would change condition of property.
statutory right of redemption
In jurisdictions with a statutory right of redemption, a debtor can reclaim property after a foreclosure sale by paying the foreclosure sale price to the purchaser within a fixed period of time.
rebuttable presumption when deed transfer is ineffective
A deed transfers ownership of real proeprty once it is delivered (when the grantor has an intent to presently convey ownership) and accepted (presumed when the transfer is beneficial to the grantee).
An undelivered or unaccepted deed is void and conveys no property interest to the grantee.
Example: nephew and fiance recorded deed (presumed delivery). But that presumption is rebuttable since the aunt (owner of property) had placed the deed in a drawer and told the nephew it would be his when he reached 21 and graduated (conditional delivery). Since she did not intend to presently transfer ownership to the nephew, the deed was not delivered and conveyed no interest to the nephew. Thus, his subsequent conveyance to the fiance was ineffective.
Joint tenancy severance: lien theory v. title theory
A joint tenant may only grant a mortgage on her joint tenancy interest without the other joint tenant’s consent (i.e., it will only attach to that joint tenant’s interest).
In a lien-theory jurisdiction (majority), granting a mortgage does NOT sever the joint tenancy.
But in a title-theory jurisdiction (minority), granting a mortgage DOES sever the joint tenancy.
If joint tenant dies, the mortgage expires with joint tenant.
easement by necessity: alternate access
Fact pattern: Cousin’s (whose parcel is landlocked) ability to obtain alternative access to the highway by purchasing an easement over neighbor’s land instead of adjacent neighbor’s land does NOT extinguish his easement by necessity over woman’s land.
Adverse possession
Adverse possession allows one to acquire title to any portion of another’s land that she possess in an open and notorious, continuous, exclusive, actual, and non-permissive manner (OCEAN).
It doesn’t matter that owner failed to notice what was happening.
Earnest money/seller’s remedy
Earnest money typically constitutes liquidated damages; which are generally revocable upon the buyer’s breach.
But if liquidated damages are deemed a penalty (e.g., when they far exceed actual damages), then the seller may recover only actual damages.
Example: Buyer gave Seller $1000 earnest money. K was silent as to remedies, so the $1000 constitutes liquidated damages. Buyer breached the K when she reported that she could no longer buy the house, causing the Seller to sustain losses. Since those actual losses were greater than the earnest money Buyer put down (i.e., $5000 actual > $1000 earnest), the liquidated damages provision likely enforceable and Seller keeps $1000. Had the actual damages been $500, then the Seller would likely have had to refund the Buyer the remaining $500, since the liquidated damages would likely be deemed a penalty.
MEE
Fair Housing Act of 1968
Under the Fair Housing Act, it is unlawful to refuse to rent a dwelling to a person based on the person’s race, color, religion, sex, familial status, or national origin.
The Act does not prohibit discrimination based on occupation.
MEE
Exemption from Fair Housing Act: when owner occupies one of the units
Under the Fair Housing Act, the anti-discrimination rule does not apply if the owner occupies one of the units in a multiple-dwelling containing no more than four units occupied by persons living independently of each other.
MEE
term-of-years lease
The landlord and tenant entered into a term-of-years lease because the lease specified both a beginning and an ending date.
MEE
Termination of a term-of-years lease
Although a term-of-years lease normally cannot be terminated by the tenant prior to the end of the term, a tenant may terminate a term-of-years lease if the tenant is constructively evicted.
Typically, a claim of constructive eviction is made as a defense to a landlord’s action for damages or unpaid rent.
MEE
Constructive eviction
In order to establish a constructive eviction, the tenant must prove that
* the landlord breached a duty to the tenant (such as a duty to repair), and
* the landlord’s breach caused a loss of the substantial use and enjoyment of the premises.
* The tenant must also show that he gave the landlord notice adequate to permit the landlord to meet his duty to the tenant and that the tenant vacated the leased premises.
MEE
Landlord duty to repair
Under the common law, there was no implied duty on the part of the landlord to repair leased premises; such a duty arose only if expressly set forth in the lease.
Over the past several decades, courts have generally implied a duty to repair in residential leases either as part of a revised constructive eviction doctrine or based on an implied warranty of habitability.
However, courts have been **more reluctant to imply a duty to repair **in commercial leases, a context in which the tenant is often a valuable business and in a better position to assess and make repairs than is the landlord. When courts have implied a duty to repair in a commercial lease, it is typically whent he repair has been mandated by public authorities and involves work so substnatial that it would not ordinarily fall within the tenant’s common law repair duty and/or the value of the repair would primarily inure to the landlord’s reversionary interest. Some courts have also permitted constructive eviction claims by commercial tenants of office buildings based on repairs required in common areas of the building.
Tenant’s wrongful termination - what can landlord do?
When a tenant wrongfully moves from leased premises with the intent to terminate the lease, the landlord may either accept the tenant’s surrender of the premises and terminate the lease or hold the tenant to the terms of the lease.
Landlord’s retention of keys when delivered by tenant - does this constitute acceptance of surrender?
Many courts have considerd whether a landlord’s retention of keys delivered by a tenant constitutes acceptance of surrender. The weight of the case law holds that retention of the keys alone does not constitute acceptance of surrender without other evidence showing that the landlord intended to accept the surrender.
Landlord’s duty to mitigate damages
Under the common law, the landlord had no duty to mitigate damages. Additionally, a landlord was not entitled to recover unpaid rents due in the future because there was always a possibility that the tenant might pay the rent when it was due.
Today, some courts allow the landlord, under certain circumstances, to sue the tenant for damages (not rent) equal to the difference, if any, between the unpaid promised rent for the balance of the term and the property’s fair rental value for the balance of the term.
Fee simple determinable
In a fee simple determinable, the grantor retains a possibility of reverter, which becomes possessory immediately upon the happening of the event designated in the instrument.
To create a fee simple determinable, the typical formulation would be “to School, so long as it uses Blackacre only to teach children age 5 to 13.”
Fee simple on condition subsequent
assuming it’s not clear in the deed –> In a fee simple on condition subsequent, the grantor may or may not have a power of termination or right of entry once the condition is broken, depending on whether the court would be willing to imply a forfeiture provision when none was expressly set forth in the deed.
To create a fee simple condition subsequent, the typical formulation would be “to School, but if School does not use Blackacre only to teach children 5 to 13, then the grantor may reenter and reclaim Blackacre.”
Ambiguous deed language
Where the terms of a conveyance are ambiguous, courts construe the instrument to effectuate the grantor’s intentions. In construing an ambiguous instrument, courts typically adopt a preference for the fee simple on condition subsequent.
survivorship contingency
Under the Restatement of Property, a survivorship contingency in a will applies at the termination of the tinerests that precede distribution of the remainder.
Does non-disclosure of a key fact rise to the level of misrepresentation?
Nondisclosure of a known fact is tantamount to an assertion that it does not exist if the party no disclosing the fact knows that:
* disclosure would correct the other party’s mistake about a basic assumption of the contract; and,
* the failure to disclose would violate the duty of good faith and fair dealing.
